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![handle is hein.slavery/ssactsengr0870 and id is 1 raw text is: TAYLOR V. TAYLOR
above twenty-one years old at the date of the will. This observation is alone, it must
be agreed, far from decisive, but in conjunction with the improbability on other
grounds that General Lang should have intended the word to bear any other sense
in the passage under consideration, and with the unusual character which any other
sense would give to his dispositions, has, I think, considerable weight. Bearing in
mind that for the reasons which I have stated, unless I am mistaken, these instru-
ments ought assuredly to receive that kind of construction which has been called
benigna inter-[726]-pretalio, I think, referring to the remarks already made, that
the word marriage in the passage immediately before us ought to be construed
marriage in minority. But it may be then said that the case of a daughter attain-
ing twenty-one after her father's death and before marriage is not provided for. I
am, however, of opinion that, by implication at least, it is provided for, and that
(ex omni consideratld scriptur4 as I said before) the true meaning of the words oil
their attaining their respective age or ages of twenty-one years, if sons, or, if
daughters, on their marriage respectively is at the age of twenty-one years, or in
the case of daughters marrying earlier, upon marriage. It follows that I think the
dispositions in favour of the child or children of Thomas Pelling Lang valid whether
contingent or not contingent.
The deceased children not being represented in the cause, I cannot now bind their
rights, if ally. My opinion, however, having regard to Billingsley v. Wills (3 Atk.
219), and other authorities of that class, is that, upon the true construction of the
deed and will, neither of them did acquire any interest. They all died in the lifetime
of Thomas Pelling Lang, neither of them attained majority, and neither of them
married. I state my impression upon this point with the less reluctance, because, in all
probability, the personal estate, if any, of those children must be substantially the
personal estate of their father, whose executors are before the Court. I do not now
decide or express any opinion whether the words Thomas Pelling Lang shall die
without having had any issue lawfully begotten are to be construed literally, or as
meaning Thomas Pelling Lang shall not have any child that shall attain twenty-one,
or being a daughter shall marry, that is to say, whether in truth Kenneth Ross
Mackenzie and his brothers and sisters, if any, have or have not a possible interest.
What I can and do decide [727] is that the Plaintiff, if not absolutely entitled to
the whole or one-fourth of the funds in question, is entitled to the whole of them
contingently upon her attaining majority or marrying in minority. The bill therefore
cannot be dismissed; the Plaintiff must have some relief. It may be as well to
mention that, in considering this cause, I have, besides the cases cited in the argu-
ment, and some of those cited in Davies v. Fisher, referred to East v. Cook (2 Vez. sen.
30), Boon v. Cornforth (Ibid. 277), Dodson v. Hay (3 Bro. C. C. 404), Whitmore v.
Trelawney (6 Ves. j. 129). I have read also with attention the valuable judgment
of Sir Edward Sugden in a case of Vize v. Stoney (1 Dr. & War. 337), recently decided
by his Lordship in Ireland.
[727] TAYLOR v. TAYLOR. July 13, 1842.
Upon the construction of a will, Held, that the widow of a testator was bound to elect
between the benefits given her by the will and free-bench in part of the devised
estates.
Thomas Howell, by his will, devised to his wife, Sarah Howell, a certain messuage
wherein Joseph Merrett dwelt, with the appurtenances, situate in the parish of Awre,
in the county of Gloucester, to hold to his said wife and her assigns during her life,
provided she should so long continue his widow; and, from and after her decease or
second marriage, the testator devised the same premises to John Taylor and Thomas
Howell, whom he appointed trustees and executors of his will, upon trust for the
maintenance of the child, with whom his said wife might be then pregnant, until he
or she should attain twenty-one years of age, and, from and immediately after that
event, the testator devised the same premises unto and to the use of such child, his
or her heirs and assigns for ever; and, if such child should happen to die before
1090
1 Y. & C. C. C. 726.](ViewImageLocal?handle=hein.slavery/ssactsengr0870&div=1&collection=&method=preview&ext=.png&size=3)