a foawlrry vero Soe Miwtous Vian , lila cette h | NN Kaace —S. Yara gy kat M Larr fe Mea LELER dP iX HUNTEF ve HANION AND OTHERS . O\DER. HUNTER v HANLON AND OTHERS i?) R D &£ R Appeal allowed. Judgment of the Supreme Court discharged. In lieu thereof questions in the originating summons answered as follows :- ANSWER to question I. (a) Yes; immediately upon the death of the testator. (bo) The offer contained in such letter to Jeannie Hunter was in proper form and a valuation ought not to be first made. (c) In the circumstances of this case within a reasonable time after this judgment. ANSWER to the first part of question 2. No ANSWER to second part of question 2. By giving to Jeannie Hunter the option of purchasing at a valuation the said land and buildings encumbered by her right at the termination of the existing lease to take a lease for ten years at a fair annual rental without bonus viz 3 at such fair and reasonable rent as would be likely to be commercially obtainable from a tenant who pays no bonus or ingoing by a landlord who is not anxious but is willing to let. The valuation to be made pursuant to the terms of the will after her exercise of the option to purchase. If she shall not exereise such option,then by offering for sale in manner directed by the will the lands and buildings encumbered as aforesaid. ANSWER to question 3, This question does not arise. Answer to question 4, The costs of all parties of the proceedings in the Supreme Court should be taxed as between Solicitor and Client and paid out of the estate. Costs of this appeal out of the estate, those of the trustee as between Solicitor and Client. JUDGMENT ISAACS C.J. t supa ISAACS C3. This is an appeal from the Supreme Court of Victoria upon an originating summons to determine certain rights of the beneficiaries under the will of Thomas Hogan. The testator died on September 6, 1926. His wife predeceased him, but he left five children him surviving. The questions propounded concern certain rights of one of the children, namely, Mrs, Jeannie Hunter, in respect of a portion of 'the testator's estate known as the Commercial Hotel, The principal question is whether the trustees have the power and the duty to lease the hotel to Jeannie Hunter, having regard to the fact that her mother predeceased the testator, McArthur J. held that that trust has failed. Applying Lord Wensleydale's words in Abbott v Middleton (7 H.L.C. at p. 114), I arrive at the opposite conclusion, Lord Wensleydale said:- "The question in expounding a will, "as Sir J, Wigram most correctly states.......'is not what "tthe testator meant, but what is the meaning of his words',° Now the will, after dealing with some special matters not affecting the present case, directs the Trustees "to grant "a lease" of described land under the Transfer of Land Act "upon which is erected the Commercial Hotel to my daughter "Jeannie Hunter at the termination of any lease which may be "in existence at the time of my death for a period of ten "years or for the lifetime of my said wife whichever be the "longer at a fair yearly rental and without requiring any "bonus for the granting thereof, and if my said daughter shall "not wish to take such lease then to grant leases for the said "land and hotel during the lifetime of my wife for periods "not exceeding ten years at any one time at a fair annual rental "and upon such consideration as to bonuses and ingoings as "my said Erustees shall deem fit," a2Qe Directions are given to pay to the widow during her lifetime all net rents, and also "the proportionate yearly part of any "bonus and ingoing received upon the granting of leases during "her lifetime", and if these fell short of £300 a year, then to make over to her such additional sum as would make the widow's income amount to £300. The Trustees are also directed, "after "the death of my said wife" tp give Jeannie "the option of "purchasing the said land hotel and buildings thereon at a "valuation to be made by two valuers, one appointed by my said "Trustees, and the other by my said daughter and in the event of "their disagreeing then by 4 yaluer acting as umpire appointed "by the aforesaid two valuera, And if she shall not exercise "such option then I direet my said Trustees to sell the same by "public auction or private contract and to pay one~half of the "proceeds of any such sale whether such sale be to my daughter "or not unto my gaid daughter Jeannie and to divide the other "half thereof between my said gens Thomas and John in equal "shares, share and share alike." The respondent's contention is that the learned primary Judge's construction ia correct, namely, that the power to lease was confined to the event of the widow surviving the testator. It ig so, with reference to tenants other than Jeannie, by the express words, "during the lifetime of my wife", But there are no such uniting words attached to the direction to grant the lease to Jeannie, and we have no power to insert them, Jeannie's right to a lease rests on a clear direction to the trustees to grant it on the happening of a stated event, that is, whenever the subsisting lease (if any) terminates. Then and then only does the trustee's duty and power arise to grant the lease to her, and then and then only can she be called upon to say whether she will accept or refuse it. But it ig