received by the said Ralph Westropp Brereton, from the 11th of July 1846, being the date of the said marriage settlement, down to the 18th of March 1855, the date of the said will, after all outgoings; and also to inquire and report the net amount of the rents of the said lands of Ardgart, actually and bona fide received, by the said Ralph Westropp Brereton, from the date of the said will to the date of the death of the said Ralph Westropp Brereton, after all outgoings; but the Court doth not at present decide whether or not the rents received by Ralph Westropp Brereton, after the date of his will, are to be taken into calculation. And the petitioner having alleged, by the 28th paragraph of the petition, that, upon the occasion of her marriage, she gave to the said Ralph Westropp Brereton £200 in cash, and much valuable plate, and other household effects, it is further ordered, that it be referred to the Master to inquire and report whether the said petitioner did, upon the occasion of her marriage, and at what date particularly, give to the said Ralph Westropp Brereton £200, or any other and what sum, and whether she gave to the said Ralph Westropp Brereton, on the occasion of her marriage, and at what date particularly, any plate and household effects, and, if so, the value and particulars of such respectively and the Court doth reserve further order, and the question of costs. 1860. Rolls. BRERETON บ. BARRY. Order. 1860. Rolls. May 1, 4. SCOTT v. SCOTT. Bequest of the MARY KEARNEY, being entitled to two sums of £400 and £100 interest of £500 to A for charged on lands, and being possessed of certain Waterford Bridge life, and as to the principal, debentures, and other property, made her will on the 24th of December 1832, by which she desired that all her debts should be after the decease of A, and as "to all other property belonging to me, that I may paid as soon as convenient after her decease; and she devised all her property to two trustees, upon trust to pay certain legacies, die seised and and upon further trust, to pay "to my sister Catherine Kearney possessed of or the interest of £500 to which I am entitled under my father's entitled unto, in trust, for the use, benefit and behoof of" B and her children, "with settlement (and which interest is now paid to me by the repre sentatives of my late brother William Kearney and Mr. Alcock out the control of Wilton), for and during the term of her natural life; and as or intermeddling of her to the principal thereof, from and after the decease of my sister, husband, and to be paid in such manner as my said trustees shall in their discretion think fit." and as to all other property belonging to me, that I may die seised and possessed of or entitled unto, in trust and for the use, benefit and behoof of my niece Hannah (Maria) Scott and her chil dren, without the control or intermeddling of her husband, and to be Held, that B took a life interest in all the property, with remain children born before and paid at such times and in such manner as my said trustees shall in their discretion think fit." Mary Kearney died shortly afterder to all her wards, leaving her sister Catherine Kearney and her niece Hannah in A's lifetime, Scott surviving. Hannah Maria Scott had, at the death of the after the death testatrix, three children, and she had four children born after the of the testadeath of the testatrix. Hannah Maria Scott died on the 16th of August 1858; Catherine Kearney died in November 1858. The interest of the £500 was paid to Catherine Kearney during her life, and the interest of the debentures was paid to Hannah Maria Scott during her life. trix. Statement. The petition was filed by James Sheppard Scott, one of the children of H. M. Kearney, born at the death of the testatrix; and the question now discussed at the hearing was, what interest Hannah M. Scott took in the £500 charge and Waterford Bridge debentures? Mr. Brewster, Mr. Blake, Mr. Leslie and Mr. A. Keogh, for the petitioners, and the children of H. M. Scott, born at the death of the testatrix. H. M. Scott, and the children born at the death of the testatrix, took as joint tenants: Wild's case (a). The rule in Wild's case was modified in Crockett v. Crockett (b); Audsley v. Horn (c). But there is nothing in this will to show an intention that the parent should take only a life estate. The words are, "to be paid at such time and in such manner as my trustees shall in their discretion think fit." To whom was it to be paid? To Hannah M. Scott, and her children. They took eo instanti at the death of the testatrix. It was then that the discretion of the trustees was to be exercised, and therefore the objects to take were to be ascertained then: 2 Jarman on Wills, pp. 335, 336; Gordon v. Whieldon (d); Buffar v. Bradford (e); Paine v. Wagner (f); Bustard v. Saunders (g); Sutton v. Tone (h); Mason v. Clarke (i); De Witte v. De Witte (k); Cator v. Cator (1). Mr. Sullivan and Mr. Arthur Close, for the children born after the death of the testatrix. H. M. Scott took a life interest, with a power of appointment among all her children, whether born before or after the death of the testatrix, or she took a life interest with remainder to her children as tenants in common: Audsley v. Horn (m); Ward v Gray (n). The trustees are to pay the legacy to the separate use of H. M. Scott. That has been held to be inconsistent with the parent taking with her children as joint tenant: Morse v. 1860. Rolls. SCOTT V. SCOTT. Argument. 