FOLEY V. O'LOUGHLIN & ORS. 36/1937

FOLEY ve O'LOUGHLIN AND ORS.

Judgment.

I agree with tne judgment of Rich J.

The Chief

Justice.

JUDGMENT.

FO LE Y¥

ve

QO! LOUGHLIN & OTHERS,

MR JUSTICE RICH

—

FOLEY ve Q'LOUGHLIN & OTHIRS.

JUDGMENT RICH J.

This appeal concerns the interpretation of some very defective clauses in the,' will of a testator who died unmarried on the 23rd Septr. 1894, He left two nephews Martin and Thomas, Martin died in 1923 unmarried and Thomas in 1929 leaving issue. The testator by his will in a paragraph beginning" sixtiy' directed that his residuary estate should be held upon trust for such of the two nephews as should be living at his death. This clear direction which if unqualified would be construed in the events mitiek that happendd as a gift to the nephews as tenants in common in equal shares is followed by a long provision still under the head of 'sixtly settling each share, The provision plainly applies to each respective. share, In the course of the provision there is a refe- rence to the share in the residuary estate and "any share to which such nephew may become entitled by survivorship aceruer or otherwise", This raises an expectation that the final gift over contained in the provi- sion settling the respective shares will be a cross-limitation so that

on the failure of the trusts, engrafted by means of the provision, of the

oof

hare cf the two nephews that share will pass under the trusts by which

2)

the share of the other of the two nephews is settled, But that expecta- tion is not fulfilled by any express clause in the will. The gift owr in the events stated is in fact expressed in the following terms. "But "if no child or no remoter issue of such nephew of mine being mle attain 'the age of 21 years or being female attain that age or marry then In "trust to allow the same to fall into and form part of my residuary "estate ds next hereinafter directed". This provision seems to me clear- ly to apply to each of the two shares in turn, As Martin died without issue it would operate on his share but of course not on that of Thomas who died leaving issue who attained'a. But unfortunately there is no subsequent provision in the will disposing of residue or ultimate residue expressed so as to cover the event contemplated, After the interp&dleticy of the maintenance clause the will goes on with a clause beginning" Geven- "