In the Will of

[1992] TASSC 77

Serial No 24/1992
List “A”

CITATION:              In the Will of R D Plunkett [1992] TASSC 77; A24/1992

PARTIES:  PLUNKETT, R D, In the Will of

TITLE OF COURT:  SUPREME COURT OF TASMANIA

FILE NO/S:  M 370/1991
DELIVERED ON :  11 May 1992
JUDGMENT OF:  Wright J

Judgment Number:  A24/1992
Number of paragraphs:      28

Serial No. 24/1992

List “A”

File No. M370/1991

IN RE THE WILL OF R.D. PLUNKETT

REASONS FOR JUDGMENT  WRIGHT J.

11 May 1992

1. By an originating application dated 8 November 1991, the trustees of the estate of Ronald Derwent Plunkett deceased apply pursuant to Rules of the Supreme Court, O.65, r.1, for a determination (inter alia) of the following questions:

“1.     That it may be determined whether upon the true construction of the trusts of the abovementioned will and in the events which have happened the trusts relating to the disposal of the Trust Fund referred to in paragraph 5.(ii) of the will are avoided by the rule against perpetuities.

2.      If the answer to Question 1 is no, a determination of the beneficiaries entitled to share in the Trust Fund and the proportions in which such beneficiaries are entitled to share in the Trust Fund.

3.      Whether any grandchild of the Testator who may be born after the death of the Testator shall be entitled to a share in the Trust Fund and if so, the quantum of such share, if any.”

1. The testator‘s will was made on 18 June 1973 and he died on 13 October 1974. He was survived by his widow Italy Ellen Plunkett, his daughter Patricia Leslie Silberberg and his son Derwent William Plunkett. As at the date of this application Mrs. Silberberg had two children, namely John Manning Silberberg, born on 21 December 1970 and Dianne Ellen Silberberg, born on 9 August 1972; Derwent William Plunkett also had two children, namely Benjamin Derwent William Plunkett, born 18 August 1987 and Zoe Melinda Elizabeth Plunkett, born 26 June 1990. Therefore it may be observed that the testator’s daughter had a son aged approximately 2½ years and a daughter aged approximately 10 months at the date of the execution of the will. The testator‘s son had no children either at the date of the will or at the date of the testator’s death. None of the testator‘s grandchildren has yet attained the age of twenty–five years.

2. After making a specific devise and bequest to his son and wife respectively, the testator’s will directed his trustees, after payment of debts, funeral and testamentary expenses and duties, to hold the balance of his residuary estate for his wife during her life. The will then continued as follows:

   “5(ii) Upon the death of my wife to realise such balance of my estate and divide the net proceeds into five equal parts and

   (a)     to hold one of such parts for my son Derwent William Plunkett.

   (b)     To hold another of such parts for my daughter Patricia Leslie Silverberg [sic].

   (c)     To retain the three remaining parts until my eldest grandchild shall attain the age of twenty–five years (hereinafter called the date of distribution) and thereupon to divide such parts equally between my grandchildren living at the date of distribution per capita.

   (iii)    If either my said son or my said daughter shall die before the death of the survivor of my said wife and myself leaving children then living such children shall take and equally amongst them if more than one the share which their respective parents would have taken if living at the death of such survivor.

   6.      I EMPOWER my Trustees:

   (a)     During the minority of any grandchild of mine or until the date of distribution to stand possessed of the share of such grandchild in the capital and income of my estate UPON TRUST to apply the same or such portion thereof as my Trustees in their absolute and uncontrolled discretion shall deem necessary or advisable for the benefit education maintenance and advancement in life of such child or grandchild in such manner as to my Trustees seems fit.”

   4. Italy Ellen Plunkett died on 1 October 1987. By her will dated 29 October 1976 she left her estate to her daughter and son in equal shares. If, therefore, there is an intestacy in respect of three–fifths of the residuary estate of Ronald Derwent Plunkett by reason of the rule against perpetuities that three–fifths share will be divisible between Mrs. Silberberg and her brother Derwent in equal shares as the combined result of the statutory provisions applicable upon an intestacy in respect of their father‘s estate and as beneficiaries under their mother’s will.
   5. The testator‘s grandchildren have not been named as respondents to this application but upon a summons for directions an order was made providing for their representation.
   6. In Gray, Rule against Perpetuities, 4th edn, s.201, the rule is stated thus:

   “No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.”

   It is thus a rule invalidating interests which vest too remotely and is often given the alternative designation of “the rule against remoteness of vesting” (see The Rule against Perpetuities, Morris and Barton Leach, 2nd edn. 1).