said that the direction that the term of the lease to her is to be "a period of ten years or for the "lifetime of my said wife whichever term shall be the longer", indicates by implication that the power of leasing to Jeannie is restricted to the event of hex motherts surviving the =3- testator. The direction to grant her a lease at all is, however, expressly fixed to be exercised at a point of time marked by "the termination of any lease which may be in "existence at the time of my death". The term of the lease to her is to be at least ten years from that point of time, and it is to exceed that term if the life of the widow exceeds it. But if the widow's life for any reason does not exceed that period, the term remains at ten years. The survival of the wife up to the granting of the lease may in the result be unknown when the lease is eranted, and 80 affect the term, but it does not affect the right of the lease, Suppose, for instanee, the wife survived the testator, and died in 1930, what would be the expressed term of the lease in 1932 ? Clearly, ten years simpliciter. if, as contended for by the respondents, the condition of Jeannie's right to a lease is the widow's survival, then to be eonsistent it must be her survival until 1932. It has not been contended that her right depends upon her mother's aurviyal until 1932. Nor is there any extraordinary difficulty in fitting this interpretation to the option of purchase, If the widow had survived the testator, but died before 1932, Jeannie's right to a grant of the lease would still be an futures, and the xxkukn valuation of the hotel for sale or the price to be obtained at auction would have to be arrived at by business men on *umtnessuethts business meiichis methods, Suppese, for instance, an hotel were to be sold subject to an existing lease with an option of renewal, the chances or renewal would be a factor in arriving at the price of the hotel. But that is nothing more than a business risk to be taken into consideration, The assignee of the reversion would be bound by the option, Some reliance waa placed by the respondents on the provisions as to bonus. The "fair annual rent* required of Jeannie is to be "without. requiring any bonus for the granting" of the lease. The bonus 2§ referred to in the will -4- is not in the nature of rent. Its nature is correctly indicated in the quoted words of the will, and is clearly recognised in the recent case of Hill v Booth (19301 K.B., 381). The "fair annual rent" is the same thing both with regard to Jeannie and other possible tenants. This indicates that Jeamie's interest in the lease was considered aS & paramount to the widow's income, which was pretected otherwise up to £300 a year. I am of opinion that the trust to grant a lease to Jeannie has not failed. As to the option of purchase, 1 agree with McArthur J, that the offer set cut in Paragraph 5 of the affidavit is in the preper form, and that Jeannie must say yes or no to that offer within a reasonable time. It was admitted that a reasonable time for acceptance has not yet expired, IN_THE WILL OF HOGAN DECRASED. HUNTER V. HANLON AND OTHERS. * JUDGMENT GAVAN DUFFY & STARKE JJ. The testator directed his trustees to grant a lease of certain lands to his daughter Jeannie 2 at the termination ef any lease which might be in existence at the time of his death, for the period ef ten years, or the lifetime of his wife, whichever term should be the longer, at a fair yearly rental and without requiring any bonus for the granting thereof. At the time of his death, a leass of the premises subsisted, which expires in 1932. The testator's wife predeceased him. The duty of the Court is to ascertain the meaning of the words used by the testator, "and not to wander from the actual words of a will into "the region of conjecture as to what it is reasonable te suppose the "testator would have done had he contemplated a certain erent happening". The whole will must, of course, be read together, on the ordinary princi- ples of construction of any document. The testator here has given an explicit direction to his trustees. What is there in the will that qualifies or cuts it down? First, it is said that the direction is simply for the benefit of his wife, because he diredts that, after payment of certain expenses, the yearly rents and profits shall go to his wife during her lifetime. That cannot be the intention, for if the wife had survived the testator, and a lease were granted, amd the wife died before the expiration of the period of ten years, the lease woutd still subsist and enure for the benefit of the testator's adughter. Again, the direction that his Saughter shall have the lease at a fair yearly rental, without eny bonus being require (that is, any sum for the granting ef the lease), confers a distinct: : benefit upon the daughter;and that is the more marked if this direction be compared with the clause relating to leases to strangers, should the testator's daughter not wish to take a lease. the view that the daughter must pay a rack rent is quite vontrary, in our opinion, to the intention of the testator gathered from the words he uses. It is not a rent equal, or ne-rly equal, to the full value of the land, that the testator contem- pltes, but a rent which his trustees regard as fair im all the circumstances. Next, it is