1860. Rolls. SCOTT ย SCOTT. Argument. Nov. 7. Judgment. Morse (a); Mason v. Clarke (b); Vaughan v. The Marquis of Headford (c); Crawford v. Trotter (d); French v. French (e). As to the £500, in which a life interest was beqeathed to Catherine Kearney, it is clear that all the children born at the period of distribution, i. e., the death of Catherine Kearney, are entitled: Jeffery v. De Vitre (f); and the same construction must be put on the word "children," in respect of the bequest of the Waterford debentures, which was immediate, without the intervention of a preceding life estate: Ridgeway v. Munkittrick (g). Mr. Serjeant Lawson and Mr. Tandy, for the trustees. The MASTER OF THE ROLLS. The question which arises in this case is, the construction to be put on the will of Mary Kearney deceased, dated the 24th of December 1833. Mary Kearney was possessed of a sum of £400 and of another sum of £100, which constitute the £500 in her will mentioned, and was also possessed of certain Waterford Bridge debentures; and being so possessed, she made her will, bearing date the 24th of December 1833, whereby she devised all her property to two trustees, on the trusts therein mentioned; and after certain trusts not material in the present case, the will proceeded to declare the trusts thus: "and, to my sister Catherine Kearney, the interest of £500, to which I am entitled under my father's settlement (and which interest is now paid to me by the representatives of my late brother William Kearney, and Mr. Alcock of Wilton), for and during the term of her natural life; and as to the principal thereof, from and after the decease of my sister, and as to all other property belonging to me, that I may die seised and possessed of, or entitled unto, in trust and for the use, benefit and behoof of my niece Hannah Scott and her children, without the control or intermeddling of her husband, and to be paid at such times and in such manner as my said trustees shall in their discretion think fit." 1860. Rolls. SCOTT บ. SCOTT. The testatrix died a few days after the date of her will, leaving her sister the said Catherine Kearney, and her niece Hannah Maria Scott (in the will called Hannah Scott), her surviving. Judgment. Hannah Maria Scott had, at the death of the testatrix, three children; namely, the petitioner James Sheppard Scott, Joseph Scott and Elizabeth Maria Scott; but she had four more children, namely, Hannah Maria Kearney Scott, Sheppard Thomas Scott, Josephine Mary Scott, and Gilbert Thomas Scott, born after the death of the testatrix. Hannah Maria Scott died on the 16th of August 1858, in the lifetime of the said Catherine Kearney, and the said Catherine Kearney died in November 1858. The interest of the £500 was paid to Catherine Kearney in her lifetime, and the interest of the Waterford Bridge debentures was paid to Hannah Maria Scott in her lifetime, on the assumption that she was entitled to such interest for her life, and that none of her children had any claim during her life; but of course that cannot affect the question which arises on the construction of the will. Counsel on the part of the petitioner contended that the petitioner, and his brother Joseph Scott and his sister Elizabeth Scott, who were the only children born in the lifetime of the testatrix, became entitled, on her death, with their mother Hannah Maria Scott, to the Waterford Bridge debentures, either as joint tenants or tenants in common; and Counsel for the petitioner also contend that the petitioner, and his said brother and sister, born in the lifetime of the testatrix, became entitled to the £500 on the death of Catherine Kearney, their said mother having died in the lifetime of Catherine Kearney; and they contend that the four children born after the death of the testatrix are entitled to no share either of the Waterford Bridge debentures or of the £500. I do not concur in the argument of the petitioner's Counsel that, according to the true construction of the will of Mary Kearney, the petitioner and his brother and sister, born in the testatrix' lifetime, are entitled to the £500, to the exclusion of the four |