ainrnpU IGam irlinnl IGibraty Digitized by Microsoft® KD 871.M36'" """""''" "-"""^ ^''^llllli™MiS8SiiiriiiifP®''P*'"'''^* -^ ♦'■^^'is 3 1924 021 792 829 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® THE RULE AGAINST PERPETUITIES. Digitized by Microsoft® Digitized by Microsoft® THE RULE AGAINST PERPETUITIES %, ^xmiht an REMOTENESS IN LIMITATIONS, WITH A CHAPTER ON ACCUMULATION AND THE THELLUSON ACT. REGINALD G. MARSDEN, OF THE INNER TEMPLE, ESQ., EAREISTER-AT-LAW. LONDON: STEVENS AND SONS, 119, CHANCEKY LANE, 1883. Digitized by Microsoft® Digitized by Microsoft® PREFACE. I HAVE endeavoured to present in a convenient form a state- ment of the law and cases relating to perpetuities and accumu- lation. The history and development of the Rule against Perpetuities I have very slightly touched upon; that suhject being exhausted by the classical work of Mr. Lewis and the fully reported arguments of Mr. Hargreaves, Mr. Preston, and Sir E. Sugden in Thelluson v. Woodford and Cadell v. Palrrier. The length of time that has elapsed (nearly forty years), and the heavy crop of cases that has sprung up, since the publication of a work dealing specially with Perpetuities appeared to me to point to a want which this treatise attempts to supply. The following pages will give some indication of the extent to which I am indebted to the works of Mr. Lewis, Mr. Jarman and his editors, Mr. Tudor, and Mr. Davidson ; I desire here to acknowledge more fully the obligations I am under to those writers. A second reference, to the Law Journal or other contem- porary Report, is given whenever a case is reported in more than one publication. 11, Old Square, Lincoln's Inn, March, 1883. a2 Digitized by Microsoft® Digitized by Microsoft® TABLE OF CONTENTS. PAGES CHAPTER I. Statement of the Eule against Perpetuities ; origin, scope, and application of the Eule ..... 1 — 38 CHAPTER II. The vesting of limitations ....... 39 — .^O CHAPTEE III. Eemoteness may exist though the property is never inalienable ........ 51 — 66 CHAPTER lY. Eemoteness as a question of expression . . . . 67 — 83 CHAPTER V. Limitations to classes ....... 84 — 111 CHAPTEE VI. Limitations to an unascertained person ; limitations of heir-looms and other property by reference to limita- tions of realty ; executory and executed trusts . . 112 — 139 CHAPTEE VIL Limitations after and connected with estates tail . . 140 — 162 CHAPTEE VIIL Limitations of real estate by way of remainder . . . 163 — 173 Digitized by Microsoft® TABLE OF CONTENTS. PAOES CHAPTEE IX. Limitations to unborn persons for life with remainder 174—181 CHAPTEE X. Limitations upon failure of issue . . ... 182 — 205 CHAPTEE XL Limitations vested or contingent; deferred enjoyment . 206 — 233 CHAPTEE XIL Powers ; their validity with regard to remoteness ; limita- tions in exercise of powers 235 — 261 CHAPTEE XIIL The Eule against Perpetuities with reference to the construction of instruments ; the cy 'prhs doctrine . 262 — 277 CHAPTEE XIV. Absolute limitation followed by modifying clause which is too remote ; rejection of words importing remote- ness 278 — 287 CHAPTEE XV. Effect of limitation that is void for remoteness on sub- sequent limitations ....... 288 — 294 CHAPTEE XVL Chari'.able trusts 295 313 CHAPTEE XVII. Accumulation and the Thelluson Act .... 314 — 347 Digitized by Microsoft® TABLE QF CASES. Atbis V. Burney, In re Fincli 46, 148, 168, 216 Abergavenny (Earl of) v. Brace .... 21 Andrew v. Andrew (1 Coll.) . 203 (1 Ch. D.) 203 Andrews v. Partington . . 266 Armytage v. Wilkinson . 43 Arnold v. Congreve . 79, 97, 279, 286 Arton V. Hare ... 71 Ashmore's Trust, In re . Astley V. Mickletliwaite Ashley v. Ashley - Aspden v. Seddon Atkinson v. Hutchinson Attenborough v. Atten- borough . 234, 236, 237, 240 Att.-Gen. v. Bishop of Chester 308 ; V. Day . • V. Duke of North- umberland . V. Greenhill . V. Hinxman . V. Master, &c. of Brentford School . V. Master of Cathe- rine Hall . . 312 V. Poulden . . 336 . V. Price . . .304 V. Webster . . 310 Attwater v. Attwater . . 7 Avern v. Lloyd . . 59, 102, 178 219, 222 . 170 59, 102 5, 16, 18 . 187 313 304 312 293 311 B. PAGE Bacon v. Cosby . . . 185 V. Hill . . .198 V. Proctor . 122, 123, 158, 317 Bagot V. Legge . . . 193 Bagshaw %'. Spencer . . 42 Bailey v. Lloyd . . . 258 Baker v. Hall . . .161 Baldwin v. Rogers . 93, 98, 111 Bankes v. Holme . 34, 68, 144, 148, 184 V. Baroness Le Des- penoer . 133—135,275 Barker v. Barker. See In re Parker. Barlow v. Salter . . . 194 Barnes v. Allen ... 42 Barnet n. Barnet . . . 43, 216 Barrett u. Buck . . 339, 347 Barrington (Lord) v. Liddell 344, 346 Baasil V. Lister . . . 337 Bateman v. Hotchkin, 158, 159, 316, 317 Beachcroft v. Broome . . 189 Beard v. Westcott . 174, 258, 273, 292 Beauclerk v. Dormer . . 182 Bective (Earl of) v. Hodgson, 42, 319, 326, 328, 329 Beech v. Lord St. "Vincent . 345 Bell u. Cade . . . . 222 Bengough v. Edridge, 346. See Cadell u Palmer. Bennett v, Bennett . . 149 Digitized by Microsoft® Vlll TABLE OF CASES. Bennett's Trust, In re Benson v. Hodson . Bentinck v. Duke of land , Benyon v. Maddison Berkeley Peerage Case ■ V. Swinburne Port- PAGE 93 71, 150 91,92 43 22 43 304 41 12 7 293, 305, 306 Bemal v. Bernal Beverley v. Beverley Bewley v. Atkinson Billing V. "Welch . Birkett, In re Birmingham Canal Co. v. Cartwright . 8, 9, 58, 63, 64 Blagrove v. Hancock . 109, 110, 215, 227 Blakemore's Settlement, In re, 109, 217 Bland v. Williams . 211, 281 Blease v. Burgh . 43, 210, 211, 215, 284 Blight V. Hartnoll . 53, 55, 90, 235, 237, 238 Blinston v. Warburton . . 190 Block, Ex parte. See In re Hart's Trusts. Bodens v. Watson . . . 182 Boebra ■;;. Clarke . . . 185 Boraston's Case . . 229, 231 Boreham v. Bignall . 109, 226 Boughton V. James. 46, 100, 118, 174, 177, 215, 225, 226, 274, 325 Boulton V. Pilcher Bourne v. Buckton Bowers v. Bowers . Boyce ■;;. Hanning Brackenbury v. Gibbons Bradley v. Cartwright . V. Peixoto Brandon v. Eobinson . Bray v. Bree Brce V. Perfect Briggs V. Earl of Oxford 222 . 345 . 202 . 241 41,172 . 200 7 7 236, 252 . 211 lO; 158, 159, 243, 245, 317, 319, 347 Lr'stow V. Boothby . 148, 151, 246, 261 ■ V. Warde . . .273 Broadhurst v. Morris . . 183 Bromfield v. Crowder . . 231 Brown and Sibley's Contract, In re . . . 52, 251, 255 Browne v. Lord Kenyon . 196 P GE Browne v. Stoughton . 156, 157, 320, 325 Brudenell v. Elwes 174, 180, 258, 272, 274 Bryan v. Collins . 330, 331, 337, 342 Buchanan v. Harrison . 103, 108, 175 Buckland v. Papillon . . 14 Buffar V. Bradford . . 101 Bull V. Pritchard . 99, 109, 226 Bulky, /)i re ... 213 Bunn, In re . . . ■ 219 Burley v. Evelj-n . . 174, 289 Burrough v. Philoox . . 200 Burt i;.' Sturt . . 345,346 Bute (Marquis of) v. Harman 226 Cadell V. Palmer . . 32,35 180 Calvert v. Gason . 15 Cambridge v. Eous 76 Campbell v. Harding Candy v. Campbell 193 194 182 Cant's Estate, In re . 20 Cardigan v. Armitage . , 72 Carleton v. Leighton 63 Carne v. Long 299, 300, 301 304 Carr v. Atkinson . , , 260 V. Lord Erroll . 128 Carter v. Barnadiston 42 V. Bentall . 202 Carver v. Bowles, 256, 257, 279, 281 Case V. Drosier . . 152, 153 Catt V. Tourle . . .17, 18 Oattlin V. Brown . 30, 85, 91, 119, 125, 166, 167, 180, 263, 268, 285, 286 Chadock v. Cowley . . 195 Chamberlain v. Brockett 307, 309 Chance v. Chance 109, 214, 225 Chandos (Duke of) v. Talbot 233 Chapman v. Brown . 276, 293 Chinnery's Estate, In re . 204 Christie v. Gosling, 85, 124, 126, 128, 131, 267, 275 Christ's Hospital v. Grainger 307 Churchill v. Churchill . . 256 Clarke's Estate, In re . 197, 201 Clark's Trusts, Inre . . 300 Clayton v. Lowe . . . 202 Digitized by Microsoft® TABLE OF CASES. IX PAGE Clements v. Welles . . 16 CluloTv's Trusts, In re . 339, 346 Cocks V. Manners, 24, 298, 300, 302 Cole V. Goble ... 185 V. Sewell, 142, 147, 151, 163, 164, 180, 241 Coleman v. Jarrom . . 101 Collier v. M'Bean . V. Walters Collins V. Plmnmer CoUison V. Lettsom. Coltsmann v. Coltsmann, 72 72 . 6,9 . 19, 59 183, 187, 191 341, 342, 343 Combe v. Hughes Commissioners of Charitable Donations v. De Clifford 26, 117, 309 Comport V. Austen Cooke V. Bowler . V. Chilcott . Cooper V. Cooper . V. Laroche , 109, 218 179 . 13, 18 . 202 69, 256, 282 15 69, 101, 111 Coppinger v. Gubbins Cormaok v. Copous , Corporation of Bridgnorth, v. Collins . . . . 328 Cotton, In re . . . 338 V. Heath ... 174 Cotton's Trustees and the School Board for London, In re .... 242 Courtier v. Oram . 95, 102, 110, 257 Coventry v. Coventry . 209, 319 Cox V. Sutton . . .127 Cramp v. Playfoot . . 293 Crawley v. Crawley 324, 340, 342 Cromek v. Lu.mb . 79, 98, 108, 218 Crooke v. De Vandes . 34, 187 Crosse v. Glennie . . . 156 Crowder v. Stone . . . 198 Crozier v. Crozier . . 289 CunUffe V. Branokner . 170, 263 Cunynehame's Settlement, In re .... 256,281 Curtis V. Lukin . . 46, 53 D. D'Abbadie v. Bizoin Da Costa v. Keir . Daintry v. Daintry Daniel v. Stepney . Darley v. Martin . Davies, Ex parte . Davies v. Fisher . 175, 251, 255, 258 PAGE . 202 . 184 18, 60, 248 . 187 189, 201 211, 220, 222, 225 Dawkins v. Lord Penrhyn . 7 Dawson v. Small . 183, 204, 293 Deerhurst v. Duke of St. Al- bans, 122. See Tollemache V. Lord Coventry. Dewar V. Brooke . . 219,221, 223, 228 Dodd V. Wake . . .226 Dodson v. Hay . . .208 Doe d. Barnfield v. Wetton . 198 Blesard v. Simpson 72, 1 88 Oadogan v. Ewart . 231 Calvert 1!. Reid . . 16 Cock V. Cooper . . 190 Dolley u Ward . 211,231 Garrod v. Garrod . 180 Gill V. Pearson . Goldin V. Lakeman Johnson t). Johnson Jones V. Owens . King V. Frost . Lumley v. Earl Scarborough . Lyde v. Lyde . Eoake v. Nowell Smith V. Webber Spencer v. Clarke Thompson u. Pitcher Todd V. Duesbury 7 26 188, 198 . 194 . 189 of 149, 155 . 194 . 231 185, 190 72 305 191 Wilkins v. Kemeys . 188 Winter v. Perratt, 142, 143, 165 Doncaster v. Donoaster . 241, 243 Bonn V. Perry . . . 190 Dorchester (Lord) v. Earl of Effingham . . 122,347 Dowset V. Sweet . . . 101 Drakeley's Estate, In re, 338, 340, 341 Duke, In re, Hannah v. Duke 216 Dungannon (Lord) v. Smith . 3, 30, 39, 75, 84, 113—115, 240, 263, 287 Dunk V. Fenner . . . 191 Dutton, In re . . . 30 2 Digitized by Microsoft® TABLE OP CASES. E. PAGE Eales V. Conn . . . 152 Earle v. Barker . . . 238 Eastwood V. Avison . 199, 200 Eden v. Wilson . . . 239 Edgeworth v. Edge-worth . 42 Edmonson's Estate, In re, 43, 102, 213, 216 Edwards v. Edwards . . 202 V. Hammond . . 231 V. Tuck . . 345, 346 V. West ... 20 Egerton v. Jones . . 184, 192 Elborne v. Goode . 328, 338, 341 EUicomb v. Gompertz . . 246 Elliott D. Elliott . 106, 110, 266 Ellis V. Maxwell, 324, 333, 334, 337, 338, 340 Elton V. Sheppard ... 26 Eno V. Eno . 68, 184, 192, 246, 261 Evans v. HelUer . 339, 345, 346 V. Scott . . . 232 V. Walker . . .174 Evers v. Challis . . 74, 172 Eyre v. Marsden . . 324, 335, 341, 342, 346, 347 Eairfield v. Morgan . . 188 Ealkiner v. Hornidge . . 187 farmer v. Francis . 231, 210 Farrer v. St. Catherine's Col- lege Faulkner v. Daniel Featherstone's Trusts, In re 295 146 101, 218 Fell V. Biddulph ... 101 Ferrand'i). Wilson, 21, 156, 158, 240, 243, 244, 347 Festing v. Allen . . .232 Fielden v. Slater ... 16 Finch, In re, Ahbis v. Burney, 46, 232 Fisk V. Attorney-General, 293, 305 Fisher V. Webster . . 194 Fioyer v. Bankes . . 159, 243 Foley V. Burnell ... 121 Fordyce v. Bridges . . 4 Forsbrook v. Forsbrook 69, 273 Forth V. Chapman, 183, Fowler ■;;. Fowler . Fox V. Fox . Franklin v. Lay . Freeman v. Freeman Freke v. Lord Carbery Freme v. Clement . French v. Caddell Fry V. Capper, 256, 257; G. PAOB 186—188, 265, 277 293, 305 219, 221 . 185 9 334 259 . 192 265, 274, 281 Gallard v. Leonard . . 202 Garland v. Brown 53, 59, 102, 180 Garratt v. Cockerell . . 196 Gee 1). Audley. See Jee v. Audley. — V. Liddell . 197,201,266 — V. Mayor, &c., of Man- chester .... 202 George, In re . . . 338 Gerrard v. Butler . . . 257 Gilbertson v. Eichards . 5, 8, 56, 64, 248 . 304 . 106 . 188 59, 100, 108, 175, 178 Goodier v. Johnson . 47, 96, 98, 100, 103, 104, 110, 174, 219, 235, 238 Goodiar v. Clark. See Good- win V. Clarke. Gooding v. Read . 174, 175, 177, 224, 226 Goodman v. Mayor, &c., of Saltash . . 6, 22, 26, 297, 304 Goodright d. Goodridge v. Goodridge V. Dunham . Gillam v. Taylor . Gillman v. Daunt . Glover v. Monckton Gooch V. Gooch Goodtitle d. Peake v. Pegden V. Pettoe Goodwin v. Clarke Gore v. Gore Goring v. Howard Gorst V. Lowndes Gosling V. Gosling, V. Townshend Gott V. Nairne 184 199 187 259 145 65 76 336 208, 209, 267, 319, 333 . 202 . 333 Digitized by Microsoft® TABLE OF CASES. XI Gower v. Grosvenor Graves v. Dolphin Greated v. Greated Green v. Gascoyne, V. Green V. Harvey V. Rod V. Spicer Greene v. Ward Greenway v. Greenway PAGE 30, 127 189 335, 338, 347 . 204 . 189 182 7 . 198 187, 202, 204 285, 286 191, 192, 195, 196, 197 . 229 45, 52, 77, 189, 192 183, 189 109,211 79, 255, 285 Greenwood v. Roberts V. Verdon Greet v. Greet Grey v. Montagu . V. Pearson . Griffith V. Blunt . V. Po-wnall Griffiths i;. Vere . 314,323,324,330 Grimshaw's Trust, In re . 223 Grove's Trusts, Inre . . 222 Gulliver v. "Wiokett . . 35, 74 Gwynne v. Berry . . . 188 H. Haig V. Swiney ... 26 Hale V. Hale 46, 53, 87, 89, 90, 101 . 107 324, 337, 340 338, 339, 345 42 175, 272 . 220 298,309,329, V. Pew Haley v. Bannister Halford v. Stains . HalUfax v. Wilson Hampton v. Holman Hanson v. Graham Harbin ■;;. Masterman, 333, 335, 336, 340 Hardcastle ■;;. Hardcastle . 96,111, 219,224,228,230,281 Harding V. Nott . . 81,116 Harrington (Countess of) v. Harrington (Earl of) . 98, 115, 128—131, 136 Harris v. Davis . 30, 185, 193, 203, 204 Harrison v. Grimwood . . 220 V. Round . . 149 Hart's Trust, I71 re, Ex parte Block .... 233 PAGE Hartopp V. Lord Carbery . 147 Harvey v. Stracey . 246, 260, 257, 265, 274 Hay V. Earl of Coventry . 174 Hayes v. Hayes . . 109, 174 Haywood v. Brunswick Per- manent Benefit Building Society .... _16, 18 Heasman v. Pearse . 102, 104, 111, 146, 263, 276, 281 Herbert v. Webster 30, 80, 97, 283 Heywood v. Heywood . 334, 336 Hilton V. Hilton . 206, 319, 333 Hoare v. Osborne . 293, 305, 306 Hobbs 1). Parsons . 102, 219, 221 Hockley v. Mawbey . . 200 Hodson V. Ball . 100, 103, 109, 175 Hodgson V. Earl of Bective. See Bective v. Hodgson. V. Halford . 29, 71, 81, 176, 280, 282 Hogg V. Jones . . . 127 Holder d. Sulyard v. Preston 247 Holloway v. Webber, 126. See Martelli v. Holloway. Holmes v. Godson . . 189 Hope V. Mayor, &o., of Glou- cester . . 10, 15, 305, 311 Hopkins' Trusts, In re . . 199 Hopkins v. Hopkins . . 169 Hudson, In re, Hudson v. Hudson . ... 264 Hughes V. Sayer, 185, 194, 195, 197 Humberston v. Humberston, 268, 269, 271 Humphrey v. Tayleur . . 101 Hunter v. Bullock . . 293 V. Judd . . .211 Hunter's Trust, In re . . 223 Hurst V. Hurst ... 82 I. Ibbetson v. Ibbetson . 113, 119 Incorporated Society v. Rich- ards 189 Ingram v. Soutten . . 203 Ireson v. Pearman . . . 183 Isaac V. De Friez . . . 304 Digitized by Microsoft® TABLE OF CASES. J. PAGE Jack d. Westby v. Petlierston, 34, 142, 147 Jackson v. Majoribanks 229, 233 Jackson's Will, In re . . 252 James v. Lord Wynford, 101, 230, 231, 233 Jarman i: Vye . . 196, 198 Jee V. Audlev 3, 39, 68, 100, 109 Jeffries v. Alexander . 295, 298 Jervis v. Bruton ... 9 Johnson d. Earl of Anglesea V. Earl of Derby 24 — V. Fonlds . . 211 Johnson's Trusts, In re . 52, 83, 120, Jones V. Oullimore V. Maggs v. Morgan . V. Eyan Judd V. Judd K. 183, 309 . 192 340, 345 . 184 . 190 . 211 Kampf V. Jones . . 257, 279 Kavanagh v. Morland . 185, 202 Kehoe v. Wilson . . .301 Kemp V. South Eastern Eail- way Co. .... 25 Kendall v. Grainger . . 295 Keppell V. Bailey . 5, 8, 18, 60, 61 Ker V. Lord Dungannon, 85, 113, 119 See Dungannon v. Smith. Kevern v. Williams 35, 105, 110 King V. Cullen . . 43, 193 V. Withers . . .232 Kirkpatrick v. Kirkpatrick . 202. Knapping v. Tomlinson, 279, 285, 286 Knos V.Wells . . . 213 L. Lachlan v. Reynolds . 34, 46, 47, 178, 180 Lade i>. Holford . 157, 160, 246 Lampley v. Blower . . 187 Lanesborough (Lady) v. Tox, 144, 148, 184 Langdale (Lady) v. Briggs . 30 Lantsbery v. Collier, 151, 241—245 PAGE Larkins v. Larkins , , 101 Leach v. Leach . 106 267 Leadbeater v. Cross _ , 42 Leake v. Robinson, 76, 85, 89, 107, 125, 213, 214, 324 Lechmere v. Lloyd, In re, 41,49,74, 104, 171 Lee's Case . 185 Leeming v. Sherratt ! 42 200 Lett V. Randall . 103, 107, 175 Lewis V. Templar . 68, 184 Liley v. Hey . 31,118 305 Limbrey v. Gurr . . 293 Line v. Hill . 270 Lloyd u. Lloyd 222, 223, 227, 228 Lockyer v. Savage 8 Lombe v. Stoughton 328, 332 London and South Western Ey. Co. V. Gomm . 1,8,9,14 ,18, 19, 20, 21, 25 ,45,51,56,62 Long V. Blackall . . 35 Longdon ■;;. Simson, 78, 324, 325, 337 Longhead d. Hopk ins V. Phelps .75, 291 Low V. Innes 13 Luker v. Dennis . 17 Lyddon v. Ellison . 139, 274, 284 Lytton V. Lytton . 192 M. Macdonald v. Bryce 328, 329, 341 Machell ?). Weeding . . 182 Machu, In re . . 7, 8, 72 Mackie, In re . . . 71 Mackiunoni). Peach,28, 183, 197, 203 Mackworth v. Hinxman 121, 123 Maclean v. McKay . . 8, 9 Maoleay, In re . . . 5 Macpherson v. Stewart . 327, 334 Maddison v. Chapman . . 42 Magistrates of Dundee v. Morris .... 293 Mainwaringi;. Baxter, 7, 9, 160, 161, 235, 238 Malcolm v. Taylor . . 199 Marlborough (Duke of) v. Lord Godolphin . 234, 238, 259 Marshall ■w.Holloway,126,156, 157, 160, 315, 324, 325. See Martelli v. HoUoway. Digitized by Microsoft® TABLE OF CASES. Martelli v. Holloway Martin v. Long Martin v. Margham Martyn v. Williams Massey v. Hudson Massy v. O'Dell . Matthews v. Gardiner V. Jeffrey V. Keble . PAGE . 126, 128, 156, 275 . 188 308,316 16 191,192,195 60 186 .22, 306 326, 329, 330, 332, 341, 344, 345 Meller v. Stanley . 159, 160, 243 Merceron's Trusts, In re 199, 201 Merlin v. Blagrove, 35, 46, 92, 110, 213,235 Merrick's Trusts, In re . 48, 92, 103, 108, 175 Michael's Trusts, In re, 256, 282, 283 Middleton v. Losh Miles V. Harford . . 345 25, 77, 132, 262, 270 293 226 76 266 43 30, 75, 76, Milford V. Eeynolds Milroy v. Milroy . Minter v. Wraith . Mogg V. Mogg Monihouse v. Holme Monypenny v. Bering 164,167,180,269,273,292 Moore v. Clench . . . 15, 20 Morgan v. Gronow, 30, 67, 236, 237, 238, 239, 252, 253, 261 V. Morgan (4 De G. & S. 164) 328, 331, 343 V. Morgan (L. R. 10 Eq. 99) Morland v. Cook . Morley ». Bird Morris v. Morris . Morse v. Lord Ormonde 184 12,18 101 204 145, 152, 162 . 252 89, 90, 94 V. Martin . Moseley's Trusts, Jn re Mulliner v. Midland Railway Co 22 Murray v. Addenhrook . 196 Murthwaite v. Jenkinson . 187 N. Neo V. Neo . 4, 295, 305, 306, 312 Nettleton v. Stephenson PAGE . 335, 336, 338 Newcastle (Duke of) v. Countess of Lincoln .... 131 Newman v. Newman 109, 110, 226 Newton v. Barnardine NichoU V. Nicholl V. Fleming NicoUs V. Sheffield Northey v. Strange O. 185 . 273 . 16,17 70, 149, 151 35 Oakes v. Chalfont . . .193 Oddie V. Brown . 31, 70, 317, 324, 332, 341 O'Mahoney v. Burdett 182, 203 O'Neill V. Lucas . 324, 340, 342 Oldham v. Oldham . . 8 Olivant v. Wright . 184, 188 Orlebar's Settlement Trusts, In re . . . 42,48,49 Packer v. Scott . 94, 96, 98, 107, 110,209 Page V. Leapingwell . . 26 Pahner v. Holford 34, 39, 228, 288 271 V. 222, 223 185. 189 . ■ 232 232, 331 16 . 200 28, 80, 251 Parfitt V. Humher Parker, In re, Barker Barker . V. Birks . ■;;. Hodgson Patching v. Barnett Patman v. Harland Paul V. Compton . Peard v. Kekewich Pearks v. Moseley, 30, 84— 101,108, 264, 284, 287 Pearson v. Dolman . 220, 226 Pells V. Brown . . 197, 198 Penny v. Turner . . . 200 Perrin v. Blake . . . 121 Peters v. Lewes and East Grinstead Railway Co. 151, 241, 242, 247 Phillips, /«« ... 342 Phipps V. Ackers . . . 231 Digitized by Microsoft® XIV TABLE OF CASES. Phipps V. Kelynge Phipson V. Turner Pioken v. Matthews Pickersgill v. Grey Piokford v. Brown Pin bury v. Elkin Pitt V. Jackson Pollock V. Booth Poole's Case . Porter v. Fox Potts V. Potts Powell, In re Pownall V. Graham Prestney v. Mayor, Colchester Price V. Hunt Pride v. Pooks 199, 201, 335, 341 Proctor V. Bishop of Bath and Wells . . 72, 73, 288, 310 Prowse V. Abingdon . . 233 Pulsford V. Hunter . . 219 Q. Queen, The, v. South Wales Railway Co. . . . 22 PAGE . 318 . 252 . 29, 30, 68 110,228 . 171 109, 218, 223 . 190 258, 270, 272 . 15,61 9 101,108,215 . 127 . 250 . 136 &c. of . 22, 304 188 Quin, In re E. Eackstraw v. Vile Eadford v. Eadford Eadnor (Earl of) v. Shafto Eaggett V. Beaty . Ealph, Bx parte Ealph V. Carriok 329, 341, 347 Eandfield v. Eandfield . .203 Eandoll v. Doe ... 231 Eanelagh v. Eanelagh . . 195 Eaphael v. Boehm . . 26 Eead v. Gooding . 107, 214, 224 Eeid V. Eeid .... 258 Eemnant -ii. Hood . . . 232 Richard, In re. See Eickard V. Eobson. Eickard v. Eobson . . 305 Eidley, In re, Buckton v. Hay, 2, 3, 177, 207, 282, 283 Right d. Day v. Day . . 188 190 187 20 185 12,62 PAGK Eigle/s Trusts, In re . 305, 306 Ring V. Hardwicke, 43, 95, 227, 279 Roberts, In re, Eepington v. Roberts Gawen, 103, 109, 111, 118, 174—176, 179 Robinson v. Hardcastle, 258, 270, 289, 291 Eoe d. Hunter v. GaUiers, 7, 15, 248 Sheers v. Jeffery . 194 Roe V. Briggs . . . 169 — V. Scott .... 195 Eoper V. Hallifax . . 151, 155 Rosslyn's (Lady) Trusts, In re 336 Eoutledge v. Dorril, 59, 174, 254, 255, 258, 273, 289 Eowbotham v. Wilson . . 13 Eowland v. Morgan . . 127 V. Tawney . 109, 212, 218, 281 Eyall V. Eowles ... 66 Eye's Settlement, In re, 191, 192, 194 Sabbarton v. Sabbarton . 127 SackvUle West v. Lord Holmesdale . . . 136 Saint Aubyn v. St. Aubyn . 336 Salmon*). Salmon . . 90 Sanders' Trusts, In re . . 190 Sandford v. Irby . . .192 Saumarez v. Saumarez . 210, 280 Saunders v. Vautier 206, 319, 333 Sayer's Trusts, In re . . 68 Scarisbrick v. Skehnersdale, 158, 325 Scarsdale (Lady) v. Curzon . 127 Scattergood v. Edge . . 56 Seaman v. Wood . 86, 87, 89, 108 Seaward v. Willock . . 273 Selby V. Whittaker . 39, 217 Sevenoaks, &c. Railway Co. ■;;. London, Chatham, &c., Ey. Co 23 Sewell V. Denny . . . 339 Shaw V. Ford . . . 7, 77 V. Ehodes . 324, 325, 339 V. Thompson . . 310 Sheffield v. Lord Orrery . 187 Shelley v. Shelley . 131, 135 Sheppard v. Lessingham 187, 202 Digitized by Microsoft® TABLE OF CASES. XV Short V. Smith. Sidney v. Wilmer Silk V. Prime Simmons v. Pitt . V. Simmons Simpson v. Peach . Siurett v. Herbert Slark V. Dakyns PAGE 101 . 338 . 247 340, 341 193, 194 43 308, 316 67, 81, 236, 237, 252, 259 . 338 . 90, 92 273 Smith V. Lomas . V. Smith Somerville v. Lethhridge Southampton (Lord) u Mar- quis of Hertford 157, 158, 160, 314, 325 Southern v. WoUaston, 29, 110, 226 Speakman v. Speakman . 34, 47, 109, 263 Spencer's Case . . .13, 16 Spencer v. Duke of Marl- borough . . . 234,238 Stackpoole v. Stackpoole 258, 272 Stafford (Earl of) v. Buckley 72 Stanley v. Leigh Stephens v. Gadsden Stevens v. Copp . Stocker v. Dean . Stone V. Maule Storrs V. Benbow . Stratford v. Powell Stringer's Estate, In re Stroud V. Norman Stuart V. Cockerell, 93, Studholme v. Hodgson Swaffield v. Orton 127 . 257 15 . 20,78 . 186 82, 100, 285 . 190 77, 189 . 254 98, 102, 108 .'■ 326 206, 217 Sykes v. Sykes . 72, 141, 153, 160 T. Taite v. Swinstead Talbot V. Jevers . . 239 331, 333, 336, 340, 341 231 '. 186, 200 221, 225 115 Tapscott V. Newcombe Target v. Gaunt . Tatham v. Vernon Taylor v. Biddall . Taylor i;. Frobisher, 43, 95, 111, 263 Teague's Settlement, In re, 256, 281 Tench v. Cheese, 323, 327, 329, 332 Tewart v. Lawson 46, 247, 317, 333, 344 Thatcher's Trusts, In re Thelluson v. Woodford . PAGE . 288 . 32, 35, 314, 320 . 16, 18 109, 226 118,302 256, 281 Thomas v. Hayward Thomas v. Wilberforce . Thomson v. Shakespeare Thornton v. Bright Thorpe v. Thorpe . 117, 142, 143 Tollemaohe v. Earl of Coven- try . . 114, 118, 122, 123 Tomlinson v. Dighton . . 252 Toovey v. Basset . . .188 Trafford v. Boehm . . 194 V. Trafford . .115 Tregonwell v. Sydenham . 27, 136—138, 141, 291, 317 Triokey v. Triokey 340, 341, 342, 343 Tulk 1). Moxhay, 12, 16, 17, 63, 249 Turner v. Frampton . . 195 Turvin v. Newcombe . 21, 73, 152, 155, 157, 160, 320 Tyte V. Willis . . .185 Vanderplank v. Eing Varlo V. Faden Vaughan v. Burslem Vawdry v. Geddes W. . 271 344 . 128 109, 211, 220, 224 Wade-Gery v. Handley . 328 338 Wainham v. Field . . 116 119 Walker v. Mower . , 211 Walker v. PetcheU 199 Wallis V. Hodson . 35 Walmesley v. Pilkington 15 Walsh V. Secretary of State for India . 26 Walter v. Drew . 190 Want V. Stallibrass 238 Ware v. Cann 7 Ware v. Polhill . . 240, 242 Warwick v. Gerrard 259 Washbourn v. Downes 56 Watkins n. Creyke 217 256 Watson V. Hayes . 219 Digitized by Microsoft® TABLE OF CASES. PAGE Watt V. Wood . . .345 Weatherall v. Thornburgh . 329, 333, 335, 336, 340, 341 Webb V. Hearing . . .185 V. Sadler, 236, 252, 253, 259 v. Webb ... 336 Webster v. Boddington . 101, 108, 285, 286 Webster v. Parr . 109, 192, 195 Wellington v. Wellington 72, 192 West V. Shuttleworth . 24, 306 Westcar v. Westcar . . 331 Western v. McDermott . 13 Westwood V. Soutbey . 195, 197 WethereU v. Wetberell, 31, 107, 111 White V. WMte . . .304 White's Trusts, i« re . . 200 Whitehead v. Bennett . 258, 279 Wilcock's Settlement, In re, 77, 189 Wildes V. Davies . . . 345 Wilkinson v. Duncan, 30,83, 100, 256 V. South . '. 190 Williams, Ex parte . . 252 Inre . . 293, 305 1). Haythorne . 43 V. Lewis, 70, 127, 290, 318 V. Teale . 28, 175, 251 Wilson V. Chesunt . . 196 V. Hart . . .17, 18 PAGE Wilson II. Wilson (28 L. J. Ch. 95) . 30, 80, 97, 139, 282-286 (1 Sim. N. S. 288) . ... 335 Winter v. Perratt. See Doe d. Winter v. Perratt. Wollaston v. King 236, 237, 249, 252, 258, 259 . 180 60 . 240 . 295 117, 142, 143 185, 190 . 199 43 Wollen V. Andrews Wood V. Drew ■;;. White Wright V. Herbert Wrightson v. Macaulay, Wyld V. Lewis Wyndham's Trusts, In re Wynne v. Wynne Yeap Cheah Neo v. Ong Cheng Neo . 4, 305, 306, 312 Younghusband v. Gisborne . 7 Zetland (Earl of) v. Hislop . 17, 18 Digitized by Microsoft® THE RULE AGAINST PERPETUITIES. CHAPTER I. STATEMENT OF THE RULE AGAINST PERPETUITIES ; ORIGIN, SCOPE, LIMITS, AND APPLICATION OF THE RULE. There have been many attempts to define a perpetuity, chap. i. In Sanders on Uses and Trusts (a) it is defined as " a Perpetuity ; future limitation, restraining the owner of the estate from ■^^„^*.^* ^^ ' 1- • 1 ,. • 1 ,- T 1-1 T I- ^ definitions. ahenmg the fee simple of the property, discharged ot such future use or estate, before the event is determined, or the period arrived, when such future use or estate is to arise. If that event or period be within the bounds prescribed by law, it "is not a perpetuity." In a recent case (b) this definition was accepted by Kay, J., and by Jessel, M.R., in the Court of Appeal. A more complete definition is that supplied in Lewis on Perpetuities (c) : "A perpetuity is a future limitation, whether executory or by way of remainder, and of either real or personal property, which is not to vest until after the expiration of, or which will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests ; and which is not destructible by the persons for the time being entitled to the property subject to the future limitation, (a) Vol. I., p. 204, 5th ed. 562 ; 51 L. J. Ch. 193, 530. (6) London and South Western (c) p. 164. Railway Co. v. Gomm, 20 Ch. D. Digitized by Microsoft® 2 PERPETUITY DEFINED. Chap. I. except with the concurrence of the individual interested under that limitation." This definition also was referred to with approval by Jessel, M.K., in the case above mentioned. It is, perhaps, as accurate a definition of a perpetuity as can be framed (d). Owing to the complexity of the Law of Property, and to the fact that the Rule against Perpetuities was introduced into it at a comparatively recent period of its history, there is the greatest difficulty both in stating the Rule with precision and in applying it with certainty. Its general scope and aim, nevertheless, are clear. The evil against which it is directed is, the suspense, beyond a reason- able time, of the absolute ownership of property, and of the power of alienation which accompanies ownership. It is a rule in favour of alienation, and carries out the general principle that all property is alienable, though to a certain extent, and in a particular way, it may be made inalienable (e). Origin and The history of the Rule against Perpetuities illustrates history of the •' . , . , i i n i • Rule against the anomalous way m which the law of this country is Perpetuities. pj-Q^uced. Like the restraint upon anticipation which at- taches to the separate property of a married woman, it is "an invention of the Chancellors" (/). It is to be found in no Act of Parliament, and it exists independently of statute law. As stated above, it is of comparatively recent origin, and, in its present shape, did not exist until the Statute of Uses created, or brought into prominence, the evil which it is intended to meet. At the foot of this chapter (infra, p. 36) is a short statement of the origin and history of the Rule, taken from Butler's note to Fearne's Contingent Remainders. For a detailed account of the law with regard to alienation prior to the introduction of (d) Other definitions will be found Ridlq/, 11 Ch. D. 645, 649 ; 48 L. J. in Lewis on Perpetuities, pp. 163, Ch. 663. 164; Gilbert on Usee, by Sugden, (/) See per Jessel, M.R., In re 3rd ed., 260, note. Ridley, ubi swpra. (e) See per Jessel, M.R., In re Digitized by Microsoft® THE RULE AGAINST PERPETUITIES. 3 the Eule the reader is referred to Lewis on Perpetuities, ^^^^- ^■ pp. 1—162. The Eule having been invented to cope with the evils Statement of incidental to shifting uses and executory devises is usually against Per- to be found stated in connection with that kind of limita- P^t^'t^es. tion. " An executory devise," said Cresswell, J., in Dun- gannon v. Smith (g), " to be valid, must be so framed that the estate devised must vest, if at all, within a life or lives in being and ' twenty-one years after. It is not suffi- cient that it may vest within that period ; it must be good in its creation ; and unless it is created in such terms that it cannot vest after the expiration of a life or lives in being, and twenty-one years, and the period allowed for gesta- tion (h), it is not valid, and subsequent events cannot make it so." Again : " The Rule is that a shifting or springing use or an executory devise may take effect (i) within a life or lives in being and twenty-one years after the decease of the survivor, and also during the period of gestation, if gestation exists; but if the springing or shifting use, or executory devise, be so framed, as that it may in any event exceed this limit, then the whole is void for remoteness, as tending to a perpetuity " (k). With regard to personal property, the Rule is stated in similar terms by Lord Kenyon (l) : " The limitations of personal estate are void unless they necessarily vest (if at all) within a life or lives in being at twenty-one years, and nine or ten months afterwards." And in a recent case (m) it was stated generally by Jessel, M.R. : " Pro- perty cannot be tied up longer than for a life in being and twenty-one years after. That is called the Rule against Perpetuities." {g) 12 01. & r. 526, 563 ; 10 Jur. {h) Williams on the Settlement O. S. 721. of Real Property, p. 30. {h) As to gestation, see infra, (l) In Jee v. Audley, 1 Cox. 324, p. 35. 325. (i) As to the time at which a (m) In re Ridley, 11 Ch. D. 645, limitation takes effect or vests, see 649 ; 48 L, J. Ch. 563. infra, p. 39, seq. b2 Digitized by Microsoft® * SCOPE OF THE RULE. ^^^P" ^' The Rule against Perpetuities, being founded upon con- Perpetuities siderations of public policy -which are of wide,if not universal, colore™ ^ application, is the law not only of England, and applicable to property in England, but of the British colonies, and, it seems, throughout the Queen's dominions, wherever the general law of England prevails. It has, for example, been applied to a devise, contained in the will of a testator domiciled in Penang, of land situate in Penang (n). But Bequest to be it is no part of the law of Scotland. And in the case of a tablishing T bequest by the will of a domiciled Englishman of money, perpetuity payable in England, to be laid out in the purchase of lands abroad. ■ r^ , i ?• i t , i i , n • m bcotland, which were directed to be settled m a manner which, by the law of England, would have been illegal on account of remoteness, it was held by Lord Cottenham that the bequest of the money and the trust to buy and settle land was valid (o). Dispositions to With certain exceptions, mentioned below, the Pule Eule applies, against Perpetuities applies to every disposition of pro- perty, whether by way of limitation to a person directly, or in exercise of a trust or power, or by way of trust ; whe- ther it be at law or in equity ; whether by deed, will, or other instrument ; and whether the property be real or personal. The Eule The Rule being, as appears above, of comparatively common law recent origin, the question has arisen whether it appHes to limitations : common law limitations, such as limitations upon condi- tion, which were in use before the Eule, in its present shape, existed. By the common law there appears to have been no limit of time within which a right of entry for condition broken could arise (p). There can be little doubt that at the present day a condition attached to a limitation in fee of real property would be void for remoteness, unless its operation were confined to the legal period. In a (m) Teap Gheah Neo v. Ong Cheng 515. Neo, L.B. 6 P. C. 381. See also Mac- [p) For instances of remote con- lem V. McKay, L. K 5 P. 0. 327. ditions, see Coke upon Littleton (o) Fordyce v. Bridges, 2 Ph. i97, 214, b ; 223, a. ' Digitized by Microsoft® IT APPLIES TO CONDITIONS. recent case (g) there was a devise of land to A. in fee "^"■P- ^■ " on the condition that he never sells it out of the family." Sir G. Jessel, M.E.., first considered whether the condition was void for remoteness : " First of all it is to be observed that the condition, good or bad, is confined within legal limits. It is applicable merely to the devisee himself, and therefore is not void on any ground of remoteness." The Master of the Rolls clearly was of opinion that, if its opera- tion had not been confined within the legal limit, the condition would have been void for remoteness. Although the benefit of a condition can be taken only by the grantor or donor and his heirs, and not by a stranger (r), the evil, as regards the suspense of the owner- ship of land limited upon condition, is identical with that to which the introduction of executory uses gave rise, and to cope with which the Rule against Perpetuities was invented. A condition or qualification annexed to the exercise of a mortgagee's power of sale, or to the exercise by an owner of minerals of a right, created by license or grant from the surface owner, to let down the surface, may, it seems, operate at any distance of time. Thus where,- in the one case, a rent-charge was to arise to the mortgagor (s), and in the other, the surface owner was to be entitled to compensation for injury to the surface (t), the rent-charge and right to compensation were held to be well created. And it will be seen below (u) that a condition, proviso, or covenant, in a lease not to alienate without the license of the lessor, is not void for remoteness, whatever the duration of the term. (5) In re Madeay, L. R. 20 Eq. (s) Oilbei-tson v. Sicha/rds, 5 H. & 186 ; 44 L. J. Ch. 441. See also N. 453 ; 28 L. J. Ex. 158. See Lewis on Perp. 616 ; 1 Sand. Usee, Sugd. Pow., 8th ed., p. 16 ; and per 207, 213 (5th ed.) ; and per Kay, J., 20 Ch. D. 572. Brougham, C, Keppell v. Bailey, 2 (t) Aspden v. Seddon, L. E.. 1 Ex. M. & K. 517. D. 497 ; 46 L. J. Ex. 353. (r) Co. Lit. 379, a ; Butler's note, (u) Infra, p. 7. F. C. R. 381, a. Digitized by Microsoft® 6 BESTRAINTS ON ALIENATION. ^^^P' ^- In Goodman v. Mayor of Saltash (w) it was held by the House of Lords (Lord Blackburn dissenting) that there may be a grant to the corporation of a borough by the Crown of a several oyster fishery, subject to a condition that a particular class of the inhabitants of the borough should have the right of fishing during part of the year ; and that such a condition would not be void for perpetuity, but would take effect, either, as a charitable trust, or as an exception from the grant. Condition re- It will be convenient here to notice that a limitation of estate limited; ^^^1 or personal property in terms which pass the fee simple, condition not q^ the absolute interest, cannot be cut down by annexing a condition that the taker shall not alienate. " If a man make a feoffment in fee, upon condition that he shall not alien, this condition is repugnant and against law, and the state of the feoffee is absolute " (y). The condition here is void as being repugnant to the estate in fee simple of which the power of alienation is an incident. " For if such a condition should be good, then the condition should oust him of all the powers which the law gives him ; which should be against reason ; and, therefore, such a condition is void " (0). Elsewhere Lord Coke states that : '' If A. be seised of Blackacre and B. enfeoffeth him of Whiteacre, upon condition that he shall not alien Blackacre, that con- dition is good " (a). Such a condition would, at the present day, probably be held void as an undue restraint upon trade (b). If the condition were, that he and his heirs shall not alien Blackacre, it would, probably, also be void for perpetuity. On the same grotmd of repugnancy, an executory limita- tion, to take effect on alienation by a person to whom an estate in fee simple, or the absolute interest in personalty, {x) 7 Ap. Ca. 633. (y) Co. Lit. 206, b. ; ibid., 223, a; and see Collins v. Plummer, 1 P. W. 104 ; Touchst. 129. (z) Co. Lit. 223, a. Digitized by Microsoft® (a) 129 Co. Lit. 223, a : ; Touchstone, (6) 448. See Smith'.? L. C, 8th ed., CONDITION NOT TO ALIEN. is limited, is invalid. "Any executory devise to take Chap. I. effect on an alienation, or on an attempt at alienation, is void, Ibecause the right of alienation is incident to every estate in fee simple as to every other estate " (c). Except in the case of a married woman's separate pro- perty the law does not permit the enjoyment of pro- perty to be separated from the power of alienation. With the one exception mentioned above every restraint or fetter on alienation attached to a limitation of real or personal property is void for repugnancy and in- operative (cZ). A right of re-entry reserved to the lessor upon breach of a condition or covenant against assignment of the term in a lease for years has never been treated as a restraint upon alienation, so as to be open to the objection of repugnancy or remoteness (e). A condition not to alien except to certain persons, or to a specified class of persons, is not void for repugnancy, provided the power of alienation is not substantially taken away (/). But the condition would, it seems, be void for perpetuity unless its operation were restricted to the legal period (g). A limitation to a person absolutely, with an invalid restriction upon alienation, must be distinguished from a limitation until alienation, and upon alienation to a stranger. In the latter case, if the primary limitation is (c) Per Fry, J., Shaw v. Ford, 7 tion for the doubt expressed by Bul- Ch. D. 669, 674 ; 47 L. J. Ch. 531. ler, J., in Soe d. Runter v. Galliers, (d) See Bradley V. Peixoto, 3 Ves. 2 T. E,. 133, 140. 324; Braiidon v. Robinson, 18 Ves. (/) Co. Lit. 223, b. ; Doe d. GM 429; PTare V. Care?!., 10 B. & C. 433 ; v. Pearson, 6 East. 173; In re Townghusband v. Gisborne, 1 CoU. Macleay,'L. R. 20 Eq. 186 ; 44 L.J. 400 ; GVeCTiv. Spies-, IR.&M. 395 ; Ch. 441; Attwater v. Attwater, 18 In re Machu, 21 Ch. D. 838 ; as to Beav. 330 ; 23 L. J. Ch. 692, is dis- restralnts upon barring estates tail, tinguishable from In re Macleay; see Mainwa/rinff v. Baxter, 5 Ves. 457 ; the judgment of Jessel, M.R. See Dawldns v. Lord Penrhyn, 6 Ch. also Billing v. Welch, Ir. Rep. 6 C. D. 318 ; 4 Ap. Ca. 61 ; 48 L. J. Ch. L. 88 ; In re Quin, 8 Ir. Ch. Rep. 304. 578, as to Attioater v. Attwater. (c) There seems to be no founda- (g) Supra, p. 5. Digitized by Microsoft® 8 RENT-CHAEGE TO ARISE IN FUTURO. Chap. I. for lifg^ -the limitation over is valid Qi). Whether a limi- tation in fee to A. until he shall alienate is valid, has not been expressly decided {i). The subject of conditional limitations is considered below, p. 70. Kent-charge The limitation of a rent-charge or a term of years to years to arise ^'^se certainly, or by possibility, more than twenty-one years in future. after the expiration of lives in being, is too remote {U). It has been suggested that, if the grantee is a person in being at the date of the limitation or ascertained within the legal period, the limitation is good {I). But there is no valid ground for this distinction (m). Validity of Contracts relating to lands, and creating in favour of To^aiienate.'"'* One of the parties an interest in the lands that does not vest within the legal period, are obnoxious to the Rule against Perpetuities. Contracts not operating as a dis- position of the lands, but merely restrictive of the use of the lands, are on a different footing, and will be considered below («). Whether a contract by the owner of land in fee that he and his heirs will not alien is valid or void, either for perpetuity or as an undue restraint upon trade, is not clear. Coke (o) thought it valid: "If the feoffee be bound in a bond that he or his heirs shall not alien, that is good ; for he may notwithstanding alien, if he will forfeit his bond that he himself hath made." That such a contract will not bind the land either at law or in equity in the hands of an assign of the covenantor is clear (p). A contract by tenant in tail, that he and the heirs of his (h) Lockyer v. Savage, 2 Str. 947 ; 421 ; 48 L. J. Ch. 552. Graves v. Dolphin, 1 Sim. 66 ; Old- (m) London and South Western ham V. Oldham, L. K. 3 Eq. 404 ; Railway Co. v. Gomm, 20 Ch. D 36 L. J. Ch. 205. 562 ; 51 L. J. Ch. 530 ; overruling (i) See In re Machu, 21 Ch. D. the cases last cited. 838. (») Infra, p. 16. (k) Butler's note, F. 0. R. 528 ; (o) Co. Lit. 206, b ; see also Lewis on Perp. 608, seq. Shep. Touchstone, 131 ; Butler's (I) See Keppell v. Bailey, 2 M. & note, Co. Lit. 379, b. K. 517 ; Gilbertson v. Richards, 4 {p) See McLean v. McKay, L E H. & N. 277, 297 ; 5 H. & N. 453 ; 5 P. C. 327, 334 ; 29 L. T. N. s! 28 L. J. Ex. 158 ; Birmingham 352. Canal Co, v. Cwi'twright, 11 Ch. D. Digitized by Microsoft® CONTRACT NOT TO ALIEN. V body will not disentail, was in Collins v. Plumifner (q) chap. i. held not to bind the land; but the Court seems to have considered the covenant valid. In Poole's case (r) A. enfeoffed B. in tail, remainder to C. in tail, and A. B. and C. each entered into a statute with the others that he would not alien. The statutes were ordered to be can- celled, as in substance making a perpetuity. An executory limitation taking effect on alienation by tenant in tail (s) or in fee (t) is, as we have already seen, void for repug- nancy. On the whole there seems reason to suppose that at the present day a contract not to alien would be held void as an undue restraint upon trade («). In Birmingham Canal Company v. Cartwriglit (x), Oi contracts there was a conveyance in fee upon the sale of surface ff pre- lands, the vendor being entitled to the mines under the e™pt">n. land. In the conveyance was contained a covenant by the vendor, for himself, his heirs, executors, administrators, and assigns, with the purchaser, his heirs and assigns, that he, the vendor, his heirs and assigns, would, on selling or agreeing to sell certain adjoining lands, to which he was entitled, at any time thereafter, give to the purchaser, his heirs and assigns, the refusal, at a price to be then ascer- tained, of the mines under the lands conveyed. Fry, J., held that the covenant was not void for remoteness, and that it could be enforced by an assign of the purchaser against the devisees of the vendor. But in London and South Western Railway Company v. Gomm, (y), lately before the Court of Appeal, it was held that such a cove- nant creates an interest in land which is void for remote- (s) 1 P. W. 104. 