Page images
PDF
EPUB

real estate, and such parts of my personal estate as are saleable, including the leasehold estates directed to be sold as aforesaid, and also such monies as shall be collected, received, or got in, from the other part of my personal estate as aforesaid, and the intermediate dividends, interest, and proceeds thereof, in the stock of the Bank of England, or on real or government securities, or in some of the public funds, in the names of the said

and

or the name or names of the survivor of them, or of the executors or administrators of such survivor; which securities and funds, and all other securities and funds, in or upon which all or any of the said trust monies, or any other trust-monies which shall come to their, or any of their hands, under or by virtue of this my will, or the trusts or powers herein expressed, and not hereinbefore directed to be otherwise disposed of, shall be invested, it shall and may be lawful to and for my last-named trustees, or the survivor of thein, or the executors or administrators of such survivor, to alter and transpose at discretion. And I do hereby declare my will to be, that the dividends, interest, and proceeds of all such securities and funds, shall from time to time be accumulated and laid out on such securities or funds as aforesaid, in the names of the said and

or the name or names of the survivor of them, or of the executors or administrators of such survivor, and that a like disposition shall be made of the dividends, interest, and proceeds of the securities and funds, in or upon which such accumulated dividends, interest and proceed shall be so invested, and so from time to time with respect to the future accumulated dividends, interest, and proceeds of such several and respective securities and funds, and of such other securities and funds, in or upon which any accumulated dividends, interest, and proceeds shall be invested, but so as no such accumulation be carried or made beyond the term of 21 years, to be computed from the time of my

decease *. And my will is, and I do hereby further declare and direct, that the said

and and the survivor of them, and the executors and

* The great question as to the ultimate period to which these Origin of, and trusts for accumulation might be extended, (which depended upon observations the extent of time during which the vesting and power of alienation upon, the Accu

mulation Act. of property might be legally suspended,) was determined in the much agitated, and solemnlydecided case of Thelluson v. Woodford. See 4 Vez. Jun. 227, and 11 Vez. Jun. 112. In which case there was a de. vise of real estates of the annual value of near 50001., and other estates directed to be purchased with the residue of the personal estate, amounting to above 600,0001. to trustees and their heirs, &c, upon trust during the lives of the testator's sons A. B. and C. and of his grand. son D. and of such other sons as A. then had or might have, and of such issue as D. might have, and of such issue as any other sons of A. might have, and of such sons as B. and C. might have, and of such issue as such sons might have as should be living at his decease, or born in due time afterwards, and during the life of the sarvivor, to receive the rents and profits, and from time to time to invest the same, and the produce of timber, &c. in other purchases of real estates; and after the death of the survivor of the said several persons, that the said estates should be divided into three lots, and that one lot should be conveyed to the eldest male lineal descendant, then living, of A. in tail male ; remainder to the second, &c. and all and every other male lineal descendant or descendants then living of A., who should be incapable of taking as heir in tail male of any of the persons to whom a prior estate was limited, successively in tail male; remainder in equal moieties to the eldest and every other male lineal descendant or descendants, then living, of B. and C, as tenants in common in tail małe, in the same marner with cross-remainders; or, if but one male lineal descendant, to him in cail male ; remainder to trustees, their heirs, &c. The other ewo lots were directed to be conveyed to the male descendants of B. and C respectively in the same manner, and with similar limitations to the male descendants of their brothers, and to the trustees in fee; and it was directed that the trustees should stand seised, upon the failure of male lineal descendants of A, B. and C. as aforesaid, upon trust, to sell and pay the produce to his Majesty, his heirs, and successors, to the use of the sinking fund : the accumulation, till the purchases or sales could take place, to go to the same purpose ; with a direction that all the persons becoming entitled should use the surname of the testator only

The validity of this will was opposed on several grounds, viz.as morally vicious, being a contrivance of a parent to exclude every one of his issue from the enjoyment of even the produce of his property for nearly a century, and therefore an abuse of the allowance of the law for enabling persons to provide for the reasonable esca

administrators of such survivor, shall and do from time to time, as convenient purchases shall be found, make sales of a competent part of the securities and

sions of their families—as politically injurious, being calculated to keep an immense property during the time aforesaid unproductive, and at the end of that period to create a fund, the revenue of which would be greater than the Civil list; the probable amount of the accumulated fund of one third being 19,000,0001., and in case of a minority at the end of the period lasting 10 years, 10,802,973 . And should the whole property centre in one person with a minority of 10 years, the whole accumulated fund would be 32,407,120..

