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1. This is a complex and complicated case arising out of two settlements. These are, firstly, the Deed of Settlement executed by the late Charles Edward Denny on the 11th August 1919, ("the 1919 Settlement") and secondly, the settlement created by the Will of the late Mr. Denny made on the 2nd March 1926 ("the Will Settlement"). Charles Edward Denny died on the 29th August 1927 and probate of his Will (together with three codicils) was granted on the 3rd December 1927. Charles Edward Denny had married and there were issue of the marriage, namely one son (who also married), and four daughters, all of whom married, and all of whom survived the Settlor.

2. The Plaintiffs in these proceedings are the successors to the original trustees appointed pursuant to the 1919 Settlement and were appointed pursuant to a Deed of Appointment dated the 22nd July, 1954. The Plaintiffs are also the successors to the trustees originally appointed pursuant to the Will of the late Charles E. Denny and were so appointed pursuant to a Deed of Appointment, dated the 15th May 1964. They come to Court seeking the Court's directions as to the appropriate interpretation of certain provisions arising in respect of both settlements, and the answers to a series of questions posed in the Special Summons issued and served in the matter. The appointment of new trustees to both settlements is of no materiality and the Deeds of Appointment have been adequately proved by exhibit before the Court.

3. As to the Defendants, the first Defendant is the legal personal representative of the late Gerald Henry Maynard Denny, the only son of the Settlor, Charles E. Denny. The first and second Defendants are together the legal personal representatives of the late Eleanor Florence Denny, widow of Gerald Henry Maynard Denny. Gerald Henry Maynard Denny died in 1949 without issue. Eleanor Florence Denny, his widow, died in 1996.

4. The third Defendant is the legal personal representative of the estate of Eileen R. Heather (nee Denny) one of four daughters of the late Charles E. Denny. She died on the 12th or 13th of June 1962 (the difference in dates is not material). Although the third named Defendant is also a trustee of the 1919 Settlement and of the Will Settlement, the third Defendant is a party to these proceedings only in its capacity as a Defendant representing the estate of the late Eileen R. Heather, and not as a trustee of either settlement.

5. The fourth Defendant is the legal personal representative of the estate of Cecil Violet Campbell (nee Denny), another daughter of Charles E. Denny. Cecil Violet Campbell died on the 26th December 1962.

6. The fifth Defendant is the legal personal representative of Edith Mabel Coates (nee Denny) yet another daughter of Charles E. Denny. Edith Mabel Coates died on the 2nd July 1959.

7. Finally, the sixth Defendant is the legal personal representative of Mary Olive Olive (otherwise Olive Mary Olive) (nee Denny) another daughter of Charles E. Denny. She died on the 17th September 1954.

8. The matter comes before me on the application of the trustees of each of the settlements. During the course of the opening it became clear that one at least of the questions posed by the trustees was no longer germane to the action and that a further question should be added. I have received from Mr. Spierin, for the Plaintiffs, an amended list of questions, copies of which were furnished to all other parties, and those questions have been agreed between Counsel representing all parties.

9. I propose to deal with the questions raised by the Plaintiffs in the Special Summons, firstly with respect to those concerning the 1919 Settlement, and thereafter with respect to those arising under the Will Settlement.

10. The questions raised in respect of the 1919 Settlement are as follows:-

11. In order to answer the questions raised with any degree of clarity or certainty, it is important to consider the terms of the Deed of Settlement and I exhibit the relevant parts of the 1919 Settlement as "Schedule A" to this judgment. I should, however, say that having regard to the evidence before the Court and the legal arguments made, I am not satisfied that all the above questions can be responded to, nor that all of them arise comfortably within these proceedings. It may therefore be that some will remain unanswered in these particular proceedings.

12. By the 1919 Deed of Settlement Charles E. Denny irrevocably settled certain property subject to a trust or trusts declared in the settlement. The Settlor settled this property (stocks, shares, etc.) upon trust with various limitations in the following terms (in brief and in general):-

13. The Plaintiffs, while making no argument one way or the other as to their chosen interpretation of the terms of the 1919 Settlement, indicated the general law on its interpretation, and in particular Counsel drew attention to the following principles citing, inter alia, Norton on Deeds which he said the Court should apply:-

14. Bearing these principles in mind and the applicable case law and commencing with the 1919 Settlement, the Settlor settled the trust property on the trustees to hold the funds and the income from the funds on the following terms (according to

15. The trustees shall pay the income of the settled fund to "the son during his life" and in the event of the trust determining or failing in his lifetime (for particular stated reasons), the trustees "shall during the remainder of his life or during other periods as the trustees shall think fit" pay all or part of the income or apply the income for the maintenance of:

16. It seems to me that a correct reading of this clause is that the Settlor intended that the trustees should pay the entire of the income to the son during his life. If there was a failure or determination of the trust during the life of the son then during those periods or even during the remainder of the son's life the trustees may pay in their absolute discretion to one or more of the son and his wife; and/or any children of the son and his wife; and/or any descendant of the Settlor alive at the time.