457. (r) Moore, 810 ; see also Jervis (i) Shaw v. Ford, 7 Ch. D. 669, V. Brutm, 2 Vem. 251, where a 674; 47 L. J. Ch. 531. bond by tenant in tail not to com- (m) See 1 Smith's L. C. (8th ed.), mit waste was held void. Freeman 448 ; McLean v. McKay, uhi supra. V. FreemoM, 2 Vem. 233, where re- (cc) 11 Ch. D. 421 ; 48 L. J. Ch. lief was refused against a bond not 552. to dock an entail depends upon (y) 20 Ch. T>. 562 ; 61 L. J. Ch. special circumstances. 530. (s) Maimvaring v. Baxter, 5 Ves. Digitized by Microsoft® 10 RIGHT OF PKE-EMPTION. Chap. I. pegs ■ and the decision of Fry, J., in Birmingham Canal Com.'pany v. Cartwright, was expressly overruled. In Stacker v. Bean (z), Eomilly, M.R., was of opinion that a contract by A., for himself, his heirs and assigns, purporting to give a right of pre-emption at all times thereafter to B., his heirs and assigns, could not be enforced after the death of A. In Hope V. Mayor and Corporation of Gloucester (a), lands were conveyed to a municipal corporation, and the corporation by the deed of conveyance covenanted with the grantor that when a term then subsisting in the lands should expire, if any of the heirs of the body of a person named in the deed, being kindred of the grantor, should so request, the corporation and their successors would then, and as often as any such chance should fall, make a new lease to the person so requesting for thirty-one years, at a rent specified. It was held that the covenant was void for perpetuity. In Briggs v. Earl of Oxford (h), lands were settled by a father tenant for life in possession, and a son tenant in tail in remainder, upon trust for the father for life, remainder to the son for Ufe, remainder to the son's first and other sons in tail, and a power was given to trustees to cut timber and apply the proceeds in paying off existing incumbrances on the estates, so long as any incumbrances remained. The power was supported by Cranworth, C, partly on the ground that it was, in effect, created in pur- suance of a contract between the settlors that the incum- brances should be liquidated in a particular manner, and that to whatever length of time the contract extended, it was not within the scope of the Rule against Perpetuities : "The person who enjoys the estate has only' to pay off the incumbrance, and there is an end of it." (2) 16 Beav. 161, 165. {!>) 1 D. M. & G. 363, 370 ; 2] (a) 7 D. M. & G. 647 ; 25 L. J. L. J. Ch. 829. Ch. 145. Digitized by Microsoft® EXCEPTIONS FROM THE RULE. 11 The application of the Eule against Perpetuities to con- '''^^P' ^' tracts will be further considered below in connection with the equitable doctrine by which contracts of a certain class affect the land in the hands of an assign with notice from the covenantor, and operate, in fact, as an equitable limita- tion creating an interest in the land (c). The Rule against Perpetuities does not apply to trusts Dispositions to in favour of charity ; to the trust of an advowson held in E„ie does not trust to present the nominee of the inhabitants of the ^^PPly- parish as the living from time to time falls vacant; to conditions implied by law, as in the case of an exchange or partition under the old law (d), or upon a grant to a cor- poration ; to easements ; to covenants for renewal in leases for lives ; to a right of entry, or a power of distress for securing a rent-charge ; to the power of sale in a mortgage, or to a condition annexed to such a power ; to limitations after or collateral to an estate tail, which from the date of their creation to the time of taking effect are barrable by the tenant in tail ; to restrictions on the use of land created by contract ; and (probably) not to limitations of real estate by way of remainder expectant upon estates limited to persons in being; and probably not to limitations of interests in real estate, such as terms of years of short duration, which must come to an end before the period allowed for the vesting of limitations by the Rule has expired. Perpetuities exist also in the case of corporations having power to take and hold property, so that it will pass to their successors for ever, without power of alienation ; and various other statutory perpetuities have, from time to time, been created by the Legislature (e). The reasons for these exemptions from the operation of (c) Infra, p. 16. note (6) ; Go. Lit. 13, b. A shifting (d) Previously to 8 & 9 Vict. c. use operating in case of eviction 106, s. 4; 7i^ to tliese conditions, from land taken in exchange upon see Shep. Touchstone, 126; 2Bacon's other land is void; Sugd. Pow., 8th Abridg. 186 ; as to a grant to a cor- ed., 44. poration, Shep. Touchstone, 117, (c) See infra, p. 21. Digitized by Microsoft® 12 CONTRACTS RELATING TO LAND. Chap I. Interests in land arising under con- tracts. the Rule against Perpetuities are various. Some limita- tions, such as charitable trusts, are excepted ou the ground of public policy. Others, such as limitations destructible by a prior tenant in tail, on the ground that, notwithstand- ing the apparent remoteness of the limitation, the property is not thereby made alienable. These will be fully con- sidered hereafter. Powers of sale in a mortgage, and powers of distress and entry to secure a rent-charge or money lent on mortgage, appear to be exempt as being part of, or incident to, the estate and interest of the mortgagee or owner of the rent- charge (/). Restrictions upon the use of land and various incidents attaching to the ownership or possession of land may be created by contract. Such contracts are enforceable in equity against successive owners, taking the land with notice of the contract, without regard to the Rule against Perpetuities. A, the purchaser of the fee, covenants for himself, his heirs and assigns, with B., the vendor, his heirs and assigns, that the land shall never be built upon (g). The covenant is binding in equity upon A.'s successors in title, having notice of it, for all time. The argument that such agreements are objectionable on the ground of per- petuity has never prevailed. The question whether a covenant by the owner of land is enforceable in equity against succeeding owners of the land taking with the notice is independent of the question whether it runs with the land at law (h). Whether the burden of a covenant can in any case, except where the relation of landlord and tenant exists, run with the land at law is doubtful. In view of several dicta in favour of covenants so running with the land (i), the law on the 3rd (/) See infra, p. 248. (g) Sugd. V. & P., 14th ed., 596 ; Sx parte Ralph, 1 De G. 219 ; Bewley v. Atkinson, 13 Ch. D. 283, 289; 49 L. J. Gh. 153. As to these contracts generally, see Pol- lock's Principles of Contract, ed., pp. 241—248. {/() Tulk V. Moxlay, 2 Ph. 774 ; 18 L. J. Ch. 83. (i) Per Romilly, M.R., in Morland V. Cook, L. R. 6 Bq. 252, 267; Digitized by Microsoft® COVENANTS RUNNING WITH LAND. 13 subject cannot be considered as settled ; but the better '^^^P- ^- opinion is that the burden of a covenant can in no ease run with the land at law (k). A covenant by the owner of land imposing on the land a burden in the nature of an easement may, it seems, operate as a grant of an easement over the land (l). No objection on the ground of remoteness or perpetuity can be raised to such a covenant. Covenants which run with the land at law closely Covenants ^ running with resemble easements ; and, like easements, appear to be an the land at exception from the Rules against Perpetuities. *^' As between lessor and lessee both the benefit and the burden of covenants which touch and concern the thing demised run with the reversion and with the term. There is an exception where the covenant relates to a thing not in existence at the date of the demise (as a wall to be built on the land by the covenantor) ; in which case the burden of the covenant will not run with the lease unless assigns are named in the covenant (m). Covenants which do not touch or concern the land demised in no ease run with the land at law. Of covenants which touch and concern the land, and therefore run with the land as between lessor and lessee, the following are examples. A covenant to pay rent ; to repair ; to cultivate in a particular manner ; to reside ; to grind corn grown on the land at the lessor's mill ; to leave the land stocked with game ; (and probably) a covenant not to carry on a particular trade on the premises ; not to assign without license ; and to buy all beer to be sold on the premises of the lessor. The burden of covenants by the lessor to renew the lease, and to supply the demised Western v. McDermott, L. R. 1 Eq. Contract, 3rd ed., 243. 499, 506; per Malina, V.-C, Cooke (I) Rowhotham v. Wilson, 8 H. L. V. Ghikott, 3 Ch. D. 694 ; and see 0. 362 ; 2 L. T. N. S. 642 ; Low v. Sugd. V. & P., 14th ed., 577, seq. Irmes, 10 Jur. N. S. 1037 ; Gale on (k) See 1 Smith's Lead. Ca., 8th Easements, 5th ed., 85. ed., 103, 104; Pollock's Principles of (m) Spencer's case, 3 Coke, 29. Digitized by Microsoft® 14 COVENANTS RUNNING WITH LAND. ^^"■P- ^- premises with water, have been held to run with the reversion («). Covenants which do not touch or concern the thing demised, and covenants relating to something not in exist- ence at the date of the demise (as a wall to be built by the lessee), and in which assigns are not named, do not run with the land at law. The following covenants are held not to touch or concern the land : covenants by the lessor to pay a valuation on trees planted, or on improvements made, by the lessee ; to give the lessee an option of pre- emption over land adjoining that demised ; not to keep a beershop within a certain distance of the demised pre- mises ; covenants by the lessee to pay part of the lessor's expenditure on improvements ; not to employ a specified class of persons on the premises ; to deliver up chattels not fixed to the premises at the end of the term (o). Option to pur- A recent case (p), deciding that a covenant, by a pur- version in a chaser of the fee, that the vendor and his assigns shall lease. for ever have a right of pre-emption, is void for perpetuity, raises a doubt as to the validity of a covenant, sometimes to be found in leases, enabling the lessee and his assigns during the continuance of the lease to purchase the rever- sion at a price named. Unless a distinction can be drawn on the ground that it runs with the land (q), it would seem to follow from the case above mentioned that such a cove- nant in a lease for more than twenty-one years is void for remoteness. It resembles, however, in some respects a covenant for perpetual renewal ; which, as appears below, is undoubtedly valid. {n) The authorities, together with Sailway Co. v. Gomm, 20 Ch. D, many other examples of covenants 562; 51 L. J. Ch. 530. running with the land, will be found { j) As is probably the case, though in Woodfall's Landlord and Tenant, there appears to be no express 12th ed., 148, seq. See also 1 Smith's authority on the point. As to the L. C, 8th ed., 68, sej. nature of such an option, see Buck- (o) See Woodfall's Landlord and land v. Papillon, L. R. 1 Eq 477 • Tenant, 12th ed., 151. 2 Ch. 67 ; 35 L. J. Ch. 387 ; '36 L.' (p) Londrni and South Western J. Ch. 81. Digitized by Microsoft® BETWEEN LANDLORD AND TENANT. 15 Covenants in leases for lives for perpetual renewal run *''^*P- ^• with the land, and are not objectionable on the ground of Covenants for remoteness. "The notion of" such covenants " being [^^^^g'^jlj^" objectionable on the ground of remoteness is out of the lives. question " (r). They are treated as an exception from the Rule against Perpetuities (s). In Ireland, where they are common, their validity has always been assumed (t). But a covenant for perpetual renewal to members of a particular family would, it seems, be void for remoteness (w). As regards its capacity for running with the land, a con- Conditions dition determing the lease, or a condition of re-entry, is on in'^ie^e". ^^ the same footing with a covenant. A condition will run with the land if it touches or concerns the land, and not otherwise. Thus a condition determining the lease upon conviction by the tenant of an offence against the game laws has been held not to run with the land (oo). But it has been held that a condition for re-entry upon the bankruptcy of the lessee or his assigns is valid, and that the benefit of it runs to the assigns of the lessor {y). A condition that runs with the land cannot, it seems, be void for remoteness («). It seems doubtful whether a covenant that does not run with the land as between landlord and tenant is enforce- able in equity against an assign of the lessee (a). The ordinary brewer's covenant by the lessee of a public house not to deal for beer except with the lessor is, perhaps, an example of such a covenant. It has been enforced against (r) Per Wood, V.-C, 4 K. & J. {u) See Hope v. Mayor, the, of 45 ; and see WaVmesley v. PUkingtxm, Gloucester, 7 D. M. & G-. 647 ; 26 L. 35 Beav. 362. J. Ch. 145 ; see also Polloch v. Booth, {«) Per Jessel, M.R., 20 Ch. D. ubi supra. 562, 579. From Moore v. Clmch, 1 (x) Stevens v. Copp, L. B. 4 Ex. Oh. D. 447 ; 45 L. J. Ch. 80, it 20 ; 28 L. J. Ex. 175, dub. Kelly, appears that the equitable interest C.B. arising under such a covenant vests {y) Roe d. Hunter v. GaUiers, 2 T. upon the execution of the covenant. R. 133. {t) See Pollock v. Booth, 9 Ir. Rep. (z) Notwithstanding the dictum Eq. 229 ; ib. 607. See further as to of BuUer, J., in Boe v. GaUiers, ubi the nature of such property, Calveit supra. V. Gason, 2 Sch. & Lef. 561 ; Cop- ■ (a) See per Brougham, C, 2 pinger v. Gubbins, 3 J. & Lat. 397, 411. M. & K. 548. Digitized by Microsoft® 16 RESTRICTIONS ON THE USE OF LAND. Chap. I. Eestriotinns on the use of land created by contract. Doctrine of Tulk V. Moxhay. a purchaser with notice (6) ; and it would seem to be a purely personal covenant, not touching the land (c). This particular covenant could not be void for perpe- tuity {d), but it seems probable that other covenants binding the term in the hands of an assign with notice, and not running with the land (if any such there be), would be invalid, unless their operation is limited to the legal period. And every assign of a term has notice of the covenants in the lease (e). Covenants will run at law with incorporeal heredita- ments, such as a license to mine (/) ; but not with a chattel ((/). As stated above, it is doubtful whether in any case where the relation of landlord and tenant does not exist the burden of a covenant entered into by the owner of land will run with the land at law. However this may be, there is no doubt that many covenants, of which the burden does not run with the land at law, are enforceable in equity against successive owners of the land taking it with notice of the covenant. To such covenants the objection of perpetuity cannot be raised. The leading case establish- ing the liability of the land to such covenants in equity is Tulli V. Moxkay Qi). There is considerable difficulty in determining what covenants are and what are not within the doctrine of Tulk V. Moxhay. In Haywood v. Brunswick, <&;c., Build- ing Society, above mentioned, affirmative covenants, and covenants requiring the expenditure of money by the (h) See Woodfall's Land, and Te- nant, 12th ed., 640 ; and supra, p. 13. (c) See Thomas v. Hayward, L. E. 4 Ex. 311; SSL. J. Ex. 175. {d) See Doe d. Calvert v. Reid, 10 B. & C. 849, where the covenant was to deal with the lessor or his succes- sors in trade. (e) Pielden v. Slatm; L. R. 7 Ex. 523 ; 38 L. J. Ch. 379 ; Clements v. Welles, L. R. 1 Eq. 200 ; 35 L. J. Ch. 265 ; Potman v. Ilarland, 17 Ch. D. 353 ; 50 L. J. Ch. 642 ; NicoU V. Flemmg, 19 Ch. D. 258 ; 51 L. J. Ch. 166. (/) Aspden v. Seddon, 1 Ex. D. 496 : 46 L. J. Ex. 353 ; Martyn v. WiUiams, 1 H. & N. 817 ; 26 L. J. Ex. 117. [g) Spencer's case, 3 Coke, 29. (h) 2 Ph. 774 ; 18 L. J. Ch. 83. Digitized by Microsoft® CREATED BY CONTRACT. 17 covenantor were said not to be -within Tidlc v. Moxluiy. In Chap. I. Kome previous cases Tulk v. Moxhay was treated as apply- ing to covenants of this character (i). In a recent (Scotch) case before the House of Lords (Jc), Lord Selborne, C, alluding apparently to the doctrine of Tidh v. Moxhay, drew a distinction between covenants imposing merely a personal obligation on the owner of the land (the cove- nantor) and covenants relating to the use of the land. The former, he thought, cannot, while the latter may, be enforceable against successive owners of the land. This distinction has not been recognised in all the cases. In Gait V. Tourle (l), a covenant by a grantee in fee that all the beer to be consumed on the land should be supplied by the vendor, was enforced against an assign of the covenantor. Luker V. Dennis {m) is a still stronger case. A similar brewers' covenant was there enforced against an assign of the covenantor ; the covenant not having been entered into upon a purchase or lease of the house in respect of which the covenant was enforced, but upon a lease of other premises granted to the covenantor by the covenantee. These cases were decided upon the ground that the cove- nant related to the use and employment of the land. In Wilson v. Hart {n) a covenant by the grantee in fee (assigns not being named) that no public house should be biiilt on the land was said by Turner, Ij. J., to be " a cove- nant directed not against the use of the land, but against the personal use and enjoyment of the building to be erected on the land . . . applying merely to the per- sonal use and enjoyment of the land by the grantee, and not to the permanent user of the land itself." It was nevertheless enforced against an assign of the original grantee, who took with notice, under the doctrine of Tnlk V. Moxhay. (i) See infra, p. 18. (m) 7 Ch. D. 227 ; 47 L. J. Ch. {k) Earl of Zetland v. Hidop, 7 174. Ap. Ca. 427, 447. («) L. K. 1 Ch. 463 ; Z^ L. J. Ch. (I) L. "R. 4 Ch. 654 ; 38 I.. J. Ch. 569; and .see Nicoll v. Flaninq, 19 401, 665. Ch. D. 258 ; 51 L. J. Ch. 166. Digitized by Microsoft® 18 RESTRICTIONS ON THE USE OF LAND. Chap. I. Lord Selborne, in the case above mentioned (o), throws some doubt on Cait v. Toiirle, on the ground apparently that the covenant did not relate to the use of the land and was merely personal. The decision of Lord Brougham in Keppell V. Bailey (p), with reference to a similar cove- nant to deal exclusively, Lord Selborne appears to prefer to that of the Lords Justices in Catt v. Tourle. A restric- tion in a feu charter against carrying on the trade of a publican (q) he considered valid, and capable of running with the land (r) ; but in Wilson v. ffart (s), Turner, L.J., though enforcing a covenant against using a house as a beer-shop against an assign of the covenantor taking with notice of the covenant, said that the covenant would not run with the land at law. In Thomas v. Haywarcl (t), the benefit of a covenant by a lessor not to build a public house within a certain distance of the demised premises was held not to run with the term, on the ground that it concerned not the demised premises, but only the value of the trade to be carried on there. In Cooke v. Chilcott (u), Malins, V.-C, enforced a cove- nant by a purchaser to erect a pump and supply with water houses to be built on the vendor's adjoining land against an assign of the purchaser taking with notice. This case was dissented from in Haywood v. Brunswick, (kc. Building Society, and London and South Western Raihvay Co. v. Gomm. In Norland v. Cook (x), Daniel V. Stepney (y), and Aspden v. Seddon (z), are dicta or decisions to the effect that affirmative covenants, and covenants requiring money to be paid, are enforceable (o) Earl of Zetland v. Hidop, 7 175. Ap. Ca. 427. («) 3 Ch. D. 694 ; 34 L. T. N. S. (p) 2 M. & K. 517. 207. iq) Like the covenant in Wilson (x) L. E. 6 Eq. 252 ; 37 L. J. Ch. V. Hart, L. R. 1 Ch. 643. 825. ()■) Earl of Zetland v. Hislop, uhi (y) L. R. 9 Ex. 185 ; 41 L. J. Ex. 208. s) L. E. 1 Ch. 643 ; but see per (z) L. R. 1 Ex. 496 ; 46 L. J. Ex. Knight Bruce, L.J., ibid. 353. (■5) Cnigi (t) L. R. 4 Ex. 311; 38 L. J. Ex, Digitized by Microsoft® CONTRACT FOR SALE OR PRE-EMPTION. 19 under the doctrine of Tulk v. Moxhay; but, so far as these Chap. i. cases are inconsistent with the later cases above mentioned before the Court of Appeal, they must be considered to be overruled. The power, created by the Conveyancing and Law of Property Act, 1881 {a), of enlarging a long term of years into the fee simple seems to afford a means of annexing to the legal fee the burden of covenants, which, previous to that Act, could run with the land only in equity and with notice. For by section 65, sub-s. 4, it is provided that " The estate in fee simple so acquired by enlargement shall be subject to all the same trusts, powers, executory limita- tions oversights, and equities, and to all the same cove- nants and provisions relating to user and enjoyment, and to all the same obligations of every kind as the term would have been subject to if it had not been so enlarged." A covenant by an owner in fee that the covenantee, his Contract by- heirs and assigns, shall have a right of pre-emption of the f "g^^tve a land is not merely personal ; nor, on the other hand, does right of pre- the burden of it run with the land, either at law or in '""^ ^°"" equity (6). It is not within the doctrine of Tiilk v. Mox- hay, so as to be enforceable by the covenantee or his assigns against an assign of the covenantor (c). Apart from the question of perpetuity, it seems, therefore, that at all events beyond the life of the covenantor, it does not bind the land, even in the hands of an assign with notice. In London and South Western Railway Go. v. Gomm, it was held that, assuming the covenant to be enforceable against an assign of the covenantor, it was void for remote- ness, as creating an interest in land which did not vest within the legal period. In that case it was not necessary to decide whether the covenant was void as against the (a) 44 & 45 Vict. c. 41, s. 65. which case see Sugd. V. & P., 13th (b) London and South Western ed., 485. Railway Co. v. Gomm, 20 Ch. D. (c) London and South Western 562 ; 51 L. J. Ch. 193, 530 ; CoUi- Railway Co. v. Gomm, vhi supra, son V. Lettsom, 6 Taunt. 224, as to C 2 Digitized by Microsoft® 20 EASEMENTS. Chap. I. Easements, an exception to the Rule against Per- petuities. Property may, notwithstand- ing the Rule, be inalienable through a suc- cession of minorities. covenantor. It may be doubted whether it is not enforce- able against him (d). A contract for the sale of land rims with the land in equity as against a person taking the land with notice. " Where a contract is made for the sale of an estate, equity considers the vendor as a trustee for the purchaser (e) " ; and an alienee of the land contracted to be sold is liable to an action for specific performance at the suit of the pur- chaser (/). Such a contract creates, immediately upon its execution, an equitable interest in the land in favour of the purchaser. So the equitable interest arising under a covenant in a lease for renewal vests upon the execution of the covenant, and not when the time for renewal arrives (g). But in the case of a contract to give a right of pre-emption the equitable interest in the land arises, not upon the execution of the contract, but upon the exercise of the right of pre-emption Qi). Easements are a well-established exception to the Rule against Perpetuities (i). As pointed out above, they resemble in many respects rights arising under covenants which run with the land. The operation of the Rule against Perpetuities is not theoretically perfect. On the one hand it invalidates limitations in some cases where the property is never inalienable (k) ; on the other, it may happen, notwith- standing the Rule, that property is inalienable for centuries. This may be the case where land is in settle- ment, and the tenants in tail die in succession under age. {d) See Stacker v. Dean, 16 Beav. 161 ; see also 1 Dart's V. & P., 5th ed., 209. (e) Sugd. V. &P., 14th ed., 175. (/) Fry, Specific Performance, 2nd ed., 9i. ig) Moore v. aenck, 1 Ch. D. 447, 452 ; 45 L. J. Ch. 80. (A) London and South Western Jtnihoay Co. v. Gomm, 20 Gh. D. 562 ; and see Edimrds v. West, 7 Ch. D, 858 ; 47 L. J. Ch. 463 ; In re Cant's Estate, 4 De G. & J. 503 ; 28 L. J. Ch. 641 ; Radnor, Earl of, V. ShMfto, 11 Ves. 448, as to the nature of such an interest. (i) Per Jessel, M.E., London and South Western Raihoay Co. v, Gomm, 20 Ch. D. 562, 583 ; 51 L. J. Ch. 530. (k) See Infi-a, p. 51. Digitized by Microsoft® LAND inalie:sable through infancy. 21 To such a state of things the Rule against Perpetuities Chap. I. has no application. The property is inalienable, not because of any vice or illegality in the limitation, but by reason of the accidental disability of the heirs in tail. " The law, •which admits of a strict settlement, admits that the corpus of the estate may be inalienable for centuries, by reason of disabilities which the law itself imposes " (l). So Wood, V.-C, in Turvin v. Newcombe (m) : " When the limitations themselves are valid, the possibility that accu- mulations may result from such legal limitation by reason of infancies and the like, which may prevent for an indefinite time the estate tail from being barred, is not a reason for holding that the limitations themselves are void." In a recent case (n), Kay, J., appears to have con- sidered that the possibility of the property becoming inalienable for a long period by reason of the possible infancy or disability of the person entitled under an executory limitation was a reason for holding the execu- tory limitation to be void for remoteness. But it seems doubtful whether a limitation could be held void for remoteness on that ground alone. The Rule against Perpetuities has not prevented the Statutwy creation, from time to time, by the Legislature of Statutory ^'^^^ Perpetuities for special objects connected with the public good. Lands and other property have been granted to indi- Lands grai.ted ..,,,T ,. ir -11- • lasa reward for viduals by the nation, as a reward tor public services, and pubuc services, settled by statute inalienably upon their families (o) ; the {I) Fer WigramfY.-C, in Ferrand lington by 54 Geo. IIL, o. 161. For V. Wilson, i Ha. 344, 374 ; 9 Jur. other instances see Mountjoy's case, 0. S. 86 ; 2 M. & K. 527. Pt. 5 Co. Eep. 3, b, the Manor of (»ft)3K..&J.16,19;3Jur.N.S.203. Hemston Arundel; 41 Geo. III. [n) London and South Western c. 59 ;. 2 & 3 Ph. & M. c. 23 (Pri- Raikoay Co. v. Gonim, 20 Oh. D. vate). As to property so settled, it 562, 573 ; 51 L. J. Ch. 193. seems tliat a good title cannot be (o) Blenheim is so settled on the acquired against the issue in tail family of the Duke of Marlborough of the original grantee under the by 3 & 4 Anne, c. 6 ; 5 Anne, c. 3 ; Statutes of Limitation ; see Earl of and 5 Anne, c. 4 ; and Strathfield- Abergarenny v. Brace, L. R. 7 E.k. saye on that of the Duke of Wei- 145 ; 41 L. J. Ex. 121. Digitized by Microsoft® 22 STATUTORY PEKPETUITIES. Chap. I, Property of Corporations Lands of Kailway Company. Kight of burial in perpetuity. Property of municipal corporation. Earldom of Arundel and the possession of Arundel Castle are inseparably connected by a private Act of Par- liament (p) ; hereditary Crown lands are, with certain exceptions created by subsequent Acts, inalienable by 1 Anne, c. 1 ; Corporations and unincorporated Societies for trading and other purposes are erected, with power to hold land and other property in perpetuity (q) ; and such property is frequently inalienable, as in the case of the land of a Railway Company where there is no statutory power to sell (r), and the property of Literary and Scientific Institutions (s). So by the Burials Acts an exclusive right of burial in perpetuity may be granted by a Burial Board (t). Property held by municipal corporations, and to the enjoyment of which the freemen of the borough are entitled by virtue of 5 & 6 Will. IV. c. 76, s. 2, is held in perpe- tuity for the benefit of the freemen, and not upon a charitable trust. The Rule against Perpetuities is inap- plicable to property so held ; it is excluded by the statute, which enacts that property so held and applied at the passing of the Act shall continue to be so applied in the future (ti). A curious instance of inalienable property occurred in the recent case of Goodman v. Mayor of Saltash (x). It was there held that the Corporation of Saltash was entitled, under an actual or presumed grant from the ( p) By 3 Car. I. c. IV. ; see The Berkdey Peerage Case, 8 H. L. 0. 21 ; 101, 137. (}) As to the power of the Crown to grant licences in mortmain, see 7 & 8 Will. III. c. 37. As to the power of companies to hold land, see 25 & 26 Vict. c. 89, ss. 18, 21. See also Shelford on Mortmain, 34, seq. ; Grant on Corporations, 98, seq. ()•) See The Queen v. South WaUs Railway Co., 14 Q. B. 902 ; 26 & 27 Vict. c. 92, s. 10 ; Mulliner v. Midland Railway Co., 11 Ch. D. 611 ; 48 L J. Ch. 258. (s) See 17 & 18 Vict. c. 112, s. 30. (*) 15 & 16 Vict. o. 85, 16 & 17 Vict. c. 134. As to the character of such property, see Matt/iews v. Jeffrey, 6 Q. B. D. 290 ; 50 L. J. Ch. 164. (m) See per Hall, V.-C, Prestney V. Mayor and Corporation of Col Chester and The Attorney-General, 21 Ch. D. Ill, 119; 61 L. J. Ch. 805. (x) 7 Ap. Ca. 633. Digitized by Microsoft® STATUTORY PERPETUITIES. 23 Crown, to a several oyster fishery in the river Tamar, Chap. i. subject to a right in the inhabitants, or a particular class of the inhabitants, of the borough to fish during part of the year. Notwithstanding the inalienable character of such a right in a fluctuating and unincorporated body of persons, it was held by the House of Lords (Lords Selborne, Cairns, Bramwell, Watson, and Fitzgerald, dis- sentiente Lord Blackburn) that it could be well created by grant, and existed in the case before them, either as an exception from the original grant to the corporation, or as a charitable trust. Lord Blackburn was of opinion that '■ no form of grant, either ancient or modern, could be framed effectually giving to a fluctuating body a right in fee to a proflt a, prendre in land, either by a grant to that body direct, or by casting upon the grantee in fee of a several fishery, or of any other real property, an obligation to permit a fluctuating or uncertain body to take such a profit a 'prendre out of the subject of the gi-ant " {y). The right of a railway company to the possession and Eigbt of one control in perpetuity of the lands and works of another p^nyto the^ railway company under a working agreement has been possession of called a perpetuity {z). The interest of the one company in another com- the property of the other is the creation of Statute ; it is P*"^;™'^*''' ^ an interest unknown to the common law, and could not be agreement, created by contract between individuals (0). An estate tail in lands granted to a subject for services Estate tail by or at the provision of the Crown, and whereof the J^ the'^^Crow™ remainder or reversion is in the Crown, cannot be barred (a). But there is ground for the opinion that, by virtue of 3 & 4 Will. IV. c. 74, a tenant in tail of lands, not granted for services, can now bar a remainder or reversion in the Crown, which previously to that Act was protected by the common law prerogative of the Crown (&). (y) 7 Ap. Ca. p. 655. see ib., p. 635 ; 48 L. J. Ch. 513. (z) Sevemaks, Maidstone and Tun- (a) 34 & 35 Hen. VIII. c. 20; IrukjeRaihoay Co. ^.London, Chatham 3 & 4 Will. IV. c. 74, s. 18. and Dover Raihmy Co., 11 Ch. D. 625 ; (6) See Lewis on Perp. 714. Digitized by Microsoft® 24 SHORT TEKMS. OF YEAKS. Chap. I. Charitable trusts. Keligious endowments. Limitation of a short term of years upon a remote event. The Statute of Henry VIII. does not apply to lands con- veyed to the Crown for the purpose of being reconveyed to a subject in tail, with a reservation of the reversion in fee to the Crown, and so indirectly creating an unbarrable estate tail (c). Property held upon charitable trusts is excepted from the operation of the liule against Perpetuities on grounds of public policy. This subject is fully discussed below (d). Upon grounds similar to those upon which property devoted to charitable purposes is allowed to be withdrawn periuanently from circulation, the great mass of Church of England and other religious endowments is altogether out- side the Rule against Perpetuities. But religious purposes are exempt from the Rule so far only as they are intended to benefit the public, and not merely individuals (e). The subject of religious and other charitable trusts is considered separately below (/). It does not appear to have been decided whether a limitation of property which cannot endure beyond lives in being and twenty-one years after can be void for remote- ness ; whether, for example, a limitation of leaseholds having twenty years to run to the first son of A., a bachelor, who attains twenty-two, is too remote ; as clearly would be the case, if the subject of limitation were money or the fee simple of real estate. It would seem that in the limitation supposed the proviso must be implied — " in case such son of A. shall attain twenty-two within twentv years from the date of the limitation." If there were a proviso to this effect expressed, there is no doubt that the limitation would be free from objection. The result would seem to be the same where the proviso is necessarily implied. The question, however, cannot be considered to be free from doubt; having regard to the fact that in other (c) Johnson d. Bmi of Anglesea v. Earl of Derhj, 2 Show. lOi; 11 M"d. 304. [d) Infra, p. 295, seq. (e) See Cocks v. Manners, L. R. 16 Eq. 574 ; West v. SkattUwortli, ■2 M. & K. 684. (/), p. 295. Digitized by Microsoft® PERKOXAL CONTKACTS. 25 cases the matter has been treated as oue of expression dap. I. rather than of intention (rf). In Kemp v. Soutli Eaatern Railway Co. (h), there was an agreement between a railway company and a landowner tiiat the company should be at liberty (so far as appeared from the agreement, at any time) to take land required for the railway at a price named. It was held that the option or power to take land being, in fact, limited to the time fixed by law for the completion of the railway, the agree- ment was to be construed with reference to that fact. No question of remoteness was raised. It would seem that, except for the implied limitation as to the time within which the agreement- could operate, it would have been void for perpetuity (i). The Rule against Perpetuities is a branch, not of the law The Rule of contract, but of property. " A contract not creating any pituities does estate or interest, properly so called, in property, at law or ^°^ ^PPJy *>* in equity, is not obnoxious to the Rule. For instance, a contracts, covenant to pay £1000, when demanded, with interest meanwhile, if not barred by the Statute of Limitations, might be enforced by an action of covenant at any time " (A;). So the benefit of covenants for title and other covenants of a like nature may run with the land for ever. By a deed, executed in 1770, the East India Company covenanted with Lord Olive that, in case they should cease to employ a military force, they would pay to him, his executors, administrators or assigns, a sum of money corresponding with a sum then handed to the Company by Lord Clive to be applied by them in the relief of soldiers' widows. In 1858, when the Company came to an end, the ig) See per Jessel, M.R., in Miles Railway Co. v. Gonim, svpra, p. 9. V. Harfmxl, 12 Ch. D. 691, 702 ; 41 (k) Per Kay :5 ., London and South L. T. N. S. 378. Western Sailwai/ Co. v. Gomm, 20 Ch, (A) L. R. 7 Ch. 364 ; 41 L. J. D. 562, 575 ; and see per Jessel, Ch. 50, 404. M.B., iOid., p. 580. (t) See London and South Western Digitized by Microsoft® 2G GIFT OF INCOME FOR EVER. Chap. I. representatives of Lord Clive claimed the sum under the covenant. It was contended that the covenant was void for remoteness; but it was held that the covenant was valid and that the money was payable (F). Limitation of j^ „^^ ^f ^^^ j.g^^g ^f j-eal estate, or the income of rents or m- ^ • . • • r r i, come for ever, personalty, to a person for ever, is an immediate gift of the fee simple in the lands (in), or of the absolute interest in the personalty (n),a.s the case may be. A trust to pay the rents or income operates in the same way (o). Notwith- standing the apparently indefinite duration of the limita- tion or trust, the Eule against Perpetuities obviously has no application. So remoteness will not be imported into a limitation by words which are merely descriptive of the duration of the estate, for years or in tail, that is limited (p). In Goodman v. Mayor, &c., of Saltash (q) it was held by Lord Bramwell, that an exclusive right of fishery in an arm of the sea could be created by grant from the Crown, with an exception in favour of certain persons — in the case before him a certain class of inhabitants of a borough. "And as to the argument that a perpetuity which cannot be released is created, the answer is, that the perpetuity is only that which all the Queen's subjects have, namely, to fish in an arm of the sea" (■)•). But the attempt to impress personalty with the character of real estate, so that successive generations of the issue in tail of the first taker may enjoy the income for ever, will, of course, fail. In Raphael v. Boehm (s) the testator directed that the income of a certain fund should be (I) Walsh V. Secretary of State for (o) Jiaigy. Sminey, \ S. A S. 487 ; India, 10 H. L. C. 367 ; 8 Jur. N. Paije v. Leapivgwell, IS Ves. 463 ; S. 26. Ouinmissioiias of Charitable Dona- (m) Doe d. Goldin v. Laheman, 2 tions v. Dc Clifford, 1 Dr. & War. B. & Ad. 30. 245. (n) Mton V. Sheppard, 1 Bro. C. C. {p) See infra, p. 69. 532 ; Blann v. Bell, 2 D. M. & G. ( n j ' payment must arrive before the legacy vests, is a question of construction. The subject is considered in another chapter (u). («) F. C. E. 312 ; 1 Jarman on (p. 264, vol. i.) the text is diflferent. Wills, 238, 239, 3rd ed. ; in the (w) Tnfra, p. 206. fourth edition of Jarman on Wills Digitized by Microsoft® 51 CHAPTER III. REMOTENESS MAY EXIST THOUGH THE PROPERTY DOES NOT CEASE TO BE ALIENABLE. It is not a sufficient test of the validity or remoteness of a Chap. III. limitation that, notwithstanding the limitation, the fee Remoteness simple or the absolute interest in the property which is ™^y **''"'' 11- ri- ■ ■ 1- 1 • 1 • 1 1 , though the the subject of limitation can be alienated withm the legal property does period. The books abound with cases in which limitations J"' cease to , , , oe alienable. valid according to this test have been held void for re- moteness. Where property is limited to two or more persons in succession, the validity of each successive limitation de- pends upon the question whether it vests within the legal period. The fact that, if all the persons entitled to future interests concur, a good title to the property may be made within the legal period, is not inconsistent with remoteness in the limitation of one or more of the future interests. Thus a limitation to A. in fee, and upon failure of A.'s issue at any time to B., is void for remoteness as to B. (a) ; and that although B. is a person in existence at the date of the limitation, and the property is immediately alien- able, if A. and B. concur. Notwithstanding the elemen- tary character of this proposition, it has not always been assented to ; and there are dicta, and even decisions, con- tradicting it; In a very recent case (6) it was argued that (a) F. C. E. 429. Railway Co. v. Gomm, 20 Ch. D. (b) London and South Weslern 562; 51 L. J. Ch. 193, 530. E 2 Digitized by Microsoft® o2 REMOTENESS WHERE Chap. III. there could be no remoteness where the person entitled under the future limitation was in existence and capable of releasing or conveying his interest. Mr. Justice Kay, how- ever, stated the law in these terms, which were assented to by the Court of Appeal : " In my opinion a present right to an interest in property which may arise at a period beyond the legal limits is void, notwithstanding that the person entitled to it may release it. It would be a great extension of the power of tying up property to hold otherwise. If the owner in fee of an estate, or the absolute owner of any property, could be fettered from disposing of it by a springing use, or executory devise, or future contingent interest, which might not arise till after the period allowed by the Rule, it would be easy to tie up property for a very long time indeed. The present interest under executory limitations might be vested in an infant, a lunatic (c), or a person who would refuse to release it ; and thus the estate would be practically inalienable for a period long beyond the prescribed limit. That is clearly not law." Limitation to The principle here laid down applies to all future son on failure limitations, whether of real or personal property. A of issue of a bequest to living persons, xipon failure of issue of a person named, is void for remoteness (d). So in a recent case (e) a bequest to Magdalen College, Oxford, upon failure of issue of A., was held by Wood, V.-C, without argument, to be void for remoteness. Again, by a settlement before marriage, real estate was limited to the use of A. for life, remainder to A.'s issue born in his lifetime, as he should appoint. A. appointed to his son B. in fee, and, in case B. should have no son who should attain twenty-one, to a gi-andson, C, in fee. Th-e appointment to C. was held void for remoteness (/). (c) The Rule against Perpetuities Toml. 314 ; 2 Ed. 205. does not provide against property (e) In re Johnson's Trusts, L. R. being inalienable by reason of in- 2 Eq. 716 ; 12 Jur. N. S. 616. fancy or lunacy; suyra, p. 21. (/) In re Brown and SiUry's (d) Grnj -i. Montagn, 3 B. P. C. Contract, 3 Gh. D. 156. Digitized by Microsoft® THE PJiOPERTY IS ALIENABLE. 53 In the same way a limitation to a class of which all ^^^V- HI- the possible or contingent members are ascertainable Cases in which within the legal period, but of which the actual members limitations ° '■ , . have been are not so ascertainable, is too remote ; and not the less held void for so because, with the concurrence of all the possible mem- no™°itha^tMid- bers of the class, the property is alienable within the legal ing the aliena- . , bility ot the period. property^ In Hale v. Hale {g) there was a gift, after the death of the testator's widow, to the testator's children and grandchildren (children of a deceased child) who should attain twenty- four. In Garland v. Brown (h) the ultimate limitation was, in effect, to the survivor of the children of the testator's surviving child. And in Blight v. Hartnoll (i) the gift was to such of the testatrix' grandchildren living at a remote period as the testatrix' daughter should appoint. All these were held void for remoteness. In each case it is evident that all the persons who by possibility could take under the limitation in question, being grandchildren of the testator, were ascertainable within the legal period ; and,, concurring, they could have made a good title to the property, and alienated within the legal period. In no one of them was it suggested that this, fact prevented the application of the Rule against Perpetuities. Again, where a rent charge or a term of years is limited to arise at a future time, not necessarily within the legal period, in favour of a person in existence at the date of the limitation, there is little doubt, notwithstanding some dicta to the contrary, that the limitation is void for remote- ness (k). In Curtis V. Lukin (I) are some valuable observations The true doc- , . , . trine stated in of Lord Langdale upon the question under consideration. Cm-tisv.LuHn In that case a testator, before the passing of the Thelluson ^l^f"'"^'^''''^- Act, bequeathed leaseholds in Church Street having sixty ig) S Ch. D. 643 ; 24 W. K 1065. (i) See supi-a, p. 8. (h) 10 L. T. N. S. 292. {I) 5 Beav. 147 ; 11 L. J. Ch. (i) 19 Ch. D. 294 ; 49 L. J. Ch. 380. 