-As going beyond the legal boundary, since in all the other cases, the lives during which the suspence was to be continued, were of those immediately

connected with, or immediately leading to the person in whom the property was first to vest.-As a fraud upon the rule, since by assigning for the period of suspence, a number of lives, whose average duration was equal to a given number of years, and thus indirectly making years, not lives to constitute the period of suspense, property might be suspended for a century.--As attempting to protract the accumulation during the lives of persons urborn at the time of the testator's decease, the testator having included the lives of persons to be born within due time after his decease; and though a child in ventre sa mere might be considered as in existence, where the limitation was for his own benefit, and he was to take when born in the character of heir, or where the subject of the trusts was personal estate, yet no cases conld be mentioned, the subject being real property, in which a child in ventre sa mere has been held to be in existence, for any purpose except to linit the estate of the first devisee, or for the actual benefit of the child himself, being the substituted devisee.-An objection was also taken upon the grammatical construction. But all these arguments were over-ruled, and it was considered, that as the law stood at the time of Mr. Thellucon's decease, it was perfectly settled that the absolute vesting of property might be postponed, and the accumulation of it continued, during the lives of any number of persons in being, and for 21 years after the survivor's decease, and a further number of months, equal to the duration of pregnancy. And that as the term of suspence and accumulation, directed by Mr. Thelluson, was confined to the lives of persons in being at the time of his decease, or born in due time afterwards, or in ventre sa mere at his decease, and the life of the longest liver of them, without any reference to any farther number of years, it not only did not exceed, but fell short of the boundary to which, according to the rules of law, it might have been extended. This was a plain executory devise, and every executory devise was good which did not tend to make an estate unalienable beyond the time, at which the remainder-man, who was not in existence at the zime of the limitation of the estate, would arrive at the age of 2).

sunds in or upon which the several and respective trust inonies last-mentioned shall be invested, or call in a competent part of such trust monies, and lay out and invest the same from time to time in the purchase of freehold manors, me suages, farms, lands, tenements, or heredita:nents of a clear and indefeazible estate of inheritance in fce simple, in possession, situate, arising, or being in some convenient place or places in that part of Great Britain called

And the Court had no other criterion to judge of the inconvenience except by analogy to the restraint which the common law imposes upon the alienation of real property; and as to the point respecting the legal existence of a child in ventre sa mere, it was considered as decided in Long v. Elackall, 7 T. R. 100. The Judges were unanimous. But it has been considered by the Legislature as expedient in future to restrain the power of accumulation, and therefore the statute of the 39 and 40 Geo. 3. c. 98. was passed, by which, as will be seen by referring to it in the appendix of statutes in this volume, the power of settling and devising property for the purpose of accumulation is restrained in general to 21 years after the death of the grantor or testator. And no person can now by any deed or will, or by any other mode, settle or dispose of any real or personal property, so as that the rents or profits may be wholly or partially accumulated for a longer term than the life of the grantor, or the term of 21 years after the death of the grantor, or the testator, or the minority of any person who shall be living, or in ventre sa mere, at the death of the grantor or testator ; and where any accumulation is directed otherwise, such direction shall be void ; and the rents and profits during the time that the property is directed co be accumulated contrary to this act, shall go to such person as would have been entitled thereto if no such accumulation had been directed. But the act is restrained from applying to any provision for the payment of debts, or for raising portions for children, or to any direction touching the produce of woods and timber.

'Upon this statute, however, the Court of Chancery has held, that a trust by will for accuniulation beyond the period thereby allowed, is void only for the excess; and therefore, where the accumulation was directed until the age of 21 of the legatee, not born at the testator's decease, letermined to be good for 21 years ; and it was said by the present Master of the Rolls, that if an accumulation was directed to continue for 24 years, it would be good for 21, within the determination in Griffiths v. Vere, decided by Lord Eldon. See Griffiths v. Vere, 9 Vez. Jun. 127, and Longdon v. Simpson, 12 Vez. Jun. 295.

was

England, free from incumbrances except chief or quit rents, or other inconsiderable outgoings, together with such copyhold hereditaments, as may be intermixed, or be necessary or convenient to be held and enjoyed therewith, if any such there shall be, and the person or persons who for the time being shall by virtue of or under the limitations in this my will contained, be intitled in possession to my said mansion house, called

place, shall approve thereof, such approbation to be testified in writing; and shall and do convey, settle and assure, or cause to be conveyed, settled, and assured, all and singular the hereditaments so to be purchased with their respective appurtenances, to and for such uses, intents and purposes, upon such trusts, and with, under, and subject to such powers, provisos, limitations, declarations, and agreements, as are herein declared or expressed, of or concerning the hereditaments herein before by me devised, and which shall from time to time be subsisting, undetermined, and capable of taking effect. And I do hereby further declare my will to be, that the dividends, interest, and annual proceeds of the several funds and securities in or upon which the said several and respective trust-monies, and the trust-monies accruing thereupon, shall at the expiration of the said term of 21 years be invested, shall from the expiration of the said term of 21 years, go and be paid and payable to such person and persons, and in such course, order, and manner, as the rents and profits of the several hereditaments herein before by me devised, shall, by virtue of the limitations aforesaid, go and be payable and applicable.

« ՆախորդըՇարունակել »