17. If there is income from the settled property not so applied, then that income would be held by the trustees upon the trusts for which the income would be held if the son were dead but did not leave a widow.

18. The events provided for in the 1919 Settlement by way of failure or determination during the life of the son did not arise and the trust did not thereby fail or determine during his life.

19. Clause 2 of the 1919 Settlement then provided by means of lengthy subclauses for what would happen in various events. In the event the son died and left a widow, then the trustees had power to pay all or any part of the income of the settled funds, in their absolute discretion, to any or all of the following:

20. The son, Charles Henry Maynard Denny died in 1949, leaving a widow but no children. At that date, all four daughters of the Settlor were alive, and were "other descendants of the Settlor for the time being in existence".

21. In the event of all of the income not being applied by the trustees in the case of the widow surviving, the remainder was again to be held by the trustees upon the trusts upon which it would be held if the son had died without having left a widow. This is in terms similar to the proviso applying to income remaining in the event of a failure of the trust during the lifetime of the son.

22. The next provision of importance in the 1919 Settlement (also included in Clause 2) provided for what would happen after the death of the son and of his widow. The settled funds and the income were to be held in that event by the trustees (in general terms) for

23. These latter parts of the clause are subject to debate and controversy.

24. As I have mentioned, Charles Henry Maynard Denny had no children and the widow, Eleanor Florence Denny died many years after her late husband, in 1996.

25. The final important provision (again in Clause 2) of the 1919 Settlement provides that in case the trusts concerning the settled funds fail or determine, then the Settlor provided that the settled funds and the income shall be held by the trustees upon trust:-

26. But there is a proviso to this part of Clause 2. If the Settlor's daughter Cecil Violet Campbell was living at the date of failure or determination, the trustee of her marriage settlement were directed, notwithstanding the trusts thereby declared, to hold the share or the whole of the settled fund and the income, upon trusts corresponding as nearly as may be to the trusts declared by the marriage settlement, after the death of Cecil Violet Campbell, as if she had died immediately before the date of failure or determination.

27. In the course of submissions, the following arguments were made by the several defendants, on the issues arising (other than on the question of the Rule against Perpetuities, which I propose to deal with separately). All the Defendants agree that the real issue is when the trust failed or determined.

28. Mr Cregan, on behalf of the third defendant (the estate of the late Eileen Rose Heather), submitted that the question to be decided is whether or not the trust(s) did fail or determine prior to 1996, when the widow died, and if so the question was whether the trust determined in 1949. If the trust failed in 1949 the estate of Eileen Rose Heather, his client, would have been entitled to one quarter as she was a daughter of the Settlor who was then living. He accepted that this quarter interest would have vested in the trustees of her marriage settlement, and would, in the circumstances which had arisen, revert back into the estate of Charles Denny.

29. Mr. Ferguson, for the fourth Defendant (the estate of Violet Campbell) says that the correct vesting date is 1996. He argued that the words appearing at the commencement of Clause 2 did not bring about a life interest for the widow but rather she, together with others, simply had a discretionary interest in the income. This he said was so until 1996. Until that time, an element of discretion existed and this discretion was not confined to the son or the widow of the son. The original trust was in good health and all that occurred in 1949 was that there was at that time no issue of Gerald.

30. Mr. Ferguson submitted that there were a number of trusts which took effect in succession. He argued that from the words used in respect of "failure or determination" and in particular the use of the words "in case" in Clause 2, it was made clear that there were prior trusts, namely (a) to the son (which had protective and discretionary elements), (b) to the widow - a discretionary element (to be applied not just for her however but for others), and (c) to the sons. In addition the word "trusts", in the plural, is used. Mr. Ferguson submitted that all the prior trusts must fail before the words "fail or determine" have any application, and argued that none of the trusts failed. No one in 1949 needed to look at the trust at that time, and if the trustees had looked at it, this would have been supererogatory. He argued that the trustees' duties upon a failure were to divide the settled funds and the income into the daughters' equal shares. For a 1949 failure or determination to be recognised, the trustees would have a duty to separate out but not to pay until 1996 and this would be an extraordinary construction to put on the words.