255. Digitized by Microsoft® 5i REMOTENESS WHERE Chap. Ill, years to run and renewable at the option of the lessor to A. for life, with remainder to A.'s children living at his death, and in default of children of A., to B. He be- queathed to trustees other leaseholds upon trust to accu- mulate the rents until the Church Street leaseholds were nearly expired, and then to apply the accumulations in renewing the Church Street leases for the benefit of the persons entitled under the will, and to hold the residue (if any) in trust for other persons. The trust for accumula- tion was held void for remoteness and uncertainty. It was contended that there was no remoteness, because the per- sons entitled to the Church Street leaseholds together with the persons entitled to the surplus rents of the other lease- holds, not required for renewals, could at the latest twenty - one years after A.'s death, put an end to the accumulation and dispose of the fund. With reference to this argu- ment Lord Langdale said : " Now the persons who would be entitled in that event (the expiration of twenty-one years from A.''s death) would be the children which A. might leave, and the persons entitled to the residue of the money after answering the purposes which the testator intended to be effected. They might all be in a state competent to consent. Nevertheless, in that state of things, it is perfectly manifest that, although amongst themselves they might make a title to the fund to be accumulated for renewal, yet each of them would be uncertain as to the amount of his share, or of that which was his ; no one of them could say. Such a share of this property is mine ; I have a right to sell or dispose of it as I please ; and in doing so I am acting according to the intention of the testator. In all cases of this kind, I apprehend, we are to look at the directions of the will with reference to the property of the testator at the time of his death, and with reference to the persons who, under the directions of the will and according to the intention of the testator, may at a future period have a legal power to dispose of the pro- Digitized by Microsoft® THE PIIOPERTY IS ALIENABLE. 5 perty. If, according to tlie intention- of the testator, some Chap III. person or persons must not necessarily be in existence with legal power to dispose of the property within the period limited by the rule of law, then I apprehend the gift is too remote. Now here such was not the intention of the testator. The intenti-on,, according to the argument which is used, was, that the accumulation should go on, as to part of this at least, until the period when the last lease was about expiring — that is until 1863, which period, it is. evident, might be beyond that limited by law. If the con.- .trary were done, it would be done, not in pursuance of any power given to them by the will, but in consequence of a power which they have of coming to an arrangement amongst themselves, by which they compromise their respective claims under the will, and create for themselves aliquot defined shares in this part of this property ; doing, that for themselves, but proceeding in a manner directly contrary to the intention of the will." In Blight v. HartnoU (m) Fry, J., thus stated the reason of this application of the Rule against Perpetuities to cases where all the possible, but not the actual, persons to take are ascertainable within the legal period : " The Eule against Perpetuities requires, in my view, the ascer- tainment, within the period, not only of the extreme limits of the class of persons who may take, but of the very persons who are to take ; and that because the Rule is aimed at the practical object of telling who can deal with- the property ; and, if you cannot tell who are entitled to the property, but only who may become entitled to the property, the property is practically tied up." It will be convenient hereto notice some cases anddicta Cases in whic to the effect that a right or interest to arise upon a remote held or im- event, but presently vested in an ascertained person, is not pli®*! ^^^^ ^ . „ T);'/ T limitation is open to the objection ot remoteness. JBut it must be not void for understood that this is not the law ; that it is now well remoteness, if the property (m) 19 CL D. 294,, 300 ; 49 L. J. Ch. 255.. Digitized by Microsoft® REMOTKNESS WHERE Chap. III. is alienable within the legal period. Waslibmmie v. Dowries. Gilhei'tson v. Sichards. settled that a future interest which does not vest within the legal period is void for remoteness ; and that it is immaterial who the person entitled under such a limita- tion may be, that is to say, whether he is ascertained at the date of the limitation, or a person who may not be ascertained until after the expiration of the legal period. In Washhourne v. Dotvnes (n) it was stated to be a perpetuity "where if all that have interest join yet they cannot bar or pass the estate." In Scattcrgood v. Edije a perpetuity was defined as " an estate unalienable though all mankind join in the conveyance." In later cases where the question of remoteness ha,s arisen the test applied has been whether the effect of the limitation in question was to render the fee simple of the land inalienable. In Gilbertson v. Richards (p) one Billings, being en- titled to the fee simple of certain lands, agxeed to sell them subject to the payment by the purchaser to him of £40 a year, for which he was to have a power of distress. Then he and the purchaser mortgaged the property by a deed which contained a proviso that if the mortgagee, or any one claiming under him, should enter into possession the premises should thenceforth be charged with the payment to Billings, his heirs and assigns, of the annual sum of £40. It was contended that the limitation of the rent of £40 was void for remoteness. As to this Martin, B., said : " The second objection was that it (the rent) was void for remoteness ; that it was to arise at any time, however dis- tant, when the parties of the fourth part (the mortgagees), or their heirs, might enter into the land, and therefore might arise long after the time prescribed by law against perpetuity. It is quite true that no rent can be lawfully (n) Ch. Ca. 213 ; see observations of Kay, J., on this case in London and South Western Railway Co. v. Oomm, 20 Ch. D. 662; 51 L. J. Ch. 193. (o) 1 Salk. 229. )> t H . & N. 277; 5 H. & N. 453 ; 28 L. J. Ex. 188 ; 29 L. J. Ex. 213. The statement of the case in the text follows that of Kay, J., in 20 Ch. D. 570. Digitized by Microsoft® THE PROPERTY IS ALIENABLE. 67 created wliicla violates the law against remoteness, and Chap. ui. therefore a rent could not be granted to the son of an unborn son. But it seems to be an error to call this rent a perpetuity in an illegal sense. It is vested in Thomas Billings (the mortgagor) and his heirs. He or his heirs may sell it or release it at their pleasure. A rent in fee simple may be granted to a man and his heirs to continue for ever. Why, therefore, may not one be granted to com- mence at any time, however remote ? It is only part of the estate in fee simple of the rent. A perpetuity arises when a rent is granted to a person who may not be in esse until after the line of perpetuity be passed ; but when the estate in the rent is vested in an existing person and his heirs in fee simple, who may deal with it at his or their pleasure, and as he or they think fit, we think it is not subject to the law of remoteness, notwithstanding that its actual enjoyment may depend upon a contingency which may never happen, or may happen at any time however distant. For these reasons we think the rent was well created, and that the distress for it was lawful." The Exchequer Chamber affirmed the decision of the Court below as to the validity of the rent with regard to perpetuity. Wightman, J., in delivering the judgment of the Court, said (q) : " There may be considerable doubt also on the point raised by counsel whether the Rule as to Perpetuities applies to a case like the present, where the party who or whose heirs are to take is ascertained, and who can dispose of, release, or alienate the estate, either at common law, or at all events since the passing of 8 & 9 Vict. c. 106, s. 6 " ()•). The decision in this case as to the validity of the limitation of the rent can, as pointed out elsewhere (s), be supported on other grounds than those given by Martin, B., and Wightman, J. ; and the reasons (g) 5 H. & N. 458. (s) See p. 248, inf. And see also (r) As to this Act, see infra, Sugd. Pow. 8th ed. 16. p. 66. Digitized by Microsoft® 58 REMOTENESS WHERE Chap. III. given for the decision, as above stated, must be taken to be extra-judicial. Lord St. Leonards nevertheless appears to have considered that they constituted an important dis- tinction in the law of perpetuity (t). Birmingham jjj g^ recent case (u) there was a conveyance by the Canal Co. v. ^ ^ j •/ Cartwright. Vendor of a plot of freehold land to the purchaser. The mines were reserved to the vendor, and the vendor, for himself, his heirs, executors, administrators, and assigns, covenanted with the purchaser, his heirs and assigns, that in case he (the vendor), his heirs or assigns, should there- after at any time sell or agree to sell to any person the mines under certain adjoining lands belonging to him, he, his heirs or assigns, would at the same time offer to the purchaser of the plot, his heirs and assigns, the mines under the plot, at the same price as the mines under the adjoining lands were to be sold for; and that if within a month of such offer the purchaser, his heirs or assigns, should agree to buy, the vendor, his heirs or assigns, would convey to the purchaser, his heirs and assigns, the mines under the plot. It was held by Fry, J., that the covenant was not void for remoteness, and could be enforced against the devisees of the vendor by the assign of the purchaser. " I think," he said (x), " that whenever a right or interest is presently vested in A. and his heirs, although that right may not arise until the happening of some contingency which may not take effect within the period defined by the Rule against Perpetuities, such right or interest is not obnoxious to that Rule, and for this reason : The Rule is aimed at preventing the suspension of the power of dealing with the property — the alienation of land or other pro- perty. But when there is a present right of that sort, although its exercise may be dependent upon a future contingency, and the right is vested in an ascertained (IS Sugd. Pow. 8th ed. 16. Ch. 552. (a) BiriiHiiijIiiim Viiiiid Co. v. (.<■) Pp. 432, 433. Curlm-hjht, 11 Ch. D. 421 ; 48 L. J. Digitized by Microsoft® THE PROPERTY IS ALIENABLE. oU person or persons, that person or persons concurring with Chap. ill. the person who is subject to the right, can make a per- fectly good title to the property. The total interest in the land, so to speak, is divided between the covenantor and the covenantee, and they can together at any time alienate the land absolutely. I think that Gilbertson v. Richards (y) is a distinct authority in favour of that conclusion." In CoUison v. Lettsovi (z) no objection on the ground of remoteness was taken to a covenant to give a right of pre-emption during a period of twenty-eight years. In Routledge v. Dorril (a) Sir R. P. Arden gave it as a reason for supporting a remainder expectant upon the death of an unborn tenant for life, that the tenant for life and the remainderman could together dispose of the fee within the legal period. In Gooch V. Gooch (6) Gran worth, C, appears to have thought it sufficient if the fee could be disposed of within the legal period by all the persons taking contingent future interests acting together. Avern v. Lloyd (c) and Ashley V. Ashley (d), mentioned elsewhere (e), point in the same direction as these cases ; but are difficult to reconcile with Garland v. Broiun (/). So far as they are inconsistent with Garland v. Broivn it is submitted that the latter case is the preferable decision. Avern v. Lloyd, so far as need Arernv. Lloyd. here be stated, was a limitation to a class of unborn issue for life, and to the executors, administrators, and assigns of the survivor. Romilly, M.R., held that, the con- tingent future interest of every tenant for life being- alienable within the legal period, the Rule against Perpetuities did not apply, and the limitation of the absolute interest to the survivor of them was good. In Keppell v. Bailey (g) Lord Brougham emphatically Keppdi v. Bailey. (y) Supra, p. 56. 489. (z) 6 Taunt. 224. (d) 6 Sim. 358 ; 3 L. J. Ch. 61. (a) 2 Ves. 256, 266. (c) Infra, p. 177. (6) 3 D. M. & G. 366, 384 ; 22 L. (/) 10 L. T. N. S. 292; infra, J. Ch. 1089. p. 180. (c) L. K. 5 Eq. 383 ; 37 L. J. Ch. {g) 2 M. & K. 517. Digitized by Microsoft® 00 REMOTENESS WHERE Chap. III. repudiated the notion that a covenant by the grantee of land to give another person certain benefits in connection with the land was void for perpetuity. He said that such a covenant is no more struck at by the doctrine of per- petuity than a right of way or other easement which the owner of one estate may enjoy over the close of another Qi). In Kej)]pell v. Bailey the lessees of ironworks covenanted with a railway company to get the limestone to be used at their works from a certain quarry, and carry it by the company's railway. Lord Brougham said that such a covenant is no restraint upon alienation, since the land- owner and the person entitled to the benefit of the covenant can together always alienate the land. In Ireland a trust of lands to indemnify thereout a purchaser of other lands in the event of his title to the latter proving defective was held good (i). In Daniel v. Stepney (Jc), upon a demise of mines for forty years, a power of distress for rent reserved by the lease was given to the reversioners over lands not comprised in the lease and described as " any lands in which there shall be, for the time being, any pits or openings by or through which the coal or culm by the said deed demised shall for the time being be in the course of working by the lessees, their executors, administrators, and assigns." It was held that as against a purchaser of the land with notice the power was valid and exercisable by the lessor. It does not appear to have been suggested that it was void for remoteness even as regards an assignee of the reversion. In Wood V. Brew (l) Romilly, M.R., treated it as plain that a devise of lands to secure the performance of a covenant that might be broken sixty years after the testator's death was free from objection on the ground of Wood V. Drew, remoteness. The case was as follows : — A testator (7i) As to this, see supra, pp. 13, ed. 44 ; supra, p. 11. 20. (k) L. R. 7 Ex. 327 ; on app. ih. (i) Massey v. O'Ddl, 10 Ir. Ch. 9 Ex. 185 ; 41 L. J. Ex. 208. Bep. 22; but see Sugd. Pow. 8th (I) 33 Beav. 610. Digitized by Microsoft® THE PROPERTY IS ALIENABLE. 61 bequeathed five leasehold houses having about fifty- four Chap. III. 3'ears to rua to his daughter for life, with remainder to her children. And he directed the trustees of his freeholds, after the expiration of any of the leases, to convey to his daughter for life, with remainder to her children, at her or their request, one or more of his five freehold houses, equal, or as nearly equal as might be, in value to the expired leasehold ; and so that the freehold houses so conveyed should, if exceeding in value the cor- responding leaseholds, be charged with such excess in value. It was held by Uomilly, M.R., that the devise was valid, and that the trustees were bound, at the request of the daughter's children, to convey the freeholds as directed by the will. It was contended that the gift was void for remoteness and uncertainty, because, although the persons to take were ascertained within the period allowed by law, the ownership of the freeholds could not be ascertained until the expiration of the leases, which might not happen until beyond the legal period. The Master of the Rolls said that there was no uncertainty, and that the case came within the ordinary rule, that that is certain which can be rendered certain. There was no more difficulty than if the testator had directed that property producing a certain sum a year should be conveyed to the daughter for life, with remainder to her children ; or if he had devised land to answer a covenant which he had entered into and which might be broken sixty years after his death. In Pollock V. Booth (to) there was a covenant by the lessor for renewal of the lease for lives for ever, the lives to be taken being lives of a specified family. A proviso vi^as added that, if anyone entitled to the lease should alienate, the lessor should have power to re-enter at any time during the life of the person alienating. The proviso was held valid, on the authority of Keppell v. Bailey (n). (m) Ir. Kep. 9 Eq. 229 ; ib. 607. (re) Supra, p. 59. Digitized by Microsoft® 62 REMOTENESS WHEKE Chap. Ill The question settled by London and South Weste^-n Baihoay Co, V. Gomm. In Ex parte Ralph (o) a contest arose as to the ternas of a conveyance which was to carry into effect a contract for the sale of land, one of the terms of the contract being that the conveyance should contain a covenant by the purchaser and his assigns against building, "and proper provisions for securing the due observance and performance thereof." The clause ultimately agreed upon, and which was sug- gested by the Court, contained a proviso for re-entry by the vendors upon breach of the covenant ; the operation of the proviso being expressly confined to the lives of the parties to the conveyance and twenty-one years after the death of the survivor. This limitation of the proviso for re-entry was probably ex abundante cauteld. There was no decision that, if it had been unlimited in point of time, the proviso would have been void for remoteness (p). It is not possible to reconcile some of these decisions and dicta with the rule that a limitation, to be valid, must vest within the legal period. The future interests of which the validitj^ was in question in some of the cases arose, not hj way of executory limitation, but under covenants. , As to these the question is settled by London and South Western Raihvay Co. v. (?omm (q), a recent decision of the Court of Appeal. In that case a railway company, having power to sell superfluous lands, sold the fee simple of a piece of land which they did not want at the time, but probably would eventually require for their works. In the conveyance the purchaser, for himself, his heirs, executors, administrators and assigns, covenanteil with the company that he, his heirs and assigns, owner and owners for the time being of the land , would at any time thereafter, whenever the land might be required for (o) De Gex, 219. {p) In Davidson's Precedents, Vol. 2, Pt. 1 (4th ed.), p. 511, note {q), it is stated that the power of entry would have been unobjection- able on the ground of perpetuity if it had been unlimited in point of time. But, to avoid question, a limited power similar to that in Ex parte Ralph is adopted in the pre- cedent contained in the text. iq) London and South Western Railinii/ Co. v. Gomm, 20 Ch. D. 562 ; 51 L. ,t. Ch. 193, 630. Digitized by Microsoft® THE PROPEKTY IS ALIEXATILE. 03 works of the company, upon having certain notice and Chap. III. receiving from the company the amount of the purchase money, re-convey the land to the company. It was held by Kay, J., that this covenant could, after the purchaser's death, be enforced by the company against the owner of the land for the time being, who had acquired it with notice of the covenant. He dissented from the doctrine of Birmingham Canal Co. v. Cartwright, as stated above (r) ; but he considered that the case came within the doctrine of Tulk v. Moxhay (s). This decision was reversed on appeal. The grounds of the reversal appear from the judgment of Jessel, M.R., from which the follow- ing passages are extracted : " Is it (the benefit of the covenant) within the Eule (against Perpetuities) ? That, as it appears to me, depends upon this — Is it, or is it not, an interest in the land ? If it is a mere personal contract, it is not, of course, obnoxious to the Rule at all. But in that case it is impossible to see how the present appellant can be bound. He did not enter into the contract. He is only a purchaser from the person who did. Conse- quently those who argue that it is a mere personal contract argue at the same time that it is one which cannot be enforced against the assignee. Therefore they must admit that it binds the land somehow. But if it binds the land it is an equitable interest in the land ; the right to call for a conveyance is an equitable interest or equitable estate (t). In the ordinary case of contract for purchase there is no doubt of it ; and an option to purchase in its nature does not differ. It is only one step further back — that is, a person exercising the option has to do two things ; he has to give notice of his intention to purchase, as well as pay the purchase money. But as far as the man who is liable to convey is concerned, his estate ()■) P. 58. Leigliton, 3 Mer. 667, 672, note, (s) 2 Ph. 774 ; 18 L. J. Ch. 83. expressed a contrary opinion ; but See supra, p. 16, seq. that of Jessel, M.K., seems prefer- (t) Lord Eldon, in Oarleton v. able. Digitized by Microsoft® 64 REMOTENESS WHERE Chap. III. Qj, interest is taken away from him without his consent ; and, the right to take it away being vested in another, it must give that other an interest in the land. It appears to me, therefore, to be plainly an interest in the land, and if that is so, there is no distinction that I know of in equity (unless the case falls within one of the exceptions, like charities) between one kind of equitable interest and another. In all cases they must take effect as against the owners of the land within a prescribed period. Then it was suggested that this rule has no application to a case of contract. But the mode in which the interest is created is immaterial ; whether it is by devise, or volun- tary gift, or contract, can make no difference. The ques- tion is, What is the nature of the interest intended to be created ?" The Master of the EoUs then cites the passages from Lewis on Perpetuities, p. 164 (u), deiining a perpe- tuity, and proceeds : " Now is there any substantial dis- tinction between a contract for purchase, an option for purchase, and a limitation on condition or conditional limitation ? Is there any difference in substance between these : (a) a limitation to A. in fee, with a proviso that whenever B. or his heirs sends A. or his heirs a notice in writing and pays £100 the estate shall vest in B. and his heirs, and (b) a contract that if B. gives notice and pays £100 A. shall convey to B. and his heirs ? It seems to me that in a Court of Equity it is impossible to siiggest any real distinction." In the Court below Kay, J., had expressed his dissent from the decisions in Birmingham Canal Co. v. Cart- wi'ight, and Gilbertson v. Richards, so far as they support the doctrine that a future interest in property, which is presently vested in an ascertained person, cannot be void for remoteness. In the Court of Appeal, Jessel, M.R., and Lindley, L.J., expressed their concurrence with Kay, J., on this point, and figreed that the cases above mentioned («t) See stipm, p. 1. Digitized by Microsoft® THE PROPERTY IS ALIENABLE. 05 must be considered as overruled by their present decision, chap iii. It should be added that all the members of the Court of Appeal considered that the London and South Western Railway Go. v. Gomm was wrongly decided in the Court below on another ground, namely, that the covenant was ultra vires as regards the railway company. But the question of perpetuity having been very fully discussed, the case must be taken as settling the law on the subject under consideration. In no case has it been held that an executory or springing use of real estate to take effect upon a remote event is valid merely because the person to take is ascertained within the legal period. ISTotwithstanding the dicta in Gilhertson v. Richards and other cases above' stated, it is submitted that such a limitation is clearly void. A similar executory limitation or trust of personal property is in no better position. That a limitation may be void for remoteness although The same ra- the property can, notwithstanding the limitation, be from a com- alienated within the legal period, appears also upon a P^''!^™. °* comparison of limitations by way of legal remainder with real estate by similar limitations taking effect by way of executory use mafnder with or trust. It will be seen that the test of remoteness is, executory not that the property is alienable within a certain time, but that the limitation vests within a certain time. A limitation of real estate to A. for 1000 years, with remainder to B. in fee, is valid, provided B. is ascertained within the legal period {x) ; a limitation of real estate to A. in fee, and upon failure of A.'s issue to B. in fee, is void for remoteness. There is no valid ground for holding the property to be less alienable in the one case than in the other. The capacity of B. to alienate his future interest, and of A. and B. together to alienate the entire property, is identical in the two cases. But in the one 'Si, (x) 6 Cr. Dig. 4th ed. 380 ; F. C. R. 431 ; Gm-e v. Gore, 2 P. W. 28. F Digitized by Microsoft® 66 REMOTENESS WHERE THE PROPERTY IS ALIENABLE. Chap III. The Act 8 & 9 Vict. 0. 106, does not aSect the question. The existence of a power of alienation created by the inatrument or by statiite is immaterial. case the freehold is presently vested in B., in the other the limitation to B. is executory, and therefore subject to the rule which requires it to vest within the legal period. The result is anomalous ; but the history of the Rule against Perpetuities furnishes the explanation. With reference to the suggestion {y) that the power to alienate at law future contingent interests, which was created by 8 & 9 Vict. c. 106, s. 6 {z), has altered the law of remoteness, it is submitted that that Act does not affect the question considered in this chapter. The power of alienating future interests in real as well as personal pro- perty has always existed in equity (a). The statute merely enabled an alienor in certain cases to clothe his alienee with the legal as well as the equitable title (6). A limitation taking effect beyond the legal period will be void for remoteness, notwithstanding the existence of a power of alienation in the trustees of the settlement, or in the successive tenants for life, or other Umited owners under the Settled Land Act, 1882 (45 & 46 Vict. c. 38). (y) See p. 57, supra, (z) Repealing 7 & 8 Vict. c. 76, s. 5. (a) See notes to RyaZl v. JHoioles, 1 Ves. sen. 348 ; 2 White & Tudor's Lead. Cases in Equity. (6) The question considered in this chapteris discussed in Lewis on Perp. Appendix, pp. 19, seq.; Williams' Settlement of Real Estate, pp. 31, 32 ; Williams' Real Property, Appendix, F. Digitized by Microsoft® 67 CHAPTER IV. REMOTENESS AS A QUESTION OF EXPRESSION. A LIMITATION may sound remotely, or have the appear- Chap. iv. ance of remoteness, when a consideration of the circum- a limitation stances to which the instrument has to be applied will mounding re- ■■■ ■■■ motely is no'; show that no question of remoteness can arise. Thus a void if the limitation to the first son of A. who attains twenty-five is ^^ possibiliw valid, if there is a son of A. living at the testator's death of remoteuesa. who has attained twenty-five; otherwise it is void for remoteness. So an appointment, under the ordinary power in an ante-nuptial marriage settlement, to such persons as a child of the marriage " shall by any deed executed either before or after her marriage appoint," was held valid, the child being, in fact, married at the time the original power was exercised (a). In Slark v. Dakyns (b) a testatrix, with power to appoint to her children born before or after the creation of the power, appointed the fund in equal fifth shares to her five children respectively for life, with remainder as they should respectively by will appoint. All the five children were born at the creation of the power. It was held by Lord Cairns, C, affirming the decision of the Court below, that the power to appoint by will was valid, although it would have been void for remoteness had (a) Morgan v. Gronoio, L. K. 16 35 ; 42 L. J. Ch. 524 ; 44 L. J. Ch. Eq. 1 ; 42 L. J. Ch. 410. 206. (b) L. K. 15 Bq. 307 ; ib. 10 Ch. F 2 Digitized by Microsoft® G8 REMOTENESS AS Chap. IV. ^-[^Q donees not been born before the creation of the power (r;). Again, in Picken v. Matthevm (d) the gift was by will to the children of the testator's daughter who should attain twenty-five. A child having attained twenty-five in the testator's lifetime and survived him, the class was ascer- tained, at the latest, when the youngest child living at the testator's death attained twenty-five. The gift, which would have been void for remoteness had there been no child of twenty-five living at the testator's death, was therefore valid. So a limitation expressed to take effect upon a remote event may be valid by reason of the subject matter of the limitation ; as where a reversion in lands expectant upon the death of the testator's son without issue living at his death is devised upon the son's death without issue gene- rally (e) ; or where the property is of short duration (sup. p. 24). And so also of a limitation under a power opera tive only within the legal period ; ibid. Facts not ad- But the ordinary rules of construction will not be the purpose of relaxed for the purpose of admitting parol evidence to ascertaining show the testator's intention, merely in order to give the construe- ^ _... i-i iii -i tion and ap- ettect to a limitation which would otherwise be too remote, plication of "Where there was a gift by will to A. for life, with remainder the instrument . . . . are immaterial to her children, with remainder to her grandchildren, it question of ^^ ^^^ ^^^'^ ^^^^ parol evidence was not admissible merely remoteness, for the purpose of showing that A. was past childbearing at the date of the will, and that therefore the testator intended children then living (/). So in the leading case of Jee v. Audley (g) the bequest was of £1000 (in effect) to the present and future children (c) The decision of the Court N. S. 638 ; where Bankes v. Holme, below was affirmed also on other 1 Russ. 394, n., is spoken of as "a grounds. very strong case ; " and see Eno v. (d) 10 Ch. D. 264 ; 48 L. J. Ch. Eno, 6 Hare, 171. 150. (/) In re Sayer's Trusts, L. E, 6 («) It was so held in Zeiois v. Eq. 319 ; 36 L. J. Ch. 350. Templar, 33 Beav. 625 ; 10 L. T. (g) 1 Cox. 324 ; 2 Ves. 365. Digitized by Microsoft® A QUESTION OF EXPRESSION. GO of A., a living person, who should be Uving when Chap. iv. the issue of B. should fail. Sir J. Kenyon refused to assume that A., who was of very advanced age, was past childbearing ; and the bequest was held void for remoteness. In Cooper v. Laroche (h) the gift was by will to two persons for life, and after the death of the survivor to the children of A. and B., the shares of daughters to be settled upon them for life for their separate use without power of anticipation, with remainder over. A. was dead at the testator's death, and B. was past childbearing. Under these circumstances Malins, V.-C, held that the direction to settle was not void for remoteness. From Jee v. AucUey and In re Bayer's Trusts it would appear that the fact of B. being past childbearing is immaterial upon the question of remoteness. Neither of those cases was cited in Cooper V. Laroche, and the latter case would probably not be followed. Expressions, having an appearance of remoteness, but Remoteness which are, in fact, merely inartificial descriptions of the by*wMxirde5- estate or interest intended to be limited, do not vitiate a oriptiye of the limitation which will take effect within the legal period, estate limited. and is, in fact, unobjectionable on the ground of remote- ness. Thus a direction in a will that A. shall take for life, and after his death his eldest son for his life, and so on, the eldest son of the A. family inheriting for ever — being a description of the course of devolution of an estate tail — may take effect as a limitation of an estate tail to A. or his son (i). So in Cormack v. Copous (k) there was a devise of lands in trust for A. for life, and after his death in trust for all his children equally, " and all their children and their heirs for ever." It was held that the children of A. took as tenants in common in fee. (A) 17 Ch. D. 368 ; 29 W. R. L. R. 2 Eq. 799 ; it. 3 Ch. 93 ; 16 438. W. R. 290. (t) See Forsbrook v. Porsbrook,' (k) 17 Beav. 397. Digitized by Microsoft® 70' KE>IOTE>'ESS AS Chap. IV. In Nicolls V. Sheffield (l), before Sir Lloyd Kenyon, M.R., it was contended that the name and arms clause in a strict settlement of real estate was void for remoteness. He held that it was valid, and said that if the estate tail were not barred it might operate at any distance of time : " I might as well be told that an estate tail is an illegal estate, because it may endure for ever ; and must, when the reversion is in the Crown." And it will be seen in a subsequent chapter (m) that a trust to settle lands in a manner which, if carried out literally, would be void for remoteness, is not altogether void, but will be carried out in such a way as to effect the intention, so far as the law allows. So a direction to accumulate income, until a sum is raised which may not be reached within the legal period, is not void for remoteness, provided the gift of sum itself is such that it must vest within the legal period, and the donee may at any time put a stop to the accumulation (n). A gift by will of the rents or income of property, or a trust to pay rents or income, to a person and his heirs or representatives for ever is, in effect, an immediate gift of the fee simple of the land or of the absolute interest in personalty (o) ; and therefore, notwithstanding the appa- rently indefinite duration of the limitation or trust, is free from objection on the ground of remoteness. Limitation of There is a well established distinction between (1) a determiuable ... . iii interests. limitation ot an absolute estate with a superadded con- dition determining the estate previously limited before its natural expiration, and (2) the limitation of a qualified or determinable estate. A gift to A. for life, with a proviso that, if he marry, his estate shall cease, is an example of the former ; a gift to A. for life or until he marry, of the latter kind of limitation. In the one case A.'s life estate is, (0 2 Bro. C. C. 214, 217. Luth, 6 H. L. C. 1013, 1024 ; 28 (m) Infra, p. 268, sccj. L. J. Ch. 505. ()i) Oddie V. Bmicii, 4 Dc G. & J. (o) See supra, p. 26 179; 28 L. J. Ch. 542; Williams v. Digitized by Microsoft® A QUESTION OF EXPRESSION. 71 upon liis marriage, determined by a condition subsequent; C^ap- IV. in tlie other it ceases by its original constitution {p).. A life estate, an estate tail,, or an estate for years may, it seems, be made determinable in either way without offending the Rule against Perpetuities, provided the limitation would have been valid, if absolute. Thus a gift of personalty to the imbom child of A. for life, with a proviso that if he marry a Christian, his life interest shall cease, was considered by Hall, V.-C. (g), to be valid ; and a limitation of real or personal property to the unborn child of A. until marriage, or other event which must happen in his life, would seem to be equally free from objection. So a limitation of real estate to A. for 1000 years or so long as there are issue living of B., or a limitation for 1000 years upon trust to raise a sum of money, with a proviso for cesser upon the money being raised, is valid (r). And an estate tail may be determinable either by a qualification embodied in the original limita- tion, or by a condition subsequent, properly so called. The qualification or condition being in either case (s) barrable, there can be no objection on the ground of remoteness. The following instances of determinable or qualified estates tail have been suggested, and appear to be valid : — A limitation to A. and the heirs of his body so long as he or they are lords of the manor of Dale {t), or so long as a tree shall stand (u), or until A. shall do something («). Before the statute Quia E-mptores a fee simple could be created of such a nature as to determine upon the (p) See Co. Lit. 214, (b); Butler's void for remoteness, note, r. C. R. 12; per Chitty, J., (»•) Lewis on Perp. 173; Third In re Machu, 21 Ch; D. 838. Report Real Property Commrs. p. 43. [q) Hodgson v. Halford, 11 Ch. D. (s) Benson v. Modson, 1 Mod. Ill, 959; 48 L. J. Ch. 548. The dis- and cases cited Shep. Touchst., 8th tinction between a life interest de- ed., 40, note (m). terminable by limitation and by (t) Butler's note, F. C. R. 12. condition subsequent does not ap- (u) Benson v. Sodson,! Mod. Ill; pear to have been noticed in this F. C. R. 428 ; Sand. Uses, 5th ed. case. Possibly a forfeiture clause 159 ; and per Lord Hatherley, 2 Ap. operating upon the life interest of Ca. 33. an unborn persbn might be held (») Arton v. Hare, Poph. 97. Digitized by Microsoft® 72 REMOTENESS AS Chap. IV. But remote- ness is often i question of form and not of substance ; of expression and not of intention. happening of an event which might happen at any dis- tance of time. Thus a grant to A. and his heirs so long as B. and his heirs shall enjoy the manor of Dale created, before the statute, a fee simple determinable upon B. or his heirs at any time ceasing to enjoy the manor ; and upon that event the lands reverted to the grantor or his heirs by way of escheat {y). Notwithstanding some authorities to the contrary (s), there is little doubt that, since the statute above mentioned, no such determinable fee can be created in tenements within the operation of the statute (a). But a determinable or conditional fee may be created in copyholds not admitting of entail (6), annuities (c), and other property not within the statute De donis. Under a limitation of such property to A. and the heirs of his body, A. takes a fee which, if not alienated, will determine on failure of heirs of his body at any time ; and the grantor, his heirs, or assigns, will thereupon become entitled to the fee simple in possession. But it is, nevertheless, in many cases, the form rather than the substance of a limitation that determines its validity with regard to the Kule against Perpetuities. Thus a limitation to A., if B. shall have no child who attains twenty-three, is void for remoteness, though B. never has a child at all (d). A trust annexed to a term, which in order of limitation precedes an estate tail, and {y) Not by way of reversion; 2 Cruise Dig. 4th ed. 335. (z) Cardigan v. Armitage, 2 B. & C. 202 ; Wellington v. Wdlington, 4 Burr, 2165; Oollia- v. McBean, 34 Beav. 426 ; 34 L. J. Ch. 555 ; 35 L. J. Ch. 144; L.R. 1 Ch. 81 (but see, as to this case, Collier v. Walters^ infra); 1 Brest. Est. iSl, seq.; ib. 449; Butler's note, F. C. R 12; Cruise Dig. 4th ed. 64; Flowd. 557; 1 B. W. 74, 75. (a) See 2 Anders. 138, cited with approval 1 Sand. Us., 5th ed., 209 ; Third Rep. Real Prnperty Conmirs., p. 36 ; Collier v. Walters, L. R. 17 Eq. 252; 43 L. J. Ch. 216. See also In re Machu, 21 Ch. D. 838 ; per Cairns, C, L. R. 2 Ap. Ca. 8, 23, 24. (6) Doe d. Blesard v. Simpson, i Bmg. N. C. 333 ; 3 Man. & Gr. 929 ; Doe d. Spencer v. Clarice, 5 Barn. & Aid. 458. {(•) Earl of Stafford v. Buckley, 2 Ves. sen. 170. (d) See Proctor v. Bishop of Bath and Wells, 2 H. Bl. 358 ; infra, p. 73. Digitized by Microsoft® A QUESTION OF EXPRESSION. 73 taking effect upon failure of the issue in tail, is void for Chap. IV. remoteness, though it is of such a nature that it cannot arise, if the estate tail is barred (e). A trust to accumulate rents of settled real estate during the minorities of the persons taking successively under the limitations is void for remoteness. And this is so although the nature of the trust, as regards the accumulated fund, is such, that it is operative only during the minority of the first tenant for life under the settlement, and therefore not beyond the legal period (/). If a limitation is expressed to take effect upon an event Limitation ex- which is too remote, and the same event includes another take effect event which is within the line of perpetuity, the limitation 1?°".