   7. Mr. Morris of counsel for the trustees and Mr. Chambers of counsel for the respondents Derwent William Plunkett and Patricia Leslie Silberberg, submitted that the gift contained in para.5(ii)(c) of the will breached this rule because no matter which individual named in the will may be selected as the “life in being” for the purpose of testing the applicability of the rule, it could not be said with certainty that the gift to the class of grandchildren specified therein must vest within twenty–one years thereafter. They argue that at the date of the testator’s death, it could not be said that either John Manning Silberberg or Dianne Ellen Silberberg would attain twenty–five years. Indeed, such eventualities are still not certain. There is no guarantee that those children will not die before attaining twenty–five years. The same may be said of Benjamin and Zoe Plunkett. The first grandchild of the testator to attain the age of twenty–five years may not have been born yet. Plainly therefore, the gift contained in para.5(ii)(c) of the will may not vest in interest or possession for in excess of twenty–one years, even if reckoned from today.
   8. Miss Kohl, counsel representing the grandchildren, submitted that the phrase “my eldest grandchild” should be taken to mean “my eldest grandchild, John Manning Silberberg” or “my first born grandchild”. She points out that John was alive when his grandfather made his will and also, of course, when he died. She submits that the court is entitled to take account of relevant facts known to the testator before making his will (see for example, In the Matter of the Will of Button, Serial No. 1021991, per Underwood J. at p.3 and In re the Will of W.A.G. Luck, Serial No. 171992, a recent decision of my own).
   9. Where the interest in question must vest, if at all, not later than twenty–one years after its creation it is unnecessary to consider “lives in being”. Similarly if the interest must vest, if at all, during “lives in being” there is no need to consider the additional period of twenty–one years.
   10. On Miss Kohl‘s argument the vesting of the three–fifths of the residuary estate must occur, if at all, during a “life in being” viz. the life of John. Whilst acknowledging that John may not attain the age of twenty–five years, she argues that it is premature to consider this possibility until after his twenty–fifth birthday or in the event of his earlier death.
   11. However, I think both these arguments are to no avail. It would have been a simple matter for the testator to name John if he had intended to nominate him as an individual for the purpose of cl.5(ii)(c). He did not do so. He makes no alternative provisions in the event of John’s premature death before the age of twenty–five. That he was conscious of the need to take account of such unfortunate potential occurrences is demonstrated by the distribution to grandchildren per stirpes provided for in para.5(iii) in the event of one of his own children predeceasing himself and his wife. Gray (op. cit.) says, (s.629):

   “The Rule against Perpetuities is not a rule of construction, but a peremptory command of law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Its object is to defeat intention. Therefore every provision in a will or settlement is to be construed as if the Rule did not exist, and then to the provision so construed the Rule is to be remorselessly applied.” [My emphasis].

   7. This proposition is supported by Pearks v. Moseley (1880) 5 A.C. 714, where Lord Selborne L.C. said at p.719:

   “The rule which has always been applied to cases of remoteness is this: You do not import the law of remoteness into the construction of the instrument, by which you investigate the expressed intention of the testator. You take his words, and endeavour to arrive at their meaning, exactly in the same manner as if there had been no such law, and as if the whole intention expressed by the words could lawfully take effect. I do not mean, that, in dealing with words which are obscure and ambiguous, weight, even in a question of remoteness, may not sometimes be given to the consideration that it is better to effectuate than to destroy the intention; but I do say, that, if the construction of the words is one about which a Court would have no doubt, though there was no law of remoteness, that construction cannot be altered, or wrested to something different, for the purpose of escaping from the consequences of that law.

   So understanding the rule, the first question in every case of this kind is that of pure and simple construction – what is the meaning of the words which the testator has used? What would their effect be, if there was no law of remoteness?”

   8. In In re Hume [1912] 1 Ch. 693 at p.698, Parker J. said:

   “In considering a question of this sort the proper course is first to construe the gifts according to the ordinary canons of construction, and then to consider whether any part of it as so construed offends against the perpetuity rule. It is not permissible to construe the gift otherwise than according to its natural meaning because if construed according to its natural meaning it would offend against the rule, though possibly if the gift might equally well be construed in two ways, one of which only would offend against the rule, the Court might because of the rule be led to adopt the other construction.”