31. If the principal trust failed only in 1996, the proviso relating to the share of Cecil Violet Campbell does not apply because she was not living at that time. However, Mrs. Van Eyk, her issue, was alive in 1996. She is the issue of a daughter "who had previously died" as provided for in the middle of the "failure or determination" clause, and was entitled to a share in the estate.

32. Mr. Ferguson argued that if, however, the trust failed in 1949 then Gordon Campbell had died in 1935 intestate and there was likely no appointment by him. Mr Ferguson argued that the terms of the 1919 Settlement did not take away Mr. Campbell's power to appoint to his own child. Mrs. Campbell's Will establishes that she exercised her own power of appointment. In the circumstances the Court may hold that the trustees of the Campbell marriage settlements are entitled to have her interest regardless. The trustees of that settlement would then get the money. He submitted that the word "trusts hereinbefore declared" in the proviso to Clause 2 refer to those in the 1919 Settlement and not to the trusts of the marriage settlements. This, however, does not concern the Court if the trusts ended in 1996.

33. Miss Pilkington on behalf of the fifth defendant (the estate of Edith Mabel Coates) submitted that as to time, the trust failed or determined in 1949. She argued that the trust failed then because of the absence of issue of the son, which was clear once he died without issue. His death without issue was the trigger for the failure. She argued that by 1949 the interests of the daughters in the settled fund and the income were vested in interest, but not in possession. She submitted that this latter interpretation is consistent with the wishes of the Settlor from the words used in the settlement. Nothing more was required to be done in 1949 to act or to vest the interest in each of the daughters. The daughters had to wait for possession because the life tenant (the wife) did not die until 1996. Miss Pilkington argued that for the purposes of construction, the death of the widow is irrelevant because of the factor which triggered the failure, namely the absence of issue of the son. She submitted that the words in Clause 2 meant that the widow is a life tenant in respect of whom a discretionary trust exists, and also in favour of any children of the son and his widow, or any descendants of the Settlor. The provision at Clause 2 is merely one by way of direction for the payment to the widow during her life of some or all of the income under the settlement. This clause merely postponed the vesting in possession of the daughters' interests but no more.

34. She said her client is entitled to one quarter or alternatively one third share. This is because, as to one quarter, in 1949 all four daughters were then alive . As to one third, this arises if the Court were satisfied having regard to the proviso that as to Cecil Violet Campbell, in the absence of a power of appointment being exercised by Gordon Campbell her share would be redirected back to the remaining three daughters of the Settlor.

35. Mr. McBratney, for the sixth defendant (the estate of Mary Olive Olive) submitted that, as to the 1919 Settlement, the date of determination of the trust (s) was 1996. He says that Mr. Ferguson identified three prior trusts. Mr. McBratney says a third trust was not created and argued that the second is the most important, namely, a trust in favour of the widow (Clause 2), a trust being a "hereinbefore declared trust". The phrase "any other descendants of the Settlor" included in 1949, each of the four daughters. There was, however, a wider class of potential beneficiaries than merely the children of the son after his death. His death did not exclude the trustees exercising a discretion and to that extent only he disagrees with Mr. Ferguson. The trustees, following the death of Gerald in 1949, still had a trust to consider. He submitted that there were a series of consecutive trusts. Initially the trustees were concerned only with Gerald. During his life there was a defeasance provision, and on his death another trust was created. He submitted that both he and Mr. Ferguson had identified the trust for the issue of the son and the son's remoter issue.

36. Mr. McBratney further submitted that as to a 1996 date of determination, there were two possible consequences, one in favour of the sixth defendant being entitled to all the funds, or one which provides that the sixth defendant and the fourth defendant would share the fund equally. He submitted that if one read the defining part of Clause 2 there are two daughters whose estate are entitled, namely Mrs. Campbell and Mrs. Olive, both of whom have issue living and who are entitled to have the monies paid to the trustees of their two respective marriage settlements. On the unique proviso in respect of Mrs. Campbell, he argued that the true interpretation of the 1919 Settlement is that the Settlor, as regard her, was using the trusts of her marriage settlement to graft on another trust, in favour of the 1902 trustees.

37. He submitted it was quite clear from the 1919 Settlement that the Settlor trusted Gordon Campbell and gave him a power over this second bundle of funds. In default of an appointment as provided for the money was to be paid to those trustees of the other marriage settlements of the remaining daughters. The proviso in Clause 2, he says, governs the entire of the gift to Mrs. Campbell's marriage settlement and not only if Mrs. Campbell were alive at the date of failure or determination. He says therefore that he client is entitled to the whole of the fund. If otherwise, he is entitled to one half.