said that the testator's direction to give his daughter an option of purchasing the property after the death of his wife, and if 'he should not exercise that option, then to sell the property, makes it clear that the 'daughter is to have one or other of the options if the wife predeceased her husband, but not both. Ye cannét see any good reas for this conclusion. If the daughter were granted a lease in the life~- time of her mother, that lease would subsist for ten years, despite the death of her mother during that period. In that case, it 'is clear the daughter would have the benefit of both options, and why she should be deprived of that benefit if her mother predeceased the testator is somew) difficult to follow. : Lastly, it was. suggested that the direction to grant a lease at the termination of any subsisting lease, coupled with the duty to sell after the death of the testator's wife, makes the will practically unworkable < @ result the testater cannot have intended or contemplated. But we should have thought that the direction te grant « lease at the termination of any existing lease referred to the commencement of the term, end not the point of time at which the lease was to be granted. If this be so, any practical difficulties there might be in selling the testator'sa property subject to the daughter's right to take a lease, if she so wished, at a then undetermined yearly rental, whélly disappger. We agree with the judgment of the Court, other than the answer to the second part of the second Question, from which we dissent. errr eee tree HUNTER Vv. HANLON. MR_JUSTIOR AIOE. HUNTER Vv. HANLON. : JUDGMENT . RICH J. This appeal is concemed with the devise of the testator's hotel property. His intention as I discover 1t from the Lénguage used in the will was that during his widow's lifetime the property should be leased to provide the primary fund for her maintenance. After the scan widow's death the property was to be sold and an option of purchase is given to the testater's daughter Jeannie Hunter. It is apparent that in dealing with this property the testator makes provision for two periods - that before and that after the widow's death, To seeure eontinuity of management and pemanence of tenure the testator in the trust to lease empowers his trustees to grant a lease to his daughter Jeannie Hunter. In the event of her refusal to exercise this eption power is given to the trustees "to grant eases for the said land and "hotel during the lidtetime of my wife for periods not emceeding ten year at any one time", The soheme of the whole wili appears to me to indicate that the power toe lease whether to the daughter or to 2. strangers{in which case the language is expres.) he power is the maintensnee of ed is bound by the life of the widow. 'he basis and object of the widow,and nothing is said as to the disposition of the intermediate rents and profits after the widow's death. The appellant's argument that she is entitied te exercise her opticon after the widow's death is not justified by the language of the leading provision and is inconsistént, See ene Timiediate Atrentes to be made upon the widow's death and "eto Glashes ith the option of purchase given to the appellant which she must thereupon make. The leasing power is not wide enough to enable the trustees guring the continuance of any existing lease to grant a lease tox the appellant to come into operation at its termination. Apart from expre® brovision,such a proceeding would constitute a breach of trust. Trustees eannot deprive themselves. by anticipation of their power, or anticipate the arrival of the proper period . Chambers v. Smith 3 4.0.759 at p, S15. The principle is that they shail find the best tenant when the time arriv- es for them so to dispose of the estate,Moore vy. Clench 1 0.3. 447 at p. 453; Oceanic Company v. Sutherberry 16 6.2, 236. This is reinforced ¥ by the rule of construction "that a general indefinite power will not authorize a lease in reversion, but that it requires special words for that purpose" Sugden on Powers 8th Edtn Chb.18 sec.4 para.l6 p. 752. "an intention to allow leases in reversion cannot be imputed to a settlor, unless that intent is manifested by expression or plain implication" ibid para 20 p.754, Ig some forms of option of purchase it has been said that it is reasonable that. valuation should precede the exercise of the option,Lord Lilford v. Keck 30 Beav. 295 at 2.299, but the strict construction of the language of this option does not lead to such an opindt I think the conclusion arrived at by the learned primary judge and his answers to the questions propuunded are right. HUNTER v. HANLON AND OTHERS . JUDGMENT . MR JUSTICE DIXON. "_dudgnent . Dixon J. the testator owned 5 country hotel which, at nis death, was seecupled by a tenant under a lease for a term of sight years, the 4 unexplred period of which was five years and eight nenths. This tern coumeneed about a year after the date of the will and it dees not appear by whom or upon what kezes tenure the hotel was oeeupled when the will was mde. 