- 264 1926 SAGER Vv GOWARD 6 OTHERS. — . SJUDGVENT. ; KNOX Od. i} This is an appeal from an order of the Chief Judge in Equity where by it was declared that upon the true construction of the will and codi- oil of Tdmund Mason and in the events which have happened the directions in the said will for the building of tenements for certain poor persons constituted a good charitable gift, and certain consequential declaratts lions were made and directions given. The will contained bequests of annuities and legacies to the wife and children of the testator and other persons and proceeded as follows 'viz:- "In time as the ennuitaass become deceased and the funds of the estate acounulate then my executors are to commence paying all' my chil- Del\wcred V.140¢ 2. "dren's children inoluding those of wy late eon Edmund the anount the estate will afford up to £26 per annum each but nédver to exceed said F sum - When some of my grandchildren pass away and funds accumulate and are sufficient then my executors are to com.ence building in cr.near Parramatta suitable small tenements for free occupation of poor persons such persons to be of gocd character and who have heen local reeidents and who from sickness and infirmity or old age are in bad circumstances and ig somecases of necessity other swall aid may be afforded AND as funds IONAin gen Bonshe-ByidiertCiewebehiapes. further accumulate more of these houses are to be built I direct that all persons who are interested may be furnished with a quarterly statewent of income expend- iture and when Alms Houses are built an annual statement shall be pub- lished in the local newspapers Should any of my children depart this lifa leavimg husband or wife such husband or wife is to receive annually one-third the amount my still living children are receiving." It 18 upon this rertion of the will that the question for decision 3s . turns. It will be observed that the only gift in favour of charity is contained in the direction to comnence building suitable tenements and to build wore of such tonemants as funds accumulate. The point of sim time fixed by the will for the executors to commence building is "when . . some of my grandchildren pass away and funde saccumilate and are suffic ient", I aw inclined to think that this direction is too vague and # uncertain to constitute a valid trust. LEut however this may be I thinl it is clear that the point of time fixed for the commencemant of build 'ing will not necessarily be reached within the limits presoribed by the rule againet perpetuities. No dietinotionis made in the will bet tween grandohildren born in the lifetime of the testator and those bern after his death, and it is therefore possible if the death of some grandchildrea is a condition precedent to the wewettensiLybe trust for the commencement of building that that trust would not take effect until the death of a perscon unborn at the date of testator's dm death. Eut it was sought to supvort the gift to eharity on the ground that it vested at the death of the testator and ecnsequently the rule against perpetuities had no application. In wy opinion this interpre- tation is not consistent with the words used in the will. As I have pointed out the only gift to charity is that contained in the direet4 ion to commence building, and this direction is to become operative only when some of testator's grandchildren pass away and funds accu- malate and sre sufficient. Construing the words used according tc x their natural weaning I think the death of some of the grandchildren po 5. and the aceumulation of sufficient funds are conditions precedent to the operation of the direction to commence building. For these reasons I an of opinion that the appeal should be allowed and a deolaraticn made that the testator died intestate as to his residuary real and personal estate. vv L Crunl MD fowler BH et fh bis? ~~ - —-_— SAGER v GOWARD AND OTHERS. _ gaDeMEnT. ; ane MR JUSTICE IsaAcs. f to oeeen catia eit a abet SAGER _y _GOWARD AND OTHERS. SZUDGMERT. eee ISAACS J. The clearest intention of a testator mst be disregarded -if it ie violation of a rule of law. Here there is no doubt the teetator in- -tended to create & trast for charity,bat the words by which the trast is constituted leave me olear after the fullest consideration j that to carry ont the expressed intention would violate the rale : against perpetuitios. The testator first provided for his family his wife, hie twelve ehildren and his grandchildren. The wife's dene- -fits were definite. The children were given annuities not to exeved { 2100 a year. The Brendchildren were given Annuities not exceeding —* 226 & year, and in terms not repugnant to the rale against perpetu-." ~ties. That completed the family bounty, and the testator untoubtetly intended to devote the balance of his estate if any to charity. But | 'being in doubt as to whether thyre would be a balance available for elmrity, the provision he made was otrefully framed so as not to @isturb the family benefits primrily given. He said:- " Then re "geome of ny grendohilare/pas avy and funds scommilate and are mets) "-cient then my executors are to commence building in +} near parva a aatte suitable tenements for tree ovoupation of poor persons"4c,and he adted:- "And ag fants further acoumlate more of these honses eto be walit". If the gift were so anbiguonely feamed that I on Basa aad ahveticbls sa a . 4 @oula apply the printiple_wt res magia valoat quam pereat I should "do so. But I regret that I cannot find such ambiguity. i entertain no doubt that the teotator was anxious that his family Q be should/secure to the extent limited by the will, and only when that was seen to be sufficiently certain after some of the grandchildren died, siowLa there arise any obligation -in other words any trust 'or' gift~- whatever in favour of the charity he conditionally sought to pensrit: That inevitably throws the téme of vesting of interest into the fatal uncertainty struck by the rule against perpetuities. | Though the grandehildren must have come into existence within the would . necessary period, tone "of: them / neccessarily die within that period. The result is that the gift to charity is void and the appeel succesds." There wag pro tanto intestacy. pee SAGER v. GOWARD. JUDGMENT. RIcH Js : RICH J. : This appeal is concerned only with the provisions of 4 in favour of She charity. The- appeliant attacks the vallarty.of aly on: the 'ground that it indringes the rule against perpetu- exept of the OE wteanin Ate validity, whton' folte e y and come; into: operation Upon the events to whioh I have re- are too. Andes int te = too remote and the gift as 1¥'trans- result the tentator died ' 'Intea- i . tate." , | ,