38. As to a 1949 date of determination, and the consequences for this, all four daughters were then alive. The funds were to go to the trustees of four marriage settlements. Even if he is not correct on the defeasance being 1996, the position is even more clear in 1949. Mr. Ferguson's argument is not relevant at all to a 1949 determination. If one takes 1949 as being the appropriate date, then the funds are divided three ways, namely, to Mrs. Olive, Mrs. Campbell and Mrs. Heather.

39. Before I indicate my view as to the appropriate date on which the trust failed or determined, pursuant to the terms of the 1919 Settlement, I should consider the arguments put forward on the Rule against Perpetuities, since my decision on this may assist in determining part of the other issues which arise.

40. The issue of the Rule against Perpetuities was raised on behalf of the third named Defendant. Essentially, Mr Cregan says that, so far as concerns the 1919 Settlement, some or other of its clauses, or perhaps even the entire of the settlement, infringe the Rule.

41. Simply put, the Rule against Perpetuities is designed to limit a grantor's power to postpone indefinitely the vesting of ownership of his property in the future. So, in brief, the vesting must occur during a reasonable period of time. That period of time is known as the perpetuity period. The modern perpetuity period has been established by the Courts as being "life or lives in being, plus a further period of 21 years".

42. The essential requirements of the Rule is that a future interest in property must vest within the perpetuity period. The vesting is sufficient if it is a vesting "in interest", since the rule does not require that there must be vesting in possession. This means that it is enough if the donee is ascertained, his precise share of the property is determined and he is ready to take it, subject only to any prior interest in it. His taking possession of the property outside the perpetuity period (as opposed to taking an interest in it) does not invalidate it.

43. Another fundamental principle of the Rule is that there can be no "wait and see" approach, by which is meant that the gift must be looked at the time of operation of the instrument (in this case 1919) and at that point, the possibilities, not the probabilities, must be taken into account.

44. So, the important thing, in the context of the Rule against Perpetuities, is to ascertain firstly the life or lives in being in respect of any gift, apply that to the terms of the settlement, and ascertain whether the settlement or any of the gifts are void. I deal separately with the arguments made on the Rule being offended by the terms relating to the powers of appointment found in the 1919 settlement. Mr Cregan made another, somewhat related argument, that one quarter share of the settlement failed for want of certainty, or the entire failed for want of certainty, because one of the marriage settlements was missing. He said, that if no marriage settlement now exists, that one quarter falls back into the estate.

45. Mr Cregan cited Wiley paragraph 5.056 - 5.057 on the general definition of the Rule and the requirements of vesting, which I have set forth in general terms above. He submitted that a distinction must be drawn between a vesting in the son and in the children of the son (if any). He submitted that Gerald Henry Maynard Denny is a life in being. He also submitted that his wife is a relevant life for the purposes of the perpetuity period, that time runs from 1919 and that, as of 1919 it was possible that she was born after that date. While he accepted that she was, in fact, born before 1919, and the marriage was in 1937, nevertheless, if Charles Henry Maynard Denny could have married someone not born in 1919, then his wife could not be an appropriate life in being.

46. He submitted that the Rule, being based on possibility, not probability, means that this is so. If the wife of Gerald Henry Maynard Denny was born in 1920 (a possibility) she could not be a legitimate life in being and therefore the settlement failed. In that regard, he cited Megarry & Wade , 5th Edn. p. 250 and Coughlan, p. 162/3. Again, these extracts set out the general principles for ascertaining the consequences of applying the possibility test.

47. Since the risk of vesting must be determined at the time when the disposition takes place, in this case, in 1919, it was clear, he argued, that the settlement was void for offending the Rule against Perpetuities, and he submitted that the decision in Exham -v- Beamish (1939) I.R. 336 did not over-rule the general principle. And he further argued that the "wait and see rule" simply did not apply in the present circumstances.

48. He submitted that if he was correct, then the effect of this was that the property the subject of the 1919 settlement fell back into the residuary estate of the Settlor.

49. This contention on behalf of the third named Defendant is contested by all of the Defendants, for a variety of reasons. In brief, the arguments against the applicability of the Rule in the context of the 1919 settlement may be summarised as follows:-

50. I have come to the view that neither the settlement nor any of its terms infringe the Rule against Perpetuities. I come to this view because it seems to me that the settlement is drawn in such a careful manner as not to offend the Rule. It is clear that at the date of the settlement, being the relevant date, the son, Gerald Henry Maynard Denny was a life in being. So too in my view is his wife Eleanor Florence Denny. Insofar as she might have been unborn at the date of the settlement (whether she was or not) the settlement is drawn in such a manner as to ensure any vesting occurs within the perpetuity period. So too does the settlement provide for a vesting date in respect of the children of Gerald Henry Maynard Denny by providing that such vesting must occur no later than at age 21 whether male or female, or even earlier, if female.