*", ^I^''* is void for remoteness, and cannot take effect although the two or more latter event happens. Thus a limitation to take effect in ^^jf the one the event of A., a bachelor, leaving no son who attains that happens twenty-three, or who takes holy orders, is void for remote- remote, ness, and not the less so because A. dies childless (g). But Proctor v. if the limitation is expressed to take effect if A. leaves no „^^ "weils. " child who attains twenty-two, or upon A.'s death without children then living, it takes effect if A. dies without children living at his death. The question is one of ex- pression, not of intention. It is probable that a gift over, upon no child of A. living to attain twenty-three, is in- tended to take effect upon the death of A. without having had a child, but that intention not being expressed, a limi- tation to take effect if no child of A. attains twenty-three is void for remoteness. There is an important exception to the rule just stated Limitation of where a devise of real estate is expressed to take eftect capable of upon an event which includes two contingencies, one of ^'''"remainder which is such, that, if it happens, the devise will operate or as an exe- by way of remainder, though if the other happens it will °" "'^^ ™'" (e) See Sykes v. Sijhes, L. R. 13 16 ; 3 Jur. N. S. 203 ; infra, p. 156. Eq. 66 ; 41 L. J. Ch. 25 ; see infra, (g) Proctoi- v. Bishop of Bath and p. 153. Wells, 2 II. Bl. 358. (/ ) Turvin v. Nciocomhe, 3 K. & J. Digitized by Microsoft® 74 REMOTENESS AS event. Hvers y. CkaUis. Chap. IV. operate as an executory limitation. In this case the devise tation accord- "^^J ^^ " spht ;" and, if the event so happens, it will take ingtothe effect as a legal remainder; though, if the alternative event were to happen, it would be void for remoteness. This distinction was established by Evers v. Ghallis (h). The devise there was to A. for life, with remainder to such of her children as, being sons, should attain twenty-three, or, being daughters, should attain twenty-one ; and, if no children attained those ages respectively, over. A. died childless. It was held that the gift over took effect as a remainder. The other branch of the limitation, that, namely, intended to operate if A. left a son who afterwards died under twenty-three, was clearly void for remoteness. In this case, therefore, there is no distinction as regards the validity of the gift between a devise of real estate upon the death of A. without leaving a child who attains twenty- two, and a gift upon the death of A. without leaving a child who attains twenty-two, or toithout ever having had a child. Whether the contingency of dying without having had a child is expressed or not, the gift will, upon the event so happening, take effect as a valid contingent remainder. The rule in Evers v. Ghallis would seem to apply to the case of a limitation to A. for life, and after his death to such of his children as either before or after his death attain an age beyond twenty-one. If, at A's death, all his children had attained the given age, the limitation would take effect as a remainder ; otherwise it would seem to be void for remoteness (i). Limitation ex- Where the limitation is expressed to take effect upon effect upon alternative events, one only of which is too remote, it will effect upon (h) 9 H. L. C. 531 ; 20 L. J. Q. B. 113; 21 L.J. Q. B. 227 ; 29 L. J. Q. B. 121. This case was decided upon the authority of Gulliver v. Wickett, 1 Wils. 105. The opinion , expressed in Fearne's Contingent Remainders, pp. 396, 397, that the limitation over in GuHherw. Wklcett was an executory devise in both branches, is dissented from by Cran- worth. C, in Erers v. Ghallis. (i) See In re Lcchme>-e v. Lloyd, 18 Ch. D. 524 ; supra, p. 41. Digitized by Microsoft® A QUESTION OF EXPRESSION. 75 nevertheless take effect if the event happens which is not ^^*P- ^V, too remote. The remoteness of the alternative limitation alternative does not affect that which must take effect, if at all, within events, of _ which one is the legal period. "The case of Longhead v. Phelps (/c) too remote and shows that where there are two clauses containing a gift ^ ^° '^'^^° ■ over on a particular event, the first being a good gift over on a particular event, and the second being one which would be too remote, and therefore void, advantage may be taken of the former without any notice being taken of the latter clause " (l). In Longhead d. Hopkins v. Phelps (m), Lonyhmd v. the case above mentioned, by a marriage settlement lands were limited to trustees for a term upon certain trusts for daughters of the marriage to take effect (1) in case the husband should die withou.t issue male of his body by the marriage, or (2) in case such issue male should die without issue. The only son of the marriage died in his mother's lifetime. It was held that the trust of the term for the daughters in the event which had happened was good. In Dungannon v. Smith (n) there was a bequest of lease- holds upon certain trusts until an heir male of the body of A. should attain twenty-one, and then upon trust to assign the same to such heir male. It was held void for remoteness, even in the case of an heir who had attained twenty-one at A.'s death. But it was expressly stated by Rolfe, B. (o), in his opinion to the House of Lords, that although the objects of the trust would have been precisely the same if the testator had " in terms directed his trustees to assign to the person who at the death of A. should be heir male of his body, if such person should attain his age of twenty-one, and, if not, then to the first subsequent heir male who should attain twenty-one, there is no doubt that such a gift would be good as to the person who should be heir male of A. at his death." (k) 2 W. BI. 703. (™) 2 W. Bl. 703. {I) Per Lord St. Leonards, Mon;/- [n) 12 CI. & F. 646 ; 10 Jur. 0. pennij v. Beriiwj, 2 D. M. & 0-. 145, S. 721 ; see infra, p. 113. 180, 181. (o) P- S?^. Digitized by Microsoft® 7() REMOTENESS AS Cbap. IV. In Monypenny v. Bering (p) the devise was in trust Mmypenny v. for the testator's brother, A., for life, with remainder to Smng. ^_'g fjpg^ unborn son for life, with remainder to the first son of such unborn son in tail ; with similar remainders for life and in tail to A.'s second and other sons, and their sons respectively ; " and in default of issue of the body of my said brother A., or in case of his not leaving any at his decease," upon trust for B. A. died without having had any children. It was held that the gift to B. was valid. " The Courts," said Lord St. Leonards (q), " have gone at least to this extent, that they will not hold a gift over made in words comprising one event as made on two events, although in point of fact it may consist very reason- ably of two branches, unless the testator has so expressed it. What is contended in the case before me is, that I am to consider the words which, at all events, point to different events, as pointing to one event. There is no doubt that, in the sense in which the words ' and in default of issue of the body ' are generally used, they mean a failure of issue at any time, which would, of course, embrace a failure of issue at any particular time ; but then I find the testator, while using these words, also using words which embrace an event falling within them. I am therefore bound to consider that he did not use the general words in the sense in which the Court would use them ; for, if he did, the other clause would be insensible and inoperative. As, then, I have before refused to add to the words which he has used, so I refuse, on the same solid grounds, as it seems to me, to strike out his words, and I feel myself bound to give effect to every word in the will, as far as the law will enable me to do so.'' So there are several cases {r) where a limitation to take ip) 2 D. M. & G. 145 ; and see (»•) Minta- v. Wraith, 13 Sim. 52: S. C. 7 Ha. 568 ; 16 M. & W. 418 ; Gorhiff v. Hmimrl, 16 Sim. 395 ; 18 17 L. J. Ex. 81 ; 20 L. J. Ch. 153 ; L. J. Ch. 105 ; Cambridge v. Horn, 22 L. J. Ch. 313. 25 Bear. 409 ; and see Leake v. (2) P. 183. Rohinson, 2 Mer. 363, where, how- Digitized by Microsoft® A QUESTION OF EXPRESSION. 77 effect in case A., a living person, dies without children Chap. IV. living at his death, and following a limitation (which is void for remoteness) to such of A.'s children as attain an age beyond twenty-one, has been held valid. In Miles v. Harford (s) in a strict settlement of real ^i^e^ ▼• estate there was a shifting clause expressed to operate if any younger sons of the testator, or any issue male of the body of such younger son, should become entitled under the will to the settled estates, and if any other younger son or any issue of such other younger son should be then living. It was held by Jessel, M.R., that the clause was not void for remoteness, and that it took effect upon a son become entitled to the settled estates (t). In Grey v. Montagu (u) there was a bequest to living persons of a sum of money upon the death of A. without issue, or in case he should not dispose of it by will or deed. A. died without issue and without having disposed of it by will or deed. It was held that the gift over on A.'s death did not take effect ; apparently on the ground that a gift over on failure of his issue was void for remoteness. It does not appear to have been suggested that the gift over in the alternative event — of A. not having disposed of the money by will or deed — could take effect. If A. took a mere power to dispose of the money after his death, there seems no reason why the gift over should not have taken effect as in default of exercise of the power (v) ; though, if there was a prior absolute gift to A., the gift over was void for repugnance (x). It is not clear whether a covenant by an owner in fee, for himself his heirs and assigns, that the covenantee, his ever, the gift was void because o£ time of another son. remoteness in the objects as well as {u) 3 B. P. C. 314 ; 2 Ed. 205. in the event. (») See In re Stringer's Estate, is) 12 Ch. D. 691 ; 41 L. T. N. S. Shaw v. Jones Ford, 6 Ch. D. 1 ; 46 378. L. J- Ch. 633. (*) Qucsre whether it would not (x) See In re Wileock's Settlement, also have taken effect if issue of a 1 Ch. D. 229 ; 45 L. J. Ch. 163. sou had become entitled in the life- Digitized by Microsoft® 78 KEMOTENESS AS Chap lY. iigirs and assigns, shall have a right of pre-emption over the land, is void for remoteness altogether, or whether it is valid and binds the land during the life of the covenantor and whilst it remains in his hands, though void for remote- ness as to the rest. In Stacker v. Deaoi (y) a covenant of this kind was enforced against the covenantor ; but the covenant was there construed as not extending beyond the life of the covenantor. In London and South Western Railway Co. v. Gomm (0), where the covenant was not limited in point of time, it was held to be void for remote- ness altogether; though upon the facts it was not necessary to decide as to the validity of the covenant as against the lands in the hands of the covenantor. The opinion expressed in the Third Report of the Eeal Property Commissioners (pp. 41, 42), that " if an executory be limited to take effect, either in case A. shaU die in the lifetime of B., or in case there shall be an indefinite failure of issue of C, the whole will be void," appears to be incorrect. The cases above cited show that the limitation " in case A. shall die in the lifetime of B." is perfectly good, and will take effect, if the event so happens. A limitation taking effect upon alternative events, of which one is too remote and the other not, must be dis- tinguished from a limitation ulterior to and dependent upon a prior limitation that is too remote. The former will take effect or fail for remoteness, according to the event ; the latter cannot take effect under any circum- stances («). It has not been decided whether a gift, subsequent in order of limitation to another that is too remote, but expressed to take effect in case of the prior limitation being void for remoteness, would be valid. There seems reason to think that it would (h). (7/) 16 Beav. 161. (a) See infra, p. 288. (z) 20 Ch. D. ,'>62; .''.1 L. J. Oli. (b) See per H.all, V.-C, 19 Cli. D. 193, ,S.30. .526. Digitized by Microsoft® A QUESTION OP EXPRESSION. 79 The rule which requires the several events upon which a chap. IV. limitation is intended to take effect to be expressed sepa- single clause rately, where any one of thcmi may occur beyond the legal affecting two period, does not apply to a clause affecting separate and tations, as to distinct limitations or interests, as to some, but not all, of ^?"'' /'""'. 'V" . . ' ' ' all) of which which its operation would be too remote. Such a clause it is too will be valid, and will take effect in those cases where it ''''™°'®' cannot operate remotely, though as to the others it is void for remoteness. In Gromsk v. Lumb (c) a gift over, applicable to all the shares of all the members of two classes of legatees, was held valid as to shares belonging to one of the classes and void for remoteness as to shares belonging to the other class. The former class consisted of grandchildren being children of a deceased child of the testator, and the latter of grandchildren being children of children of the testator who were living at his death. Arnold v. Congreve (d) is a very similar case, the clause in question there being a direction to settle legacies given to grandchildren, one only of whom was living at the testatrix' death. A. bad power to appoint a fund amongst all the children begotten and to be begotten of B., and their issue ; and, in default of appointment, the fund was given to the children of B. equally. B. had only six children, all of whom were living when the power was created. A. by his will directed that the share to which every child of B. begotten or to be begotten was entitled in default of appointment should be held in trust for that child for life, and, after its death, for its children. It was held that the appointment was not void for remoteness (e). Sir L. Shadvpell held that the appointment was not of the fund in bulk to a set of persons collectively, some of whom were within the line (c) 2 Y. & C. C. C. 565. (e) Griffith v. Pmntull, 13 Sim. (d) I Euss. & M. 209, infra, 393. p. 97. Digitized by Microsoft® 80 REMOTENESS AS Chap. IV. of perpetuity and others were not. The appointor " merely directed how the share of each daughter should go after her death. If there had been a seventh or an eighth daughter the appointment would have been bad as to their children. But nevertheless the appointment as to the share of C. (one of B.'s children) would have been good ; for the partial invalidity of the appointment with regard to the share of her younger sisters could not affect in the slightest degree the validity of the appointment of her share." In Peard v. Kekenich (/) a testator with power to appoint to his children appointed to his eldest son, A., with a gift over to other sons if A. should die under twenty-one. And he directed the rents to be accumulated until A. or the other sons should attain twenty-three, and then to be paid over. It was held by Romilly, M.R., that the direction to accumulate was not void for remoteness in the case of A., who was three years old at the creation of the power. As to the other sons no question arose, and no opinion was expressed. In a recent case (g) a restraint upon anticipation was annexed to a limitation to a class, as to some of the members of which its operation would have been too remote. It was held that, although void as to these members, the clause took effect upon the shares of the others. The fund was settled during the joint lives of the parents upon trust, after the death of the survivor of them, for all their children ; and, as to daughters, for their separate use without power of anticipation. It was held by Hall, V.-C, following the decision of Wood, V.-C., in Wilson v. Wilson (h), that the restraint upon anticipation took effect as to two daughters living at the date of the settlement. (/) 15 Beav. 166 ; 21 L. J. Ch. 610 ; 49 I,. J. Ch. 620. 456. (A) 28 L, J. Ch. 95 ; 4 Jur. N. s, ig) Ilei-bert v. Wehsta; 15 Ch. D. 1076 ; infra, p. 97. Digitized by Microsoft® A QUESTION OF EXPRESSION. 81 In Harding v. Xott (i) the principle was recognised by Chap. iv. Lord Campbell ; but there the limitation which, according to the event, was applicable, was void for remoteness. Leaseholds were bequeathed to A., subject to an executory gift over in the event of " B. or the issue male of his body" becoming entitled to certain lands under the will of C. By that will the lands were limited upon the failure or determination of prior estates tail to B. for life, with remainders in tail to his first and other sons. A son of B. became entitled under the will of C. It was held that the gift over of the leaseholds, in the event which had happened, was void for remoteness ; but it was admitted by Lord Campbell that, if B. had become entitled under C.'s will, the case might have been different. And in a recent case, before Jessel, M.E., it was held that the distinction existed : — To a gift by will of leaseholds there was added a shifting clause expressed to take effect if A., the donee, or any of his male issue, should acquire certain other estates. It was held that the shifting clause carried over the lease- holds upon A. acquiring the other estates, although as to his issue it was void for remoteness (Jc). In Hodgson v. Half or d (I) a testatrix having a power of appointment amongst her children appointed part of the fund bj^ will to two daughters for life, with remainders over, and the residue to her other children absolutely. By a subsequent clause she directed that if any child married a Christian in her lifetime or after her death, such child's share should be forfeited and go over to the other children then living. It was held that the forfeiture clause took (i) 7 E. & B. 650 ; 26 L. J. Q. B. holds in Miles v. Harford was void 244. for remoteness in the event of issue {k) MUes V. Hwrford, 12 Oh. D. of A. acquiring the other estates in 691 ; 41 L. T. N. S. 378 ; see also the lifetime of a younger son of the Slark V. Dahyns, L. K. 15 Eq. 307 ; testator. L. R. 10 Ch. 35 ; 42 L. J. Ch. 524 ; (I) 11 Ch. D. 959 ; 48 L. J. Ch. 44 L. J. Ch. 205. It may be doubted 548. whether the gift over of the lease- G Digitized by Microsoft® 82 REMOTENESS AS Chap. IV. effect in the case of one of the children, a son born after the creation of the power, who married a Christian in the testatrix' hfetime ; and that, in the case of another child, one of the two daughters who was born after the creation of the power, and who married a Christian after the testatrix' death, it was void for remoteness. In this case it was argued that the appointment to the daughter was, in effect, an appointment to her for life, or until marriage with a Christian, and that since a Hfe interest could be well limited to her, a life interest deter- minable as aforesaid was not less valid. But it was held that the forfeiture clause being " one single clause, applic- able to a number of things — not merely to hfe interests but to the capital of the various shares appointed" — could not be split ; that it could not be construed apart from the gift over ; and that, being void for remoteness in the case of a share appointed absolutely to a child who married after the appointor's death, it was also void in the case of a share appointed for life, and could not take effect as a clause of cesser upon the life interest. If it had been possible to construe the forfeiture clause apart from the gift over. Hall, V.-C, seems to have considered that it would have taken effect upon the life interest. But this seems doubtful (m). From these cases it is clear that a single clause appli- cable to and affecting the several shares of the members of a class to which property has been previously limited abso- lutely may be valid as to some of the shares, and void for remoteness as to the others. A fortiori a single clause (not being a class limitation) limiting distinct interests to two or more persons by a common description is not altogether void merely because, as to some of the objects, it is too remote. Thus in Storrs v. Benbow (n) a gift of £500 to each of the (m) See 1 Jarm. on Wills, 4th (») 3 D. M. & G. S90 ; 22 L. J. ed., 870, note y ; and Hurst v. Ch, 823. fftirtt, 21 Ch. D. 278. Digitized by Microsoft® A QUESTION OF EXPRESSION. 83 children (present and future) of each of the testator's Chap. iv. nephews and nieces (present and future) was held valid as to children of nephews and nieces born in the testator's life, though void for remoteness as to the others (o). In the case of class limitations, and limitations of the Different rula .in claaa limi- same property to two or more persons successively answer- tationa. ing a common description, the rule is different. Here, as will appear elsewhere (p), the rule is that the limitation is void altogether, as to every member of the class and every one of the series of persons described by the common description, if by possibility it may be too remote as to any one of them. A settlement of personal property by reference to limi- Limitation of tations of settled real estate, as, for example, a direction to referent to trustees to pay income of personalty to the persons for the limitations of time being entitled to the rents of the realty under the " settlement, is not void for remoteness. It is construed, not as a trust for a series of persons, some of whom may be too remote, successively for life, but as a limitation to the first tenant in tail of the realty absolutely, subject to the life interests of the preceding tenants for life (q). Limitations of this character are fully considered below (r). (o) See also Wilkinson v. Duncan, {q) In re Johnson's Trusts, L. E. 30 Beav. HI ; 26 L. J. Ch. 495 ; 2 Eq. 716 ; 12 Jur. N. S. 616. and other cases infra, p. 282, sej. (r) pp. 124-135. {p) Infra, p. 84. g2 Digitized by Microsoft® 84 CHAPTER V. LIMITATIONS TO CLASSES. Chap. V. Application of the Rule against Per- petuities to class limita- tions. Class limita- tion defined. Two kinds of class limita- tions. The Rule against Perpetuities has a singular operation in the case of class limitations. " The Rule is that the vice of remoteness affects the class as a whole, if it may affect an unascertained number of its members " (a). In other words, a limitation to a class is void altogether, if it is, or by possibility may be, too remote as to any member of the class. It is therefore material to determine what is a limi- tation or gift to a class. In a recent case a class gift was thus defined by Lord Selborne (b) : — " A gift is said to be to a class of persons, when it is to all those who shall come within a certain category or description defined by a general or collective formula, and who, if they take at all, are to take one divisible subject in certain proportionate shares'' (c). Besides the class limitation here spoken of, where aU the members of the class take concurrently, and take the subject matter of limitation in aliquot shares, there is another kind of Umitation sometimes described as a class limitation, but of an entirely different character. The limi- tation in Ker v. Lord Dungannon (d) — to the heir male of the body of A., for the time being, for life, until an heir male (a) See FearJcs v. Mosdey, 5 Ap. Ca. 714, 723 ; 50 L. J. Ch. 57. (h) Pearks v. Moseley, 5 Ap. Ca. 714, 723 ; 60 L. J. Ch. 57. (c) As to whether a gift to A. and a class is a class gift, see in/ra, p. 101. {d) 1 Dr. & War. 509 ; on app. nom. Dungannon v. Smith, 12 CI. & F. 546 ; 10 Jur. 0. S. 721. Digitized by Microsoft® LIMITATIONS TO CLASSES. 85 attains twenty-one, and then to such heir male absolutely Chap. V. — is a class limitation of the latter kind. Of this limita- tion Sir E. Sugden said : " It is quite as much a gift to a class, though the persons within the class are to take suc- cessively, and finally only one of them absolutely, and not jointly and together," as those where the class take the absolute interrests concurrently (e). It will, however, be convenient to consider the operation of the Rule against Perpetuities upon these two kinds of class limitations separately. The limitations discussed in this chapter are class limitations of the kind first described, where the members of the class take the absolute interest in the property which is the subject of limitation con- currently in aliquot shares. Limitations such as that in Ker V. Lord Bungannon are considered in the following chapter (/). The leading case with reference to remoteness in class Limitation to limitations is Leake v. Robinson (g). In that case the cessaniy ag- testator bequeathed personal property to trustees in trust ^^^j^^^ for his grandson A. for life, and, after his death, in trust for legal period is the children of A. who should attain twenty-five or marry ^^i^^ "^ under that age ; and if A. should leave no children living Leake v. at his death, or such children should all die under twenty- ''^°"' five, or, being daughters, before marriage, then in trust for the brothers and sisters of A. who should attain twenty-five, or, being sisters, marry under that age. A. died childless, leaving six brothers and sisters, one of whom was bom after the testator's death. Sir W. Grant held that the gift to A.'s brothers and sisters was void for remoteness. It was contended that the gift was valid as to such of the brothers and sisters as were bom before the testator's death; as if the gift had been to individuals, of whom some were capable of taking, and others not. In answer to this conten- (c) See also per Wood, V.-C, in 279, 290. Catain V. Brown, 11 Ha. 372, 376 ; (/) Infra, p. 112. 1 W. R. 533 ; and per Chelmsford, (g) 2 Mer. 363. C, Christu v. Gosling, L. R. 1 H. L. Digitized by Microsoft® yC LIMITATIONS TO CLASSES. Chap. V. tion Sir W. Grant said : " The bequests in question are not made to individuals, but to classes ; and what I have to determine is, whether the class can take. I must make a new will for the testator if I split into portions his general bequest to the class, and say that, because the rule of law forbids his intention from operating in favour of the whole class, I will make his bequests what he never intended them to be, namely, a series of particular legacies to parti- cular individuals ; or, what he had as little in his contem- plation, distinct bequests in each instance to two different classes, namely, to grandchildren living at his death and to grandchildren born after his death." The principle of Leake v. Robinfison has been recognised and followed in many subsequent cases. It applies, not only where the limitation is to what may be called a natural class, as " the children of A.," or " the brothers and sisters of A.," but wherever the limitation is to a number of persons or to two or more groups of persons who for the purpose of the limitation form one class within the meaning of that term as defined by Lord Selbome in Pearks v. Moseley. Thus where the gift was, in trust for such of A.'s children as should attain twenty-one, and also such children of any son of A. dying under twenty-one as should attain twenty-one, per stirpes, the limitation was held void for remoteness Qi). In this case Lord Eomilly, M.R., said : " If a man gives an estate or a sum of money to all the children of A. and all the grandchildren of B., to be divided between them in equal shares and proportions, and both A. and B. survive the testator, I have very little doubt that such a gift would be void for remoteness ; for the class, which consists of the children of A. and the grandchildren of B., cannot be ascertained until the grand- children of B. are ascertained, and that will be at a period too remote." (A) Seaman v. Wood, 22 Beav. 591, 594. Digitized by Microsoft® LIMITATIONS TO CLASSES. 87 It sometimes happens that, althougfh the actual number chap. v. of members of the class is not necessarily ascertainable And cannot within the legal period, the maximum number of the take effect members, and therefore the minimum amount of each shares and share, is ascertainable within that period. This does not members aa- -*■ . . certainable enable the limitation to take effect. A gift by will to the within the testator's grandchildren who attains twenty-two is void ^^* penoa- for remoteness altogether, and notwithstanding the fact that the minimum amount of each grandchild's share is necessarily ascertained at the expiration of a life in being, that is to say, at the death of the survivor of the testator's children. It is necessary for the validity of the gift that every member of the class should be ascertained within the legal period. It cannot take effect partially, or by instalments, so as to be valid as to that minimum amount, or share, to which every grandchild attaining twenty-two must, at all events, be entitled, and void for remoteness as to anything accruing by survivorship. Thus in Pearks v. Moseley (i) the gift was, to the Limitation to children of A. attaining twenty-one and the issue attaining of competent twenty-one of such of them as should die under twenty- f.^i^cts as are . 1 1 1 1 - living at a re- one, per stirpes. It was held that the whole gift was void mote period for remoteness. The facts were as follows. A. had three to be thin'asl children, of whom two died under twenty-one without certained, of issue. The third attained twenty-one. It was held that, as'are then™ the gift being altogether void, the third child took no part '^^^• of the fund bequeathed. ^''"■*' ''• The principle of the rule applied in Pearks v. Moseley is very clearly stated by Jessel, M.R, in Hale v. Hale (k). Hale t. HaU. There the testator gave his real and personal estate to trustees upon trust for his widow during widowhood, and upon her death or marriage for his children then living and the issue of any child then dead, such issue to take their (i) 5 Ap. Ca. 714; 50 L. J. Ch. (h) 3 Ch. D. 643; 24 W. R. 67 ; Seaman v. Wood, supra, p. 86, 1065. is a very similar case. Digitized by Microsoft® 88 LIMITATIONS TO CLASSES. Chap. V. parents' share equally ; the shares of children and grand- children, being males, to be vested at twenty-four, and, in the case of females, to be settled as in the will mentioned. The testator's wife survived him ; all his children but one daughter had attained twenty-four at his death. The whole of the gift after the life interest to the widow was held void for remoteness. The following is an extract from the judgment of the Master of the Eolls: — "No human being could tell at the death of the testator how many of the testator's children would die in the lifetime or before the second marriage of the widow, nor whether any such child so dying would leave sons or not, and, if the child so dying left sons, whether or not they would attain the age of twenty-four years. The result might be that a child might die in the lifetime of the widow, or before her second marriage, leaving a son under the age of one year ; the widow might then die, or marry, and such son might not attain twenty-one within the legal period ; and consequently you could not within that period ascer- tain the class to take, for that is the important point. The class you could ascertain in one sense ; you could say that at the death of the widow the class could not exceed a given number, that is to say, it could not exceed all the children then living and all those who died in her lifetime leaving children ; and you could say at the testator's decease that in no case could the whole class to take exceed the whole number of the testator's children, because grandchildren would only come in the place of children. In that sense the class is ascertainable ; but in the other sense it is not. You could not tell how few there would be to take. You might have a division according to the number of children ; then a child might die leaving a son who might attain twenty -four after the legal period, and then that share ought to come back to the others, if you could divide it ; but you could not. It must remain absolutely uncertain what share each child Digitized by Microsoft® LIMITATIONS TO CLASSES. 89 would take, until it was ascertained whether the grand- Cbap. V. children attained twenty -four or not. The shares were not necessarily ascertainable at the death of the tenant for life, for you could not find out what share each child would take, although you could find out that each child must at least have a certain share. That being the state of the law, could you sever the shares ? that is, could you say, I will give to each child his minimum share, and only declare so much to be void for remoteness as he may possibly take beyond the legal period ? There again you would have to wait for the period of distribution to find out the share, unless you took the minimum share to be determined by the number of shares at the testator's death ; in which case you would have a minimum share, in the sense that a son who had then attained twenty-four must take that amount, at all events, although he might be entitled to more. As I understand it, Leake v. Robin- son (I), and the whole of that class of cases, negative the possibility of doing so. You must ascertain the whole share in order to get out of the decisions. According to the other mode of dealing, the minimum share might be given to each child who answered the description at the testator's death, leaving the law as to remoteness to take effect as regards the difference between the maximum and the minimum share ; but that is not the rule laid down by this Court, which has held the whole gift void unless you can ascertain the shares within the period." The Master of the Rolls proceeds to cite Smith v. Smith (m), Leake v. Robinson (n), and Seaman v. Wood (o), as conclusive of the law on the subject. The decision of Malins, V.-C, in Ln re Moseley's Trusts (p), which is opposed to Hale v. Hale, and was dissented from by Jessel, M.R., in that case, cannot be (?) 2 Mer. 363, supra, p. 85. (o) 22 Beav. 591. (m) L. K. 5 Oh. 342, infra, {p) L. K. 11 Eq. 499 ; 40 L. J. p. 92. Oh. 275. (re) 2 Mer. 363, supra, p. 85. Digitized by Microsoft® 90 LIMITATIONS TO CLASSES. Chap. T. supported since the decision of the House of Lords in Pearks v. Moseley (q). The last mentioned case was, ia fact, a decision upon the same words in the same will, though with reference to a different fund. In it the House of Lords followed with approbation the decision and reason- ing of Jessel, M.R, in Hale v. Hale; and removed the doubts as to the correctness of the decisions in Smith v. Smith (r) and Hale v. Hale which had been raised by dicta of the members of the Court of Appeal when affirm- ing, with expressions of reluctance, the decision by Jessel, M.R., of In re Moseley's Trusts (No. 2) in accordance with those cases (s). In Blight v. HartnoU (t) the testatrix directed the surplus rents of a freehold wharf, after satisfying certain annuities by her will given to living persons, to be accumu- lated for the purpose of paying off mortgages subsisting on the property ; and she directed her executors, after pay- ment of the annuities and of the mortgage debts, to sell the wharf and divide the proceeds amongst such of her grand- children as should be then surviving in such proportions as her (the testatrix') sister should by will appoint. It was held that the objects of the power of appointment were grandchildren living when the annuities and mortgages were paid off and satisfied — a class not ascertainable within the legal period — and that the entire gift to grandchildren was void for remoteness («). "The Rule agaiust Per- petuities requires, in my view, the ascertainment within the period, not merely of the extreme limits of the class of persons who may take, but of the very persons who are to take, and that because the Rule is aimed at the practical object of telling who can deal with the property ; and if (}) And the doubt expressed by 265. EomiUy, M.R., in Salmon v. Salmon, («) There was an appointment by 29 Beav. 27, is removed. the sister which was held void, as (r) Infra, p. 92. having been made before the class (s) See 11 Ch. D. 555, 558, 559. of objects was asoertained : sed (t) 19 Ch. D. 294 ; 49 L. J. Ch. qucere. Digitized by Microsoft® LIMITATIONS TO CLASSES. 91 you cannot tell who are entitled to the property, but only Chap. v. who may become entitled to the property, the property is practically tied up." In Bentinck v. Buke of Portland (cc) the bequest was to Bentinch v. such of the testatrix' four nephews and nieces (by name) as i^nd. should be living twelve months after the death of A. " and the issue then living and who shall attain the age of twenty-one years or marry " of any of the four who should then be dead, per stirpes. It was held by Fry, J., that the gift was to a class (of nephews and nieces and their issue)^ and that, being too remote as to the issue, the whole failed. In Bentinck v. Buke of PoHland, Fry, J., drew the distinction between the class of cases represented by Pearks v. Moseley and that represented by Cattlin v. Brown {infra, p. 285) — " a fine distinction between a gift of separate shares, together with an interest in other shares, which interest might be void for violating the Rule against Perpetuities, on the one hand ; and, on the other hand, of a share whose smallest amount may be ascertained within the lawful period, but whose maximum amount can only be ascertained beyond the period." It will be seen below (y) that in. the former case the gift of the original share is valid, and that the subsequent gift, which is void for remoteness, of an interest in other shares, does affect the gift of the original share. In the latter case — that of Pearks v. Moseley and Hale v. Hale — the whole is void for remoteness. In Merlin v. Blagrave (z) the testator devised his estates to trustees in trust, after A.'s death, in case A. should have only one child which should survive her, to pay £200 a year for the maintenance of such child until he should attain twenty-five; and from and after he should attain twenty-five, to raise and pay him £10,000 ; or, in case A. [x) 7 Oh. D. 693 r H L. J. Ch. (y) p. 95. 235. (s) 25 Beav. 125. Digitized by Microsoft® 92 LIMITATIONS TO CLASSES. Chap. V. Limitation to a class con- sisting of two sub-classes, the members of one of the sub-classes being sub- stitutes for members of the other. should have two or more children at her death, to raise an annual sum for their maintenance until they should res- pectively attain twenty-five, and when they respectively attained twenty-five to pay each an equal share of the £10,000. A. had one child only, who was begotten, but not born, at the testator's death. The gift of the £10,000 was held to be void for remoteness. It was, in effect, a gift of a sum, to be raised on a remote event, to a class to be ascertained upon a remote event. A class sometimes consists of two groups or sub-classes, the members of one taking by way of substitution for members of the other in case of the death of the latter before the period of distribution, but not under a separate and substantive limitation. In this case the whole gift fails unless all the members of both groups are capable of being ascertained within the legal period. The gifts in Hale V. Hale, Pearks v. Moseley, and Bentinck v. Buke of Portland, above mentioned, were of this character. So also in Smith v. Smith (a) the gift was after the death of the testator's wife " unto and equally between and among all such children of mine then living and such issue then living of my child or children then deceased as shall, either before or after the death of my said wife, attain the age of twenty-three years, as tenants in common, in course of distribution according to the stocks and not to the number of individual objects, and so that deceased children may take, by way of substitution, the share or respective shares only which the parent or respective parents would, if living, have taken." It was held that there was one gift only, and that to a class of children and grandchildren ; and that, the latter being too remote, the whole was void for remoteness. Again, in In re Merrick's Trusts (h) the gift was in remainder after the death of the survivor of A., a spinster, and her husband, to such of the testator's brothers and (a) L. R. 5 Ch. 342. (6) L. K. 1 Eq. 551. Digitized by Microsoft® LIMITATIONS TO CLASSES. 93 sisters (by name) as should then be living " or the lawful Chap. V. issue of such of them as shall be then dead." It was treated by the Court, and in argument, as clear, that if "issue" meant issue living at the death of the survivor of A. and her husband (who might be a person unborn at the testator's death), the gift was void for remoteness. In Stuart v. Cockerell (c) personal estate was given by will to S., a bachelor, for life ; remainder to the eldest son of S. for life ; remainder to E. for life ; and after the deaths of S., his eldest s6n, and E., upon trust to transfer the same " to all and every the children of S., share and share alike, and the children of such of the children of S. as shall he then dead, according to the Statute of Distributions ; but, in case there shall be no child or grandchild of S. then living, upon trust to transfer the same to the children of E." It was held by the Lords Justices, affirming the deci- sion of Malins, V.-C, that the gift to the children and grandchildren of S. was void for remoteness. In this case the gift over in default of children living at the period of distribution was relied on as distinguishing the case from In re Bennett's Trusts (d) and Baldwin v. Rogers (e). In these cases the limitation, which was somewhat similar to that in Stuart v. Cockerell, was held to have a double operation. It was a gift to a primary class, with a separate and independent gift over to a secondary class, by way of substitution, of the shares of members of the primary class who should die before the period of distribution. In Baldwin v. Rogers (/) the gift over was clearly valid, Saldioin v. and, as to it, no question of remoteness arose. The case, however, is frequently referred to in connection with the subject under discussion, and it will be convenient to state it more fully. The testator there gave his residuary estate upon trust for his wife for life, with remainders to his (c) L. E. 7 Eq. 363 ; ib., 5 Ch. (e) 3 D. M. & G. 649 ; 22 L. J. 713 ; 39 L. J. Ch. 729. Ch. 665. (d) 3 K. & J. 280. (/ ) UU stipra. Digitized by Microsoft® 94 LIMITATIONS TO CLASSES. Chap V. sister and her issue, and in default of issue of himself and his sister, or upon their total extinction under twenty-one, to his first cousins and the issue of such of them as might be dead, per stirpes, their heirs, executors and administra- tors, as tenants in common. The testator and his sister had no issue ; the widow survived the sister. It was held that cousins Kving at the testator's death, and cousins born in the widow's life, took vested interests subject to be divested in favour of issue upon the death of the parent leaving issue before the death of the widow. The difficulty of this class of cases is to distinguish between those cases where the limitation is single, to a single class including members who are too remote, from those where the limitation consists of two branches, (1) a gift is to a class of persons competent to take, and (2) a separate and distinct gift over of the shares so given, which gift over is void for remoteness. In In re Moseley's Trusts (g) (PearJcs v. Moseley, supra, p. 87), Malins, V.-C, considered the gift to be of the character last described ; whereas it was held by the House of Lords to be a gift to one class of children and issue, the issue being too remote. In Packer v. Scott (h) a gift to children " and " their too remote issue was held vaUd, and not too remote, by reason of a context which was held to point to the attainment of twenty-one by one of the children as the time for ascer- taining the class. In the class of cases represented by Pearks v. Moseley, the property which is the subject of limitation is divisible into aliquot parts corresponding in number with those members of the class who are competent objects. The amount of these parts or shares is ascertainable within the legal period. The vice of remoteness is only introduced by that part of the limitation which requires a possible sub-division of some of those shares amongst sub-classes ig) L. R. 11 Eq. 499 ; 40 L. J. (h) 33 Beav. 511, imfm. Oh. 270. Digitized by Microsoft® LIMITATIONS TO CLASSES. 