'he testator, by hie will,direeted his trustees te grant a lease of the land upon whieh the hotel ia erested to the appellant { who is one of his three daughters) at the expivation of any lease whieh ulght be im existence at the time of his death for a period of ten years, or for the Lifetime of his wife,whichever tera should be the longer ab a feir yearly rental, avd us requiving any pong for the granting theseof, and if the appellant should not wish to take cuch lease,then to grant leases of the hotel during the Life time of the tevtator's wife for yeriods not exceeding ten years at any one time. The provision goes on te direet the trustees te reseive the rents and prefitswhether frou the appellant or other tenants, end after paying #11 outgoings to pay the talense to bis wife during her life time,and,if the net amount is less then 2500 per annus,to raise the defieency and charge it upon His real en@d gersenal estete. After the cesth of hia wife, he directed hie trustees to give to the appeliant the option of purchasing the hotel af & Weluatien to be mide by two veluera, one appointed by the trustees and the other by the appellant, and, in the event ef thelr disagresing, by ot wapire, and if she sheuld nat exerciee such option then Ke divected hie trustees to sell the hotel ani be diraeted them to pay to the @pp@liant heif of the proceeds of any sale ( whether a anle to the apysllant or not ) and te divide the other half equally between tee of her brothert. fhe testator's wife gredeseased hin. The appellant @laims thst notwithetending her mother's death pefore the will took effeet,she is entitled to an optian for e& Lease of the hotel st 2 fair rent without tageing for a term ef ten years to comeence at the expiration or sooner determination of the lease to the present tenant, and that this option is additional to the option to purchase. Macarthur J.,upon originating summons,decided against this clain,and held thet,upon the true interpretation of the whole wili,the direction to lease the hotel to the appellant was eonfindé to the life time of the testator's wife,and therefore never became effectual. i agree with the learned Judge in this conclusion. It is true that the will contains no explicit etatement whieh in terms attaches to the direction to lease the hotel to the appellant 4 gondition that the testator's wife should survive him. "Bat 1 think a number of considerations combines to show that the provision vontaining this direction isbased upon the assumption that the testator's wife should then be alive, and is meant to take effect in that event only. I. The term of the lease to be granted to the appellant is measured b¥ reference not only to an absolute period of time,but also to the life of the testator's wife, tt is to be granted for "a " period of ten years or for the life time of my said wife whichever 4 48 the longer ". 2, The alternative to the appellant taking this lease ls a direction to the trustees to grant leases " during the life time of © my said wife °. 3. The net revenue to be derived fromuthe lease to the appellant § ag woll as from any Lease to stx testaver's wifé during hey Life, end uo provielen 1a made for the dispodal of van' after her deaths 4. 'he trust for gale upon the wife's death is expressed in absolute terms, ehich leave no doubt that whether ethject to a lease or net,the hotel must then ve sold ami the proceeds distributed. ven if the wife had sarylved the testater, ske might have died before the and of @ hease granted by the testator and unexpired at his death. In such an event the trugt for sale would orice before the expiration of a lease in existence at the tentator's death. It ig difficalt te see how the trustees are ? to perform this trust and sell and yet obey a divestion te srant & lease 5% the teruination of any lease which aight os in existence at the testater's death. fo newt this 4iffieulty, if was suggested that the direction to grant « lease geant thet the lease was to be granted at onec before the expiration of any eurrent lease, but ta ecumence at the terminetion of the current lease. Bat this suggestion act only, violence to the language in whieh the Gireetion to lease is expressed, but also ativibutes to the teatator the somewhat eurlous intention of requiriug that his hotel should first be eneumbered with an additional leage for ten years, if the appellant chose to take it, and then that the lend should forthvith bea offered Zaxcantea at 2 valuation to the appellant sai sold elther to her or te a stranser aubjec$ to her leased. &. 'The dispesitiona of the hetel are fvamed se ag 0 provide for the wife for life, and after her death to sell and dietribute the procesds, but, at the game time,te ensure that both before and after her mother's death the appellant shall be able te cesupy and conduct the hetel if she cheosges to do ao upon eommerelal terms. The eption to lease without « bonus being peley pegudved does not. appesr to mete ean that she shell get a lease at less then its velue. it of eourss protests her againat the exactien of an immediate lump sum payaent by way of bonus or ingeing. Bat s rent must be fixed which is fair when ne ingoing is peyeblic. No evidence haa been given of any usage or practice in the hotel trade by which the amount of the bonus or ingoing payable upen the grant of a lease is determined without regard to the amount ef the rent, and the amount of the rent without regard to the emount ef the ingoing. Such a practice would indeed be astonishing. Yhe bonus and the rent,one a lump sum and the other distributed over the tera,together form