51. As to Mr. Cregan's argument on behalf of the third Defendant that Eleanor Florence Denny could not be a life in being and therefore the rule is also infringed because the vesting provisions relate only to the income of the settled funds as opposed to the settled funds themselves, it seems to me that this is not a valid argument. I do not consider it correct to interpret the terms of the settlement so as to draw the distinction sought to be drawn between the settled fund on the one hand and the income thereof. It is all the same trust, but the son and his widow have an interest in the income, of a discretionary nature, at the date of the creation of the trust. All the possible beneficiaries of the discretionary trust were ascertained or ascertainable in accordance with the principles in Gilroy v. Parker [1966] I.R. 308.

52. As to the absence of any one or more of the marriage settlements, I agree with the argument made that such absence has no effect save that the consequences of its absence may result in monies going to the residuary estate of the Settlor. Its absence does not in any way render the settlement, or its terms, void.

53. I find the true intention of the Settlor, as gleaned from the meaning of the words used by him in Clause 1 and in the lengthy Clause 2 of the 1919 Settlement is as follows:-

54. In my view, the words in Clause 2 giving the son a discretion to appoint do not permit the son to appoint the settled fund to anyone, but only to appoint a person in place of the trustees to exercise the discretion which the trustees otherwise have in respect of the sons' interests in the settled fund. I am of the view that the words are quite capable of bearing such a meaning and, having regard to the overall settlement, I am of the view the Settlor never intended, by the use of the words, to permit his son to alienate the entire of the settled funds to persons outside the "family", a clear consequence which would arise if the alternative interpretation of the words proposed by the third Defendant is adopted.

55. However, as I have mentioned, there was a special provision made in respect of the interest, if any, of Cecil Violet Campbell. In her case, if she was one of the daughters of the Settlor living at the relevant time, then the trustee of her marriage settlement was to hold the settled funds upon trusts which "corresponded as nearly as possible" to those in the marriage settlement after the death of Cecil Violet Campbell and also, subject to the trust in favour of Cecil Violet Campbell's husband, Gordon Campbell, (found in the marriage settlement). In default, then the share of the settled funds transferring to the trustee of the marriage settlement of Cecil Violet Campbell under the 1919 Settlement was to be held upon trust for such of the daughters of the Settlor as Gordon Campbell appointed by Will, and in default of such appointment by him upon the trusts earlier declared in the 1919 Settlement in respect of the shares of the settled funds (other that the share of Cecil Violet Campbell), namely, for the one or more of the remaining daughters of the Settlor, if any.

56. It seems to me that the Settlor by these last two parts of Clause 2 intended that the funds would be, initially, for the children of his son, if any. But if there were none, then they still remained in "the family" so to speak. No monies at all would be given directly to his daughter Cecil Violet Campbell, even if she was alive at the date of failure or determination of the trusts. However, he was intent on giving her some benefit by giving her interest to the trustee of her marriage settlement. By the words used, the Settlor intended that she would have no control over or benefit from the funds during her life. And finally, while recognising the life interest of the 1902 marriage settlement given to Gordon Campbell, the Settlor trusted Gordon Campbell to appoint, if he wished, by Will, absolutely or on trusts for any or all of the daughters of the Settlor and their issue, including in my view, because of the absence of any words to the contrary, the issue of Cecil Violet Campbell. And if Gordon Campbell did not so appoint or direct by Will, the entire of what might be called "Cecil's Fund" would be transferred, in the same manner as the remainder of the "equal funds" namely to the trustees of the several other marriage settlements of the remaining daughters of the Settlor, if any, living at the failure or determination. I will return, however, to consider this section of the clause again.

57. Overall in my view, the Settlor by the words chosen intended to benefit (i) his son, (ii) his sons widow, (iii) any children or remoter issue of the son, and (iv) his daughters and their issue, and, in particular, his daughters and their issue if there was no widow or no children of the son. If there was a widow but no sons, then the daughters would benefit after the death of the widow. I find nothing in the Settlement which would preclude the children of Violet Campbell from benefiting, so long as they were alive at the appropriate time, and otherwise entitled.