   9. Both Lord Selborne L.C. and Parker J. recognized that in the event of ambiguity in the meaning of the disposition in question a construction avoiding the effect of the rule may be preferred, but in my opinion there is no ambiguity here. To find one would involve a distortion or corruption of the plain language used – a quite impermissible process as mentioned by Lord Penzance at p.730 in Pearks v. Moseley (supra).
   10. It is another feature of the rule against perpetuities that it takes no account of events which actually occur subsequent to the death of the testator. The rule is tested against possibilities which arise upon a construction of the relevant devise or bequest; “everything depends upon possibilities, not probabilities or actual events”. (Megarry and Wade, The Law of Real Property, 3rd edn. p.218). Thus, if the interest now in question may not vest until the expiration of a life or “lives in being” referred to in the will (either expressly or by necessary implication) and twenty–one years thereafter, the gift is void.
   11. Whose “life in being” is indicated in the will? I have difficulty in concluding that the relevant life is other than that of Italy Ellen Plunkett the widow of the testator. She was the life tenant of the whole residuary estate and it was upon her death that it was to be divided into five equal parts. But for the purpose of testing the rule it appears to me to be quite immaterial whether one selects the widow, the children or even the grandchildren then living. The result is the same in each case. If the correct view is that the interest created by cl.5(ii)(c) would not vest (whether in interest only or possession) until a grandchild of the testator attained twenty–five years of age, the possibility must obviously have existed that such an event could occur more than twenty–one years after the expiration of all the aforementioned “lives in being”. (As to “vesting” see Jarman on Wills, 8th edn. vol.II, p.1342). To avoid this conclusion Miss Kohl argued that the interest in question vested upon the birth of each grandchild born before the twenty–fifth birthday of the first of them to attain that age.
   12. Opposing counsel submitted that such a conclusion is untenable in that we have here a gift to a class, the composition of which is not determinable until the occurrence, if at all, of the nominated contingency viz. the attainment of twenty–five years by a potential member of that class. “A Gift to a class of persons is void if the time at which the class is to be ascertained is not within the period allowed by the Rule.” (Jarman op. cit. at p.338).
   13. Submissions similar to those made by Miss Kohl have sometimes succeeded in avoiding the strict application of the rule, but perhaps more often than not they have failed. Whilst “Every Court ought to give effect to the testator‘s will if possible, and the Court is not to set aside testators’ wills on arbitrary rules of law if rules can be found which will enable the Court to carry the intentions into effect”, (per Malins V.C. in Abbiss v. Burney [1881] 17 Ch.D. 211 at p.220), this result cannot be achieved if it is only attainable at the expense of a “violent” construction (per Cotton L.J. in the same case at pp.230–231 and similarly Lord Watson at p.314 in Hamilton v. Ritchie [1894] A.C. 310).
   14. At p.309 Jarman (op. cit.) says:

   “A future interest is not obnoxious to the Rule if it begins within the proper period, although it may end beyond it (see the general principle as stated by Mr. Jarman, post, p.361; Re Cassel, [1926] 1 Ch. 358); in which case, if it is a limited interest, it may tie up the property for more than twenty–one years beyond a life in being. Thus, if property is given upon trust for the unborn children of A until the youngest attains twenty–one, and then upon trust for all of them during their lives, this is good (Gooch v. Gooch, 3 D.M. & G. 366). So, if property is given upon trust for A for life, and after his death upon trust to pay the income to his children equally until the youngest attains twenty–five, this trust is good. (Gooding v. Read, 4 D.M. & G. 510. As to discretionary trusts exercisable beyond the limits of the Rule, see Re Boulton‘s Settlement Trust, [1928] Ch. 703). But if the trust were a discretionary one, for the maintenance of any child or children of A until the youngest attained twenty–five, and for the accumulation of surplus income, it would be bad, because no child would take a vested interest within the period allowed by the Rule (Re Blew, [1906] 1 Ch. 624, explaining Re Wise, [1896] 1 Ch. 281, Re Cooper, [1913] 1 Ch. 350, and Re Watson, [1892] W.N. 192. See post, p.316). Limitations of this kind arise chiefly in the case of gifts to unborn persons, ...”

   and at p.310:

   “It sometimes happens that a gift which appears to transgress the rule is valid, because the interests created, although in form contingent, are really vested. Thus, an immediate gift to the children of A who attain the age of twenty–five is good, if one of them has attained that age before the testator’s death (Picken v. Matthews, 10 Ch.D. 264, post, p.341). So in Fox v. Fox (L.R. 19 Eq. 286) a testator directed his trustees to raise a sum of £15,000, and after the determination of certain life interests to divide and transfer one–fifth of the fund to and amongst the children of T equally, as and when they should respectively attain the age of twenty–five years, applying from time to time the income of the presumptive share of each child, or so much thereof as the trustees might think proper, for his and her maintenance and education until such share should become payable as aforesaid; but if T should leave no children him surviving, or if she should leave children and they should all die before attaining the age of twenty–five years, then over: it was held that, under the doctrine referred to in a subsequent part of this work (Post, pp.1398 et seq), the children of T took vested interests, and consequently that the gift to them was not void for remoteness (Fox v. Fox has been approved by the court of Appeal in Re Turney ([1899] 2 Ch. 739), also a case where the question of remoteness arose. The subsequent cases are considered by Astbury, J., in Re Ussher, [1922] 2 Ch. 321).”

   At pp.340–341 he continues:

   “It has been already mentioned that a gift which is apparently contingent and void for remoteness, is valid because in fact it confers an interest which is vested subject to being divested (Ante, p.310). The distinction is sometimes fine. Thus, in Re Mervin ([1891] 3 Ch. 197), the testator gave his property upon trust for the children of his son J. as and when they should respectively attain the age of twenty–five years, and gave his trustees power in the meantime to apply the whole or any part of the income for the maintenance of such grandchildren during their minority, and to apply for the advancement of them or any of them one–half of the capital to which they or he might be entitled expectant on their, his, or her attaining the age of twenty–five years. It was held that the grandchildren did not take vested interests, and that the gift was void for remoteness. On the other hand, in Re Turney ([1899] 2 Ch. 739), a testator gave a fund upon trust for his daughter for life, and after her death in trust for all her children when they should attain twenty–five, but not before, and gave a moiety of the residue of his estate upon trust for his son for life, and after his death for his child or children absolutely upon their attaining twenty–five; the will contained references to the ‘shares’ and ‘portions’ of the grandchildren, and provisions for their maintenance, and the Court of Appeal held, on the construction of the whole will, that the grandchildren took immediate vested interests, subject to being divested in case they did not attain twenty–five, and that the trusts were not void for remoteness (Post, p.1418. The cases on vesting are considered in Re Ussher, [1922] 2 Ch. 321).”

   15. It is worth noting that In re Ussher (supra), referred to by the learned authors, was not a case concerning the rule against perpetuities but was rather an application by a twenty–one year old beneficiary under a will, pursuant to the rule in Saunders v. Vautier (1841) Cr. & Ph. 240, to have an immediate conveyance of property which, under the terms of the will, was to go to him at age twenty–five.
   16. In support of her argument Miss Kohl relied upon the provisions of cl.6 of the will. Opposing counsel argued that maintenance and income clauses can only be called in aid, where the will is ambiguous or unclear as to the time of vesting. Non–existent ambiguity cannot be sought and relied upon to validate the gift.
   17. Here there is no immediate gift followed with a direction postponing payment. The gift is only contained in the direction to pay the three remaining parts of the residue upon the attainment of twenty–five years by the eldest grandchild. Some of the relevant considerations were discussed by Grant M.R. in Leake v. Robinson (1817) 35 E.R. 979 at p.987 et seq.
   18. At p.987:

   “The attainment of twenty–five is necessary to entitle any child to claim a transfer. It is not the enjoyment that is postponed; for there is no antecedent gift, as there was in the case of May v. Wood (3 Bro. C.C. 471), of which the enjoyment could be postponed. The direction to pay is the gift, and that gift is only to attach to children that shall attain twenty–five.”

   At p.988:

   ... If there were an antecedent gift, a direction to pay upon the attainment of twenty five certainly would not postpone the vesting. But if I give to persons of any description when they attain twenty–five, or upon their attainment of twenty–five, or from and after their attaining twenty–five, is it not precisely the same thing as if I gave to such of those persons as should attain twenty–five? None but a person who can predicate of himself that he has attained twenty–five, can claim any thing under such a gift.”

   ...

   “There is not even a provision for the case of a child dying under twenty–five, leaving issue. All is to go to those who do attain twenty–five. How is it possible, therefore, that a child can be said to have a vested interest before twenty–five when it has neither a right of enjoyment, a capacity of transmission, or a ground of claim, until after it shall have attained that age? When the vesting is so clearly and expressly postponed, it is in vain to endeavour to infer from other expressions, used without any reference to that object, that the testator did not conceive himself to have postponed the vesting.”