95 which are not necessarily ascertainable within the legal Chap. V. period. The members of the sub-classes, though not taking equal shares with the members of the original class, are for the purpose of the Rule against Perpetuities members of that class. If the sub-classes are not ascertainable within the legal period the whole gift fails. Though a gift to a class of children, competent, and Limitation to . . . , p , . . . a class of com- issue, incompetent, is void for remoteness, a limitation to petent objects a class of competent obiects is not affected by a separate not affected by ^^ ... J r a separate and and distinct gift over, which is void for remoteness, of some distinct gift or all the shares. ^ ^ ^ alveral shares, In Ring v. Hardwicke (i) an absolute gift to the testa- which is void tor's daughters was followed by a direction to settle their ness. shares, with a gift over of the shares of such of them as Sinsr v. Eard- should die without leaving issue who should attain twenty-five. It was held that the gift to the daughters was not affected by the gift over, which was void for remoteness. In Taylor v. Frohisher (h) the bequest was to the children of A. "to be a vested interest" on each attaining thirty ; with a gift over of the shares of those dying under thirty to the survivors. It was held that, notwithstanding the words as to vesting at thirty, the children took abso- lute interests which vested at birth, and, by reason of the gift over being void for remoteness, were indefeasible. In Courtier v. Oram (l) the testator bequeathed the income of his residuary estate between his three children, and when any child died his share was to be equally divided amongst the testator's surviving grandchildren ; and if any of the grandchildren died, their share was to be divided amongst the other gxandchildren then living. The gift to the grandchildren living at the death of a child was held valid and absolute ; the gift over upon the death of a grandchild being void for remoteness. (i) 2 Beav. 352 ; 4 Jur. 0. S. 242. Ch. 605. (h) 5 De G. & Sm. 191 ; 21 L. J. (I) 21 Beav. 91. Digitized by Microsoft® 96 LIMITATIONS TO CLASSES. Chap. V. In Ooodier v. Johnson (m) the gift was upon trust, Goodier v. after the death of the longest liver of the testator's daughter, Johmm. unmarried son, and son's widow "to pay and apply the money to be raised (by a sale) as aforesaid unto and equally amongst all the children of my said son A. and daughter B., share and share alike, and the lawful issue of such of them as may then be dead leaving issue, such issue to be entitled to no more than their parent or respective parents would have been if living." It was held that the gift was not to a class of children and issue ; that under the first words of the trust all the children took absolutely ; that the gift to issue was substitutionary ; and, the gift to issue being too remote, the children took absolute and indefea- sible interests. Packer v. Scott (n) seems to belong to this class of cases. The bequest there was, in effect, upon trust, when and as the children of A. (a living person) should severally attain twenty-one, to pay and divide a sum equally between them and the children of such of them as should die under twenty-one ; but so that the children of a deceased child should, on their severally attaining twenty-one, take their parent's share. It was held that the gift was not void for remoteness ; the class being ascertained when a child of A. attained twenty-one ; the gift over to children attaining twenty-one of a deceased child not affecting the validity of the primary gift. Nor is an absolute gift to a class of competent objects defeasible by a gift over upon the death of all the class under an age which a member of the class may not attain within the legal period. In Hardcastle v. Hardcastle (o) the gift was to the present and future great grandchildren of the testator, being children of his granddaughter A., with a gift over upon the death of all of them under (ro) 18 Ch. D. 441 ; 51 L. J. Ch. (o) 1 H. & M. 405 ; 7 L. T. N. S. 369. 503. («) 33 Beav. 511. Digitized by Microsoft® LIMITATIONS TO CLASSES. 97 twenty-five without issue. The gift to the great-grand- Chap. v. children was held valid, and the gift over rejected as too remote. So where there is a valid limitation to a class, absolute Limitation to in the first instance, and there is superadded a clause, competent which is too remote, modifying or restricting the absolute objects not 1 , • • 1 , 1 • ,. • -1 • • 1 aifected by a interest previously limited, the modifying clause is rejected, superadded and the class takes absolutely. Thus in Wilson y. ™"f.'*^?'^ ""^ -^ modifyiQg Wilson {p) there was a gift to the present and future clause which children of A. who should be living at the death of B., remoteness. and there followed a direction to settle the shares of such Wilson v. of the children as were daughters upon the daughters for '"'"'■ life, with remainder to their children. The gift to the children of A. was held valid, and the direction to settle daughters' shares was, in the case of daughters born after the testator's death, rejected for remoteness (q). In Arnold v. Gongreve (r) the testatrix gave £6000 to her son for life, remainder, as to one moiety, to his eldest male child living at her death, and, as to the other moiety, to his other children. She gave other sums to all her children for life, with remainders to their children. By a codicil she directed that her grandchildren's shares should be settled on them for life, with remainders to their children. It was held that the codicil operated upon the share of the eldest male child of the son living at the testa- trix' death, but was void for remoteness as to the other grandchildren. A superadded condition or restriction annexed to a class gift must be distinguished from a clause which forms part of the description of the class. In Pearks v. Moseley (s) the trust was for " all the children of my said daughter who shall attain the age of twenty-one years and the lawful ip) 28 L. J. Ch. 95 ; 4 Jur. N. S. 610 ; 49 L. J. Ch. 620. 1076. (r) 1 Rus. & M. 209. (q) It was held valid as to daugh- (s) 5 Ap. Ca. 714; 50 L. J. Ch. ters horn in the testator's life ; and 57. see Herbert \. Webster, 15 Ch. D. H Digitized by Microsoft® 98 LIMITATIONS TO CLASSES. "''^P- ^- issue of such of them as shall die under that age leaving lawful issue at his her or their decease or respective deceases, which issue shall afterwards attain the age of twenty-one years or die under that age leaving issue at his her or their decease or deceases respectively as tenants in common, if more than one ; but such issue to take only the share or shares which his her or their parent or parents respectively would have taken if living." It was held that the whole of this was descriptive of the class and equivalent to " all the children of my said daughter who shall attain the age of twenty-one years and the issue who shall live to attain that age of such of them as shall die in minority." It was contended unsuccessfully that the words " which issue shall afterwards attain twenty-one " were words not descriptive of the class, but of defeasance importing a condition sub- sequent. l)ifficulty of The difficulty of distinguishing words descriptive of the words des- class from words operating as a separate and substantive criptiv-e of the limitation over is shown by comparing such cases as Pearks words import- V. Moseley and Stuart v. Cockerell with Goodier v. Johnson, ing a condi- Baldwin v. Rogers, or Packer v. Scott (t). tion subse- _ . 80. 441 ; 51 L. J. Ch. 369 ; Haie v. Pew, (')•) Goodier v. Johnson, 18 Ch. D 25 Bear. 336. Digitized by Microsoft® lot LIMITATIONS TO CLASHES. Chap, V. tained, immediately upon the expiration of an estate tail in the lands (u), in which case both the trust for sale and the gift to the class are valid for reasons stated else- where {x). And a trust to sell, arising upon a remote event, and to divide the proceeds amongst a class to be ascertained within the legal period, with a trust of the rents and profits for the same class until sale, though void for remoteness as to the trust for sale, was in Goodierv. Johnson (y) held to be a valid limitation of the lands to the class described. Limitation to ^ limitation of real estate to a class by way of legal a class by way . , , „ IJ . . . of legal re- remainder may be valid, where, if the subject of limitation mamder. j^^^ been personal estate, or, being real estate, if the limitation took effect othervrise than by way of legal remainder, it would be void for remoteness. Thus a devise to A. for life, and after his death to such of his children as shall attain twenty-two, is not void for remoteness ; although, if no child has attained twenty-two at A.'s death, the limitation is for other reasons void, and the remainder will fail to take effect. But a devise to A. for life, and after his death to trustees (so as to vest in them the legal estate) upon trust for such of A.'s children as shall attain twenty-two, is void for remoteness. Under the former limitation no child can take who has not attained twentj'- two at the termination of a life in being. Under the latter, the class to take is not necessarily ascertained until twenty-two years after the termination of lives in being. So it seems to follow from a recent decision that a devise to A. for life, and after his death to such of his children as, either before, or after his death, attain twenty- two, is void for remoteness ; because (since the limitation takes effect by way of executory use and not of remainder) {2) (u) Heasman v. Pearse, L. K. 7 369. Ch. 275 ; 41 L. J. Ch. 705. (z) See In re Lechmere & Uoyd, (x) P. 146. 18 Ch. D. 524 ; but see as to this (y) 18 Ch. D. 441 ; 51 L. J. Ch. case, supra, p. 41. Digitized by Microsoft® LIMITATIONS TO CLASSES. 105 the class is not necessarily ascertained within the legal Chap. v. period. The explanation of this apparent exception of limitations of real estate by way of legal remainder from the operation of the Rule against Perpetuities is that the feudal rule, which requires a legal remainder to vest at or before the determination of the particular estate, excludes from the class to take those members who would vitiate the limita- tion if it operated by way of executory use or trust. The application of the Rule against Perpetuities to legal remainders is further considered below (a). Limitations to classes are frequently ambiguous as re- Time for as- gards the definition of the class, the persons intended to ciass^^™^ be included, and the time of vesting. Where this is the question of , ■ p 1 • 1 1 construction. case, the true construction oi the instrument must be ascertained before the question of remoteness can be answered. The time for ascertaining the class is deter- mined by the ordinary rules of construction without regard to the question of remoteness. A consideration of these rules is not within the scope of the present work (6). Three cases, however, should here be mentioned in which Apparent remoteness appears to have influenced the Court in deter- ^^^^"^ ^°^' mining the period for ascertaining the class. In Kevern v. Williavis (c) the testator bequeathed his residuary personal estate upon trust for the benefit of A. for life, and after her death for the grandchildren of B., " to be by them received in equal proportions when they should severally attain the age of twenty-five years." Both A. and B. survived the testator, and no grandchild had attained twenty-five at the death of the testator, or at the death of A. It was held that the gift to grandchildren was not void for remoteness, and that those grandchildren only took who were living at the death of A. It is difficult {a) Infra, p. 163. See also 3 147, seq.; Hawkins on Wills, 68 — Preston on Conveyancing, 555, cited 79; Theobald on Wills, 2nd ed. in Butler's note, F. C. R. 315. 243—268, 605—608. (b) For a statement of these rules, (c) 5 Sim. 171. See 16 Sim. 285, see 2 Jarman on Wills, 4th ed. pp. as to this case. Digitized by Microsoft® 106 LIMITATIONS TO CLASSES. ^^^P- ^- to see why, under the rule in Andiews v. Partington {d), the class to take was not all the grandchildren who sur- vived the testator or were born before a grandchild first attained twenty-five. Stress was laid on the fact that the gift was distinct from the direction as to payment. But the rule in Andrews v. Partington applies, whether the vesting or the payment only is postponed to the given age (e). In Elliott V. Elliott (/) the gift was " unto and amongst all and every the children, sons and daiighters of his (the testator's) daughters, in equal shares and proportions as and when they should attain their respective ages of twenty-two years." It was held that only children living at the testator's death took, and that there was no remote- ness. Here also the only reason for excluding grand- children born after the testator's death and before a grandchild attained twenty-two seems to have been, that such a construction would have been fatal to the gift (3)- In Leach v. Leach (h) the testator bequeathed personal estate, after the death or subsequent marriage of his widow and the deaths of his brother and sister, to A. and the other children of his brother for life ; and he directed the principal to be divided amongst the issue (children) of A. and the other children and to be transferred to them upon their severally attaining twenty-one. It was held that the gift was to A. and two other children who were living at the testator's death and their children. The will was obscure ; and the fact that, if children born after the tes- tator's death had been included, the gift to their issue would have been too remote, appears to have influenced the Court in excluding them. {d) 3 Bro. C. C. 401. ((/) It does not appear that any (e) GiUman v. Daunt, 3 K. & J. grandchild had attained twenty-two 48. at the testator's death. (/) 12 Sim. 276 ; 10 L. J. Ch. (h) 2 Y. & C. C. C. 495. 363. Digitized by Microsoft® LIMITATIONS TO CLASSES. 107 The mere fact that in the description of the class are Chap. V. inchided grandchildren, great-grandchildren, or any number to a class of of future generations of issue of a living person, is immate- remote issue rial, provided there be an explicit direction, or the intention tained within is clear, that the class, whatever it be, is to be ascertained, tte legal ... . period. and that the limitation must vest, within the legal period ; as, for instance, at the death of a living person (i), or when a child of a living person attains twenty-one (k). The following is a summary of cases in which the ques- Summary of tion of remoteness has arisen in connection with limitation ^^g^^_ to classes. The class is described in each case, not in the words of the limitation, but so as to show clearly the constitution of the class, and the time at which it is to be ascertained. In the following cases the class has been held too remote, (1) Cases in and the limitation void : — ^hZ haslbeen Gifts — held too mi I'll r k ■ !■• 1 Ti remote and io the children of A., a spinster, living when a daughter the limitation of A. first attains twenty-four (I). ^"^^^ To the children of A., a spinster, living at the death of the survivor of A. and her future husband (m). To the brothers and sisters of A. (who took a life interest) upon their respectively attaining twenty-five or being sisters marrying (n). To the testator's next of kin at the time of failure of children of unborn children of A. (o). To the children of A. living when the youngest attains twenty-five and the issue of children of A. then dead (p). To the children of A. who attain twenty-one and the (i) See per Westbury, C, in {k) Per KomiUy, M.E., in Packer Wetherell v. WethereU, 1 D. J. & S. v. Scott, 33 Beav. 511. 134, 139 ; 32 L. J. Ch. 476. With {1} Dodd v. Wake, 8 Sim. 615. reference to the dictum of Westbury, (m) Lett v. Jiandcdl, 3 Sm. & 6. C, in this case, it is submitted that 83 ; 24 L. J. Ch. 708. it is not necessary that the class (m) Leake v. Robinson, 2 Mer. 363. should " come into possession " of (o) Hale v. Pew, 25 Beav. 335. the property within any definite (p) Read v. Gooding, 21 Beav. time, provided the limitation vests 478. in interest within the legal period. Digitized by Microsoft® 108 LIMITATIONS TO CLASSES. *'^°'P- ^- sons who attain twenty- one of such of the children of A. as die under twenty-one per stirpes (q). To the testator's grandchildren at (i.e. such of them as attain) twenty-one (r). To such of the four individuals A. B. C. and D. as shall be living at the death of the survivor of the testator's daughter and her future husband and the children per stirpes who survive their parent of such of the four as shall then be dead (s). To A. B. and all other the present and future children of C. living at C.'s death who attain twenty-one or marry and the children who attain twenty-one or marry of such of them as die in C.'s life per stirpes (t). To the testator's grandchildren living at the death of the survivor of their parents (u). To the children of A. attaining twenty-one and the issue attaining twenty-one or dying under that age leaving issue of children of A. dying under twenty-one per stirpes (x). To the issue of any present or future child of A. who should die leaving issue and the surviving children of A. upon the death of any such child of A. without leaving issue (2/). To grandchildren of A. living at the death of such of the present or future children of A. as should die last (y). To A. and a remote class as tenants in common (z). To the children of E. a bachelor living at the death of his eldest son and the children p>er stirpes of such of the children of E. as are then dead (a). iq) Seaman v. Wood, 22 Beav. H. 662. 591. (x) Pearks v. Mosdey, 5 Ap. Ca. (r) Cromeh v. Lumb, 2 Y. & C. 714 ; 60 L. J. Ch. 57. 665. {y) Gooch v. Gooch, U B. 565 ; (s) In re Merrick's Tr., L. K 3 D. M. & G. 366 ; 21 L. J. Ch. 1 Eq. 651. 238 ; 22 L. J. Ch. 1089. (t) Webster v. Boddington, 26 (a) Porta- v. Pox, 6 Sim. 485. Beav. 128. (a) Stuart v. Cockerdl, L. R 5 Ch. (m) Buchanan v. Harrison, 1 J. & 713. Digitized by Microsoft® LIMITATIONS TO CLASSES. 109 To a class to be ascertained fifty years after the testator's Chap. V. death consisting of children of the testator their children and remoter issue (6). To children of A. who attain twenty-five or being daughters marry (c). To the daughters of A. and B. his wife living at the failure of C.'s issue (d). To the next of kin of the testator to be ascertained at the death of his surviving grandchild (e). To such of the testator's children as should be living at the death of a child of the testator or failure of such child's issue, which should last happen, in the lifetime of any husband or wife of the child and the issue (per stirpes) of such of the testator's children as should be then dead (/). To the children attaining twenty-two (g) ; twenty- three (h) ; twenty-four (i) ; twenty-five (k) ; of A. or of the testator's sons or daughters. To A. for life and after his death to his descendants bearing a specified name for life (I). To the children of A. who attain twenty-five except A. B. and C. (m). To the testator's children living and the issue of such as should be dead upon failure at any time of issue of one of the testator's daughters (n). (J) Speakman v. Speahman, 8 Ha. (i) JiuM v. Jtuid, 3 Sim. 525 ; 180. Ring V. Hardwick, 2 Beav. 352 ; (c) Griffith V. Blunt, i Beav. 248 ; 4 Jur. 0. S. 242 ; Chance v. Chance, 10 L. J. Ch. 372. 16 Bea\r. 572 ; Rowland v. Tavmey, (d) Jee V. Audleu, 1 Cox, 324 ; 26 Beav. 67 ; Boreham v. Bignall, 2 Ves. 365. 19 L. J. Ch. 461 ; 8 Ha, 131 ; (e) Hayes v. Hayes, 4 Euss. 311. Blagrove v. Hancock, 16 Sim. 371 ; (/) Hodson V. BaU, 14 Sim. 558. 18 L. J. Ch. 20 ; Pickford v. Brown, (g) Vawdry v. Geddes, 1 R. & M. 2 K. & J. 426 ; 25 L. J. Ch. 702. 203 ; Thomas v. Wilberforce, 31 (I) In re Roberts, Repington v. Beav. 299. RobeHs-Oawen, 19 Ch. D. 520 ; {h) Bull V. Pritchard, 1 Russ. 50 L. J. Oh. 265. 213; 16 L. J. Oh. 185. {m) Comyortv. Austen, 12 Sim. (j) Newman v. Newman, 10 Sim. 218. 51 ; 8 L. J. Ch. 354 ; In re Blake- (m) Webster v. Parr, 26 B. 236. more's Settlement, 20 Beav. 214. Digitized by Microsoft® '110 LIMITATIONS TO CLASSES. Chap. V. To all the testator's grandchildren who attain twenty- four (o) or twenty- five (p). To the testator's grandchildren living at the death of each of his present and future grandchildren (q). To the child if one only or the children if more than one of A. who attain twenty-five and survive her; the gift being of a sum to be raised from and after a child attains twenty- five, and A. being enceinte at the testator's death of her only child who afterwards attains twenty-five (r). Cases in which In the following cases the class has been held not too been held remote and the limitation valid : — not too re- To the great grandchildren of A. living when a child of limitation B. first attains twenty-one (s). valid. To such of A.'s children as shall attain twenty-five ; A. having died after the date of the will and before the testa- tor (t). To the children of the testator's unmarried son and daughter and the issue (by way of an independent substi- tutionary gift which was void for remoteness) of such of the children as should die before the death of the survivor of the son daughter and son's future wife {u). To such of the testator's children living at his death as should attain twenty-two (x). To the grandchildren of B. living at the death of A. (with a direction as to payment at twenty-five) (y). To the children of A. and B. who attain twenty-five ; there being a child of twenty-five at the testator's death {z). To the grandchildren and great-grandchildren (per capita (o) Newman v. Nevman, 10 Sim. 166 ; 22 L. J. Ch. 664. 51. («) Qoodier v. Johnson, 18 Ch. D. (p) Blagrove v. Hancoch, 16 Sim. 441 ; 51 L. J. Ch. 369. 371 ; 18 L. J. Ch. 20. (x) EUiott v. Elliott, 12 Sim. 276 ; ({) Courtier v. 0mm, 21 Beav. 91. 10 L. J. Ch. 363. (r) Merlin v. Blagrave, 25 Beav. {y) Kevern v. WHliams, 5 Sim. 125. 171. (s) See per Eomilly, M.R., Packer (z) Picken v. Matthews, 10 Ch. D. V. Scott, 33 Beav. 511. 264 ; 48 L. J. Ch. 150. (S) Southerns. WoWosiom, IBBeav. Digitized by Microsoft® LIMITATIONS TO CLASSES. Ill or per stirpes) of A. living at the death of a child of A. which child was living at the testator's death (a). To the testator's cousins living at his death or born before the death of his widow and the issue of cousins dying in the widow's life, such issue taking per stirpes and by substitution (6). Gift of the proceeds of sale of real estate, directed to be sold upon failure or expiration of an estate tail limited by the will, to the children of B. other than A. living at the failure or expiration of the estate tail and the issue of such of B.'s children as should be then dead and the issue of A. ; with a substitutionary gift to their children of the shares of members of the above class who should die before the period of distribution (c). To the present and future children of A. with gifts over which are too remote, as upon the death of a child under thirty to the survivors (d), or upon the death of all the children under twenty-five (e). To A. and B. "and all their children and their heirs for ever" (i.e. to A. and B. and their children as tenants in common in fee) (/). After the death of the survivor of A. and B. to the immediate or direct descendants of A. or B. bearing a specified name for life (,§'). Chap. V. (a) Wetherell v. Wetkerell, 1 D. J. & S. 134 ; 32 L. J. Ch. 476. (b) Baldwin v. Sogers, 3 D. M. & G. 649 ; 22 L. J. Ch. 665. (c) Seasman v. Pearse, L. R. 7 Ch. 277 ; 41 L. J. Ch. 70B. (d) Taylor v. Frobisher, 5 De G. & Sm. 191 ; 21 L. J. Ch. 605. (c) Hardcastle v. Bardcastle, 1 H. & M. 405 ; 7 L. T. N. S. 503. (/) Cormack v. Copous, 17 Beav. 397. (g) In re Jioberts, Jlepington v. SobeHs-Gawen, 19 Ch. D. 520 ; 50 L. J. Ch. 265. Digitized by Microsoft® 112 CHAPTER VI. LIMITATION TO AN UNASCERTAINED PERSON; SETTLEMENT OF HEIK-LOOMS AND PERSONAL PROPERTY BY REFER- ENCE TO LIMITATIONS OF REALTY; EXECUTORY AND EXECUTED TRUSTS. Chap. VI. As, in the case of a limitation to a class of persons Limitation to answering a common description, it is necessary that the a person who dj^gg ghould, at all events, be capable of being ascertained at a future ' ' ,,...". time shall withm the legal period, so, where the limitation is to an answer a given in(iividual answering a given description, it is void for remoteness, unless it is certain, when the instrument takes effect, that there will be in existence and ascertained within the legal period a person answering the descrip- tion. Proctor V. The leading case on this branch of the subject is Proctor Bath and ^- Bishop of Bath and Wells (a). The testator in that Wdis. case devised to the first or other son of A. (a living and childless person) who should be bred a clergyman and be in holy orders. By ecclesiastical law no person can, without a faculty, be admitted to orders before the age of twenty- three years. It was held that the gift was void for re- moteness. The result would be the same in the case of a gift to the child of a living person acquiring, after the testator's death, any other qualification not necessarily attainable during infancy. (a) 2 H. Bl. 358. Digitized by Microsoft® LIMITATION TO UNASCERTAINED PERSON. 113 The cases in which remoteness has been involved in the Chap. vi. description of the person to take have, for the most part, Limitation to been those where property is limited by reference to limi- *^® ?''^* ^f^"^ , '^r J J of the bo^y of tations contained in the same or another instrument of A. who at- other property ; or where the attempt has been made to *^"^ twenty- attach the enjoyment of the property to the possession, either of other property, or of a dignity. The question of remoteness in these cases is one of great difficulty; and the diflSculty is not unfrequently increased by obscurity in the terms of the limitation. There is perhaps no class of cases upon the subject of remoteness in which there has been more difference of opinion in the Courts than that now under discussion. The first case of importance is Ibbetson v. Ibbetson (b). IbUtson v. , • 1 • ■ ,- • 1 Ibbetsmi. The testator there devised a reversion m fee simple ex- pectant upon an estate in tail male, to which he was entitled under his marriage settlement, to his brother for life, with remainder to the brother's sons successively in tail. He bequeathed chattels to trustees, in trust to permit the same to be used by the person for the time being entitled to the possession of the real estate tinder the settlement, or the will, until a tenant in tail of the age of twenty-one years should be in possession under the settlement or will ; and he directed that the chattels should belong to such tenant in tail absolutely. It was held that the trust of the chattels, except as to the brother's life interest, was void for remoteness. Lord Dungannon v. Smith (c), an important and Bungannm v. leading decision of the House of Lords upon this sub- ject, followed Ibbetson v. Ibbetson. The testator there bequeathed leaseholds for years upon trust for his grandson, (6) 10 Sim. 495 ; on app. 5 M. & expressed a strong opinion (in ac- Cr. 26 ; 11 L. J. Ch. 49 ; 4 Jur. 0. cordance with the decision of the S. 408. House of Lords) against the validity (c) 12 CI. & r. 546 ; 10 Jur. O. S. of the gift ; see Ker v, Dvngannon, 721 ; the same will came before Sir 1 Dr. & War. 543. E. Sugden in Ireland, and he there Digitized by Microsoft® 114 LIMITATION TO UNASCERTAINED PERSON. Chap. Yi. ^i.<;},uj.^ fQj. ijfg^ and after his death to permit such person who for the time being would take by descent as heir male of the body of the grandson to take the profits until some such person should attain twenty-one, and then to convey the leaseholds to such person, his executors, administrators, and assigns. The eldest son of the grandson attained twenty-one in the grandson's life, and claimed to be entitled to the leaseholds. It was held by the House of Lords, in accordance with the opinions of nine out of the eleven judges who attended, that the bequest of the leaseholds was too remote and altogether void. Lord Lynd hurst, in moving the judgment of the House, spoke thus : " The disposition of these leasehold premises, of the corpus, was to a person answering two descriptions. He was to be heir male of the body taking by descent from Arthur Trevor, the grandson, and he was to be of the age of twenty-one years It is quite obvious that these two circumstances might not combine for many generations ; and indeed it is possible they might never combine. It is obvious, therefore, that this disposition of the property is void for remoteness ; for, as everybody knows, property of this description must vest if at all within a life or lives in being and twenty-one years afterwards ; and, to speak with perfect correctness, a few months for gestation. It is wholly immaterial in this case that there was a person twenty-one years of age answering the description at the time; [that is] to make use of a phrase of a noble and learned lord in the case of Tollemache v. Earl of Coven- try {<£), that was a pure accident ; it might, or it might not have happened. Unless it is absolutely certain that that event must happen within the period prescribed, it is quite clear that the rule of remoteness applies to the case, and the devise becomes altogether void. . . . But, my lords, it is supposed that the gift of the corpus of the estate is operated upon in some degree by the disposition W 2 01. & F. 611. Digitized by Microsoft® TO ONE OF A CLASS OR SERIES. 11 of the intermediate rents and profits. The disposition of Chap. vi. the intermediate rents and profits is to the person who, for the time being, should take by descent as heir male of the body of the grandson, until some such person shall have attained the age of twenty-one years. Now the disposition of the corpus of the estate is to a person answering two descriptions or qualities. The intermediate rents and profits are taken by a person, or persons, who answer one of these descriptions. It appears to me that the disposi- tions can exist entirely unconnected with each other, that they have no necessary relation to each other, and that the disposition of the rents and profits to particular individuals under this will no more affects the disposition of the corpus of the estate than if that disposition had been to mere strangers" (e). The point decided by Dungannon v. Smith is that a limitation to the first of a series of persons, all successively answering a common description, who acquires a given qualification (as the attainment of the age of twenty-one) is altogether void, unless it must necessarily take effect within the legal period. It is not valid as to some of the members of the series, and void for remoteness as to the others — those, namely, who will, or may, acquire the specified qualification beyond the legal period. The question is, not whether this or that member of the series, if he takes at all, must take within the legal period, but whether the property, if taken at all, under the limi- tation, must be taken within the legal period. "The question," said Cresswell, J. (/), " is not, as I apprehend, whether A. or B., if he took, must take in due time, but whether the estate, if taken by any one under this bequest, must be taken in due time." This point had arisen, but was not discussed, in previous cases (g). (c) Cited by Lord Cairns in Bar- (g) Taylm- v. Biddall, 2 Mod. 289 ; rington v. Harrington, L. E,. 5 H. L. Trafford v. Trafford, 3 Atk. 347 ; 87, 105; 40 L. J. Ch. 716. see per Tindal, C.J., 32 01. & F. (/) 12 CI. & ¥. p. 564. 617, and per Lord Brougham, ib. 631. I 2 Digitized by Microsoft® 116 LIMITATION TO UNASCERTAINED PERSON. Chap. VI. Bungannon v. Smith was followed by Wood, V.-C, in Wamhan v. Wamham V. Field Qi). There the testator devised free- ^^^' holds to tiTistees in trust for R. for life, with remainder to W. for life, with remainders over in tail. He devised his leaseholds to trustees upon trust to allow the rents to be received by the person for the time being entitled to the freeholds until such person should by good assurance become seised of the freeholds in fee simple in possession, and then in trust to convey or assign the same to him. It was held by Wood, V.-C, that the limitation of the leaseholds was void for remoteness, except as to the life interests of R. and W. The Vice-Chancellor said: "Clearly there can be no acquisition of the property under such a series of limitations until some tenant in tail of the free- hold estates shall have attained an age at which it will be competent to him to execute a disentailing deed by which he may acquire an absolute interest in them. That could not be done until such tenant in tail attained twenty-one, and therefore the freehold estates might travel through a long series of successive minorities for centuries ; and the case is therefoi-e precisely similar in this respect to Bun- gannon v. Smith.'' Limitation to The acquisition of a given description by a person named quiring other is Sometimes required to determine, not the person who is property. ^q take, but the time at which the limitation is to take Hwrding v. efifect. Thus in Harding v. Nott (i) there was a bequest of leaseholds to A. in the event of B., or the issue male of his body, becoming entitled to certain lands under another instrument. By that instrument the lands were limited to Z. for life, with remainder to trustees to preserve, &c., with remainders to the sons of X. successively in tail, with remainder to B. for life, with remainder to trustees to preserve, &c., with remainders to the sons of B. succes- sively in tail. Under these limitations a son of B. became (h) Kay, 507. (i) 7 Ell. & Bl. 650 ; 26 L. J. Q. B. 244. Digitized by Microsoft® TO ONE OF A CLASS OR SERIES. 117 entitled to the lands as tenant in tail. It was held that Chap. vi. he took nothing under the bequest of the leaseholds, which was void for remoteness. Owing to the rule of law which governs legal remainders Contingent re- „,.. . ., ,,.., mainder to an 01 real estate, a contingent remainder may be limited to a unascertained person answering a given description at the termination P^"°"- of the particular estate (being an estate tail, or a life estate necessarily determining within the legal period), which will not take effect, if at the termination of the particular estate there is in existence no person answering the required description, but cannot be void for remote- ness. Thus in Thorpe v. Thorpe (k) there was a devise, in remainder after previous estates for life and in tail, to " my own right heirs of the name of Henry Thorpe, if any such there shall then be (I), for ever." It was held that the testator's heir-at-law (whose name was not Henry Thorpe) was entitled to the reversion expectant upon the deteiTnination of the estates for life and in tail ; his rever- sion being defeasible in favour of a right heir of the name of Henry Thorpe, if any such should be living at the termination of the prior estates. It was assumed that the contingent remainder to the right heir of that name was not void for perpetuity. A gift to persons answering a given description at the Gift of in- testator's death is, of course, free from objection ; and a 8o™from^tliue gift of the income of property to the persons from time to *» t'™e , . . , . answering a time answering a given description has, m some cases, given descrip- been supported as an immediate gift of, either the corpus, ''""■ or the income, to the persons answering the description at the testator's death. In The Commissioners of Donations v. De Clifford (m) there was a gift of the surplus rents and profits of real (k) 1 Hurls. & C. 32«; 32 L. J. (I) The word "then" is omitted Ex. 79 ; 8 Jur. N. S. 871 ; see also in the statement of the devise, 1 Wriffhtson V. Macaulay, 14 M. & W. Hurls. & C. 328. 214 ; 4 Ha. 487 ; 15 L. J. Ex. 121 ; (m) 1 Dr. & War. 245. 17 L. J. Oh. 54. Digitized by Microsoft® 118 LIMITATION TO UNASCERTAINED PERSON. Chap Yl. estate (beyond a specified sum which was given to charity) to the person or persons of the S. and 0. families who from time to time should be lords of the manor of D. It was held to be an immediate gift of the surplus rents in fee simple to the persons answering the given description at the testator's death. In Liley v. Hey (n) a gift of rents of real estate upon trust to pay the same, every 1st of December, to the families of certain persons named, according to their circumstances, and as the trustees should think fit, was sup- ported at least as to the lives of the persons named in the will. The gift was, in the opinion of the Court, to those persons for life, with remainder to their " families." A gift of a yearly sum to the person for the time being holding a specified office (not being a charitable gift) was in Thomson v. Shakespear (o) held to be void for remote- ness. In re Roberts (p) was an obscure will by which a fund was bequeathed in trust for the testatrix' brother and nephew successively for life, and after the death of the survivor, upon trust to pay the income " for life unto any immediate or direct lineal descendants of my said brother or nephew, who shall bear the name of R. G. only, and from and after his or her decease, or in case of failure of any such immediate or direct descendant of my said brother or nephew who shall bear the name of R G. only," upon trust for charities. There was a clause determining the interests of any descendants who should abandon the name of R. G. It was held by Hall, V.-C, upon the authority of Lord Dungannon v. Smith (q), Boughton v. James (r), and ToUemache v. Coventry (s), that the gift after the deaths of («,) 1 Ha. 580; 11 L. J. Ch. 415. (?) 1 D. & W. 509 ; 12 C. & F. (o) Johns. 612 ; 12 Jur. N. S. 546 ; 10 Jur. 0. S. 721. 616. (r) 1 Coll. C. C. 26 ; on app. -1 (p) In re Roberts, Repington v. H. L. C. 406. Roberts- Gawen, 19 Ch. D. 520; 60 {s) 2 C. & F. 611; 8 Bli N S. L. .J. Ch. 265. 547. Digitized by Microsoft® TO EACH OF A SERIES IN SUCCESSION. 119 the brother and nephew was void for remoteness as being Chap. VI. to a succession of " descendants " for life ; and, conse- quently, that the gift over to charity also failed. This decision was reversed on appeal ; the gift being construed to be, after the deaths of the brother and nephew, to descendants, if any such there should then be, of the speci- fied name, as joint tenants for life ; or, in the alternative, if there should be no such descendants then living, to the charities ; and, if there should be descendants to take, to the charities after the death of the survivor of the descen- dants. Both gifts, therefore, that to the descendants, also that to the charities, were valid. In Ibbetson v. Ibbetson, Bunqannon v. Smith, and Limitation to . . , each of a senes Wainham v. F%eld, the limitation held to be too remote or class of was intended to have a single operation in favour of one P^''^°"^. '"^ o ]r succession. individual. The taker was to be that one of a class or series of persons answering in succession a common de- scription who should first acquire a given qualification, not necessarily to be acquired by any of the class or series within the legal period. Here, as in the case of a limita- tion to a class taking concurrently, the rule is, that if any one member of the class or series may be too remote the limitation is altogether void. " If the devise be to a single person answering a given description at a time beyond the limits allowed by the law, or to a series of individuals answering a given description, and any one member of the series intended to take may, by possibility, be a person excluded by the rule as to remoteness (t), then no person whatever can take ; because the testator has expressed his intention to include all, and not to give to one, excluding others " (u). In the following cases the limitation in favour of a class {t) I.e., to all the members of the within the legal period, series contingently, but so as to vest {u) Per Wood, V.-C, in Cattlin v. in one of the series so soon as one BroiiyA, 11 Ha. 372, 376 ; and see shall acquire a qualification not ne- per Sir E. Sugden in Kei' v. Lord cessarily to be acquired by any one Dungannon, 1 Dr. & War. 609, 533. Digitized by Microsoft® 120 LIMITATION TO UNASCERTAINED PERSON. Chap. VI. or series has not, as in Dungannon v. Smith, a single operation vesting the absolute interest in an individual, but a recurrent operation, creating partial interests in favour of the members of the class or series in succession. A common instance of this is where the enjoyment of heir- looms or other property is annexed to the possession of a dignity or settled real estate. The rule here also is, that where the intention is clearly expressed that all the mem- bers of the series without limit shall in succession enjoy the property for life, and any of the series may be beyond the line of perpetuity, the whole limitation is void. But the Courts struggle against a construction which invali- dates the entire limitation ; and will, if possible, construe the limitation either as being in favour of such members only of the series as are within the line of perpetuity, or, as an executory trust, to be carried out so far as the law permits. The principle upon which the Court acts in such In re John- cases was explained by Wood, V.-C, in a recent case, In re son's Trudts. i j ' ' ' Johnson's Trusts {x). The testator there debased freeholds to his nephew for life, remainder to his first and other sons in tail successively, with remainders over. He bequeathed residuary personalty upon trust to pay the dividends and income " from time to time as the same shall become pay- able unto such person or persons as for the time being shall by virtue of this my will be entitled to the rents and profits of my freehold hereditaments hereinbefore devised," with a gift over (held to be too remote) of the capital upon failure of issue of the nephew. It was held that the nephew took the personalty for life, and that after his death his eldest son was entitled to it absolutely. Wood, V.-C, said that the question was whether the personalty was to go to the same uses as the real estate — that is, to the first tenant in tail absolutely, subject to the nephew's life interest — or whether there was an attempt to create a (x) L. R. 2 Eq. 716; 12 Jur. X. S. 716. Digitized by Microsoft® TO EACH OF A SERIES IN SUCCESSION. 1'21 perpetuity. " In all these cases the Court looks not so "hap. vi. much to the special intention as to the general intent ; and although, in conformity with Sir W. Blackstone's argument in Perrin v. Blake (Hargreave's Tracts, 510), the words may seem to point to a limited intention of tying up the property in a succession of takers so that it cannot be disposed of, yet, when a general intent can be found that the property should go with the estate, then the personalty will follow the realty by vesting in the taker of the first estate of inheritance. That is, of course, unless the words point plainly to a succession of takers, in which case the gift will fail." In the case before him he held that there was a plain general intent, and no expressed inten- tion to tie up the property beyond the legal period ; that it was governed by Foley v. Burnell (y). The lensrth to which the Courts will go in carrying out MackwoHh v. the " general intention m these cases is shown by Mack- luorth V. Hinxman (z). There a gift was held to be valid, notwithstanding the expressed intention that the property should never be alienated from a specified baronetcy, and that each succeeding baronet should enjoy it for life. The testator bequeathed personal estate upon trust to pay the income to Sir G. A., Baronet, for life, and after his death A. his eldest son for life ; but in case he should die leaving no son, then in trust for the person on whom the baronetcy should devolve, so that each baronet should take the income for life ; with a direction that upon the extinction of the baronetcy the capital should fall into the residue. At the testator's death Sir G-. A. and his brothers James and Eobert were living. Sir G. A. died without issue, and the baronetcy devolved upon James, and, after James' death, upon Robert. It was held that James took the personalty absolutely. Lord Langdale, M.R., said : " In all cases of this description the question is. What is the general {y) 1 Bro. C. C. 271 ; 4 Bro. P. C. (z) 2 Keen, 658 ; 5 L. J. Ch. 127. 