58. I am of the view that, on a true construction of the 1919 Settlement, there is not a series of trusts or of consecutive trusts of the particular type contended for by some of the Defendants, but rather one trust, with various limitations or remainder interests, each of which must be considered so as to ascertain, if, and when, any failure or determination occurred. The trust in my view is that of the settled funds and its accruing income. As to the income of the settled funds that was to be utilised by the trustees in a particular way, first as to the son, then to his widow and children and the Settlor's descendants then alive.

59. Clause 2 of the Settlement is indicative of what is to happen to the income of the settled funds after the death of the son, firstly with a widow surviving him with children. It was suggested by Miss Pilkington that this clause is merely a direction to the trustees to pay a sum of money from the income of the settled funds to the widow. Eleanor Florence Denny survived her husband, who died in 1949. She survived him by a very considerable number of years, but for the purposes of the application of the terms of the 1919 Settlement, it does not seem to me that this matters, save that the precise time at which the interest of others in the settled funds is determined. If she survived the son, as she did, the trustees were to continue to hold the settled funds to provide an income for her and any children of the son and any descendants of the Settlor. They were the several objects.

60. I am of the view that the trust comprising the settled fund continued for so long as the widow survived, namely, until 1996. It is true that this part of Clause 2 refers to "trusts" in the plural, as Mr. Ferguson says, but it will be clear that at 1919 there were, possibly, more than one trust, had there been children or remoter issue of the son. So I do not think that the use of the word "trusts" in the plural is indicative that a separate trust existed in the settled funds and the income of the settled funds. There was (a) a trust of settled funds and the income thereof in favour of the son as to income only, and (b) a trust in favour of the widow, the children and the descendants of the Settlor, again as to income. That trust, with income payable in the manner described, did not determine until the widow died. But one of the classes of objects did not ever exist. Any income not paid to the widow/sons/descendants alive of the Settlor was to be held upon the further trusts.

61. The next matter concerns a further part of Clause 2, where it provides for what was to happen after the death both of the son and his widow. Briefly, the settled funds and the income thereof were to be held in trust for the children or remoter issue of the son.

62. As we know there were no children or remoter issue of the son. Since I have already found that the true meaning to be attached to this part of Clause 2 is that the son had power to appoint a person who would determine how the monies might be allocated between his children or remoter issue, nothing else arises under this part of Clause 2.

63. The last trust of the settled fund and the income only arose in the event of the death of the widow without there being children of the son, at that time, in 1996. The words "in case the trusts .... concerning the settled funds shall fail or determine" are not meant to be taken as excluding the income generated by the settled fund.

64. And I agree with Mr. Ferguson's contention that it would be an extraordinary result to hold that the daughters (however many were alive in 1949) should have the settled funds and the income divided equally between them, for to do so then triggered a situation where the trustees of the several marriage settlements would have control over the interests of each of the daughters in the settled funds and the income (even if not vested in possession) leaving the trustees of the 1919 Settlement to control the payment of the income to the widow or children of the son or to the daughters of the Settlor then alive, being the acknowledged prior interests. I think this would be a very strange argument in favour of a vesting in 1949.

65. Since I have held that there was no failure of the trusts "hereinbefore declared concerning the settled funds" on the death of the son in 1949, what then is the position?

66. The Settlor died in August 1927. During his life, there is no evidence that the Trustees of the 1919 Settlement exercised any of the powers vested in them under Clause 3 of the settlement, which permitted them to pay the whole or any part of the settled funds (and not just the income thereof) to the son, or to any widow of the son, provided the Settlor gave his consent to this in writing. I find that this did not occur.

67. The son, Gerald Henry Maynard Denny, married in the year 1937. He did not have any children.

68. The son died in 1949, leaving his widow Florence. During the lifetime of the son, there is no evidence to suggest that his interest in the income of the settled funds became vested in or charged in favour of any other person within the meaning of Clause 1 of the settlement. Such an event, if it had occurred, would have resulted in the trust in his favour failing or determining during his life. The words of Clause 1 make it clear that it concerns only a failure or determination during his life, since the power of the trustees is to pay the income or part of it to "the son and his wife" (jointly), and/or to others. Since the part of that clause relating to the manner in which the balance of the income was to be held by the trustees is only applicable in the event of a failure or determination "during his lifetime", I do not believe any such income existed or exists.

69. Next, one must look at the events which have occurred, and ascertain whether, as of 1996, there were:-

70. To decide this, one must look at the events surrounding the several daughters, their marriages, and their issue.

71. In the foregoing circumstances, both Mrs Van Eyk and the estate of Mary Olive Olive are each entitled to a one half interest.

