Buick v Equity Trustees Executors & Agency Co Ltd

The application of the rule in the present case, however, does not enable the gift to be upheld. It is obvious that after the death of a child of the testator more than twenty-one years may elapse before any of his issue attains twenty-one and thus qualifies for a vested interest. For example, the first of the child's issue to attain twenty-one may be a grandchild of his whose parent died when the grandchild was only one year old, the parent himself having been only one year old at the death of the testator's child. It may happen, therefore, that no interest under the gift will vest until forty years or more after the last-mentioned event. It needs no discussion to show that such a gift is bad.

For these reasons, the appeal should be allowed. The order of the Supreme Court should be varied by omitting the answers thereby given to questions (a), (b), (c) and (d) in the originating summons, and by substituting therefor the following declarations: (1) that on the true construction of the testator's will each of his children, the defendants James William John Buick and Nancy Isabella Hart, is entitled to one-half of the income of the residuary estate during his or her life only, subject to the interest in income of the testator's widow the defendant Daisy Buick; and (2) that subject to the aforesaid interests in income of the testator's widow and children, there is an intestacy as to the residuary estate of the testator.