the total money consideration for the Lease and it is evident that the question whether any and what part shell be paid in » lump sum affeete the time and occasion of payment rather than the amount of the consideration to be given, at any rate,in the absence of evidence, a Court cannot suppose the to $He amounts to be unrelated at which they are fixed. i do net see therefore how the direction that a lease shall be granted to the appellant can be considered to disclose some intention of giving her an intereof greater pecuniary value than her share upon distribution. There seems to me to be no reason for treating the direction to grant her o lease as intended to give her snything but a clear right to conduct the business of the hotel,if she chese,with a definite tenure,but upon terms which would give her no interest in the property of any greater pecuniary value. The only advantage given her ig that ahe is allowad to pay the whole consideration for the lease in the ffm of rent. 4 ot : fr Fer these reseons,i think that the direction to lease to the appellant at her option preeeeds upon the axsusption that the testator's wife is slive,end the assumption that she is alive is adopted ae an ¢asential condition ef the direction. If,ceontrary to the view [ have expressed, the appellant's option to take a lease is met confined te her mother's Lifetine, the question arises whether the trustees are empowered,in their discretion te fix conclusively ° the fair rent * and the terms and sonditions of the lease. The appellant's Counsel adopted the view that the fair rent must be determined,mot by the diserstion of the trustees, but as a question of extermel fact, a wiew which accords k2 " with the language of the direction. He consideration, however, was given to the further question whether,upon this construction, the direction te grfint a lense was cufficently certain to give the appellant @ beneficial right te a lease. Gompare BZarl of Radnor 7. Ghafte Ii Ves Jun 449 ; Silmes vw Gery I4 Yes 400 at p.s07 ; and Waite wv Worlend 14 L.7.649 revsg 23 LT. 91, 'erhaps there is enough certainty Lf the " "air rent * means such fair and reasonable rent ag would be commercially obtainable from a tenant who pays no ingoing. But if this is the meaning of the expression, the appellant must pay in the form ef rent tae full sarket value of the lease. accordingly she usintains that she is entitled to a lesss at a ° fair rent * which is not affected in asount by the clrcumstance that mo bonus or ingoing is to be paid. If thie be the meaning of the provision,the testatcr must either have supposed that a fair rent eould be ascertained without regard to the anout of bonus payable, or else hawingx have intended that a rent was to be fixed which would be fair upon the hypothesis that some bonus which he failed to specify or indicate were payable, iand that & "lease showld then ce granted to the appellant at this rent without payment of the ingeing. it is not very easy to eee why the testater should be understced as adopting either df these views. thy should he suppose that a rent could be estcimeted regardless of the amount } of the bonus 7. 'nu anever was sought in the suggestion that vent is conceived as the consideration for the interest in the Land and bonus an the consideration for the interest in the business conducted upon the land. This suggestion raices another guestion : Is the rent to be assessed upen the footing that the i premises are unlicensed ¢ If this beso, the tusk of determining y the rent woulé perhaps present Little aiffieulty, although of course ouch interpretatiqn vould result in o great diminution not only of the vent saga a a priuasy souree of the widow's income, but alse f . the selling value ef the reversion,unless ingecd the appellant's altruism were sufficent to lesd her to rejest the bi] ; valugabis asset which she might thus acquire. But the anever is | given by the text of the will iteelf ; for it seems plain enough \ upon its language that the testator was considering the hote\e) as a Licensed house and directing thet it should be Leased vat at a rent proper to licensed premises. But if the fair rent ie te be computed as for licensed pramises, how is it possible to treat the bonus ga the consideration for the business in contradistinetion from the premises 7 Good wil and License comet be saparated. it would be news indeed that rent could beRetesh so: emtimated without regard to the amount of the benus. Vet if this be the supposition upon hich the will presecds, the basis for cumputing the rent faiis. if the testator meant a fair rent to be Ne determined according to a non exietent standard, it does net seem te matter whether he intended his trestess te perform the task by a@ conclusive éxerclae of their judgment, ox whether he treated it as a matter of fact capable of ascertainment. In each case the fair rent would be uncertain. On the other hand if the testator assumed that the amounts of rent ané benus were inter dependent and could not be arrived at regardless. one of another, snd yer meant that the eppeliant's rent should be thet which « stranger would pay whe also gaye a bonun,it seems to follow that uniess the amount of the assussd bonus ie known, the rent samoct be fixed. The testater*s failure to epesify or indicate this amount would by i? ) herefore result