case mend versus mend in the paper of Rehearings march Ves SC a father must be  presume to make such provision as will answer the purpose of child and their  advancement in the world and the will ought to be so construe as to carry the  intention of the parent into execution Alvero mend the plaintiff late father  be possess of a very considerable personal estate by will date the that of may  grave to the defendant rakehell mend his daughter pound and to the defendant  Catharine his other daughter pound to be pay they respective on their atkins  attain the age of year or day of marriage but in case both or either of they  shall die before their respective legacy become due then the legacy or legacy  of her or they so die together with the interest or increase thereof shall go  to and be equal divide between his two son the plaintiff and in case of the  death of either of they then to the survivor of they and the testator direct  that pound a year shall be give to his wife the defendant Sarah out of his  estate for the maintenance and education of the plaintiff and their sister the  defendant rakehell and Catharine while they shall continue to live with her  and at her charge and devise all the residue of his estate both real and  personal to the plaintiff to be equal divide between they and in case of  either of the plaintiff death the whole residue if the estate to be enjoy by  the survivor and in case of both the plaintiff death without leave lawful  issue then the residuary part of the estate he direct shall be divide in the  follow manner namely one part to his wife the defendant Sarah and the other to  his daughter the defendant rakehell and Catherine equal and their issue and  for want of issue to the survivor of they and if all his child shall die  unmarried and without issue then he give the residuary part of his estate one  half to his wife one four to his brother Anthony mend and in case of his death  to his child and one four in like manner to his brother James mend and his  child and make the defendant Anthony James and Lewis mend executor who prove  the will and possess themselves of the testator estate after the appointment  of the executor under Mr Alvero Mendess will be these word memorandum the six  hundred pound per and I have order shall be allow my say wife for my child  maintenance be to be regulate as follow videlicet one hundred pound per and to  be allow by each girl and two hundred pound per and be to be allow by each boy  and in case of the death of any of my say child the inheritor or inheritor be  to pay their share or proportion so that the say sum of six hundred pound may  not prove deficient to b lace at the end of the will the two son of the  testator soon after his death bring a bill by Anthony de Costa their next  friend for a account of the testator personal estate and that it may be secure  for the plaintiff benefit the executor submit to account and to apply the  estate as the court shall direct atkins the child of Anthony and James mend  insist on the benefit of the contingent limitation in the testator will in  regard to part of the residuum of the testator estate the that of June the  executor be decree to account for the personal estate of the testator all  direction touch the several limitation over of the legacy of pound and pound  and the residue of the personal estate and surplus interest be reserve until  the contingency upon which the same be to take place shall happen the  plaintiff be to be at liberty at and the daughter at or on proposal make for  their marriage to apply to the court the plaintiff Moses mend have attain his  age of year on the that of December petition the court that one moiety of the  residuum of the testator personal estate may be assign to he and it be order  that the cause be set down in the paper of rehearings on the matter reserve by  the decree which be do accord and be this day hear before Lord chancellor Mr  attorney general for the plaintiff the two son of the testator insist that the  residue ought to be divide in the first part be clear a tenancy in common and  the word to be enjoy by the survivor be not intend to make a jointtenancy  which will be a contradiction atkins er p and therefore the court will put  such a construction as will make the whole consistent and construe the  testator meaning to be in case of the death of either of his son in his  lifetime the next word be in case of both my son death without leave issue c  this must be mean on the same contingency as the former in case of the death  of either in the lifetime of the testator for to construe it a die without  issue general be too remote and consequent the limitation over be void and a  court of equity rather lean against multiplicity of division and contingency  of personal estate unless the court be under a necessity of do it and if all  his child shall die unmarried or without issue then he give the residuary part  one half to his wife c one of they be marry and therefore that contingency can  never happen but then there be a disjunctive or without issue this he insist  for the reason before give be a void limitation be after issue general and for  this purpose cite the atkins case of Lord George beauclerk versus miss dorm  June see Tr atk p and Saltren versus Saltren July see Tr atk and green versus  rod June Fitzherbert Gibb S c Mr brown of the same side the intention of the  testator seem that if both son shall live to take that then it shall go no far  or otherwise they can never have any benefit if they shall want to settle in  the world and do not mean it shall go over but upon the contingency of both  the son die in his lifetime the contingency to the testator two brother be if  all the child shall die unmarried or without issue one of the contingency can  never happen for one of the daughter be marry and as to the other contingency  it be too remote for it be on a die without issue general and there be no word  that confine it to a die without issue at the death of the devisee Mr Noel of  the same side the two son be extreme young when the will be make for they be  but three year old when their father die the residue be direct to be divide  equal between they but the testator have fix no time the reasonable time  therefore must be when his son come to the age of year which will make the  whole will consistent or otherwise there never can be a period of time in  which the son can divide Mr solicitor general for the brother and nephew of  the testator it be very true that the testator can be understand to give the  residue to the survive son upon the other die at any time but it must be  restrain to some particular time though not to the time insist on by the  plaintiff counsel as to either son die before the testator or before the son  age of year for if one of the son have die after the testator the survive son  will have take the whole nor can it intend a die before for if one S n have  marry before and leave issue and die before that age the whole if this  construction take place must go to the survive son which can not be the  meaning of the testator the true restriction be if the contingency shall  happen to both that be if both the son shall die without leave lawful issue at  their death then to go over atkins the rule be very well settle with regard to  executory limitation of personal estate for I take it since the case of Lord  George