319. Digitized by Microsoft® 122 LIMITATION TO UNASCERTAINED PERSON. Chap. VI. Bacon v. Proctor. ToUemache v. Coventry. intention of the testator which the Court is to carry into execution ? His intent here was that the property should go on to all time with the baronetcy. He accordingly says, his will is, that it should never be alienated from the title, but that each succeeding baronet should enjoy it for life. . . . For the purpose of accomplishing the inten- tion I think it must be held that Sir G. A. took a quasi estate tail in the property, and that the property, being personal, was absolutely at his disposal " (a). In Bacon v. Proctor (b) the testator devised lands to trustees upon trust to raise and pay certain sums by accu- mulating rents, and after payment thereof upon trust to pay the rents to such person of his own name and blood as should succeed to his title of baronet; to the end that the lands might be continued in his family, and go along with the title, so long as the rules of law and equity would permit ; with remainder over in case, upon failure of issue male of his body, there should be no person entitled to succeed to the baronetcy. It was held that the testator's son, the next baronet, took the lands for his life. There was no declaration as to the interest of any subsequent taker. In ToUemache v. Lord Coventry (c) the testator. Lord Vere, bequeathed chattels upon trust for his wife and son successively for life, with remainder to such person as should, from time to time, be Lord Vere ; it being his will that the same should, after the death of the wife, go and be enjoyed with the title of the family, so far as the rules (a) In Sugden's Law of Property (p. 341, note) it is stated that Robert could not take "because James' unborn issue, if there had been any, would have taken before him ; but there does not appear to have been any reason why James should have been held to take so as to defeat his issue, if he had any." Elsewhere (1 Dr. & War. 538) Lord St. Leonards doubts whether the decree, though founded on the testator's supposed intention, carried it out by giving James the absolute interest. (J) T. & R. 31. (c) 2 CI. & F. 611 ; 8 Bli. N. S. 547 ; in the Court below nom. Deer- hurst v. Duke of St. Albans, 6 Mad. 232. This decision and that of Sir W. Grant in Lord Dorchester v. Earl of Effingham, 3 Beav. 180, note, cannot stand together ; see Sugd. Law of Prop. 342 ; 1 Dr. & War. 536. Digitized by Microsoft® TO EACH OF A SERIES IN SUCCESSION. 123 of law and equity would allow. A sod and grandson, who "hap. vi. became successively the second and third Lords Vere, were living at the testator's death. Sir John Leach held that a great-grandson of the testator, bom after his death, who became the fourth Lord Vere took the chattels absolutely. This decision was reversed in the House of Lords by Lord Brougham, who held that, as to the great- grandson, the gift was void for remoteness. It appears to have been assumed that, as to the grandson, the gift was valid. The contest being between the grandson and great- grandson, there was no argument as to the validity of the gift to the former. It has been pointed out (d), and it was indeed admitted by Lord Brougham, that his reasons for holding the gift to the great-grandson void for remote- ness are fatal to the gift to the grandson. These reasons appear to call in question the possibility of attaching the enjoyment of properly to the ownership of a dignity, by reason of the liability of the dignity to abeyance. There can be no doubt that within the line of perpetuity pro- perty can be so settled, and that the observations of Lord Brougham upon the subject in ToUemache v. Lord Coventry require qualification. In Lord Dungannon v. Smith (e) Parke, B., expressed the opinion that Mackworth v. Uinxman, Bacon v. Proctor, and ToUemache v. Earl of Coventry, " are autho- rities for making a distinction between the first and subsequent members of a series whose titles are distinct from each other ; " and that those cases are authorities in favour of the validity of the bequest in Dungannon v. Smith as regards the son of Arthur, the grandson. This opinion (which the decision of the House of Lords shows to be erroneous) is founded on the assumption that a gift to the member of a class or series who first answers a given description can be read as a series of distinct gifts to (d) Sugd. Law of Property, 330, (c) 12 C. & F. 609, supra, p. 113. seg. ; Lewis Perp. 469. Digitized by Microsoft® 124 LIMITATION TO UNASCERTAINED PERSON. Chap. VI. Settlement of heir-looms or personal pro- perty to follow real estate or a dignity. Chi~iitie V. Gosling. Effect of pro- viso that the personalty shall not vest in tenants in tail dying under twenty- one. the several members of the class. As Tindal, C. J., remarked, this is not interpreting the will as it is, but is virtually making a new will for the testator. A bequest of chattels or personal estate to a series of persons in succession, by reference to limitations for life and in tail of real estate, is void for remoteness, if the bequest includes all the tenants in tail of the land, that is to say, tenants in tail by descent as well as by purchase. But the Courts have shown themselves unwilling to adopt such a construction where it is possible to confine the gift to tenants in tail by purchase. Even where the words of reference prima, facie include all tenants in tail, the restricted construction has, in recent cases, been adopted by the House of Lords. In Christie v. Gosling (f ) the testator bequeathed a sum of money upon trust to be laid out in the purchase of a free- hold house, which he directed his trustees to hold to the use of his nephew for life, with remainder to the first and other sons of the nephew in tail. He gave his real estate and residuary personal estate to trustees, upon trust to stand possessed of the personalty and seised of the realty to the uses and upon the trusts, &c., declared concerning the house directed to be purchased, or as near thereto as the rules of law and equity would permit ; provided never- theless that the personal estate should not vest absolutely in any tenant in tail unless such person should attain the age of twenty-one years. It was held by the House of Lords (Lords Chelmsford and Cranworth, dissentiente Lord St. Leonards) that the decision of Lord Westbury in the Court below was correct, and that the nephew, having attained twenty-one, took the personalty absolutely. " The question," said Lord Chelmsford (g), " is whether the pro- viso is a qualification of the preceding limitation making it liable to be divested on the death of a tenant in tail (/) L.R. 1 H. L. 279; 36 L. J. Ch. 667 ; in the Courts below, 32 Beav. 58 ; 1 D. J. & S. 1. (g) L. R. 1 H. L. p. 289. Digitized by Microsoft® TRUSTS OF PERSONALTY TO FOLLOW SETTLED REALTY. 125 under twenty-one, or whether it is a description of the Chap. VI. person who is to take the personalty heing only a tenant in tail attaining twenty-one. In the latter case the gift would be to a class, and as it might vest the estate in one who could not take on account of the law against per- petuity, the bequest, according to the well-known cases cited in the argument (h), would wholly fail." The proper construction of the bequest of the personalty was not, he added, to incorporate the proviso with the limitation, so as to make the whole one entire description of the person to take, but was, to take the referential limitation by itself, and then to graft the proviso upon it. The effect was to give the personal estate to the tenant for life of the realty for his life, and after his death to his first son (the first tenant in tail by purchase), absolutely. The proviso applied only to such tenant in tail by purchase taking the personalty, and qualified the bequest in the event of the legatee not attaining twenty-one. Lord Cran worth took the same view. " The object of the pro- viso," he said, " was to restrict the class who, but for the proviso, would have taken absolutely, not to let in any class of persons who, if there had been no proviso, would have taken nothing." Lord St. Leonards strongly dissented from these opinions, and held that the proviso was part of the gift, and that to construe it as applying only to tenants in tail by purchase was to introduce words into the will which were not there, and to exclude an important class of issue whom the testator intended to take, and who were within the words of the will. He considered that Lord Bungannon v. Smith (i) and Leake v. Robinson (k) governed the case. To argue that there was no gift in the will to tenants in tail except tenants in tail by purchase was to say that tenants in tail of the realty by descent (h) Dmgannon v. Smith, 12 CI. & (i) 12 CI. & F. 546. F. 546 ; Catain v. Brown., 11 Ha. (k) 2 Mer. 363. 375 ; 1 W. R. 533. Digitized by Microsoft® 126 LIMITATION TO UNASCERTAINED PERSON. Chap. VI. did not take under the will, which was contrary to the fact. MarteUi v. In MartelU v. Holloway {I) the House of Lords (Lords oway. Hatherley, Chelmsford, and Westbury) followed Christie V. Gosling (uhi supra). There a testator gave his real and personal estate to trustees upon trust to accumulate the income during the successive minorities of persons entitled to such estate under the subsequent limitations of his will, and to add the accumulations to his personal estate (m). Subject thereto, the trustees were directed to hold the real and personal estate upon trust for the testator's grandson for his life, and after his death for his first and other sons in tail, with remainders to the daughters of the grandson in tail, with remainders to the testator's heirs and next of kin according to the nature of the property. Then followed a proviso : " I declare it to be my wiU and meaning that such person as shall under this my will be entitled to an estate tail in possession in my real estate shall not be absolutely entitled to my leasehold and personal estates until he or she or they respectively shall attain the age of twenty-one, and that my leasehold and personal estates shall absolutely belong only to such person or persons as shall first attain the age of twenty-one years and become entitled to an estate tail in possession in my real estate under the trusts aforesaid." The grandson was in possession of the life estate under the will when his eldest son died under twenty-one without issue. The second son of the grandson attained twenty- one in his father's life. It was held that the second son of the grandson took the personal estate absolutely. The grounds of the decision were similar to those in Christie v. Gosling, which case was held to give the rule and to con- clude the question in favour of the second son of the {I) L. R. fi H. L. 532 ; 42 L. J. (m) This trust for aocmnulation Ch. 26 ; in the Courts below nom. was declared void for remoteness by Holloway v. Webber, L. R. 6 Eq. Jjord 'Eldon in Marshall v. ffolloway, 523 ; 37 L. J. Ch. 865. 2 Sw. 432. Digitized by Microsoft® TRUSTS OF PERSONALTY TO FOLLOW SETTLED REALTY. 127 grandson. The proviso set out in the text, it was held, Chap. VI. was not a new and independent disposition, descriptive of a new class, but a qualification of the previous disposition of the personalty, which was in favour only of such of the tenants in tail of the realty as took by purchase. It was to be construed with reference to the subject matter of the limitation ; and the subject matter being personal estate, which cannot descend, tenants in tail by purchase, who alone could take the personalty, must be intended in the proviso of defeasance. The words "in possession" were, in order to avoid a repugnancy, construed to refer to a tenant in tail who, but for the antecedent life estate, would be entitled to receive the rents and profits (n). A disposition of personal estate to go along with settled Disposition of realty does not fail for remoteness because none of a class does not fail of issue to whom prior estates tail are limited ever come ^°J^ remoteness ,. . . . where there into existence. It takes effect as a limitation m the are no issue in alternative — or, as it is expressed, with a double aspect — ^^''^ *° '^^®' to the issue, if there are any; if none, over (o). When personal estate is limited upon trust to follow Direction real estate it is of importance to determine whether the aUy rhall°fol- trust is executory or not ; since words which in the case of '°^ settled ■' . . . realty so far an executory trust are innocent, m a trust that is not as the lawwiU executory may be fatal to the entire trust. Where the P®''"'**- direction is that the personalty shall go along with the realty so far as the law will allow, or so far as the rules of law and equity will permit, the use of such expressions does not give rise to an executory trust (p). And it makes (») When the .intention is clear dale v. Cwrzon, 1 J. & H. 40 ; 19 L. that no one who is not in actual J. Ch. 126 ; Williams v. Leiois, 6 possession of the lands is to take the H. L. C. 1013 ; 28 L. J. Ch. 505. chattels, it will be carried out by (p) There has been some conflict the Court ; ffoc/g v. Jones, 32 Beav. of authority upon this point, but the 45 ■ Potts V. Potts, 3 J. & L. 353 ; rule as stated in the text was recog- 1 H. L. C. 671 ; Cox v. Sutton, 25 nised as settled by Lord Cottenham L J Ch 345 in Rowland v. Morgan, 2 Ph. 764 ; '{o) See Stanley v. Leigh, 2 P. W. 17 L. J. Ch. 339 ; 18 L. J. Ch. 78 ; 686; Sahbartonv. Sabharton, Cas. t. by Lord Hatherley in Scarsdale v. Talb. 55, 245 ; Ootoer v. Orosvenor, Gm-zon, 1 J. & H. 40 ; 29 L. J. Ch. Barnard. 54; 5 Mad. 337; Scars- 249; and by the House of Lords in Digitized by Microsoft® 128 LIMITATION TO UNASCERTAINED PERSON. Chap. YI. no difference that the personalty is bequeathed to trustees upon trust to permit the same to go along with the realty in similar terms (g). But the precise meaning of these and similar words is not free from doubt. As stated above, it is well settled that they do not create an executory trust, so as to enable the Court to mould the gift and confine it within the line of perpetuity. Though often regretted (r), this is now a fixed rule of construction. But there is authority for the opinion that the words do of themselves confine the operation of the trust within the legal limit. In Harring- ton V. Harrington (s) Lords Westbury and Cairns held that this was their effect ; though Lord Hatherley in the same case declined to express an opinion upon the question. In Vaughan v. Burslem (t) it was said that the meaning of the words is, that when you come to an estate tail in the limitations of the realty, there you stop, and give an absolute interest in the personalty. But this seems a narrow construction, and the better opinion is that they have the meaning ascribed to them by Ijords Westbury and Cairns in Harrington v. Harrington (h). It will be seen from Christie v. Gosling and Martelli v. Holloway that where the trust of the personalty is de- clared by reference to limitations in the same instrument of realty, its duration is confined to the legal period without the aid of any such words. In such cases the proviso against vesting in tenants in tail under twenty-one is construed as applicable only to tenants in tail by pur- chase, and not to tenants in tail by descent. If, as in the modern forms, the proviso is, that the personalty shall not Christie v. Gosling, L. R. 1 H. L. 279, («) I'bi mjira. 284 ; Hamnffton v. Harrinr/trjn, ib. (t) 3 Bro. C. C. 101. 5 H. L. 87 ; 40 L. J. Ch. 716. (w) See ToUemacJie v. Earl of (q) Oarr v. Lord ErroU, 14 Ves. Coventry, 8 Bligh, N. S. 547 ; Poxo- 478. njxll V. Graham, 33 Beav. 242 ; (r) By Lord Westbury, L. R. ft Christie v. Gosling, L. R. 1 H. L. H. L. 101 ; by Lord Cottenhain, 2 279, as to the effect of these and Ph. 767. similar words. Digitized by Microsoft® TRUSTS OP PERSONALTY TO FOLLOW SETTLED REALTY. 129 vest in a tenant in tail by purchase dying under twenty- Chap. YI. one and without issue, the trust would fail for remoteness, unless the class of incapacitated tenants in tail is expressly restricted to those who take by purchase (x). In other words, if the trust of the chattels provides for their devolu- tion, upon the death of a tenant in tail by purchase under twenty-one leaving issue, to such issue, a proviso as to vesting applicable to such issue, and unrestricted in point of time, would cause the entire trust to fail for remoteness. The third Earl of Harrington (y) by his will bequeathed SarringUm v. chattels " in trust for the person or persons who for the "''""^ """ time being shall under the settlement of my mansion house and estates be in the actual possession of the same mansion house and estates, to the end and intent that all and singular such (chattels) may be deemed and considered as heir-looms to go along and for ever be used and enjoyed with the same mansion house and estates so far as the rules of law or equity will permit, but so, nevertheless, as ^ that the same chattels personal shall not as to the eiFect or purpose of transmission vest absolutely in any person who under and by virtue of any settlement shall or may become seised of or entitled to the said mansion house and estates for an estate of inheritance either in possession or rever- sion or otherwise, unless such person shall attain the age of twenty-one years, or dying under that age shall leave issue inheritable under the limitations in any settlement thereof." The residuary personal estate was bequeathed to trustees upon trusts for conversion and investment of the proceeds in the purchase of real estate to be settled to the same uses as the mansion house and estates above mentioned. These estates were subject to a settlement under which the testator was tenant for life, with remain- der to his eldest son (afterwards fourth earl) for life, with (x) See 3 Dav. Preced. 3rd ed. of Harrington, L. R. .5 H. L. 87 ; 602, note (s). 40 L. J. Oh. 716. (y) Countess of Harrington v. Earl K Digitized by Microsoft® 130 LIMITATION TO UNASCERTAINED PERSON . Chap. VI. remainder to trustees to preserve contingent remainders, with remainder to the first and other sons successively of the testator's eldest son in tail, with remainders in like manner to the other sons of the testator successively for life and to their respective sons successively in tail male, with an ultimate remainder to the testator in fee. The eldest and second sons of the testator succeeded to the possession of the mansion house and estates, and became fourth and fifth earls. The fifth earl was succeeded by his son, the sixth earl. The latter became the first tenant in tail in possession under the settlement, and died under twenty-one without issue. The defendant, who was the eldest son of the testator's third son, and was born in the testator's lifetime, succeeded to the mansion house and estates and became seventh earl. He disentailed, and the contest was between the mother and administratrix of the sixth earl (plaintiff) and the seventh earl (defendant) as to the title to the chattels. It was held by the House of Lords that the seventh earl was entitled to the chattels, either under the residuary gift, or under the limitation carrying over the chattels upon the death of the sixth earl without issue and under twenty-one. Lord Hatherley and Lord Cairns abstained from expressing an opinion whether the proviso in the will, purporting to carry over the chattels upon death under twenty-one, was void as transgressing the perpetuity rule. Lord Westbury held that, the death of the sixth earl having happened within the time allowed by the perpetuity rule, the direction that the heir-looms should accompany the settled estates remained in force, and carried them over to the defendant ; that according to the true construction of the proviso divesting the interest of an infant tenant in tail in the chattels upon his death under twenty-one, its operation was confined to the time during which the heir-looms were directed to accompany the settled estates, that is to say, so long as the perpetuity rule permitted. Lord Cairns held that the " dispositive " Digitized by Microsoft® EXECUTORY TRUST TO SETTLE PROPERTY. 131 part of the trust of the chattels carried them to the sixth Chap. vi. earl, and that the clause of defeasance, which qualified the dispositive part of the trust — the clause namely beginning " but so nevertheless " — prevented the chattels vesting in the sixth earl. In the Court below (z) Lord Cairns had varied a decree of Malins, V.-C, holding that the effect of the trust was to carry over the chattels from the sixth to the seventh earl, by declaring that upon the death of the sixth earl the chattels fell into the residue. In the House of Lords he intimated the opinion that the words might have the effect of carrying the chattels to the seventh earl, as decided by Malins, V.-C, in the Court below, and by Lord Westbury in the House of Lords (a). A covenant to settle leaseholds upon trusts correspond- Executory ing with the uses of real estate, limited in strict settlement personalty so*^ so far as the rules of law will permit, is executory. It ^s. '<> go ^.long creates an executory trust (b), and a shifting clause carry- ing over the leaseholds within the line of perpetuity upon the deaths under twenty-one of tenants in tail of the realty will be introduced (c). And in a recent case a bequest of chattels to A. " to go and be held as heir-looms by him and his eldest son, and so on to the eldest son of his descendants, as far as the rules of law or equity will permit," with a request that A. should give effect to the wish that the chattels should go as heir-looms, was held to be executory (d). And a trust may be executory, although there is no direction to execute a settlement. "Where, instead of (z) L. B. 3 Ch. 564. there was to settle "as far as the law (a) A collection of forms of trusts in that case would allow and per- of heir-looms as settled by Mr. Du- mit." In Christie v. Gosling, L. E. val, Lord St. Leonard's and other 1 H. L. 279, it was said by Chelms- eminent conveyancers, will be found ford, C, that a trust, if expressed so in a note to this case ; L. R. 5 H. L. as to offend against the Rule against 93. See also 3 Dav. Preced. 3rd ed. Perpetuities, would not be made 624, notes (d) and (c). valid by the words " so far as the (6) See per Westbury, C, L. R. 4 rules of law and equity will per- H. L. 565. mit." (c) Duke of Newcastle v. Countess (d) Shelley v. Shelley, L. K. 6 Eq. of Lincoln, 3 Ves. 387. The trust 540 ; 37 L. J. Cb. 357. k2 Digitized by Microsoft® 182 LIMITATION TO UNASCERTAINED PERSON. Chap. VI. expressing exactly what he means, that is, filling up the terms of the trust, (the testator) tells the trustees to do their best to carry out his intention" (e), the trust is executory, and capable of being moulded so as to avoid perpetuity. In Miles v. Harford (ubi supra) the testator devised freeholds in W. to his third son and his issue male, with remainder to his fourth son and his issue male, in strict settlement ; and he devised freeholds in C. to his fourth son and his issue male, with remainder to his fifth son and his issue male, in strict settlement. And he bequeathed leaseholds in C. " upon and for such trusts and purposes and with under and subject to such powers provisions and declarations as, regard being had to the difference in the tenures of the premises respectively, would best and most nearly correspond with the uses trusts powers provisions and declarations in the said will declared and contained of and concerning "■ the freeholds. There was the common clause to prevent a tenant in tail of the leaseholds getting an absolute interest unless he attained twenty-one (/); and a shifting clause providing that, in the event of the fourth son or his issue becoming entitled in possession under the will to the freeholds in W., and the jfifth son or any of his issue male being then living, the limitations of the freeholds in C. should cease. The third son died with- out issue, and the fourth son became entitled in possession to the freeholds in W. It was held that the shifting clause was executory, and for this and other reasons was not void for remoteness ; and that it operated to carry the lease- holds in C to the fifth son. The meaning of the words declaring the trusts of the leaseholds was not, said the Master of the Rolls, that the limitations of the freeholds were to be literally repeated in the case of the leaseholds, (e) Per Jessel, M.R., in Miles v. (/ ) This appears from the judg- Sarfm-d, 12 Ch. D. 691, 699; 41 ment. L. T. N. S. 378. Digitized by Microsoft® EXECUTORY TRUST TO SETTLE PROPERTY. 133 in which case the bequest of the leaseholds would to a Chap. vi. great extent fail for remoteness, but that those limitations were to be so moulded as to avoid remoteness and corre- spond, as nearly as might be, with the disposition of the freeholds, having regard to the different subject matter to which they were to be applied. "It will be absurd to suppose," he said, "that you have regard to the nature of the tenure to make them (the trusts) best correspond, when you simply make them null and void. He (the testator) knows that something will not work, and he says that you are to make them correspond, having regard to that ; that is, having regard to the effect of the tenure on the limitation or the proviso. But when you see the tenure is of such a kind that it cannot be done by literally repealing the provisions, then you must modify them accordingly. That seems to me to be exactly what the testator has told you to do — ' best or most nearly ' — that is, having regard to the assistance which conveyancers can offer — they will show the way so to mould the trusts that, having regard to the nature of the tenure, they will not fail. And it appears to me, therefore, when you look at a trust of this kind, the testator does create what I say is, in the soundest sense, an executive trust. . . . And I venture to say there is no lawyer in the kingdom worthy of the name who would put in a clause of this kind literally so as to infringe the Kule against Perpetuities." The manner in which the Court will carry out an exe- Mode of exe- cutory trust to settle property, so that it shall accompany to settle pro- other property or a dignity into the hands of successive P^^j^'*']^" ^^^ takers, is illustrated by the following cases. along with Lord Le Despencer (g) conveyed real estates to trustees, °^ a dEmHy. '^ itpon trust, after the deaths of himself and his son, to settle Baukes v. the same to the use of such persons for such estates and in " ««?««■<«»•• such manner that they should, so far as the law would ig) Baukes v. Baroness Le Des- 9 L. J. Ch. 185 ; 4 Jur. O. S. 601 ; pencei; 10 Sim. 576 ; 11 Sim. 508 ; 7 Jur. O. S. 210. Digitized by Microsoft® 134) LIMITATION TO UNASCERTAINED PERSON. Chap. VI. permit, be strictly settled so as to go along with the dignity of Le Despencer so long as the person possessed thereof should be a lineal descendant of the settlor ; and so that during every suspension or abeyance of the same dignity within the limits prescribed by law for strict settlement, the rents of the estates might be divided equally amongst the co-heirs, per stirpes, of the person or persons respectively by reason of whose death or deaths without issue male such suspension should be occasioned. It was held that the trust was not void for remoteness. It was suggested by the Court (Shadwell, V.C.) that the settlement might be in this form: — To trustees for 1000 years, determinable at the end of twenty-one years from the death of the survivor of all persons in beiag at the date of Lord Despencer's death (query, date of the original settlement) and then capable of succeeding to the dignity, and that, subject thereto, the estates be limited to the persons so in esse and capable of succeeding for their lives successively, with' remainder to their sons in tail, with remainder to their daughters in tail. And the trusts of the 1000 years term -.to be declared to be, that in the event of their being any abeyance as mentioned in the original settlement the rents should go as therein pro- vided. By the settlement which eventually was executed by order of the Court, the estates were limited to the lineal descendants, male and female, of the settlor ; as to those born before the creation of the executory trust for life successively, with remainders to their children in tail ; and as to those born after the creation of the trust, in tail ; and as to female descendants as tenants in common for life or in tail, as the case might be, with cross remainders in tail. A proviso was added to the effect that, if, during the lives or life of the descendants to whom life estates were limited or the survivor or twenty-one years after the death of the survivor, the estates should at any time be vested under Digitized by Microsoft® EXECUTORY TRUST TO SETTLE PROPERTY. 135 the limitations in two or more female descendants in Chap. VI. undivided shares, and at the same time the dignity should not be in abeyance but should be revived in favour of a lineal descendant of the settlor, then the limitations there- inbefore limited should cease, and the estates should vest in the person entitled to the dignity for the like estate and with like remainders over as were thereinbefore limited to her or him, or in remainder after her or his estate (Ji). In a recent case (i) an executory trust was declared of Shelley v. chattels to go as heir-looms to a specified line of donees, ^ ^' without reference to any limitations of real estate. The bequest was of jewels to A., the testatrix' nephew, " to go and be held as heir-looms by him and by his eldest son, and so on to the eldest son of his descendants as far as the rules of law or equity will permit. And I request that my said nephew will do all in his power, by will or otherwise, to give effect to this my wish as to these things so directed to go as heir-looms as aforesaid." The gift was held to be a valid executory trust for A. for life, with remainder to B. (A.'s eldest son) for life, with remainder to B.'s eldest son, to be vested at his age of twenty-one ; but if he should die in B.'s life or after B.'s death under twenty-one and leaving an eldest son born in B.'s life, in trust for such eldest son to be vested at his age of twenty-one ; and if the jewels should not vest under any of the aforesaid limitations, in trust (subject to B.'s life interest) for A. absolutely Qc). Where lands are devised upon an executory trust to assure the same in a course of limitations to correspond as nearly as may be with the limitations of an inalienable hereditament, such as a dignity, the trust is executed by (K) The terms of the settlement (k) See further as to the effect of are stated in 7 Jur. O. S. 211 ; and, an executory trust such as that in not so fuUy, 11 Sim. 508. the text, 3 Dav. Free. 3rd ed. 601, (i) Shelley v. SheUeij, L. R. 6 Eq. note. 540 ; 37 L. J. Ch. 357. Digitized by Microsoft® 136 LIMITATION TO UNASCERTAINED PERSON. Chap. Yi. limiting the lands so that they will be inalienable so far as the law allows. The enjoyment of the lands is made to follow the ownership of the dignity until the Rule against Perpetuities requires the inheritance in the lands to vest (I). So a direction, that chattels shall follow real estate through all its changes of ownership until the time arrives when the law requires the absolute interest to vest, will be carried out, even where the trust is not executory, by implying trusts of the chattels corresponding, as nearly as may be, with the limitations of the realty, and so as to secure their being transmitted in the same line with the realty so long as the Rule against Perpetuities allows (m). The manner in which the Court will execute a trust directed to endure so long as the law allows, or otherwise limited in duration by a reference to the Rule against Perpetuities, is illustrated by Pownall v. Graham (n). The gift there was to the testator's seven brothers during their lives and the life of the survivor, and after the death of the survivbr the trustees were to apply the income in favour of the brothers' children yearly " as the law in such cases admits," and, " after the law, as mentioned aforesaid, admits of no further division," they were to hold the fund in trust for the eldest son of A. It was held that the trust for the brothers' children came to an end twenty-one years after the death of the survivor of the brothers. Tregonwea v. In Tregonwell V. Sydenham, (o) there was a gift by will Sydenham. ^f money to be raised by a term limited in remainder after an estate tail devised to the unborn son of a tenant for life. The money was given to trustees in trust to be applied in the purchase of lands, which were to be con- veyed to the use of the person for life who should, upon failure or expiration of the estate tail, be in possession of (I) See per Westbury, C, Sack- Hamngton v. Han-ington, L. R. 5 vilU- West V. Lord ffolmesdale, L. E. H. L. 87, 101 ; 40 L. J. Ch. 716. 4 H. li. 543, 568, 39 L. J. Ch. (») 33 Beav. 242 ; 9 Jur. N. S. 505. 318. i* seems, be void for remoteness where a similar estate tail. devise of a legal remainder would be free from objection. In Bankes v. Holinne (o) real estate was settled upon A. for life, with remainder to his intended wife for life, with remainders to the sons of the marriage in tail male and to the daughters of the marriage in tail, with remainder to A. the settlor, in fee. A. by his will, executed after the settlement, reciting that he was seised of the reversion in fee expectant upon the death of his wife contingently upon failure, or death without issue, of children of the marriage, devised the reversion upon a general failure of issue of children. The devise was held void for remoteness (jo). So in a previous case, Lady Lanesborough v. Fox (q), where, at the date of the will, the lands stood limited to the testator for life, remainder to A, his son, for ninety- nine years if he should so long live, remainder to trustees and their heirs during the life of A., remainder to the first and other sons of A. successively in tail male, reversion to the testator in fee, a devise of the reversion on failure of issue of A. and for want of heirs male of the body of the testator, was held void for remoteness. Whether the devise of a reversion expectant upon an estate in tail general expressed to take effect upon failure of a particular class of the issue in tail, as upon failure of issue male, would be valid or void for remoteness, has not (n) See infra, p. 161. tended to take effect only in the (o) 1 Russ. 394, note. event of failure of issue at the wife's \p) In Sugd. Law of Prop. 355, death. See also siffn-a, p. 68, note (c). it is suggested that the devise might ( j) Ca. t. Talb. 262. have been supported as being _in- Digitized by Microsoft® OR CONNECTED WITH ESTATES TAIL. lio been decided. Such a limitation is tlie converse of tliat iu Cha.^. Vir. Banke^t v. Holme. The latter was void for remoteness as being an executory limitation, which, after the determina- tion of the estates tail without having been barred, might take effect at any distance of time. The limitation under consideration must take effect, if at all, immediately upon the expiration of the estate tail; and, being barrable during the whole of its existence up to that time, would seem to be unobjectionable. (2.) Limitations in remainder after an estate tail upon Limitations in trusts in favour of persons to be ascertained at or before after'an estate the expiration of the estate tail. These are valid whether t^il upon trust the trust is of the land itself, or of proceeds of sale of the then or land, or of a sum to be raised out of the land. previously ascertained. In Goodivin v. Clark (r) there was a settlement of lands upon marriage to the use of the husband and wife successively for life, with remainder to the use of the sons of the marriage in the usual manner in tail male, and, if the husband should die without issue male, remainder to trustees for a term, upon trust to raise portions for daughters of the marriage. The husband and wife died, leaving a son and a daughter. The son afterwards died without issue male. It was held that the term arose to the daughter; "And as to the objection of a perpetuity it is nothing, for the son who had the estate precedent might bar it by a common recovery. And of this opinion were all the Court except Mallet." In Morse v. Lord Ormonde (s) the testatrix devised real estate to A. for life, with remainders to her first and other sons successively in tail male, with remainder to her daughters in tail, and, in default of all such issue of A. (held to mean issue to whom estates tail were limited), to trustees for a term, upon trust to raise and pay legacies. And the testatrix bequeathed legacies " from and imme- ()■) 1 Lev. Pt. 1, 35 ; 1 Sid. Pt. 1, (s) 5 Mad, 99 ; 1 Euss. £82. 102, nom. Goodiar v. Clarlc. Digitized by Microsoft® 146 LIMITATIONS AFTER "''^P- "^"- diately after the decease and failure of issue " of A. The gifts of the legacies was held valid, and not too remote. In Faulkner v. Daniel (t) tlie testator devised real estate for life, with remainders in tail in strict settlement ; and, in an event specified, which was held to be that of the limitations failing or becoming exhausted, he charged the lands with £5000, to be paid to his niece. It was held that the charge of the £.50()0 was not too remote. In Heasman v. Pearse {u) the testator devised real estate in tail, vrith remainder to the use of trustees, upon trust to sell and divide the proceeds amongst a class of issue to be then ascertained. A proviso was added that if the real estate should ever be sold under the above-men- tioned trust for sale, and the money should become payable to the issue as aforesaid, and any of such issue should be then dead leaving issue, then such last-mentioned issue should take the share to which their parent would have been entitled if living. It was held by the Appeal Court, (James and Mellish, L.J.J.,) reversing the decision of Malins, V.-C. (x), that the proviso substituting issue for their parents dying before the period of division was not void for remoteness, and carried over the shares of a parent dying before the expiration of the estate tail to his issue. In delivering the judgment of the Court James, L.J., said : " No limitation after estate tail is . . . too remote ; and it appears to us clear that, whether the limitation be directly to a class of issue to be ascertained at the deter- mination of the estate tail, or a gift to a trustee for such class, or upon trust to convey to such class, or to sell and divide the produce amongst such class, is wholly imina- terial, if the legal and beneficial interests should be both ascertainable at the moment of the determination of the estate tail " {y). (t) 3 Ha. 139 ; 8 Jur. O. S. 29. (x) L. E. 11 Eq. 522. (u) L. R. 7 Ch. 275 ; 40 L. J. (y) L. E. 7 Ch. 281. Ch. 258 ; 41 L. J. Ch. 705. Digitized by Microsoft® OR CONNECTED WITH ESTATES TAIL. .It? (3.) As to limitations by way of executory, springing, or Chap. VII. shifting use, and corresponding trusts, taking effect upon Limitations by aa event that may, or that must, happen after the failure ^^^y "^ execu- mi . tory, sprmg- or expiration of the estate tail. There is no express ing, or ehifting decision upon the point, but it would seem that upon "ggct^up^n ^n principle these limitations are altogether void for remote- event that ness. Of such a limitation it cannot be said that it must happen after take effect, if at all, within the legal period. Upon the the expiration failure or determination of the estate tail without having tail, been barred, it is indestructible, and becomes capable of taking effect at any distance of time. In Jack V. Fetherston (z) it was assumed that a limitation upon a general failure of issue of A., to whose sons estates in tail male were limited, could not be supported, except as a remainder. " It is clear that if it be not a remainder it cannot be sustained, being too remote " (a). And in Cole V. Seiuell (b), a similar case except that the daughters of the tenants for life took estates in tail general, there was no suggestion that such a.limitation could be supported except as a legal remainder ; and the arguments were directed to show that it was a remainder, and not an executory limitation. A case is mentioned in Sanders on Uses (c) in which such a limitation was held to be void. "An estate having been settled by will to uses in strict settlement, a rent charge was limited to arise after the failure of issue of a person not taking any estate in the property settled. And upon argument it was determined by the Court of King's Bench in Ireland that the limitation of tlie rent charge was void as being too remote." That such a limitation is void altogether, and not valid or void for remoteness according to the event, seems to (z) 2 Huds. & Br. 320 ; 9 Bli. ment. N. S. 237. (b) i Dr. & War. 1 ; 2 H. L. C. (a) Per Bushe, C.J. (Ireland). 186. These seem to be the words of the (c) Hartopp v. Lord Carhery^ 1 learned judge, and not of the argu- Sand, on Uses, 5th ed. p. 204. l2 Digitized by Microsoft® 14S LIMITATIONS Ab'TEU Chap. VII. iollow from the rule that it is a condition precedent to the validity of an executory use that it cannot by possibility take effect beyond the legal period (d). A limitation to the use of A. for life, remainder to trustees upon trust to convey to the first son of B., a bachelor, who attains twenty-five, is void for remoteness, and cannot take effect though a son of B. attains twenty-five in A.'s lifetime (e). It is submitted that the result must be the same where the first limitation (to A.) is in tail, and for the same reasons. Again, the devise of a reversion expectant upon an estate tail, to take effect upon failure of the issue of the tenant in tail generally, is void where the estate tail is not general (/). And a power affecting the settled lands, to arise upon a general failure of issue of the tenants in tail, of whom some were tenants in tail male, is void for remoteness (g). The limitation of a use, which, though barrable during the existence of a previous estate tail, may, if not barred, take effect after the determination of the estate tail, would seem to be equally void. Limitations by (4.) Limitations by way of executory, shifting, or tory, spring- Springing uso collateral to an estate tail, and taking effect ing, or shifting jj^ defeasance of it. use collateral to an estate The name and arms clause in an ordinary strict settle- effi" ™in*de-°^ ment of real estate, and the clause shifting an estate from feasance of it. a younger son, upon his acquiring the family estate or aims^cl^se title, are instances of this class of limitations. The estates intended to be raised by these clauses are wholly in the power of each successive tenant in tail ; and if the opera- tion of the clauses is co-extensive only with the estates for (d) In 2 Prest. on Abstr. 