\ | 192%. COBBETT V EAST LONUON HOSPITAL. Judgment» Knox Cod. Yasan My Kal, By his will (clause 5) the testator devised hia property known as Holebrook to his trustees upon trust for his brother Wilber- fores Cobbett for his life and after hia death to the use of the firat and other sons of Wilberforce Cobbett severally and auccessively in tail male and in default of such iague to the use of the firat and other daughtera of Wilberforce Cobvett in tail male and in default of such issue to the use of hia trustees during the lives of his cousib Hugh Cobbett and any wife of hia and during the life of the survivor upon cefdain truste for the benefit of Hugh Cobbett hie wifes and family during his life and for the benefit of his widow and family after his death and after the death or remarriage of Bugh Cobbett's widow to the use of the first and other sons of Hugh Cobbett successively in tail male and in default of issue to the use ef the firet and other daughters of the said Hugh Cobbett in tail male and in default of such lesue to the use of his trustees to hold and dis- pose of aw part cf his remiduary eatate. By clause 6 the teatator directed that the trust declared in respect of Holebrook should be read and construed aa if they had been declared in respect of any property in Tasmania which he might purchase in lieu thereof for his personal residence. —trause 7 of the will is as followa:- "I direct my trustees to set i "apart out of Hy Trust Fund (after providing for the bequest$ con- "tained in paragraph 8 of this will) the sum of £20000 upon trust to i "invest the same in the names of my trustees in or upo} any_of the "class of investments hereinafter mentioned with power to alter Yor wry auch inveatmentsa or any of the m from time to time for others of the same dPacription And upon trust to pay the intorest Vand inoome which may arise from the said gum of £20000 and the in- "vestmenta thereon from time to time to the said Wilberf-roe Gobbett "during hia life subject to any expenee for upkeep of Holebrook pay- "able by wy trustees pursuant to Clause 5 hereof and after the deat) of the said Wilberforce Cobbett upon trust to pay his widow (1f any 3. "during her widowhood an annuity of £100 and subject thereto Upon "trust to pay the sald intervst and income to the tenant in tail for "for the tima being of Holebrook until determination of the estate "tail hereby created {whether by baring of entail or failure of heirs "of the body of the said Wilberforce Cobbett or by operation of law) Yana upon such determination upon trust to pay the interest and inoome 'which may arise from the said sum of £20000 anu the investments there- "of from time to time to my cousin the said Hugh R N Cobbett upon con- ""Gition that he becomes domiciled in Tasmania and while he shall re- "main so domiciled until the determination of the Trusts hereinbefore "contained in his favour And I direct that during such time or times "as the said Hygh RN Cobbett shall not be domiciled in Tasmania such "interest and income shall fall into and form part of my residuary "personal estate And after the determination of the trusts hereinbe- "fore contained in his favour Upon trust to pay and apply the said "interest and income at such tinea and in such manner for the personal "support or otherwise for the pergonal henefit of the said Hugh R N "Cobbott and of his wife and family if any during his Life and after "hia decease for the personal support or otherwise for the personal "benefit of his Widow during hor Widowhood and family if any during "hor Widowhood as my trustees shall in the discretion of my Trustees Ythink fit And after the death of the said Hugh RN Cobbett and after the death or re-marriage of hia Widow Upon trust to pay the said in- "terest and income to the tenant in tail for the time being of Hole- "brook and after the failure or determination of all the estates tail "hereby oreated (whether by barring of entail or failure of heirs or 'by operation of law) Upon trust to hold and dispose of the said sum 4, "of £20000 and the aeouritiesa upon which the sane may be inveated "ae part of my residuazy ostate." . ' The teatator retained Holebrook as desoribed in the will and codicil as his personal residence up to the time of hie deathwruK ir SOG iis brother Wilberforce Cobbett has never boen married. At the date of taatators death his cousin Hugh R N Cobbett was married and his wife and three daughters of whom the eldeat is the appellant Helena Elaie Cobbett, were living. The property referred to in the will as Holebrcook being under ths Real Property Act wag subject to the proviaions of sec.5 of the Roal Property Act GNo.5 {50 Vic.No.8). That section is as followa:- 9 Where any limitation which would heretofore have limited "to any person an estate tail, whether legal or equitable, in any lan "under the Qct, is maie after the commencement of this Act, such "limitation shall