beauclerk versus miss dorm it be establish that a devise over after a  die without issue general be void and as clear where there be any word that  confine it to a die without leave issue at the time of his death a devise to  take effect after such a die be not too remote for this purpose he cite forth  versus chapman wms and Pinbury versus elken Prec in Chan and target versus  gaunt wms where the word be to the daughter equal and their issue and for want  of issue to the survivor of they it must mean issue in her who die first in  the lifetime of the survivor the subsequent word if all his child shall die  unmarried or without issue must be construe so as to make the will consistent  and the last clause must be restrain by the former he cite Atkinson versus  Hutchinson may as a case in point Mr Wilbraham of the same side observe that  Sarah be in all the contingency to have a moiety which show the testator mean  they shall all take effect in the compass of one life Sarah for the moiety be  not so much as give to her executor atkins er p but to her only and therefore  the devise over be not too remote he cite the case of Spalding versus Spalding  cro car Lord chancellor this though very incautious make be the will of a  father who be provide for a wife and child and a father must be presume to  make such provision as will answer the purpose of portion and advancement in  the world in order to that such construction shall be make as will enable the  child to carry on trade or provide for a wife if marry and likewise for their  issue in this view consider the present will the first difficulty of  construction arise from the devise of the residue of the testator personal  estate to his two son who be very young at the testator death the word be to  be equal divide between they and in case of either of their death the whole to  be enjoy by the survivor the first question be what be the meaning of the word  in case of either of their death c it be admit on all hand these word must  receive a reasonable construction he know they may live to be year old and  have child and therefore can not mean if they die at any time the portion  shall go over atkins it be contend on the part of the plaintiff that the word  mean the death of the son without issue in the lifetime of the testator but  they can be construe in that sense as the will in other place denote case that  may arise after the testator death for plain through the whole will where he  give a accruer over to other child or right of survivorship he mean after his  own death in case of the death of both or either of his daughter before c then  the legacy or legacy of her or they c together with the interest or increase  thereof shall go to his son c so that he not only direct the principal but the  increase of interest to go over and the latter clear can not be till after his  death the other construction contend for by the plaintiff be that the testator  mean to confine it to the death of his son without issue before the age of it  have be admit by the defendant counsel to be a reasonable construction if  there be word to warrant it upon read the whole will I be of opinion it be the  true construction vide haw v haw ante atk and if the word will warrant it a  reasonable construction also and such as a father may be suppose to have in  view when he be settle his estate for the benefit of his family consider the  other part of his will where he give portion to his daughter for though he  make use of general word yet it be plain he mean a particular period of time  for in the devise over to his son he say in case either of the daughter die  before or marriage then to go to and be equal divide between my two son which  point out that it be his intent that the son in case of that event shall have  the sister portion absolute it be plain from the whole context this be his  meaning consider the clause of maintenance which also show the testator intent  he give pound per and for the maintenance c of the plaintiff and their sister  while they shall continue to live with the mother and at her charge I shall  apprehend this may amount to a devise of the guardianship but do not give a  absolute opinion while they shall continue to live with her how long be that  till for she be the mother and guardian by nature therefore her care must  continue till a proper age and though a guardianship in socage determine at  and such infant may elect yet in this case here be no socage land and  consequent the guardianship continue till vide har   Litt b note atkins the  memorandum be not by way of codicil or distinct instrument but only add to the  foot of the will because it be too long to be interline and therefore amount  to no more than a interlineation the intention of it be to keep up entire the  six hundred pound the sum allot for maintenance of his child the word  inheritor or inheritor make use of there mean those of that e child who shall  take by survivorship the share of the child so die shall contribute to make up  the maintenance and this memorandum shall be read with the clause of the will  which provide for the maintenance a hundred pound per and to be allow by each  girl and two hundred pound by each boy and in case of the death of any of my  say child the inheritor c atkins er p when be that death to be most clear  before their age of twentyone and therefore this ought to be read as a  addition or interlineation to that clause which direct the maintenance if the  will be to be so read and mean clear a death before twentyone then the clause  immediate follow the maintenance be the devise of the residue both real and  personal to his two son to be equal divide and in case of the death c the  whole residue c so that b ere be the same form of expression as be make use of  in the clause regulate the maintenance and where death general be mention in  other part of the will what construction can be more reasonable than to  construe in the sense testator himself have use it before and as in the case  of the present earl of Shaftsbury the court hold that notwithstanding his  marriage the guardianship do not determine till his age of twentyone Ves roach  v Garvan Ves so here the share and division ought to be among the child of Mr  mend at their age of twentyone when capable of receive it I be of opinion the  word if both my son shall die without leave lawful issue mean a die before  twentyone with regard to they and the subsequent word if all his child shall  die unmarried or without issue mean as to the daughter die before twentysix or  marriage but even if they have die before twentyone and have lawful issue I  shall have be of opinion it will not have go over this be the most reasonable  construction and as the son have attain twentyone no contingency bath happen  with regard to they and therefore the residue of the testator real and atkins  personal estate vest absolute in the two son as tenant in common or otherwise  in case of their marriage they can make no provision for a wife or any issue  of the marriage this make a consistent plan of the whole will and it be very  happy that the memorandum be at the bottom of it for from thence it be clear  he intend if both his son die before twentyone the residue shall go over but  not otherwise in consequence of this opinion his lordship order the residue of  the testator estate to be pay to the plaintiff Reg lib b foe