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![handle is hein.slavery/ssactsengr0822 and id is 1 raw text is: 4EDDOWES V. EDDOWES
made. That the matter had better stand over in the hope of an arrangement; but
he intimated that if that failed, he would make the winding-up order.
NOTE.-See 25 & 26 Vict. c. 89, s. 81, and Re The Tretoil Company, 2 John. & H.
421, and South Lady Bertha Mining Company, 2 John. & H. 376.
[603] EDDOWES v. EDDOWES. March 5, 6, 1862.
A testator devised a real estate to trustees in fee, in trust for all the children of his
two sisters then born, or thereafter to be born, who should have attained, or should
afterwards attain, twenty-one, in equal shares; and he directed that, as the same
should respectively become vested, the trustees should convey the same accordingly.
Held, that the children born after the testator's death took a share.
Trustee disallowed the costs of an improper answer.
The testator, John Nealor, by his will dated in 1830, devised his estate called
Bromlow Hall, and all other his hereditaments, to two trustees and their heirs, upon
the trusts following -
In trust nevertheless for all and every the child and children of the respective
bodies of my sisters Maria Eddowes and Judith Eddowes, now born or hereafter to
be born, who shall have attained or shall afterwatds attain the age of twenty-one
years, or who shall depart this life under that age leaving lawful issue of his or her
body living at his or her decease, respectively, and to the respective heirs and assigns
of such children, and to be divided between and among the said children, if more
than one, in equal shares, as tenants in common, and if there shall be but one such
child, the entirety of the said messuages, farms, land and hereditaments shall be in
trust for that one child. And I direct that when and as the same shall respectively
[604] become vested, as hereinafter mentioned, my said trustees, their heirs and
assigns, shall convey the same accordingly.
The testator died in 1830.
Judith Eddowes, who was now seventy-one years old, had six children, all of
whom had been born in the life of the testator, and they had all attained twenty-one.
Maria Eddowes died in 1840, she had nine children, three of whom had been born
in the life of the testator, and six subsequently. They had all attained twenty-one.
The Plaintiffs insisted that, according to the true construction of the will, all the
children of Maria Eddowes and Judith Eddowes, whether born in the lifetime-of the
testator or after his decease, who attained the age of twenty-one years, were entitled
to the real estates as tenants in common in fee-simple.
The Defendant Wace, the trustee, however, stated that, inasmuch as some of the
Plaintiffs were married women, and some were only trustees of shares vested in them,
he could not safely allow them to admit that the children of Maria Eddowes, who
were born after the decease of the testator John Nealor, were entitled to any share
in his real estate, without a declaration by this Court, as to the rights and interests
of all the children in the real estate under the devise, and he refused to convey the
premises according to a draft sent for his approval.
The bill prayed a declaration of the rights of the parties, and a conveyance by
the trustee in accordance therewith.
[605) Mr. Edward Smith, for the Plaintiffs, argued that the point in dispute had been
determined by the following authorities :-Mogg v. Mogg (1 Mer. 654); Fearne's Con.
Rem. (p. 314, n. (f) (8th ed.)); Preston on Conveyancing (vol. 3, p. 555 (3d edit.));
and see Jarman on Wills (vol. 2, pp. 147, 148 (2d edit.)).
Mr. Lloyd, for other parties.
Mr. Selwyn and Mr. Caldecott, for the trustee. First, there is no life-estate in
this case as in Mogg v. Mogg, which makes all the difference. Secondly, the case
differs in this respect: here the testator directs that when the shares shall respec-
tively become vested, the trustees shall convey the same accordingly. This renders
it impossible for the vested estates to open and let in after-born children. Each child
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