in couplets underteinty as to Honte > he second question in the originating summons sake whether the dequeat of the lense le fated in view of the death of the teatator's wife before hissand enquires if it hes not co felled how are the trustees te carry out both the trust te sell the Lend ead also the tras! to give the lease to the appelient at the terniuation of the existing lease, © «48 Zam of opinion that the direstion te give @ lease failed to take effect boodauss Of the death of the testater's wife, 1%. would be unnesessary for me to anuwer the latter enquizy unless & majority of the Court are of opinion that the direction to give a dense hag act failed, But upon the view contrary to mine,then unless the previston be void for undertainty,the seaend question does appear to me ) te contain the fellewing questions. a. ia the Lease to be granted at the termination of the existing lease or at once to comence from the determination of the existing lease 7 ai. Tf at once, must the option te take the lease be exercised and the sels thai before,after or at the same time ac the option te purchase iii. If at the tersination of the existing lease are the trustees to sell the hotel in the peantine and if so subject te the option to lease as an engumbranee,or for an. usenounbered estate or interest 2 C fF av. if subject to the option te ieage, ia the valuation for the purpose of the appeliant's option te buy to be made upon the footing that an eptien to lease is outstanding with a view of NY ascertaining what a stranger would give for the property sc encumbers - 8 *. 1¢/an unsnomsbere' estate or interest, how con the option ae "ta yous eons exercisable ? . vi. Is the * fair rent * to be fixed Wy the conclusive diseretion ef the trastecs 7 , vit. Is the * fair rent * to be fixed (a) as the rent which a stranger whe paid ne ingoing wight reasonably be expected to give,or (s) as the rent which « stranger might reasonably be expeoted 20 ' o ch. te give if gome,and if so whet, ingoing be postulated ; and in eden ease (¢) as the rent ef the land and buildings considered as " Ydeensed premises the License for which would be transferred to the lessee or (4) as the rent of the lend and wyitdings gonsidered os uribioensed or without a transfer of the higenae ? In the view Z have adopted these questions de not arise, put i¢ my opinion upon them is xequired my eneveis to there adestions are as follew :+ 4. 'The lease 4a. t¢ be granted at the termination of the existing Lease. It appears to me that the words ef the will do not allow of any other ans¥er, 444. The trustees axe to sell the hotel in the meantime. 20 (a) again 1M think the words of the will are explicit. But as the hypothesis is that the appellent has a beneficial option outetanding the sale must be subject to the encumbrance which that option constitutes. \dy. fhe valuation must be made upen the footing that the lease is gutetanding with a view of ascertaining what a stranger \ would give for the preperty 9° encumbered. wi. The discretion of the trustees in fixing the fair rent S is not conclusive;but the fair rent must be determined between the parties as a question of fact. wit. The'fair rent " 4p to be fixed as the rent which a 20 {b} a stranger, who paid 'no ingoing,might reasonably be expected to give as the rent of the land and buildings considered as Licensed premises,the licence for which would be transferred to the lessee, The learned Judge's order disposed alae of questions Swhien arise out of the previsien giving she aypeliant an. option of purshane. . He deoided that the 'trust for sale of which this option feted a part 'arose at once, and there can be ne doubt of ZL the correctness of this eonolusion. Re further decided that the option must be exereised by the appellant before the valuation is made. The Language in whteh the option is expressed supports this view. the testator directs his tyaytecs * to give * the appellant * the option * of purchasing*the hotel: * at @ valuation to be made by two © valuers... * ate. The phrago ° purehase at o valuation * erdinarily covey the Aden that the purchase te made at a prise afterwards to be fixed by valuers. Some slight sdditionsl support for the learned Judge's view is to be found in the consideration that nothing is aaid by the will as te what ie to be done if the appellant eleply a falls to sppoint @ valuer whieh,if valuation was to preeede the exergiss of the option, ake might do. The alternatives contemplated by the Isnguage of the will are singly exerei sing and not exerelsing, the options : It. i@ true that. At way sete conisbat baie to make a bensfielary buy before whe knows the prige, but this consideration 414 not affeat Lert Langdale who,in Rawirds v Zdwarde I Jur 654, gave the come interpretation to s somevhat similar provision and,énthe other atae,it aay be said that a valuation by srbitration before the option vas exereized wight prove not only & Uselees expense but an ombarasement in gelling at a high price af 1t were not gH exsrelzed. on the wholes I think the learned Judge' o decision upon this question was right. "In ay opinion 'the appeal should be dientssed with costes — 1fshoweversthe appesl be elloved and the first part of question @ 1a answered Ho , thon I think the second part should be answered in the manner or te tho offest I have atateds