158, attains twenty-seven, to B., is good, and in Lewis Perp., Suppl. 105, it is Sed qu. suggested that such a limitation be- (e) Abbiss v. Bm-ney, 17 Ch. D. comes void after the determination 211 ; 60 L. J. Ch. 3t8. of the estates tail, if it has not then (/ ) Bankes v. Ifolme, 1 Kuss. taken effect ; and in Butler's note, 394, n. ; Lady Lanesbwmigh v. Fox, If. C. B. 622, cited above, p. 140, Ca. t. Talb. 262. it is stated that a limitation to A. {y) Bristow v. Boothly, 2 S. & S. in tail, and if A. has no child vpho 465, Digitized by Microsoft® OU CONNECTED WITH ESTATES TAIL. 149 life and in tail created by the settlement, and wliicli are Chap. VII. themselves not too remote, there seems to be no reason for expressly restricting their operation within the legal period (Ji). In NicoUs V. Sheffield (i) real estate was devised to A. for life, remainder to his first and other son successively in tail, remainder to B. for life, remainder to his first and other sons successively in tail. And there was a proviso that if A., or the heirs of his body, or B., or the heirs of his body, should become seised of certain other estates, the limitations of the will should cease, determine, and be void, and the estates should go the person next in re- mainder, as if the person so seised as aforesaid were dead. It was held by Sir Lloyd Kenyon, M.R., that there was no objection to the proviso on the ground of remoteness. " There is no doubt with respect to the validity of this proviso. Several estates are held under similar limita- tions. No rule of law is contradicted by it; and, if no recovery were suffered, it might take place at any distance of time. I might as well be told that an estate tail is an illegal estate, because it may endure for ever, and must, when the reversion is in the Crown " (/c). In Harrison v. Round (l) a similar clause in a strict settlement, carrying over estates limited to a younger son upon his succeeding to the family estate, was held to be valid. But if a shifting clause of this charatoer is so worded as to apply to every person taking under the settlement, including an ultimate remainderman in fee, it would seem to be void for remoteness, if not altogether, at least as to the remainder in fee. In Bennett v. Bennett (m) a shiit- (/i) F. C. K. 276 ; and Butler's Ch. 322 ; and see Doe d. Lumley v. note, Co. Lit. 327, a. Earl of Scarborough, 3 A. & E. 1, (i) 2 Bro. C. C. 214. 897 ; Can- v. Earl of Erroll, 6 East, (it) Per Sir Lloyd Kenyon, M.R., 5S ; 3 4 Ves. 478. 2 Bro. C. G. 217. (m) 2 Dr. & Sni. 266 ; 34 L. J. {I) 2 D. M. & G. 190 ; 22 L. J. Cli. 34. Digitized by Microsoft® 150 LIMITATIONS AFTER Chap. VII. Estate tail determinable I)y limitation or condition subsequent. Jjim'tationB taking effect under powers collateral to an estate tail. ing clause, annexed to an estate in fee which was preceded by a life estate, was held void for remoteness. The de- vise in that case was, in effect, to A. for life, remainder to her firstborn son in fee, with a shifting clause in case such son should not take the name of M. No time was speci- fied within which the name vsras to be taken. The shifting clause was by Kindersley, V.-C, considered to be void for remoteness. "Now it is well settled that if there be a gift to A. for life, with remainder to B. in fee, with a shift- ing clause by which, in a certain event, the estate is to shift from B. to another, unless that clause must necessarily take effect within the prescribed limits, it is void for remoteness ; although it is different w^hen such a shifting- clause is attached to an estate tail, because the power of barring the entail is a sufficient protection against perpetuity. So that, assuming the clause to import a condition subsequent, the shifting clause is void far remoteness'' (n). An estate tail may, it seems, be limited so as to deter- mine upon an event which may happen at any distance of time ; and it is immaterial whether the limitation is con- ditional, and the estate tail determinable by its original constitution, or whether the limitation is absolute in the first instance and the estate tail is determinable by a con- dition subsequent. For in either case the condition or contingency upon which it is to determine can be barred by the tenant in tail (o). (5.) As to limitations taking effect under powers col- lateral to an estate tail. The validity of these limitations depends upon that of the powers under which they are created — a subject considered in a subsequent chapter (]>). The powers usually inserted in settlements of real estate, such as powers of sale and leasing, operate by way of shift- (n) Per Kindersley, V.-C, 2 Dr. sequent. &. Sm. 276. It had been argued (o) Hmson v. Ilodson,! Mod.lll. that the clause as to taking the Qj) /«/(•«► p. 234. name constituted a condition sub- Digitized by Microsoft® OR CONNECTED WITH ESTATES TAIL. 151 ing use, and are paramount to the estates limited by the ^^^^P- '^^^■ settlement (q). It seems, nevertheless, to be settled that, although their operation is not in terms limited in point of time, they are unobjectionable on the ground of remote- ness. Their validity depends upon the view that they are, in their creation, co-extensive only with the purposes of the settlement ; and that when those purposes are spent they come to an end by virtue of their original constitu- tion. So long as there are purposes of the settlement un- performed, that is to say (in the case of an ordinary strict settlement of real estate), until the ultimate limitation in fee vests in possession, they are exercisable, but no longer (r). The practice of conveyancers, to limit the duration of the power of sale to lives in being and twenty- one years after, is due to abundant caution, and not to any well founded doubt as to the law (s). Such powers, when unlimited, and not barred, seem to be valid and exercisable even beyond the line of perpetuity (i). The validity of powers given to trustees, which are in effect trusts, to receive rents and manage estates during successive minorities of the tenants in tail, depends upon different considerations, and is considered elsewhere (u). A power limited to arise upon an event which may not happen until after the failure or determination of an estate tail previously limited is too remote, and void (x). (6.) There remains another class of limitations connected limitations of with estates tail, the validity of which has been much dis- priority'to an cussed ; namely, dispositions by way of trust taking effect estate tail (q) See Xoper v. HalUfax, 8 (s) 3 Dav. Free. 3rd ed. 482, Taunt. 845. note. ()■) See per Sir E. Sugden, 4 Dr. («) Sugd. Pow. 8th ed. 850 ; & W. 32, Cole V. Sewdl; Lantsbury NicoUs v. Sheffield, 2 Bro. C. C. 214, V. OoUier, 2 K. & J. 709 ; 25 L. J. 217; svpra, p. 149. Ch. 672 ; Peters v. Lexoes, Ac. Rail- («) Infra, p. 244. way Co., 10 Ch. D. 703, 710 ; 44 • {x) See Bristow v. Boothby, 2 S. L. T. N. S. 372 ; S. C. on app. 18 & S. 465. Ch. D. 429. Digitized by Microsoft® 15: LIMITATIONS AFTER estate tail. Case V. Drosier. Ciap. VII. out of an estate in the trustees which is anterior to the upon trusts to estate tail. Of these Case v. Droaier and Turvin v. be executed _ Keivcomhe are the best known examples. alter the expi- ^ i ■ j i. ration of the In Case. V. Brosier (y) two estates were devised to trustees for a term of .500 years. Subject to the term, one of the estates was devised to A. for life, with remainders to his sons and daughters in tail, with remainder to B. for life, with similar remainders in tail to B.'s sons and daughters. The other estate ^vas devised, subject to the term, in similar terms to E. for life, with remainders in tail to his sons and daughters, with remainder to A. for life, and after his death to his sons and daughters in tail. The trusts of the term were, amongst other things, in case A. or B. should die without issue, to raise and pay to C. and D. a sum of £2000. The question was whether the charge of the £2000 was valid or too remote. It was held by Lord Langdale, and on appeal by Lord Cottenhani, that it was void for remoteness. The reason for this decision is thus stated by Lord Cottenham : " The appellant . . . argues that this is a legacy, charged upon the estate upon failure of an estate tail, which is not void for remoteness. But why is such a charge not void for remoteness ? Merely because, being after an estate tail, it is barrable by a recovery, as was the case in Morse v. Lord Ormonde (s). But in this case the £2000 is charged upon, and is part of, a term anterior to an estate tail, and therefore not barrable by a recovery, but to be enjoyed only upon failure of the issue (to whom the estates tail were limited). There is no gift of the £2000 except in declaring the trust of the term, and tliat term would not be affected by a recovery. Ecdes V. Conn (a), affirmed by the Lord Chancellor in 1831, is a distinct authority upon that point, which I have no disposition to disturb." So, in the Couit below, Lord Langdale said that the failure of issue upon which the (v) 2 Keer, 7(!4 ; 5 M. & Cr. 2Ib"; 6 L. J. Ch. 353. (;) 5 Mad. 00 ; I Uus, («) i Sim. 65. Digitized by Microsoft® OR CONNECTED WITH ESTATES TAIL. 153 testator had diieoted the £2000 to be raised " might be Chap. Vli. a,t a very remote period, and there are no means by which the charges in tliis case could be barred ; they depend on a temi, and that term is precedent to the estates tail ; so that after a recover}' there would remain a term, and a trust to be performed — a trust which could not be defeated, and a term which cannot be destroyed " (6). It might have been supposed that where the trusts of the term are such that they cannot arise if the estate tail is barred, their destructibility would save them from failure on the ground of remoteness. But it has been otherwise decided. In Syl'es v. Sykes (c) the testator devised real estates to his eldest son, E., for life, with remainder to his grandson R. (son of R., the son) for life, with remainder to trustees to preserve, &c., with remainder to other trustees for a term of 500 years, with remainders to the sons of R., the grandson, in tail male, with remainder to the testator's second son N. for life, with remainder to trustees to pre- serve, with remainders to the sons of N. in tail male, with remaindei-s to other sons of the testator successively for life, and their respective issue in tail, with remainders over. The trusts of the term of 500 years were, in case any one or more of the testator's younger sons, or their issue, should become seised in possession of the estates by virtue of the limitations in the will, to raise and pay £5000 to the testator's son or sons other than the son so seised, or their issue (by context meaning " children "), ]per stirpes, if dead. It was held by Wickens, V.-C, that the case was, in principle, not distinguishable from Case v. Drosier — " a case of the higihest authority, from the care with which it was argued, and the judges by whom it was decided" — and that the charge of the £5000 was void for remoteness. (h) Pee the dictum of Wickens, {c) L. 11. Vi Eii- 56 ; 41 L. J. Ch. V.-(~!., as to the authority of thi,s "25. case, infnt. Digitized by Microsoft® 1.5-1 LIMITATIONS AFTER Chap. VII. It will be seen that Syhes v. Sykes differed from Case V. Drosier in this, that in the former the trusts of the term were at ihe mercy of the tenant in tail, whereas in the latter they were not capable of being destroyed by a recovery or in any other way. In Sykes v. Sykes the charge, though not limited after an estate tail, so as to be barrable by a disentailing deed, could never arise if any of the estates tail limited to the sons of E.., the grandson, were barred. In consequence of the decision in Sykes v. Sykes it has been doubted (d) whether a trust, annexed to a term limited after the primary limitations in tail in an ordinary strict settlement, for raising additional portions ou failure of the primary limitations in tail can be supported, unless the objects of the trust are ascertainable within lives in being and twenty-one years after. It would seem that, so long as the objects of a limitation in remainder after an estate tail are ascertainable immediately upon the determination of the estate tail, there can be no objection to the limita- tion on the ground of remoteness (e). Where the portions ■ are raiseable for the daughters or younger children of the settlor, there can be no objection to the limitation of the portions on the gi'ound of remoteness in the objects. Nor is the event upon which the portions are to be raised — the failure of issue of the preceding tenant in tail — too remote, since that is the event upon which the term arises out of which they are to take effect, and which is undoubtedly well created. It would seem that Sykes v. Sykes has no application where the term is subsequent in order of limitation to the estate tail, and therefore (together with the annexed trust) barrable by the tenant in tail (/). (d) i Dav. Preced., 3rd ed., xlv., p. 146. Coriigenda. (/) See Butler's note, Co. Lit. (c) See Ilcasirum v. Pcarsc, L. K. 27ii, a, and the cases next coii- 7 Cli. 275 : il L. J. Ch. 705 ; s«j-™, sidered. Digitized by Microsoft® OR CONNECTED WITH ESTATES TAIL. 155 The considerations which establish the invalidity of the dap- Vll. term m Case v. Droller (ubi supra) seem to apply to the Trusts, or class of cases of which Tuvvin v. Nevxombe is the most powers in the . . nature of recent example. Cases, namely, where in a strict settle- trusts, taking ment of real estate there is a direction to the trustees, if^t^J^Ji an during the minorities of persons taking under the settle- estate anteoe- , .,, . 1. ., . . , dent to the ment, without limit as to time, to receive the rents estate tail, and apply them otherwise than in accordance with the primary limitations (g). It is now settled that such a trust, though barrable by the successive tenants in tail, is void for remoteness. The reason appears to be that it takes effect, in order of limitation, not after, but before, the estate tail in respect of which the rents are received ; that it takes effect by virtue of the estate limited to the trustees, which is antecedent to the estate tail Qi). The disposition of, the rents effected by the trust is, therefore, barrable only prospectively by a disentailing deed ; and in this respect the case is the same as Case v. Drosier. The earliest case upon this subject is Lord Southcmipton V. Marq tiis of Hertford (i). Estates were there conveyed to trustees in strict settlement, subject to a term limited upon trust that, during the minority of any person entitled in possession under the settlement for life or in tail to the settled estates, the trustees should receive and accumulate the rents, and hold the accumulations in trust for the person who upon the expiration of the minority or the death of the infant should be entitled to the rents and be of the age of twenty-one years. It was held that the trust of the term was altogether void for remoteness. {ff) In Turvin v. Netccombe the power of sale in trustees after a re- trust of the accumulated rents was covery by tenant in tail, and during for the tenant in tail, but this was the life of tenant for life, see Roper held not to distinguish the case from v. JJcdHfax, 8 Taunt. 845 ; and, as those where it was not for the tenant to the operation of a shifting clau-e in tail. under similar ci^cum!^tances, Voe v. (A) See 1 Jarra. on Wills, 4th ed. JEarl of Scarborough, 3 A. & E, 1 ; 274, note ; 3 Cav. Prec. Srd ed. 466, ib. 897. note. A,s to the operation of a (j) 2 V. & B. 54. Digitized by Microsoft® loG LIMITATIONS AFTER ^Chap, VII. Tliis case was followed by Marnliull v. Holloivay (/.:)• The testator there gave to trustees all his real and personal estate upon trust to convert the personalty, and after pay- ment of debts and legacies, to accumulate the income of the real and jDersonal estate as and when and during all such times as any person or persons beneficially interested under the trusts of the will should be under twenty- one, and upon trust to pay certain legacies; and subject thereto upon trust, as to the real and personal estate, for various tenants for life and their children in strict settlement. It was held by Lord Eldon that the trust for accumulation was void for remoteness. The decisions in these cases have been considered to depend upon the fact that the trust of the accumulated fund was too remote (l). The true ground of the decision in each case was that the trust to accumulate was ex- pressed to operate beyond the line of perpetuity, and was not within the protection of the estates tail (ni). In Crosse v. Glennic (n) it was held that a trust similar to that in the above-mentioned cases was valid ; but the question of remoteness seems not to have been raised. Browne v. In Bvoiune V. Stoughton (o) and Turiiin v. Xeircumbe (p) Stoughtttti. there was a devise to trustees {q) upon trusts in strict NeiL'comb'e. settlement. The will in each case contained a direction to the trustees, during the minority of any person taking any estate or interest under the will, to accumulate the rents and hold them upon trusts declared concerning the lands (k) 2 Sw. 432. The same will Marshall v. f/olhimij, L. E. 6 H. L. came before the Court upon another 540, per Hatherley, 0. lioint, nom. JJoUoimy V. Webber, Jj.H. (n) 2 Y. & C C. C. 237; 7 Jur. 6 Eq. 523 ; 37 L. J. Ch. 865 ; on O. S. 274. a,pp. nam. MarteUiv. Hollmmi/jlj. U. (o) 14 Sim. 369; nom. B. v. 6 H. L. 532; 42 L. J. Ch. 26. Hovghton, 15 L. J. Ch. 391. (/) See per Wigram, V.-C, Fev- (p| 3 K. & J. 16 ; 3 Jur. N. S. mild V. M'lisnn, 4 Ha. 344, 377 ; 9 203. Jur. O. S. 86 ; and per Parke, B,, (7) This seems to have been the 12 CI. & F. 610 ; Lewis Terp. Appx. Ciise m Broirnc v. Stoiightoti, but see IS'.i. '"/'■«, p. 157. (m) Suyd. Prop. 349; and as to Digitized by Microsoft® OR CONNECTED WITH ESTATES TAIL. 157 settled by the will. It was held by Wood, V.-C, in _Ch«;P^i- Tuvvin V. Newcomhc, following Marshall v. Holloway (r), Lord Southampton v. Marquis of Hertford (s), and Broivne v. Stoughton (t), that the trust for accumulation was void. " The trust," said Wood, V.-C, " is declared to arise during every successive tenancy in tail, and in this respect it is the same as Marshall v. HoUoivay and Lord Southampton V. The Marquis of Hertford. . . .There is a positive trust for accumulation fixed upon this property during the whole period while the successive cestuis que trust are under age ; and it has been settled that this exceeds the limits which the law will permit for the dura- tion of a trust." In Lewis on Perpetuities {u) it is strongly urged that the decision in Browne v. Stoughton is inconsistent with the doctrine that limitations capable of being defeated by a tenant in tail under a previous limitation are not subject to the Rule against Perpetuities. Since the decision in Turvin v. Newcorriie this contention cannot be supported. The true doctrine of these cases appears to be that the trust for accumulation is anterior to the estate tail in respect of which it is to be executed ; that it is annexed to the fee, or to an estate in the trustees which precedes in order of limitation the estate tail ; and that the trust is therefore indestructible, except as to its future operation, by the tenant in tail {x). From a dictum of Wood, V.-C, in Tiirvin v. Newcombe it would seem to be immaterial whether the legal estate is limited to the trustees or not. But the Vice-Chaucellor is in error in stating that in Browne v. Stoughton the legal estate was not vested in the trustees. In Lade v. Holford (y), in a strict settlement, there was a (r) 2 Sw. 432. 467, note ; 1 Jarm. on Wills, 4th (s) 2 V. & B. 54. ' ed. 274, note. (t) 14 Sim. 369; 15 L. J. Ch. 391. ((/) 3 Burr. 1416; 1 W. Bl 428; {u) Suppl. p. 176, seq. Ambl. 479. (x) See 3 Dav. Convey. 3rd ed. Digitized by Microsoft® 1-")S LIMITATIONS AFTER Chap. VII. proviso that certain persons named (who were the grantees to uses and trustees to preserve contingent remainders), and their heirs, should, so often as any tenant in tail should be under twenty-six, enter, receive the rents, accumulate so much of them as should not he required for the mainten- ance of the tenant in tail, and invest the accumulations in the purchase of lands to be settled to the uses of the will. The proviso was held void ; but whether for remoteness or " repugnancy " does not clearly appear (z). By Lord St. Leonards the case is cited as an authority for the proposi- tion that a power to raise a use which, if contained in the instrument creating the power, would tend to a perpetuity is void for remoteness (a). It is submitted that the case is one, not of a power, but of a trust ; and that the trust is similar to that in the cases above mentioned — prior in order of limitation to the estate tail, and not barrable, except prospectively, by the tenant in tail. Ferrand v. Wilson (b), fully stated elsewhere, is, it is submitted, a case of the same class. In Briggs v. Earl of Oxford (c) there was, in a strict settlement of an equity of redemption of real estate hy way of trust, a similar power for the trustees to cut timber so long as there should be any mortgage subsisting on the estate, the proceeds to be applied in payment of the mort- gage. It was held that the power was not void for remoteness ; but upon what ground does not distinctly appear. Ferrand v. Wilson was distinguished by Lord Cranworth on the ground that in the case before him " the person who enjoys the estate has only to pay off the incumbrance, and there is an end of it " (d). Lord (z) See F. C. E. 530, Butler's ground of the decision ; of. Bacon note. V. Proctm; T. & R. 31 ; Batemtm v. (a) Sugd. Pow. 8th ed. 31. Hotchkin, 10 Beav. 426 ; 16 L. J. (6) 4 Ha. 344; 9 Jur. O. S. 860; Ch. 514; Lord Southampton r. infra, p. 244. Marquis of ffn-tfm-d, 2 V. & B. 54, (f) 1 D. M. & G. 363; 21 L. J. 65. Scarisbrick v. SMmcrsdale, 17 Ch. 829. Sim. 187 ; 19 L. J. Ch. 126 ; is diffi- (d) This is probably the true cult to xecoaicUe with these cases. Digitized by Microsoft® OR CONNECTED WITH ESTATES TAIL. li^9 Justice Knight Bruce said that " the circumstance of the ^''^P- '^^■ power being liable to destruction, by the tenant in tail is of itself siifHcient to preclude all objection, at least to a power of this description, on that ground " (of perpetuity). The trust in Meller v. Stanley (e) appears to have been supported upon a principle sindlar to that of Bateman v. Hotchldn and Briggs 'v. Earl of Oxford (v.bi supra) ; upon the ground, namely, that a trust which can be put an end to at any time by the owner of the fee is not obnoxious to the Rule against Perpetuities. The testator in Meller v. Stanley, being entitled to real estate, lease- holds for lives, and policies of insurance upon the lives, gave his real and personal estate to trustees, with a direction or power (held not to be discretionary) to keep up the policies, renew the lives as they dropped, and insure the new lives. And subject thereto he gave his real and personal estate to A. for life, with remainder to her first and other sons successively in tail. It was held that the trusts for renewal and keeping up the policies were valid ; upon the ground, apparently, that the trusts could be put an end to by the first tenant in tail who would be entitled to the policies absolutely (/). In Floyer v. Bankes (g) lands were limited by deed to trustees for a term of 500 years upon trusts thereinafter declared ; and subject thereto to the use of A. for life, remainder to his first and other sons in tail, remainder to B. for life, remainder to his first and other sons in tail, with remainders over. Then followed a clause declaring that the trustees might enter and manage the estates during the minority of any person who should, from time to time, be entitled to the immediate freehold as tenant for life or in tail under the limitations of the settlement. The clause (c) 2 D. J. & S. 183 ; 12 W. E. presents only a choice of diffi- 524, 780. culties." (/) In the opinion of Knight ig) L. K 8 Eq. 115 ; 3 D. J. &S. Bruce, L. J., the case " is one which 306. Digitized by Microsoft® ICO LIMITATIONS AFTEl! Chap. VII. empowering the trustees to enter was held void for remoteness (/i); upon the ground, apparently, that it was a trust annexed to the term which was antecedent to the estate tail. Lord Southani'pton v. Marquis of Hertford, Marduill V. Holloiuay, and Tiorvin v. Neiuconibe, all cited above, show that a trust expressed to operate upon the rents of real estate during the successive minorities of the tenants for life and in tail in a strict settlement is void altogether, and not only as to those tenants in tail who are beyond the line of perpetuity (i). In these cases the form in which the trust is expressed, rather than its intention or scope, determines its validity, or otherwise, with regard to the Eule against Perpetuities. In Turvin v. Newconihe, for example, the nature of the trust was such that it could operate only upon the life interest of the first tenant for life under the settlement ; yet it was held void for remote- ness, because it was expressed to o{ierate upon the tenan- cies in tail without limit. So also in Syhes v. Sykes, above mentioned (p. 153), it was held void for remoteness, although the trust could never arise if the estate tail was barred. In Maiinvaring v. Baxter (k) a term of 1000 years was limited to trustees, and after the determination thereof the lands were limited to a tenant for life, with remainder to his sons successively in tail. The trusts of the term were, upon alienation by any tenant in tail, to raise £5000 for the benefit of the person next in remainder. The trusts of the term were declared void as tending to a per- petuity and inconsistent with the rights of the tenant in tail (I), and the decree directed the term to be assigned to the tenant in tail. (7i) This was not necessary for [Jt-) 5 Ves. 457. the decision. [l) The former of these grouiitls (i) And see the observatioijs of appears to be the true reason of the Turner, L.J., in Mdler v. Stanhi/, 2 invalidity of the trusts; s^e F. C D. J. & S. 183, 191. But see infra, R. 530, ' Butler's nole on Lade v. p. 315, as to accumulation under ffnlford. a & 45 Vict v:. 41, 3, 42. Digitized by Microsoft® OR CONNECTED WITH ESTATES TAIL. ICl A term limited in remainder after an estate tail is, like ^^^T^- ^^^■ any other limitation in remainder after an estate tail, free Limitation of from objection on the ground of remoteness. But the * *^™ "^ ^ , , , . . years in re- trusts of a term so limited in remainder may be void for mainder after remoteness ; as, for example, where they are for the „° ^ t^ugjg benefit of persons not ascertained at the failure or deter- tli^t are too mination of the estate tail. Where some of the trusts are good, and others void for remoteness, a devisee of the lands in which the term is created takes subject to the term. Nor is the devisee entitled to the benefit of the trusts of the term so far as they are void for remoteness. The limitation of the term is valid, and the term is well created ; the benefit of the trusts, so far as they are void for remoteness, results to the heir at law as a chattel interest carved out of the real estate and undisposed of by the will. Such appears to be the effect of the decision of the House of Lords in Tregomvell v. Sydenham (Tti). In that case the testator devised lands (at B.) to his son for life, with remainders to the son's sons successively in tail male, with remainders to other sons of the testator in tail male ; and in case there should be no such issue male of the testator's body, or the same should become extinct, to trustees for a term of sixty years upon trust to receive and accumulate the rents to the amount of £20,000, which sum the testator directed should be applied iu the purchase of lands to be settled upon the person who, under limita- tions contained in the will of other estates (at A.), should then be in possession of such other estates, for life, with remainders over. And after the £20,000 should be raised, or the determination of the term, the testator devised the lands at B. to the use of his brother for life, with remain- ders to his sons in tail male. There was a failure of (m) 3 Dow. 19i. This decision Ves. 457 ; Baker v. Hall, 12 Ves. has been doubted by Lord St. 497 ; as to the effect of remoteness , Leonards, Law of Property, p. 362 ; upon the right of the heir to the and see Mainwaring v. Baxter, 5 term. M Digitized by Microsoft® 162 LIMITATIONS AFTER OR CONNECTED WITH ESTATES TAIL. Chap. VII. issue male of the testator's body, and at the date of such failure a person unborn at the testator's death (n) was in possession of the estate at A. It was held that the trusts of the lands directed to be purchased resulted to the testator's heir at law. If the trusts of the term so limited in remainder after an estate tail are declared to arise upon failure of issue inheriting under the estate tail, they will not tho- less be valid (o). Whether so expressed or not, they could not be executed before that event, which marks also the com- mencement of the term to which they are annexed ; and they, together with the terra itself, are barrable by the tenant in tail from the moment the estate tail vests. (n) .This appears to have been the (o) Morse v. Lord Ormonde, 5 case, though it is not so stated in Mai 99 ; 1 Russ. 382 the report. Digitized by Microsoft® 163 CHAPTER VIII. APPLICATION OF THE RULE AGAINST PERPETUITIES TO LEGAL AND EQUITABLE LIMITATIONS OF REAL ESTATE BY WAY OF REMAINDER. The question has been much discussed (a) whether the chap. viii. Eiile against Perpetuities applies to limitations of real j^i^^^jj^^oTsir estate by way of legal remainder. In Cole v. Sewell (h) E. Sugden in Sir E. Sugden expressed a strong opinion that the Eule is " " not applicable to remainders. The devise in that case, so far as need here be stated, was to the testator's daughters for their lives, with remainders to their sons in tail male, with remainders to their daughters in tail, with a re- mainder over if the testator's daughters should die without issue generally. It was contended that the ultimate remainder was void for remoteness. Sir E. Sugden said (c) : " As to the question of remoteness at this time of day I was very much surprised to hear it pressed upon the Court, because it is now perfectly settled that where a limitation is to take effect as a remainder remoteness is out of the question : for the given limitation is either a vested re- mainder, and then it matters not whether it ever vest in possession, because the previous estate may exist for cen- turies or for all time ; or it is a contingent remainder, and then, by the rule of law, unless the event upon which the {a) See Lewis on Perp., App., (5) 4 Dr. & War. 1 ; 2 Con. & L. 97—153 ; 1 Jaiman on Wills, 4th 344 ; 2 H. L. C. 186, 230. ed. 255, seq., and Appendix A. (c) 4 Dr. & War. p. 28. m2 Digitized by Microsoft® 164 LIMITATIONS OF REAL ESTATE Chap. VIII. contingency depends happen so that the remainder vest eo instanti the preceding limitation determines, it can never take effect at all. There was a great difficulty in the old law, because the Eule as to Perpetuity, which is a compa- ratively modern rule (I mean of recent introduction when speaking of the laws of this country) was not known, so that while contingent remainders were the only species of executory estate then known, and uses and springing and shifting limitations were not invented, the law did speak of remoteness and mere possibilities as an objection to a remainder, and endeavoured to avoid remote possibi- lities ; but since the establishment of the Rule as to Perpetuities this has long ceased, and no question now ever arises with reference to remoteness ; for if a limitation is to take effect as springing, shifting, or secondary use, not depending on an estate tail, and if it is so limited that it may go beyond a life in being and twenty-one years and a few months equal to gestation, then it is absolutely void ; but if, on the other hand, it is a remainder it must take effect, if at all, upon the determination of the preceding estate. In the latter case the event may or may not happen before or at the instant the preceding estate is determined, and the limitation will fail or not according to the event. It may thus be prevented from taking effect, but it can never lead to remoteness. That objection therefore cannot be sustained against the validity of a contingent remainder " {d). It will be seen that the opinion here expressed by Sir E. Sugden, that a contingent remainder cannot be void for remoteness, was not necessary for the decision of the case. The limitation under consideration in Cole v. Sewell was clearly not obnoxious to the Rule against Perpetuities, since it must have vested, if at all, either during the con- (d) See Sugden's Real Property, tions by Lord St. Leonards upon 120, and Monypenny v. Deri-ng, 2 Cole v. Smtell. D. M. & G-. 168, for some observa- Digitized by Microsoft® BY WAY OF REMAINDER. 165 tinuance, or immediately upon the determination of, the Chap. YIII. previous estates for life and in tail limited to the testator's daughters and grandchildren respectively. To remainders so limited it is clear that the Rule can The Eule does have no application. If the particular estate is an estate remainders for life and the tenant for life is a person living at the date expectant ... . ^ . ° upon estates of the limitation, the remainder must vest, if at all, at the for life or in termination of a life in being. Thus in Doe d. Winter v. *seerSd *° Perratt (e) there were limitations to living persons succes- persons, sively for life (/), with remainder to the first heir male of a specified family. No question was raised as to the validity of the limitation to the heir male ; the dispute being as to who answered the description. If the particular estate is an estate tail, the remainder is outside the scope of the Rule against Perpetuities ; for this reason, that its existence in no way prevents the alienation of the fee. Whether vested or contingent, the remainder is at the mercy of each successive tenant in tail, and, like an executory limitation collateral to or taking effect upon the determination of an estate tail (g), it is for that reason free from objection on the ground of remoteness. The case of a remainder preceded by an estate for life limited to a living person, and also by an estate tail limited in remainder after the life estate, is the same. The ulti- mate remainder is destructible, and the fee alienable, at latest, twenty-one years after the death of the tenant for life. If the remainder in tail is vested the fee is alienable forthwith ; if contingent, it must vest, if at all, at latest, upon the death of the tenant for life ; and supposing it to vest then in an infant, that infant will be able to disentail and dispose of the fee at latest twenty-one years after the death of the tenant for life. The same observations apply (c) 5 Barn. & Or. 48 ; 3 M. & may be doubted whether there was Scott, 586 ; 7 Scott, N. R. 1 ; 9 not, in fact, an estate tail preceding CI. & F. 606. the limitation to the heir male. (/) It was so assumed, though it {g) As to these, see p. 148, sivpra. Digitized by Microsoft® 166 LIMITATIONS OF HEAL ESTATE Chap. VIII. where the remainder is preceded by a series of similar estates for life and in tail. The Rule A difficulty arises where one of the estates prior to the applies to a ... . . , . . , Temainder ex- remamder m question is an estate limited to a person not pectant upon necessarily to be born or ascertained within the legal period, life limited to and where the remainder does not necessarily vest before per"on.°™ *^® expiration of that estate, or within the legal period. For example, a limitation to A. for life, remainder to A.'s unborn son for life, remainder to the person who at the death of A 's son is in possession of a specified estate. The rule of law which requires a remainder to vest at or before the determination of the particular estate does not preclude remoteness in such a case. Until the death of A.'s unborn son no person is ascertained in whom the fee can vest. In such a case it would seem, notwithstanding the language of Sir E. Sugden in Cole v. Sewell, that there is no reason for excluding the remainder from the operation of the Rule against Perpetuities. And in Gattlin v. Brown (h) Wood, V.-C, expressed an opinion to this effect : " I appre- hend, however, that a contingent remainder cannot be limited as depending on the termination of a particular estate whose determination will not necessarily take place within the period allowed by law." Argument de- It has been said that the existence of the cy prhs doc- exktencTof ** trine is conclusive proof that the Rule against Perpetuities the cypres applies to remainders (i). That doctrine is founded upon the assumption that limitations by way of remainder to successive generations of unborn issue are invalid beyond the first of such limitations. But, as will appear below, there is reason to think that the illegality in such a scheme of limitation rests upon grounds distinct from the Rule against Perpetuities. Can a remain- Whether remainders are subject to the Rule against der be limite Perpetuities or not, there is considerable authority for the (A) n Ha. 372, 374 ; 1 W. E. (i) See Lewis on Perp. App. 140, 533. seq. Digitized by Microsoft® BY WAY OF KEMAINDER. 167 opinion that they are subject to another and a stricter Chap. VIII. rule to this effect : that real estate cannot be limited to to the unbom the child of an unborn person by way of remainder fol- ^°^ °f ^° """ ,. ,... , r.!-,. tTTi "°'''' person ? iowmg a limitation to the parent for life. Whether the limitation to the child of the unborn person be for life or otherwise would seem to be immaterial ; though the rule is sometimes referred to as forbidding the creation of suc- cessive life estates to successive unborn classes of issues (k). This rule is recognised by Lord St. Leonards {l), and he has stated that nothing said by him in Cole v. Sewell was intended to touch it (m). It has been said to lie at the root of the Rule against Perpetuities (n). If such a rule exists it would prevent the following limitation : — To A. for life, remainder to his first unborn son for life, remainder to the first son of such unborn son who shall be born in the lifetime of A. in tail. But in Cattlin v. Brown (o) "Wood, V.-C, appears to have considered that such a limi- tation would be valid. In the absence of a direct decision upon the point the question must be considered as open. There seems no doubt that a similar limitation of person- alty would be valid, and the Courts are unwilling, at the present day, to multiply distinctions between limitations of real and personal property. It seems probable that, when a decision upon the point is called for, the opinion expressed by Wood, V.-C, in Cattlin v. Brown will be followed. A third question arises with regard to the application of Application of the Rule against Perpetuity to remainders. Are limita- equitable limi- tions of the equitable interest in real estate by way of *^**°°^ °* '■^*' . . , . estate by way remainder — so-called equitable remainders — subject, as of remainder, regards remoteness, to the rules which govern legal re- mainders ? Or are they subject to those rules which apply (h) See Sugd. E. P. 120. D. M. & G. 145, 168; 22 L. J. Ch. \l) And by Mr. Joshua Williams ; 313. see Williams' Real Prop. 12th ed. (») 3 Dav. Preced. Pt. I. 3rd ed. 274, note (m). 270. (m) In Monypenny v. Dering, 2 (o) 11 Ha. 372, 375; 1 W. B. 533. Digitized by Microsoft® 168 LIMITATIONS OF KEAL ESTATE Chap. VIII. to limitations of personalty and executory limitations of real estate ? There seems to be no doubt that for this purpose equitable remainders are to be considered, not as remainders, but as executory limitations. This follows from the consideration that the reason for excepting certain legal remainders from the operation of the Eule does not exist in the case of equitable limitations. That reason is supplied by the rule of law which requires a legal remainder to take effect, if at all, at or before the expiration of the particular estate. The rule does not exist in the case of equitable limitations. "Where the legal fee is devised to, or vested in, trustees in trust, there is no necessity for any preceding particular estate of free- hold to support contingent limitations, for that legal estate in the general trustees will be sufficient for the purpose ; and consequently, in such cases, it is not necessary that a contingent remainder should vest by the time the preced- ing trust limitation expires " (p). In a recent case (g) the testator devised freeholds to trustees upon trust during the life of A. to retain the rents and profits to their own use, and upon trust after A.'s death to convey the freeholds to the first son of B. who should attain twenty-five. A son of B. first attained twenty-five after the testator's death and in A.'s lifetime. It was held by the Court of Appeal, reversing the decision of Malins, V.-C, that the devise to the son of B. was void for remoteness. All the members of the Court of Appeal (Jessel, M.R., Cotton and Lush, L.JJ.,) were agreed that the reason for excepting legal remainders from the opera- tion of the Eule against Perpetuities does not exist in the case of an equitable remainder. As to whether, in the case before them, the limitation to the son of B. was an equitable remainder or an executory limitation, there seems to have been a difference of opinion. Jessel, M.R., ip) F. C. E. 303, 304. 17 Ch. D. 211; 50 L. J. Ch. 348. (5) Jn re Finch, Abbiss v. Burnaj, Digitized by Microsoft® BY WAY OF REMAINDER. 1(39 and Cotton, L.J., held that it was an executory limitation ; so that the case does not conclude the question as to the application of the Rule against Perpetuities to equitable remainders. But the reasoning upon which the unani- mous opinion of the Court upon that question is founded is unanswerable ; and that opinion would, it is submitted, be followed in a future case (r). It will be observed that the remarks and the decision in In re Finch apply to a case when the legal estate is vested in trustees under the instrument which creates the equit- able interest. It is submitted that the same rules as regards remoteness would apply where the legal estate is outstanding under an instrument other than that creating the equitable remainder in question ; that, for example, the devise of an equity of redemption of real estate to A. for life, and after his death to his first unborn son who attains twenty-two, would be void for remoteness. It has been doubted whether, in such a case, apart from the ques- tion of remoteness, the limitation to the son would take Chap. VIII. Equitable limitation by way of re- mainder when the legal estate is outstanding under another instrument. (r) In the Court below, the Vice- Chancellor, holding the limitation to the son of B. to be valid, mainly relied upon tiophins v. Hapldns (West, 606 ; the case is also stated very fully in all its stages in Butler's note Co. Lit. 272, a. The report of the case in Atkins is incorrect, see 2 Ves. 237, a), which case he con- sidered as deciding that " the doc- trine of contingent remainders is just as applicable to equitable estates as to legal estates " — the doctrine intended being (it seems) that which requires every liiuitation capable of taking effect as a remain- der to take effect as a remainder rather than as an executory limita- tion. Assuming, therefore, that the limitation to the son of B. in In re Finch was a remainder, and must, by the law of its existence, vest at latest at the death of A., he held that the Rule against Perpetuities did not apply. In Hopkins v. Hop- kins Lord Hardwicke does appear to have considered that an equitable limitation by way of remainder must be supported in the same way as a legal remainder ; that the limi- tations in question in Hopkins v. Hopkins were so supported by an implied trust for that purpose an- nexed to the legal estate limited to trustees ; and that therefore they must take effect as remainders, and not as executory limitations. Eearne (F. C. R. 304, 525) acquiesces in this view, which is supported also by Lord EUenborough, C. J., in Soe V. Briggs, 16 East, 406, 413. But the more correct doctrine seems to be that adopted by modern autho- rities (1 Hayes' Convey. 