be deemed to give to auch person an estate in fee "gimple (legal or equitable,as the case may be),in such land," . Te) 5. Doubts havdyar igen ag to the true construction of clause 7 of the will the following questions were submitted by originating sumone 1b for the determination of the Supreme Court icgfinetnce on the true construction of the Tastator's Will and Codicils the gift of the dncome of the sum of £207000 mentioned in Clauaz 7 of the said Bill on the death of Wilberforce Cohbett to the tonant in tail. for the time being of "Holebrook" until the detersination of the satate tail by the sald Will expressed to be created(whethor by barring of entail or failure of heirs of the bedy of the said Wilberforce Cobbett or by operation of Vaw) is void on the ground that the said gift 1s depen- dent on the possibility of the existence of the estates tail male in "Holebroox" purporteu le be created by Clause 5 of thy gaia Will and that by reason of Sec.5 of. The Real Property Act No 5 the said estates tail male oannot arise or take offect 7 Whether on the true construction of the said Will and Codioils the gaid gift is void either in toto or «as to all or any of the persons who might claim thereunder after the death of the person who would have been first tenant in tail male of ""Holebrook" if "Molebrook" was not subject to the provisions of The Real Property.Aota on the ground that the same tends to the creation of a perpatuity ? Whether on the true construction of the said Will and Codicila the gifts of the income of the said sum of £20,000 subsequent to the said gift expressed to be made to the children of Wilberforce Cobbett as tenants in tail male or any of such giftemxprumsa/d are void on the ground that the same are limited to take effect upon the deter- mination of the estates wads tail male by the said Will expressed to be limited to the children of Wilberforce Cobbett or on the ground that the same tend to the creation of a perpetuity ? 6. (13) In the event of either Question (10) or Question 111) and of Question (12) being anawered in the affirmative whether the said aun of £20000 \ (subject to the payment of the annuity given to the widow of W Cobbett) falla into and forma part. of the testator's residuary eatate,? The fact that the umount of estate duty payable cannot be 1 ascertained untilf# it is de64ded whethor the gift over of the £20000 to the residuary estate - in effect a gift to the East London Hés- pital - is valid renders it expedient that theae questions shotld be decided now without waiting until the death of Wilberforce Cobbett + The Supreme Court decided that the diréctions contained in clause 7 of the Will S6r payment of the income to the tenant in tail of "Hole- brook" for the time being were ineffestusal and that the £20000 was to be held ang pode by the trustees aa if thowe direotions had been Wt struck outf and made an order to thie effect but did not in terss answered the several questions submipfted. This 4s an appeal on behalf off Helena Elsie Copbett{s0 muoh only of that order as declares that after the death of Hugh. Cobbet' 7. and after the death or remarriage of hie widow the eum of £20000 and the securities thereforg are to be held as part of the testatora residuary personal estate. Consequently there is no question before thia Court aa to the propristy of the declaration made by the Supreme Court with repurd to the gift contained in clause 7 for the benefit of Hugh Cobbatt and his family including his widow. The first queation for consideration is what is the true construction of the direction to pay the income of the fund to " the tenant in tail for the time being of Holebrook", at vm & 7 aan What isa the meaning to bh attributed to these words in this W411 having regard to the context 7? 8. In our opinion the testator has by these words expressed bis intention that the income shpuld be paid to the person who for the al time being held an eatate tail in Hole brook. The alteriftive con- Lv struction suggested by counsel, fore the appellant was that the income was to be paid to the person who but for the provisions of the Real Property Act would have been tenant in tail of Holebrook, These are not the words used by the Testator and we think the construction is inadmissible having regard to the provisions of this wills By the direction that the income should be pald to the tenant in tail for the time being until determination of the estate by barring of entail or operation of law we think the testutor has akneady x clearly indicated that his intention was that the payment of the inwome to any person under the gift should be conditional on such person being the holder of an estate tail in Holebrook. From a perusal of paragraphs of 5 & 7 of the Will we think it is clear that the dominant intention of the testator was to insure that eo long as Holebrook devolved according max to the succesive eatates tail which