JUDGMENT
Pontifex, J.
1. In this case the plaintiff claims as upon an intestacy as one of the next-of-kin of H. Section Maseyk, alleging that the residuary gift under his will is void for remoteness, in consequence of the Succession Act having confined the period within which a legacy is to vest to a life in being and eighteen years after.
2. Of course if I could not dispose of this case on the construction of the will, it would be necessary to raise an issue as to the domicile of the testator’s brothers. But it seems to me that I may now dispose of the case on the construction of the will.
3. The plaintiff insists that under the second clause of the will no share vests in any child of the testator’s brothers until he or she attains twenty-one years. The contention is, that the residuary gift in the will is in the direction to pay or distribute at twenty-one, or, in other words, that the only direction to pay is that in which the element of time is mentioned. In this case, if governed by the Succession Act, it is too remote. I am of opinion that this construction is wrong. The testator directs his trustees to invest the residuary estate “upon trust to pay, transfer, or [312] divide the same unto, between, or among the Children of my brothers James Wilfred Maseyk and Charles Blake Maseyk respectively, to be paid, transferred to, and divided-among them in the proportions and at the times hereinafter mentioned; that is to say, the share of each and every son of my said two brothers shall be double that of each and every daughter, and the shares of each son shall be paid to him or them respectively upon his or their attaining the age of twenty-one years, and the share of each daughter to be paid to her or them on her or their respectively attaining that age or previously marrying, with benefit of survivorship between and among all the said sons and daughters.”
4. Looking merely at the language of the clause, it seems to me that the proper way of reading it is to split it up into two divisions,–the first clause being “to pay, transfer, or divide the same unto, between, or among the children of my brothers James William Maseyk and Charles Blake Maseyk respectively.” It seems to me that in construing this will one would be entitled to pause there, as Vice-Chancellor Knight Bruck paused in the case of Williams v. Clark (4 De G. &. S., 472), The second division will be of the rest of the clause as split up: but that again is divided into two sub-divisions, one of which deals with proportion and the other deals with payment; the clause will run thus,–each son takes a share double that of the daughter’s and the shares to be paid at twenty-one or marriage.
5. I see no difference between the first part and the words “in trust for children of my brothers.” The plaintiff argues that there is a distinction, but there is nothing to show in what proportion: the proportion being shown in the first division of the clause, what could he necessary to find out the subdivision? I take it that if there was a sub-division among the brothers directing payment only pending enjoyment at a certain time, the explanation I have given would make them tenants-in-common, whereas under the first words they would be joint tenants. Material principles not being shown by the plaintiff, I am against him as to construction. As to the other point, I am fortified by the context: it is a residuary clause and always construed [313] so as to avoid intestacy. At the end of the clause we find these words “with benefit of survivorship between and among all the said sons and daughters.” The plaintiff was asked the meaning of these words, and his answer was, if after the oldest child attained twenty-one any of the younger children died under twenty-one, his interest would pass to the others. This is clearly wrong. In fact this clause of survivorship deals with the shares of those only who have died. If the share is not vested at birth, it would be dealing with a share upon which the clause could not operate, because there was no share which would survive. Looking to the other parts of the will, which are clearly contingent, there are no words for the benefit of survivorship; the testator does not wish to die intestate.
6. The case relied upon by the plaintiff–Shum v. Hobbs (3 Drew., 93)–is a peculiar one; it does not seem that the Vice-Chancellor is himself satisfied with the decision, but in order to make it apply to this case, it would be necessary to insert the words “in manner hereinafter appearing.” If these words occurred, it would be very difficult to distinguish this case. There are other circumstances which are not in this case, the principle there referred to was both vested and contingent. I think this case is clearly distinguishable from Shunt v. Hobbs (3 Drew., 93). The children of James and Charles took vested interests at birth on the death of the testator. The case of Williams v. Clark (4 De G. & S., 472) also supports the construction I put on this will. I have arrived at this conclusion simply on construing this will. There can be no doubt that the testator never intended that there should be an intestacy. I think it clear testator did not intend to defer payment beyond the majority of the children.
7. I decide simply on the words contained in the clause and the context; it is not necessary for me to say that Section 98 of the Succession Act applies to this case. It seems to me Section 98 applies only to vested interests.