   19. However, like In re Ussher (supra), Leake v. Robinson (supra) was concerned with a gift to children upon attaining twenty–five years of age. The gift in the will presently under consideration is significantly different. The only beneficiary who must attain twenty–five years before the identity of those entitled can be ascertained is the eldest grandchild, viz. the first grandchild to attain that age. In such circumstances there is plainly a need for a maintenance clause in the will to ensure the proper administration of the trust in respect of other grandchildren who, by definition, will be younger and who may very well be minors when the eldest of them reaches twenty–five. On the other hand, it is impossible to ignore the testator‘s anticipation that some grandchildren may require maintenance, education and the like prior to the date of distribution. I shall return to this point later.
   20. A concise statement of the fundamentals is contained in Megarry and Wade (op. cit.) at p.217:

   “... For the purposes of the perpetuity rule, however, an interest will rank as vested only if it satisfies a particularly stringent test. The two usual conditions (Ante, p.180) must be satisfied:

   (i)     the person or persons entitled must be ascertained; and

   (ii)     the interest must be ready to take effect in possession forthwith, subject only to any prior interests.

   But there is also a third requirement:

   (iii)    the size of the benefit must be known.

   The importance of this third requirement will be seen in connection with class gifts, discussed below. If there is any possibility that a person’s share of the property given may vary according to some future event, the whole gift will fail for remoteness if that event might possibly happen outside the perpetuity period. (Jee v. Audley (1787) 1 Cox Eq. 324; Leake v. Robinson (1817) 2 Mer. 363; Cattlin v. Brown (1853) 11 Hare 372; Pearks v. Moseley (1880) 5 App. Cas. 714; Re Whiteford [1915] 1 Ch. 347 at 352. See Morris & Leach, 38). Thus in a gift ‘to such of A’s grandchildren as attain 21,‘ where A is alive at the date of the gift and none of his grandchildren have yet come of age, the whole gift must fail under the perpetuity rule at common law, even as regards any grandchildren of X who were alive at the date of the gift, and so were bound to attain 21 (if at all) during their own lifetimes. (Cf. Boreham v. Biganll (1850) 8 Hare 131). Until it is known exactly how many grandchildren will ultimately attain 21, the size of each grandchild’s interest will necessarily remain uncertain, and its final determination may well occur outside the perpetuity period. In other words, the possibility that the size of a person‘s share may vary is treated as a contingency (as indeed it is (Gray, § 110, 1, and note. Cf. the expression ’absolute vesting‘ in L.P.A., 1925, s.163, dealt with post, p.241. For the meaning of ’vested‘ in connection with fluctuating payments, see Gray, § 246; Re Whiteford [1915] 1 Ch.347; Re Cassel [1926] Ch. 358; Re Johnson [1943] Ch. 341. It seems to be uncertain whether a ’tax–free‘ annuity (fluctuating in amount according to the rate of tax) can ’vest‘ in the sense required by the rule. A discretionary trust cannot ’vest‘ within the rule: Re Coleman [1936] Ch. 528; post, p.252)) for perpetuity purposes.”

   21. In re Turney (supra) is an important decision bearing many superficial similarities to the present case. However the learned members of the court saw their way clear to adopting the construction which they did because of ambiguities which they saw in the will itself. At p.745, Lindley M.R. said:

   “By his codicil the testator revoked the gift of residue so far as his son J.N. Turney was concerned, and directed his trustees to hold one moiety of his residuary real and person estate in trust to pay the income thereof to that son during his life, and ’after his death upon trust for his child or children absolutely, upon their attaining the age of twenty–five years, and in the event of the death of either or all of the children of my said son before attaining the age of twenty–five years, then upon trust to pay the share of the child or children so dying‘ to the testator’s other son absolutely.

   Now, what does the testator mean by ‘absolutely’? Does he mean more than this – that the shares are to be paid to the son‘s children at twenty–five? The language is ambiguous, but the word is used for some purpose – to make something clearer than it would be without it – and my impression is that it refers rather to payment than to vesting. I do not say the wording is clear; it is not. But what to my mind removes the difficulty of holding these to be vested interests is this – that the testator treats the children of his son as having ‘shares,’ although they may die before attaining twenty–five. The words are: ‘in the event of the death of either or all the children of my son James Neave before attaining twenty–five, then upon trust to pay the share of the child or children so dying to my son Horace.’ He treats the children of James who may die under twenty–five as having ’shares,‘ which he bequeaths.”