72. I now turn to the issues which arise for consideration in the Amended Special Summons concerning the Will of the late Charles E. Denny, deceased.

73. Charles E. Denny died on the 29th August 1927, having made a Will on the 2nd March 1926 and three codicils. For the purposes of this action, the three codicils are only material in that they, together with the Will, were proved and probate was granted to the named executors. As to their individual contents, the codicils are irrelevant to any of the matters arising for consideration.

74. The questions which arise for consideration in respect of the Will Settlement are as follows:-

75. Again, to answer the questions raised with any degree of certainty, it is important to consider the precise terms of the Will Settlement and I exhibit the relevant parts of the Will of the late Charles E. Denny as "Schedule B" to this judgment. Again, I should point out that, having regard to the evidence before the Court and the legal arguments made, and having regard to the parties before the Court, I am not satisfied that all the above questions can be responded to, nor do all of them arise comfortably within these proceedings.

76. By his Will, he provided (in brief and in general):-

77. Insofar as the residuary estate is concerned, the Will provided that the shares to which the daughters were entitled were not to be held by the daughters absolutely. Instead it was provided by the Will that their shares would be held by the trustees of the Will upon trusts declared in the Will, namely (in brief):-

78. The clauses of the Will are reasonably straightforward, but submissions have been made as to the true meaning of those clauses which give rise to some requirement for interpretation. Although not material for the purposes of interpreting the terms of the Will, I should say again that the son Charles Henry Maynard Denny died in May 1949. He was married but had no children. His widow, Eleanor Florence Denny survived him and died in 1996. Of the four daughters of Charles E. Denny, it will be recalled that, on the face of the Will, his daughter Cecil Violet Campbell was not provided for. Eileen Rose Heather died in 1962 without issue. Edith Mabel Coates died in 1959 and left a daughter who died in 1966. Mary Olive Olive died in 1954. She had a daughter who died in 1964, who had issue.

79. Mr. Spierin, on behalf of the Plaintiffs, drew the Court's attention to the general principles to be applied in construing the Will, including the following:-

80. In addition, Mr. Spierin drew the Court's attention to the decision in Heron v. Ulster Bank Limited (1974) NI 44, which was approved by Carroll J. in Howell, Deceased, Howell v. Howell (1992) 1 I.R. 290. These cases suggest the following approach which I propose to adopt:-

81. The apparent scheme of the Will is as follows. The testator left specifically devised property to his wife for her life that property, known as the "Wife's Fund", was left for the benefit of the wife of the Testator for her life and after her death that fund was to pass into and become part of the "son's fund". As to the "son's fund" - whether the original fund or as augmented by any part of the "wife's fund", this was for the benefit of the son for his life, and then the income to the son's wife, Eleanor Florence Denny, for her life, and then on trust for the children or remoter issue of the son. If there was a failure of the "son's fund" it thereupon passed into the residuary estate, subject only to the interest of Eleanor Florence Denny.

82. Once it passed into the residuary estate, it was left for the benefit of three named daughters, with provision in the event of any one of them dying prior to a particular ascertainable date, during the life of the Testator.

83. The fourth named Defendant, the estate of Cecil Violet Campbell makes no claim under the Will. The first and second Defendants, the estates respectively of Charles Henry Maynard Denny and Eleanor Florence Denny also make no formal submission on the Will and its interpretation save in relation to the possible consequences arising from the Court adopting as correct the contention of the third named Defendant as to the provisions of Clause 11 and 7. Submissions were therefore made on behalf of the estates of Eileen Rose Heather, Edith Mabel Coates and Olive Mary Olive.

84. One of the issues which arises for consideration is the meaning of Clause 11(b) of the Will. It provides as follows:-

85. The thrust of the guidance given to the Court on behalf of the Plaintiffs and by the Defendants, save the third Defendant, is that "the Ballybrado Property", "the son's fund" and "the wife's fund" all form part of the residuary estate.

86. Counsel for the third Defendant contends that while the three funds have fallen into the residuary estate, the provisions of the Will make it clear that each of the daughters was entitled to appoint her share to another person, that Eileen Rose Heather had so appointed his client by Will and therefore his client was entitled to a one-third share of the residuary estate.

87. On the construction of Clause 11(b) of the Will, Mr. Cregan contended that on a proper construction of that clause, it was clear on its face that the words "any other person" refers to any other beneficiary which the daughter may by Will appoint. He argued that the scheme of the Will provided for the following in respect of the residuary estate:

88. This is contested by the Defendants on several grounds, which I do not require to go into detail. However, the thrust of their argument is that the clause confines the entitlement of the daughters to appoint an alternative trustee who shall have the discretion vested in the Will settlement trustees, and no more.

