HYNDMAN-JONES J

I am of opinion that on the true construction of this Will the sons take a life interest with remainder to the grandsons.

That appears to have been the intention of the Testator, and the authorities admit of my giving effect to that intention.

In cases of the sort as Lord Kenyon pointed out in Woodet v. Baron I East 259 "one must spell as it were every word in order to get at the real intention of the Testator" and the first point which strikes one in the phraseology of this Will is that the Testator wished the properties to remain in the family. He says "which properties are not to be sold for ever." It is admitted that those words must go out, but they are nevertheless significant as indicating what was in the Testator's mind. The second point which strikes one is that he has used the words "my sons and grandsons" as contradistinguished from the words "my sons and their issue" or words to that effect, indicating that he contemplated having grandsons and that they should benefit. The remark therefore seems pertinent that if Mr. Carver's contention were the true one these grandsons distinctly mentioned by the Testator as "my grandsons" would take no interest.

With regard to the cases Armstrong v. Armstrong LR 7 Eq 518, and Newill v. Newill 7 Ch. App. 253, are authorities for the position that in such circumstances the sons would take a life estate and the grandsons the remainder as joint tenants. It was said that Cape v. Cape 47 Revised Reports 458 was to the contrary, the words in that case were "also the residue of such "legacy I do direct may be applied to the support and maintenance "of the wife of my said son Henry and for the support and education "of his children born in wedlock." I think that case is distinguishable on the ground mentioned by Sutton Sharpe for the Plaintiff, viz., that the Will gave no interest to the children of husband or wife. It only pointed out the objects to which the fund was to be applied. Alderson, B., said "my impression is that the Testator merely intended to give this legacy to the separate use of his wife, and as there were no children at the time of the death of the Testator I think the wife takes absolutely to her separate use." In the present case my impression as to the Testator's intention is for the reasons I have given quite different, and I think the gift would embrace the grandsons although they were not in existence at the time of the Testator's death.

The sons having unequal shares are tenants in common, and on the death of one of them his share would go to all the grandsons as joint tenants. This may appear hard on the Plaintiff, but the answer is that she cannot expect to benefit contrary to the intention of the Testator.