   22. Counsel for the grandchildren also relied upon Fox v. Fox (1874) L.R. 19 Eq. 286. The headnote encapsulates the relevant facts and decision:

   “A testator directed his trustees to raise a sum of £15,000, and after the determination of certain prior life interests give to T. and his widow to divide and transfer one–fifth of the fund to and amongst the children of T. equally as and when they should respectively attain the age of twenty–five years, applying from time to time the income of the presumptive share of each child, or so much thereof as the trustees for the time being might think fit, for his and her maintenance and education until such share should become payable as aforesaid; but if T. should leave no children him surviving, or if he should, and they should all die before attaining the age of twenty–one years, then to pay and transfer the said fifth part to the other persons therein referred to:–

   Held, that the children of T. took vested interests, and consequently that the gift to them was not void for remoteness.”

   At p.290 Jessel M.R. said:

   “The Vice–Chancellor, in the case of In re Ashmore’s Trusts Law Rep. 9 Eq. 99, appears to have thrown out the suggestion that there might be a distinction between a gift of a separate share to each of the children on attaining twenty–one, with a gift of the income in the meantime for maintenance, and a gift of a fund to each of the children on attaining twenty–one in equal shares, with a gift of interest in the meantime. I can find no such distinction taken in any other case, and it seems to me to be much too fine to be relied on.

   There still remains the difficulty that the gift here is not a gift of the whole income absolutely for maintenance: there is a discretionary power to apply the whole income, or so much as the trustees may think proper, and the question is, whether that is a gift of the whole interest within the rule as laid down in Watson v. Hayes 5 My. & Cr. 125 and the other cases I have referred to. On that point Harrison v. Grimwood 12 Beav. 192 is a distinct authority. There the legacy was given to a class, followed by a direction, during the minority of the members of the class, to apply the interest, ‘or a competent portion thereof,’ for maintenance; and the Court held the legacy was vested.”

   23. Many other cases were referred to, among them, In Re Deeley’s Settlement [1974] 1 Ch. 454, (where the decision depended upon a determination of the meaning of the word “issue”). In re Chartres [1927] 1 Ch. 466 and Re Cockles Wills Trusts [1967] Ch. 690.
   24. Clause 6 of the present will also speaks of  “the share” of “such grandchild” and refers to that as being a share “in the capital” as well as the income. As I have already mentioned, it envisages such a share as being possible not only during the minority of any such grandchild after the first grandchild attains twenty–five years, but also prior to “the date of distribution” mentioned in cl.5. These are powerful indications in favour of vesting. On the other hand, cl.6 clearly only “empowers” the trustees to apply capital and income for the benefit of grandchildren “in their absolute and uncontrolled discretion” ... “in such manner as to my Trustees seems fit”. This is a most relevant matter and to my mind is of pivotal importance in the present case. I am quite unable to see how a grandchild can have a vested interest in a fund if the trustees thereof are provided with a completely unfettered power to utilize the common fund of a class which in terms is open to contraction or expansion until the nominated date of distribution for the maintenance, education and so forth of any individual member or members of that class to the exclusion of the others. See Jacobs, Law of Trusts in Australia, 5th edn. para.250. I regret to say that the draughtsman of cls.5 and 6 appears to me to have been oblivious to the distinctions between an “expectant” or “presumptive” share and a “vested” share. (Compare the comments of Astbury J. in In re Ussher (supra) at pp.325–326.) The references to the “benefit education maintenance and advancement in life of such child or grandchild” in cl.6 also mystifies me.
   25. Whilst the matter has not been free of difficulty I have come to the clear conclusion that in the terms of the will no grandchild of the testator is capable of taking an interest in the residue of the estate until one such grandchild reaches twenty–five years of age. Until a particular grandchild of the testator reaches that age no one can say how many or which grandchildren will form the class of beneficiaries.
   26. In the terms of the will it cannot even be said with certainty whose birthday anniversary will constitute the decisive event upon which the class will crystallize. Only upon the occurrence of that event can the individuals in the class designated be ascertained and only upon that event can an interest vest in any of them.
   27. Accordingly I conclude that the disposition attempted by cl.5(ii)(c) of the will is in breach of the rule against perpetuities and is therefore void.
       
       
   28. There is thus intestacy as to three–fifths of the testator’s residuary estate. Paragraph 1 of the application (which is not framed as a question although referred to as such in para.2) will therefore be satisfied by an appropriate declaration. It is unnecessary to deal with the remaining issues raised by the application. I should add that I am indebted to all counsel for their lucid and helpful submissions