89. I do not necessarily agree that Mr. Cregan's client puts forward a correct construction of the words found in this part of the - admittedly - complex and complicated Will. Following on the principles adopted by the Court in Howell, supra, I look first to the words of the clause under construction to see whether, using ordinary English language, it can readily be interpreted. When viewed in that light, it seems to me that there is room for interpreting the clause in a manner which supports Mr. Cregan's view and the view of the other Defendants. The sub clause is not so clear as to be without doubt.

90. In these circumstances I look to see what other parts of the Will may assist in ascertaining what the testator intended. As with the 1919 Settlement, which is referred to in the Will, the testator I believe was intent on ensuring, while providing for his own widow, his son, his son's widow, their children and his own daughters, so had his Will drafted as to ensure that where there was any default, the interests remaining in this property at all times reverted back into what I call "the family". In other words, where possible, he endeavoured to ensure that the money was not put beyond the reach of the family and into the hands of strangers. He did this in a number of ways. For example, at all times he provided that if there was a death of a son with no issue, the intended issue's interests reverted back to another member of the settlor's immediate family, or their issue. If there was a death of a daughter, without issue, then her share reverted back to be divided between the remaining daughters. In case there were children of the son, he gave the son the power to appoint another person to exercise the discretion otherwise to be exercised by the trustees of the 1919 Settlement, and I am of the view that he evidenced exactly the same intention in the case of the Will settlement.

91. For example, a consideration of Clause 9 of the Will makes it clear that the "wife's fund" after her death is to be divided on trusts similar to those found in respect of the "son's fund" and the residuary estate (by which he provided for his daughters). Similarly Clause 8 of the Will stipulates that after the widow of the settlor and their son shall have the use and enjoyment of the Ballybrado property it shall be held on trusts similar to those in respect of the "son's fund".

92. Clause 10 of the Will makes it clear that in case a daughter dies without issue, that daughter's share was to be held in trust for the remaining daughters who survive him.

93. Clause 7 (b) of the Will relates to the "son's fund". It reads:-

94. This Clause 7 then goes on to provide that, in default of any such appointment, that is to say, appointment by Gerald Henry Maynard Denny, then the fund is to be held for all or any of his children at 21. In the event that there is any failure of that trust, then all of the son's fund falls into and forms part of the residuary estate.

95. Having regard to the foregoing provisions, I am of the view that the testator intended, by the use of the words in Clause 11 (b) to do no more than to provide that each of the daughters was given a power to appoint a person who would exercise the same discretion as is by the Clause to be otherwise exercised by the trustees of the Will settlement..

96. I am fortified in my view that this is what was intended by a consideration of a further clause. Clause 11(e) of the Will provides specifically for the daughters to have a power to appoint the whole or part of the income of her share to her husband, but only during his life. In other words, Clause 11(e) does not permit the daughter even to appoint her share to her husband simpliciter. If it were the intention to permit any of the daughters by the terms of Clause 11(b) to appoint to anyone, including a stranger, then the testator would not have needed to insert a specific term concerning the entitlement to give the income to the husband during his life, it being certain that the husband could well have survived his wife.

97. Since I have come to the view as to the correct interpretation of the terms of Clause 11(b), I find that Eileen Rose Heather was not entitled by her Will to appoint her interest to any other party, but that, pursuant to Clause 11(b) of the Will, any interest of Miss Heather accrued to the Coates and Olive interests.

98. Since Eileen Rose Heather died leaving no children, then her estate cannot take any benefit pursuant to the provisions of Clause 11(c) of the Will either.

99. I should, for completeness, deal with the alternative argument made by the third Defendant arising out of the inclusion of the words "without transgressing the Rule against Perpetuities" which appears at the end of Clause 11(b) but not at the end of Clause 7, and upon which the third Defendant also relies. I have come to the view that the inclusion of the words is appropriate in the case of the future exercise of a power of appointment, because in its exercise, there might be circumstances in which the Rule would be offended, particularly in the case of an exercise of such power by Deed. On the other hand the use of the words was not necessary in the case of Clause 7, because there the interests are vested and the Rule would not apply, and in the circumstances there was no need to include in that Clause any exhortation concerning the Rules against Perpetuities. This principle applied equally in the case of the 1919 Settlement and did not render that settlement void either.

100. Having regard to the foregoing, I now turn to the series of questions raised for answers, and I give the following answers, dealing first with those arising under the 1919 Settlement and then with those arising under the Will Settlement.