he had endeavoured to create the person who was tenant in tail in possession for the time being should be provided with a vertain in- COME. Thie conclusion is by the direction contadned in Clause 7 that during such time as Hugh Cobbet should not be domicile in Tasmattia the inte#est and income which would have been payable t him if go domiciled should fal ,into residues It is conceded that in consequence of the provisions of Sec.5 of the Real Property Act which was in force at Testators death there is and was then no per- son who jas or could be the holder of an estate tail in Holebrook, and it followa that in the view we Have expressed as to the meaning of the Will the gifts of income to the fonaat in tail for the time being of Holebrook never could arise or take effect. Question 10 should therefore be anawer2d in the affirmatives 10, This disposes of the claim of the appellant but lr Lodge who by lsave of the Court appeared for certain of the next of kin of the testator though they were not respondenta to the appeal argued that the ultim- ate trust to hold and dispose of tho £20,000 as part of the residuary estate was void as infringing the rule against perpstuitgzes and that after the death of Hugh Cobbett and the death or revgriage of his widow this fund should pass to the next of kin of the testator as on an intestacys He founded this argument wifinly if not entiraly on the provisions of Clause 6a of the Will e@oterdeépgcthst contending that ae the testator might have acquired property in which an estate tail might have existed,because the property was not unuer The Real Proper- ty Aot there was a possibility that the giftsof satatestail might take effect and if so the gift over of personalfMty after the detsrmination of an estate tail would be Aad fo mewdleneeo But it is the state of facts at the testatora death which muat be re- gardad and at that date the only property dealt with by clause 5 waa 121, property in whieh it ie conceded that no estate tail could exist. The poasibilities are te be oonaldsrad aa at the death of the testator and at that time the estates tail given by the wil] could h aver aries and it a3e@ impossible that iny gift of the income of the fund. to the tenant in tall for the tima being of Holebrook could take offact. The pOe@ition then is that after certain dispositione of the income during the lives of Wilbserforoe and Hugh and the lives or widowhool of their reapsotive aidows tre validity of which is not open to dis- cussion on this apyal,the direction is that after the failuro or de- termination of all the estates t:i2 orezted by the will (whether by varring of entail or faliure of heira or by operation of law) the trustees are to hold the fund as part of the residuary Personal estatre It was argusd that this gift over was obnoxious to the rule agasnet perpetudtties because it was conditioned to taxe effedt only on the "na failure aad determinagion of an estate tail which had arisen s&b> ie, or come into existence and therefore might not vost within the limits Of the rules But wo think 4t is clear from the worde of the will that the gift over was limited to takes effedt either in the event of none of the estate tail coming into existence or on the determination of 211 the estates tail which might vome xanée into existence . The words used inthis pasaage are " After the failure saning should if posaible be given to or determination gc", Some the wordg "failure as distinot from "determination" especially as the testaor hag shown in an earlier portion of the aane clause that he regarded dety mination ag aufficient in itself to deacribe the ecess4tion of an eatate tadl owing to any one of the xkxrae three causes specified. On the wording of thia will we think "failure" in the phrase "failure or deteriination" should be read asfdndicating . ' a failure of the estates tail t. arise or come into existence. All these estates tail were incapable bf ever coming into existence, k3e The result is that at the death of the tustator the gift of tho £26, 000 for the benefit of the reaiduary legatees was a veat:d gift free from tho operation of the rule against perpetutties. Moreover it is by no.m3ans oloar on the terms of this sill that even if "failure" woans no hex more than determination the exproseion "after tho failure éc" imposts anything siore than a direction as to the order of succession in which the fund was to be enjoyed by the several beneficiaries. The upyoal must be dismissed and the Order of the Supreme Court gatt farki., coweceHictig affirmed, but in the special circumstances of this caaeAwe. feel jus- tified in ordering that the coats of the appeal of all parties 228 to the appeal and of the next of kin represented by ir Lodge be paid out of the fund of £20,090 - The coat of the Trustees to be taxed and - xKapaid as between Sqliciter und Cliente Cocke wa. GOhece pputeccenl liratfie, a Leb, No] fa Spee ae Cheeut