5th ed. 84; 3 Dav. Preced. 3rd ed. 340, and authorities there cited) that equit- able limitations by way of remain- der — the so-called equitable remain- ders — are not in fact remainders at all, but are, at least for the purposes of the Rule agamst Perpetuities, executory limitations. Digitized by Microsoft® 170 LIMITATIONS OF EEAL ESTATE Chap, vni. effect, if no son had attained twenty-two at A.'s death (s). In Astley v. Micklethwaite (t) Malins, Y.-C, held that a devise of an equity of redemption in real estate to the use of A. for life, and after his death to the use of the children of A. who should attain twenty-one, took effect in favour of children who were infants at A.'s death, as well as children who attained twenty-one in A.'s lifetime. If the age had been twenty-two, it follows from the deci- sion in In re Finch that the entire gift would have been void for remoteness, both as to children attaining the specified age in A.'s lifetime and those attaining twenty- one after his death. But where an unprotected contingent remainder is clearly legal the Court will not, merely in order to preserve it from destruction, hold the legal fee to be in a devisee to uses, or in trustee to whom a previous legal estate for life or years is limited (u). The same rule would apply where the only reason for construing the remainder to be legal is, that otherwise it must fail for remoteness (x). Equitable Equitable limitations by way of remainder after an w™y of re- estate tail are, in respect of remoteness, in the same posi- mainder ex- -jjjqq ^s other executory hmitations connected with estates pectant upon . i • i i t • • an estate tail. tail. Unless the event upon which the limitation is to take effect is such that it must happen at or before the expiration of the estate tail, the limitation is void for remoteness. The fact that such an equitable remainder may be barred during the existence of the estate tail does not make the application of the Rule against Perpetuities unnecessary. For if the estate tail is not barred the equitable remainder will take effect as an executory limi- tation, either at the expiration of the estate tail or upon (s) See 3 Dav. Preo. 3rd ed. 340 ; 320, Butler's note (c). Butler's note {m) F. C. K. 305; («) Cunlife v. Branchmr, 3 Ch. Lewis on Perp. 425. D. 393 ; 46 L. J. Ch. 128. (t) 16 Ch. D. 59 ; and see F. C. K. (x) See 3 Ch. D. 399. Digitized by Microsoft® BY WAY OF REMAINDER. 171 the happening of the event specified in the limitation at Chap. vill. any distance of time afterwards. Thus, in Cole v. Sewell, if the limitations had been equitable, and the issue in tail male had come to an end without the estates in tail male having been barred, the ultimate limitation upon a general failure of issue might (but for the Rule against Perpetuities) have taken effect at any distance of time after the expira- tion of the estates tail, and during the whole of this time the fee would have been inalienable. Contingent remainders of copyholds appear to be in Remainders of ,1 ... J i -J n copyholds and the same position, as regards remoteness, as remainders oi estates ««»• freeholds. Although they will take effect after the deter- «'«*'•« se- mination of the particular estate by forfeiture or merger, they will not, it seems, take effect after the determination of the particular estate in its regular course, that is to say after the death of the tenant for life, or failure of the issue in tail, as the case may be (y). The recent Act, 40 & 41 Vict. c. 33, does not affect them upon the question of remoteness. Limitations of an estate pur autre vie, whether by way of remainder or otherwise, are, probably, outside the scope of the Rule against Perpetuities. If, how- ever, it should be held that the Rule does apply to them, no distinction, upon the question of remoteness can be drawn between a contingent remainder of an an estate pur autre vie (z) and a remainder of freeholds or copyholds. A recent case (a) may here be mentioned which may In re Lechmere have the effect of making void for remoteness a class of limitations which, as remainders, would be valid. A testatrix devised freeholds to A. for life, and from and after her death, to such of her children living at her death (y) ¥. C. B. 320 ; Gilbert on Grey, ub. supra; and AUen v. Allen, Tenures, 266 ; Pikersgill v. Grey, 30 2 Dr. & War. 307. Beav. 352 ; 31 L. J. Ch. 394. {a) In re Lechmere ^'l''*"' ' of unborn within the legal period (e). If the person or class to take tenant for in remainder is unascertained until the death of the ,", f'™ (1) To a per- tenant for life, the limitation in remainder will fail for son ascer- remoteness (/). An example of this occurs where athe'iegal' testator gives to his unmarried child for life, with period. remainder to the child's future husband or wife for life, ^^^^ tobe^a^" with remainder to the child's children then living, or certained at other persons to be then ascertained. The future husband the tenant for or wife may be a person who is unborn at the testator's 1'^®- death ; and a limitation which will not vest until the death of such a person is void for remoteness {g). So if the limitation in remainder is contingent upon an event to be ascertained at the death of the unborn tenant for life, it will fail for remoteness. Thus a limitation to the eldest son of A., a bachelor, for life, remainder to the eldest son of such son in fee, if any such be living at the death of the tenant for life, and if none, to the second son of A. in fee, is void for remoteness as to the remainder to the second son of A. Qt). A limitation to a class of unborn persons for life as joint tenants, or as tenants in common, is valid ; and the property may be limited after the death of the survivor to a person in existence at (d) Williams v. Teale, 6 Ha. 239; 50 L. J. Oh. 265 ; Goodier v. John- and see 1 OolL 37, by Sir J. Leach, son, 18 Ch. D. 441 ; 51 L. J. Ch. who decided Hayes v. Hayes. See 369 ; where this was assumed. also Gooding v. Read, 4 D. M. & G. {g) Hodson v. BaU, 14 Sim. 558 ; 510 ; Gooch v. Gooch, 14 Beav. 665 ; Lett v. Randall, 3 Sm. & Gil 83 ; 3 Sm. & G. 366 ; 21 L. J. Ch. 238 ; 24 L. J. Ch. 708 ; Buchanan v. 22 L. J. Ch. 1089. In Hampton Harrison, 1 J. & H. 662 ; In re V. Holman, 5 Ch. T>. 183 _; 46 L. J. Merrick's Trust, L. E. 1 Eq. 551 ; Ch. 248, Sir d. Jessel disapproved Goodier v. Johnson, 18 Ch. D. 441 ; of it. 51 L. J. Ch. 369. (e) See cases above cited. (A) D'Ahbadie v. Bizoin, 5 Ir. (/) See In re Roberts, Repington Rep. Eq. 205. V. RobeHs-Gawen, 19 Ch. D. 520 ; Digitized by Microsoft® 176 LIMITATIONS TO Chap. IX. tijg (jg^^g Qf ^jjg limitation (i), or ascertained within the legal period. That real and personal property may be well limited in remainder after the death of an unborn tenant for life is a corollary from the proposition that a limitation to an unborn person for life is not void for remoteness. Other- wise the property would be inalienable during the life- time of the tenant for life. But a limitation to A., a person in existence at the date of the limitation, upon the death of an unborn person who takes no life interest, unless it is so expressed that it must take effect, if at all, within the legal period, is void for remoteness. The fact that the person upon whose death the limitation takes effect is a person to whom a life interest might have been well limited is, it is submitted, immaterial. A limitation to an unborn person for life being valid, it follows that a life interest determinable upon marriage, or other event happening in the lifetime of the tenant for life, may be limited to an unborn person ; and that a limita- tion of the interest in remainder will be valid, provided it vests within the legal period. Whether a life interest so limited to an unborn person may be derminable by a con- dition subsequent, as well as by the terms of the original limitation has not been expressly decided. In two recent cases it appears to have been assumed that a life interest absolute in the first instance could be determined by a subsequent and distinct clause of forfeiture (k), but the point was not expressly decided. In one of these cases, Hodgson v. Halford, the life interest was first given absolutely, and by a subsequent and distinct limitation it was provided that upon the marriage of the tenant for life the life interest should be (i) In re Hoberts, Eepington v. D. 959 ; 48 L. J. Ch. 548 ; In Robei-ts-Gawm, 19 Ch. T>. 520 ; 50 re Roberts, Repington v. Roberts- L. J. Ch. 265 ; as to tenancy in Gawen, 19 Ch. D. 520 ; 50 L. J. Ch. common see the oases cited below. 265. (k) Hodgson v. Halford, 11 Ch. Digitized by Microsoft® UNBORN PERSONS FOR LIFE. 177 forfeited and the property go over to a class to be then Chap. IX. ascertained. It was held by Hall, V.-C, that the forfeiture clause could not be construed apart from the gift over ; and, the gift over being too remote, that the forfeiture clause did not take effect (I). A trust for the benefit of an unborn person until he attains a given age is good, provided the cestui que trust is ascertained within the legal period; but a trust upon his attaining the given age for a person or class to be then ascertained is void for remoteness. Thus in Gooding v. Read (m) a trust to maintain the children of a living person (tenant for life) until the youngest attained twenty-five was held valid ; and a trust, upon the youngest child attaining twenty-five, to seU. and divide amongst the children then living and the issue of children then dead, was held void for re- moteness. There is some doubt whether a restraint upon anti- cipation can be attached to a life interest limited to an unborn female. It has been held void for remote- ness in several cases, and until these cases are overruled they must be taken to settle the law ; but they have been doubted in a recent case by Jessel, M.R., who, however, considered them binding on him, and followed them (n). In the case of a limitation to unborn persons as tenants Cross remain- in common for life, with cross remainders between them a^^gfj^gg™™^^* for life, or with benefit of survivorship, it has been held ^om tenants for lifti that the benefit of survivorship is not too remote. In Ashley v. Ashley (o) it was so held, but the question of remoteness does not appear to have been discussed. This (l) Sed qucere, see supra, p. 82 ; ffay, 11 Ch. D. 645 ; 48 L. J. Gk. and see also Bow/hton v. Javies, 1 563, nom. Buckton v. Ufay ; see p. Coll. 26, 46. 282, infra. (m) 4 D. M. & G. 510. (o) 6 Sim. 358 ; 3 L, J. Ch. 61, (n.) See In re Ridley, Buckton v. N Digitized by Microsoft® 178 LIMITATIONS TO Chap. IX. Limitation to the survivor of a class of unborn tenants for life. case was doubted by Malins, V.-C, in Stuartv. Cocker ell (p). In Gooch V. Gooch (q) Lord Cranworth said that a tryst in favour of all the testator's grandchildren born at and after his death, for their lives, with benefit of survivorship, -would be valid. The dictum, however, was not necessary for the decision of the case ; and the reason given for supporting such a limitation, namely, that the children and the remainderman could together alienate the fee, is of doubtful validity (r). In Avern v. Lloyd (s) there was a bequest to A. for life, and after his death to his issue for their lives and the life of the survivor as tenants in common, and after the death of the survivor to the executors, administrators and assigns of the survivor of A. and his issue. Stuart, V.-C, held that the gift to the survivor was valid on the ground that the words " executors, administrators and assigns '' were words of limitation, and that the gift to the executors, administrators and assigns of the surviving tenant for life attached to the life estates, so as to give a contingent absolute interest to each tenant for life, which was alienable within the legal period (t). There is some difficulty in reconciling these decisions with the cases stated above, in which a limitation in remainder after a life interest limited to an unborn person has been assumed or held to be void for remoteness, unless it vests within the legal period. Benefit of survivorship amongst tenants in common is different in character from that enjoyed by joint tenants. The latter is an incident of the estate or interest of every joint tenant ; {p) L. R. 7 Eq. 363, 370; 39 L. J. Oh. 729. (}) 3 D. M. & G. 366, 383 ; 22 L. J. Ch. 1089. (r) See supra, p. 51. (s) L. R. 5 Eq. 383 ; 37 L. J. Ch. 489. (() See observations of Malins, V.-C, on this case, L. R. 7 Eq. 368. As to alienation of a contingent interest where the contingency is too remote, see supra, pp. 57, 66, As to a gift to the survivor of a class, see Lachlan v. Reynolds, 9 Ha. 796. Digitized by Microsoft® UNBORN PERSONS FOR LIFE. 179 and it is clear that property may be limited to a class of Chap. IX. unborn persons as joint tenants for life (w), and that the survivors will enjoy the benefit of survivorship which is incident to the joint tenancy. But benefit of survivorship between tenants in common is created only by express limitation; and it is an interest which vests when the survivor is ascertained, and not before. It is submitted that, notwithstanding the decision in Ashley v. Ashley, the question as to the validity of "benefit of survivor- ship" between unborn tenants for life is not free from doubt. In Cooke v. Bowler {x) the testator gave the dividends of stock in trust for his brother and sisters by name for their lives in equal shares; and after the death of any of them leaving children, the share of him or her so dying was to be paid to such children for their lives as tenants in common with benefit of survivorship amongst them ; and in case the brother or any of the sisters should die without leaving children, the survivor or survivors of the brother and sisters were to take the dividends; and after the death of the survivor of the children of the brother and sisters the stock and dividends then due were to be disposed of according to the Statutes of Distributions, The ultimate gift of the stock and dividends was held void for remoteness. It does not clearly appear on what ground the decision was based. The argument was that a gift in remainder after a life interest in an unborn person is too remote. This, we have seen, is not neces- sarily the case. The decision is right if the class of next of kin to take under the ultimate gift was not ascertain- able until the death of the survivor of the children {y). And it could, perhaps, be supported also on the ground that the ultimate gift was void, not as being in itself too (u) In re Rolerts, Repington v. (x) 2 Keen, 54 ; 5 L. J. Ch. 250. Roberts-Gawm, 19 Ch. D, 520 ; 50 (y) For which construction, how L. J. Ch. 265. ver, there seema no gfround. n2 Digitized by Microsoft® 180 LIMITATIONS TO Chap. IX. remote, but as following a remote limitation, namely, that creating benefit of survivorship amongst the unborn tenants for life. In Garland v. Brown (0) there vfas a gift of rents of real estate to the survivor of the testator's children for life, with remainder to the children of such surviving child as tenants in common for life ; and in case there should be only one, or all but one should die, then upon trust to convey the fee to such one child or to such surviving child. The gift of the fee was held void for remoteness. This case illustrates the rule, stated else- where (a), that a gift to the survivor of a class, or to such of a class as shall be living at a specified time, vests when the survivor is ascertained or the time arrives. Limitation ot There is some doubt whether real estate can be limited way of re^ ^ ^°^ 1^^® o'' Otherwise to the child of an unborn person by maindertothe -vyay of legal remainder expectant upon an estate for life born tenant limited to the parent (&). And it has been said that life for life. estates cannot be limited at all to unborn persons in suc- cession (c). The latter statement is clearly incorrect {d). The better opinion is that all such limitations are valid provided they are so expressed that they must take effect, if at all, within the legal period. The subject is con- sidered more fully elsewhere in connection with the application of the Eules against Perpetuities to legal remainders. It will be sufficient here to refer to one case which seems to dispose of the question. In Gadell V. Palmer (e) there was (1) a trust of real estate for a term of years determinable upon lives in being in favour of successive generations of unborn issue; (2) a trust (z) 10 L. T. N. S. 292. 533 ; WiUiams' Real Property, Appx. {a) Supra, p. 46; Lachlan v. F.; WoHm v. jlredrews, 2 Bing. 126, Reynolds, 9 Ha. 796. 130 ; and see supra, p. 166. (6) See Monypenny v. Bering, 2 (c) Doe v. Oarrod, 2 B. & Ad. 87, T>. M. & G. 145, 168 ; 22 L. J. Ch. 96. 313 ; Cole v. Sewell, i Dr. & War. 1, (d) See BrudmeU v. Shoes, 1 Fast, 32 ; 2 Con. & L. 344 ; CattUn v. 442. Brown, 11 Ha. 372, 375 ; 1 W. R. (e) 1 CI. & I". 372 ; supra, p. 32. Digitized by Microsoft® UNBORN PERSONS FOR LIFE. 181 during the continuance of the term to convey the lands, Chap. IX. upon request, for life to the person, being a male, for the time being entitled to the rents and profits under the trust of the term. Both these trusts were held by the House of Lords to be valid. Digitized by Microsoft® 182 CHAPTER X. LIMITATIONS UPON FAILURE OF ISSUE. Chap. X. In deeds and in wills pre- vious to the Wills Act a limitation to take effect upon the death of A. without issue is void for re- moteness. Evcept where, in the case of realty, an estate tail is limited either expressly or by implication to the person whose i^sue is ypoken of. The failure of issue of a person is an event upon which limitations are frequently made to take effect. Previously to the alteration of the law in the case of wills by the Wills Act (1 Vict. c. 26, s. 29) it was a rule of construc- tion that the words " die without issue " and similar expressions, both in deeds and in wills, meant a failure of issue, either at the death of the person whose issue is spoken of, or at any siLbsequent period. Such an event, obviously, is not one which must necessarily occur within the period allowed by the Eule against Perpetuities, and is altogether indefinite in point of time. Consequently a limitation by deed, or by the will of a testator djdng before the 1st of January, 1838, expressed to take effect upon the death of a person without issue fails for remote- ness (a). If, however, the limitation upon death without issue follows a limitation, either express or implied, to the person whose issue is referred to, of an estate tail in real estate, the limitation over does not fail for remoteness, but takes effect as a remainder expectant upon the deter- mination of the estate tail. (a) Boden v. Watson, Amhl. 398, 478; Beanclerk v. Dormer, 2 Atk. 307; Green v. Rod, Fitz. 68 ; Cmwhj V. Campbell, 2 01. & F. 421 ; 8 Bli. N. S. 469; O'Mahoney v. Burdett, L. E. 7 H. L. 388 ; 44 L. J. Ch. 5fi. Digitized by Microsoft® LIMITATIONS UPON FAILURE OF ISSUE. 1^3 A limitation of" personal property to A. and the heirs of Chap. X. his body passes the absolute interest ; and, with certain Limitation of exceptions mentioned below (&), the rule is the same P^''^™^' ^™" where the limitation is in terms which, if the subject upon failure of matter had been realty, would have created an estate tail. foUowing a A limitation, therefore, of personal property to B. upon limitation to failure of issue of A. is void for remoteness ; and that heirs of his whether it follows a limitation to A. and the heirs of his ^°^^' body or not (c). Whether it takes effect if A. dies, and his issue fails, in the testator's lifetime, depends upon different considerations. The question is considered else- where (d). In the case of a limitation of real estate in default of Limitation of issue of A., or in default of issue of A. living at his death, ^pon failure of following an express limitation to A. in tail, no question '/^l;"* °^ ^■' '^ ■■■ . ... ' -1 following an of remoteness can arise. The limitation to B. is either a express limita- vested remainder, which will take effect in possession j^"" °^ ^ ^ upon the determination of the estate tail at any time, or vested or con- it is a contingent remainder depending upon the failure mamder. of issue of A. at his death (e). The failure of issue of a tenant in tail being the event Limitation upon which a remainder after the estate tail takes effect "^thouHssue in possession, the effect of a limitation of real estate in may raise by T n ■<. e ■ ■ ■ J. ■ T ■ T !■ implication an default of issue is, m many cases, to raise by implication estate tail in an estate tail in the person whose issue is spoken of *^s person _,, ., n 1 • n 1 i 1-1. whose issue is Thus m the case of a devise of real estate to A. and his spoken of. heirs, or for life, or generally without words of limitation, To A., or to T • . • A > T , ■ -1 • A. for life, or followed by a limitation upon A. s death without issue to to A. and his B., A. takes an estate tail by implication, and the limita- '^^"'^' ^it'ig'f' ' . over on A. s tion to B. is good as a remainder (/). And a limitation death without issue. (b) See Forth v. Chapman, infra, (e) Ireson v. Pearman, 3 B. & C. p. 186. 799 ; Broadhurst v. Morris, 2 B. & (c) Dawson v. SiTiall, L. R. 18 Eq. Ad. 1 ; Coltsmann v. Coltsrfiann, L. K. 114 ; ih. 9 Ch. 651 ; 43 L. J. Ch. 3 H. L. 121 (see Lord Chelmsford's 406 ; In re Johnsons Tr., L. R. 2 opinion) ; Grey v. Pearson, 6 H. Jj. Eq. 716 ; 12 Jur. N. S. 616. C. 61 ; 26 L, J. Ch. 473. (d) Hee Mathinnonv. Peach, svpra, (/) Machell v. Weeding, 8 Sim. 4; p. 28. 5 L. J. Ch. 182. Digitized by Microsoft® 184 LIMITATIONS UrON FAILURE OF ISSUE. Chap. X. by deed to the use of A., his heirs and assigns, and if A. die ■without issue to the use of B., his heirs and assigns, and if both A. and B. die without issue, to the settlor's male issue, has been held to vest estates tail in A. and B. (g). Devise of So also when the subject of a devise is a reversion pentant upon expectant upon an estate tail, not created by the will, failure of there is no remoteness in a gift expressed to take effect special class of in-i r ■ ^i • -i-ni issue. upon a general iailure oi issue ot the tenant m tail. But where the reversi(m depends, not upon a general failure of issue of the tenant in tail, but upon failure of issue male, or of a particular class of issue, there is sometimes difficulty in determining whether a gift upon failure of issue (not restricted to issue in tail) is an immediate gift of the reversion, or whether it fails for remoteness as taking effect upon an indefinite failure of issue (/i). The tendency of recent decisions is to treat the words as re- ferring inaccurately to the event upon which the reversion takes effect in possession, rather than as descriptive of the event upon which the gift itself is intended to take effect (i). Limitation by In some cases where the person whose issue is spoken Tstite tcTs. of takes no estate by the terms of the will an estate tail upon failure of ig raised in him by implication. Thus where there was a tie testator's devise upon the failui-e of issue of A. to B., A. being heir- heir-at-law ; ^t-law to the testator, and taking nothing by the terms of nothing by the the will, it was held that A. took an estate tail by impli- wUl"^ ° ^ cation ; and that the limitation to B. was good as a re- mainder after such estate tail (k). To A. and his Where a limitation of real estate to B. in default of htirs, and in {g) Morgan v. Morgan, L. R. 10 {i) -ffjio v. i'no, 6 Hare,171; Jiger- Eu. 99 ; 39 L. J. Ch. 493 ; but see ton v. Jones, 3 Sim. 409 ; Leic'is v. Olivant v. Wright, 9 Ch. D. 646 ; 47 TempUr, 33 Beav. 625 ; 10 L. T. L. J. Ch. 664. N. iS. 638. {h) Ladij Laneshorovgh v. Fox, (k) GoodrigJit d. Goodridge v. Cas. t. Talb. 262 ; Jones v. Morgan, Goodridge, Willes, 369 ; 7 Mod. 3 Br.i. P. C. 322 ; Banhes v. Holme, 463; Daiidrg v. Dulntry, 6 T. R. 1 Ru^s. 394. 307. Digitized by Microsoft® LIMITATIONS UPON FAILURE OF ISSUE. 185 heirs of A. follows an expi^esa limitation to A. and his heirs, Cha.'p. X. and B. is a collateral heir of A., A. is held to take an estate default of heirs tail, and B. a remainder expectant upon it (I). collateral heir Wliere there is interposed between the limitation to of A. the ancestor (the person whose issue is spoken of) ^-ntl iggue ^uh or^ that to take effect upon failure of his issue, a limitation to without words " issue," either with or without words of limitation super- ^nd if A. die added, the ancestor takes an estate tail, unless the limita- without issue, tion to issue is such that they take under it as puichasers. Thus under a devise to A. and the issue of his body and the heirs of such issue for ever, or to A. for life, and if A. die leaving issue, to such issue equally (without words of limitation), followed in each case by a gift over upon A.'s death without issue, the gift over is a good remainder after an estate tail in A. (m). If, however, the interposed limitation to issue is such To A., with that the issue take under it as purchasers, a subsequent his issue as limitation over upon failure of issue is construed to mean purchasers, ^ . . and if A. die such issue as could take under the previous limitation, without issue, In this case also the limitation upon failure of issue is not °^'^''' too remote {n). An indefinite failure of issue is held to be referred to Expressions by the following expressions: "die without having '^]^J;'-„''^t\?3,„e - issue" (o) ; "in default of issue" (p) ; "for want of Importing an issue " (q) ; " die before he bas any issue " (rj ; " die with- failure of issue. out children," or " without heirs,' or "without heirs of the body'' (s). As to the last three expressions, there was formerly some doubt whether a failure at death was not (/) Webb V. Hearing, Cro. Jac. (p) Boehm v. Clarke, 9 Ves. 580. 415 ; Tyte v. Willis, Ca. temp. Talb. (q) Wyld v. Lewis, I Atk. 432. 1; Harris v. Davis, 1 CoU. 416; 9 (r) Newton v. Barnardine, Moo. Jur. 0. S. 269. 127. (m) Pranldin v. Lay, Mad. & (s) Doe d. Smith v. Webber, 1 B. Geld. 258 ; Kaianagh v. Morland, & Aid. 713 ; Raggett v. Beaty, 5 Kay, 16 ; 23 L. J. Ch. 41. Eing. 243; Parker v. Birks, 1 K. & («) See infra, p. 199. J. 156 ; 24 L. J. Ch. 117 ; Hughes (o) Lee's Case, 1 Leon, case No. v. Sayer, 1 P. W. 534 ; Bacon v. 387 ; Cole v. Gohle, 13 C. B. 445 ; Cosby, 4 De G. & Sm. 261 ; 20 L. 22 L. J. C. P. 148. J. Ch. 213. Digitized by Microsoft® 186 LIJIITATIONS UPON FAILUEE OF ISSUE. Chap. X. Die without " leaving " issue. The rule in FoHk y. Chapman. intended.'at least in the case of limitations of personalty {t), but the contrary seems to be now decided both with regard to real and personal estate. In the case of a devise of real estate to A. for life, or in fee, followed by a gift over upon A.'s death without issue, it was held, previously to the alteration of the law by the Wills Act (w) that the reference to failure of issue showed an intention that the issue should take, and that so long as there were issue of A. in existence the gift over should not take effect {x). This supposed intention was carried out by adopting the construction by which, as in the cases above referred to, A. takes an estate tail, upon which the gift over takes effect as a remainder. In the case of a bequest of personal estate, no benefit would accrue to the issue by this construction, since under a limitation which creates an estate tail in real estate, personalty passes absolutely ; and a subsequent gift over upon failure of issue of the donee would be altogether void. Hence arose a singular distinction between limitations of real and personal estate expressed to take effect upon the death of A. without leaving issue. These words, which, in the case of realty, are held to import an indefinite failure of issue, and so raise by implication an estate tail in the person whose issue is spoken of, in the case of personalty are held to mean failure of issue at the death {y). This im- portant rule of construction was established by Forth v. Chapman {z). In that case there was a gift by will of real and personal estate, upon the death of A. without leaving issue. It was held that in the case of the real estate the words referred to an indefinite failure of issue, and in the case of the personal estate they meant failure at death. This (t) Stone V. Made 2 Sim. 490 ; Mattliev'i^ V, Oai-f/iner, 17 Beav. 254 ; 21 L. T. 0. S. 236. (») See infra, p. 203. (.«) Tarr/et v. Oainit, 1 E. W, 432. (i/) See per Lord Hatheriey, L. K. 7 H. L, 401. (:) 1 P. W. 663. Digitized by Microsoft® LIMITATIONS UPON FAILURE OF ISSUE. 187 case shows that upon tlie question as to the meaning Chap, X. of such expressions as "die without issue," cases which establish a particular consti'uction where the subject matter of the limitation is realty cannot be depended on as authorities for a like construction where the subject matter is personalty (a). In order to give effect to a gift over depending upon a The Courts are failure of issue, the Courts have, in the case of personalty, Tg^^ ^thouT been astute to find indications in the will of an intention issue" a re- , n n • r- T ■ ^ ■ t> ^ strioted mean- to connne the meanmg oi " die without issue, and ing in the case similar expressions, to failure at death (b). Thus where °^ personalty. in one part of a will the testator used in a gift of personal estate the expression " die without leaving issue," and in a subsequent part of the will there was a gift over upon death " without issue," it was held that the latter words were used as a short expression for the former, and imported a failure at death (c). So a gift in a will, " in default of issue " was held to refer to a failure at death, because in the codicil the gift was referred to as taking effect upon death without leaving issue (d). Other instances will be found below of the length to which the Courts will go in so construing " die without issue " ut res inagis valeat quum pereat. The rule in Foiih v. Chapman is not applicable in the Rule in Forth case of a sift of copyholds which do not admit of entail. ''■ Chapman <^ i- ■' _ not applicable Thus where copyholds of this character were devised to to copyholds. A., his heirs and assigns, with a gift over on A.'s death (a) See per Cairns, C, as to the Pealce v. Perjden, 2 T. R. 720 ; ColU- different etfeot of a devise in the mann v. Coltsmann, L. E. 3 H. L. same words, where the subject mat- 12J . ter is different, VoUsmann v. Colts- (c) Sheppard v. Lessingliam, Amb. mann, L. &. 3 H. L. 121, 130; and 122; Radford v. Rudford, 1 Keen, Murthwaite >. Jenkinson, Sugd. R. 486 ; 6 L. J. Ch. 138 ; Greenwuy v. P. 258. Greemoay, 2 De G. F. & J. 128 ; 29 (b) See Sheffield V. Ld. Orrery, 3 Jj. 3 .Oh., d':)!; Falkiner v. Hornidge, Atk. 282, 288 ; Crooke v. De Varides, 8 Ir. Ch. Kep. 184. 9 Ves. 197, 204; Atkinson v. But- (d) Dnrley v. Martin, 13 C. B. chinson, 3 P. W. 258 ; Lampley v. 683 ; 22 L. J. C. P. 249. Blower, 3 Atk. 396 ; Guodtitle d. Digitized by Microsoft® 188 LIMITATIONS UPON FAILUEE OF ISSUE. Chap, X. Or to a deed. Restricted meaning of " die without issue " where failure of issue is associated with event personal to the ancestor whose issue is spoken of. without leaving a child or children, it was held that although, if the lands had been freehold, A. would have taken an estate tail (" children " being used in the sense of " issue " ), the copyholds not admitting of entail, A. took a fee simple conditional, and the gift over was held void (e). And the rule in Forth v. Chapman would probably be held not to apply to a deed (/). The restricted meaning of " die without issue " will be adopted where the phrase is associated with an event " personal " to him whose issue is spoken of — an event the occurrence or non-occurrence of which is determined by his death. Thus, under a limitation to A., or to A. and his heirs, and if A. die under twenty-one without issue, or if A. die under twenty-one and without issue, or if A. die under twenty-one and unmarried, to B., the limita- tion to B. takes effect as upon a failure of issue living at the death of A. {g). And the same construction holds where the gift over is in case the pi'ior taker dies under twenty-one, or there is failure of his issue; in which case or is read and (h). The reason for adopting the restricted construction in this latter case is stated by Lord Ellenborough : — " It is in order to avoid the mis- chief, which would otherwise happen, of carrying over the estate if the first devisee died under twenty-one though he had left issue the testator leaving it to the devisee after his attaining twenty-one to make what provision he pleased for his issue, if he had any ; but only providing in the event of the devisee dying (e) Doe d. Blesard v. Simpson^ 4 Bing. N. C. 333 ; 3 Man. & G. 929. (/) Olivantv. Wright, 9 Ch. D. 646, 650 ; 47 L. J. Ch. 664. {rj) Toovey v. Basset, 10 East, 460 ; Martin v. Long, 2 Vern. 151 ; Glover V. Moncldon, 3 Bing. 13; Doe d. Johnson v. Johnson, 8 Ex. 81 ; 22 L. J. Ex. 90 ; OiBjjnne v. Berry, Ir. Kep. 9 C. L. 494. The above cases seem to establish the proposition in the text ; but they are, perhaps, not deci ive. (h) Price v. Hmvt, Pollex, 645 ; Fairfield v. Morgan, 2 Bos. & Pul. N. K. 38 ; Right v. Day, 16 East, 67 ; Doe d. Wilkins v. Kemei/s, 9 East, 366. Digitized by Microsoft® LIMITATIONS UPON FAILURE OP ISSUE. ISiJ under twenty-one that the estate should not go over from Cl^ap. X. his issue (i)." Where there was a limitation of real estate to A. and the heirs of his body, with a limitation over to B. on A.'s death under twenty- one and without issue, the failure of issue was held to be a failure at the death of A. ; and B. took a remainder after A.'s estate tail contingent upon A.'s dying under twenty-one without issue then living (k). In the case of a limitation of real estate in fee, or Limitation of of personalty absolutely, to A., followed by a gift over fgg ^r of per- to B., if A. die without issue and without having sonaity abso- T 1 <• 1 ■, -r T. ■ • T lutelytoA. disposed 01 the property, the gift over to B. is void as followed by a being repugnant to the previous limitation of the fee ^*^°^^g ^wmi- or absolute interest to A. The construction is the out issue and, same where the gift over is, if A. die without issue or taving^is"^ without having disposed of the property ; or being po^^d of the ^ ^ n\ I f :> ' & property. read ana {L). In the case of a devise of real estate to A. for life or in Devise to A. fee, followed by a limitation over to B., in default of issue j°g ^j^hrift of A. at or on the death of A., the limitation over takes over upon effect on A.'s death without issue then living (m). Where oix,\t, or on in a will not affected by the Wills Act there was a devise l»is death. of real estate without words of limitation to John, fol- lowed by a proviso that if John should die without heirs of his body the lands should, at John's decease, go to Daniel, in fee, it was held that John took for life, and (i) 16 East, 69. D. M. & G. 152; 25 L. J. Ch. 317 ; (it) Orey v. Pearson, 6 H. L . Cas. Re Wilcocks' Settlement, 1 Ch, D. 61; 26 L. J. Ch. 473. 229; 45 L. J. Ch. 163; In re (I) Grey v. Montagu, 3 B. P. 0. Stringer's Estate, 6 Ch. D. 1 ; 46 314; 2 Eden, 205; Gretited v. L. J. Ch. 823. Oreated, 26 Beav. 621 ; 28 L. J. Ch. (m) Ex parte Davies, 2 Sim. N. S. 756 ; (this case was doubted by 114 ; 21 L. J. Ch. 135 ; Coltsmann .Tames, L. J., 6 Oh. D. 15) ; Beach- v. Coltsmann, L. E. 3 H. L. 121 ; croft V. Broome, 4 T. R. 441 ; Green Doe d. King v. Frost, 3 B. & Aid. V. Harvey, 1 Hare, 428 ; 6 Jur. 0. S. 546 ; Parker v. Birlcs, 1 K. & .7. 704; Incorporated Society \. Rich- 156; 24 L. J. Ch. 117; Grey v. ards, 1 Dr. & W. 258. As to re- Pearson, 6 H. L. C. 61 ; 26 L. J. pugnancy, see Holmes v. Godson, 8 Ch. 473. Digitized by Microsoft® 190 LIMITATIOXS UPON FAILURE OF ISSUE. Chap. X. Daniel a remainder [in fee contingent upon failure at John's death of heirs of his body (w). Bequest of per- A bequest of personal property to A., with a gift over sonaltytoA,, , ^, ta, • t' f : . 8 _ with gift over Upon failure 01 A. s issue at, on, or ajter his death, is coii- upon failure of strued to mean a failure of issue at the death of A. (o). A. s issue, at, on, or after his But under a bequest to A. and his male issue, " and for want of male issue after Jiim" to B., it was held that A took an absolute interest in personalty, the gift over being void for remoteness (i?). The word "after" in the same context does not appear to have the effect of restricting the meaning of failure of issue where the limitation is of real estate (q). Thus in the case of a devise to A. and his heirs, with a gift over upon failure of his issue after his death to B., it was held by Sir E. Sugden that A. took an estate tail (r). A condition to Sometimes a condition is annexed to a gift upon failure within a'stated '^^ issue which raises an inference that a failure at death, period annexed and not an indefinite failure, was intended. Payment by faihire of issue the donee of a sum of money within a stated period is restricts the g^^jj ^ ctmdition (s). Where a cliarge was raised for the meaning of ^ ' o "die without benefit of the executors or the appointees by will of the person whose issue was spoken of, it was held that failure at death was intended (t). Direction to It has been said that if there is a direction to pay a sum person a sum SO charged to a person living at the date of the wiU, or at to be raised on tjjg death of the prior taker, and not to him, his executors death without , , . . • i i i issue. and administrators, there is an indication that the legatee is intended personally to enjoy the sum so charged, and (m) Coltsmann v. CoUsmann, L. R. 249. 3 H. L. 121. (s) In re lii/e's Settlement, 10 (o) Raclcstraw v. Vile, 1 S. & S. Hare, 106 ; 22 \\. .7. C:h. 34.5 ; Blin- 604 ; Stratford v. Powell, 1 Bal. & aton v. Warburtov, 2 K. & J. 400 ; B. 1 ; Pinhury v. Elkin, 1 P. W. 25 L. J. Ch. 468 ; Wyld v. Lew a, 1 663 ; Wilkinson \. South. 7 T. E. Atk. 432, would not he followed at 555; In re Sanders' Trvsts, 1,. R. 1 the present dav. Seeper Wood, V.-C, Eq. 675 ; 12 Jur. N. S. 351 Parker v. Birks, 1 .^. & J. 156, 161 ; (p) Donn V. Perry, 19 Ves. 644. 24 L. J. Ch. 117. iq) Walter v. Drew, Com. 372 ; («) Doe d. Smith >■. Webber, 1 B. Doe d. Cock v. Cooper, 1 East, 229. & Aid. 713. (r) Jones v, Ryan, Ir. Rep. 9 Eq. Digitized by Microsoft® LIMITATION'S UPON FAILUKE OF ISSUE. 191 that therefore a failure of issue at death is intended (u). Chap. X. But it is doubtful whether such a construction would hold at the present day. In Dunk v. Fenner (x) no such inten- tion was inferred from the fact of an annuity for the life of a living person being charged on real estate given over on a failure of issue. And in Doe d. Todd v. Duesbvury {y) Rolfe, B., expressly denied the validity of the argument drawn from the supposed intention of personal enjoy- ment. He said : " The foundation on which this argument rests wholly fails, inasmuch as there is nothing to justify the inference that the gift was intended to be personal to (the donee), and dependent on her being alive to receive it, when payable. A legacy to A. is the same thing as a legacy to him, his executors and administrators, and will be payable to them, whether they are named or not, unless there is something in the will to point to a diffe- rent construction." But in Rye's Settlement Trusts (z), where there was a direction that a sum so charged should vest in the legatee at his age of twenty-one years or marriage, and be paid to him at the death of the person the failure of wliose issue was spoken of, it was held that a failure at death was intended. If it can be gathered from the will that the legatee of the charge, being a person in existence at the date of the will, was intended personally to enjoy the gift, as where the charge is raised in favour of the testator's daughter, "for her own use and benefit," the gift over on failure of issue is good, and is held to take effect upon a failure at deatli (a). There ai'e dicta to the effect that where a gift over Limitation to ~ ., J, . . , 1 ■ . . ' . , B.. a person in upon a failure oi issue is to a person who is m existence existence at at the date of the will, the failure of issue is confined to ^^^ ^^^^ °^ "^^ limitation, (w) Massey v. Hudson, 2 Mer. 345. 130. (ffl) Coltsmanny. CoUsmann,'h.'R. (x) 1 Russ. & M. 557. 3 H. L. 121. See also Grecmcood (y) 8 M. & W. 530 ; 10 L. J. Ex. v. Terdm, 1 K. & J. 74 ; 24 L, J, 410. Oh. 601. (z) 10 Hare, 106 ; 22 L. J. Ch. Digitized by Microsoft® 192 LIMITATIONS UPON FAILUBE OF ISSUeT Chap. X. a failure at death (b). It is sulimitted that this constvuc- upon A.'s tion is opposed to many decided cases and that it cannot iW '"'*™* ^® ^P^^l*^ («)• The decision in Jones v. GuUimore (d), which seems to be in its favour, can be supported upon other grounds. Gift by will in It has been considered that an exception to the general testator's own ^^'® ^^ *° *^® indefinite meaning of " die without issue " issue. occurs in the case of a gift by will in default of the tes- tator's own issue. There is some authority that in such a case the failure intended is a failure of issue at the testator's death (e"). But the cases are not clear, and are by no means decisive of the point. In re Rye's Settle- ment (/) the decision went upon other grounds, and the Vice-Chancellor in his judgment made no reference to the doctrine above stated ; which, if true, would have , rendered further discussion of the testator's intention in that case unnecessary. Limitation Where the limitation to take effect upon a failure of of A. without issue is upon trust to pay debts, it has been held that issue upon failure at death is intended (q). Such a trust could not trust to pay ^'^ ' debts. reasonably be meant to depend upon an indefinite failure' of issue, and this is an indication that the restricted meaning was intended Qi). The authorities are clear that when you have the two cii-cumstauces of (1) the testator being at the time of his death childless ; and (2) of his devising the property for the purpose of paying his debts, which purpose is to be carried into effect immediately (h) Cf. Webster v. Parr, 26 Beav. spoken of by Shadwell, V.-C, as " a 236, 238. strong decision " in liijertony Jones, (c) Greenwoods. Verdon, 1 K. & 3 Sim. 409, 417. J. 74; 24 L. J. Oh. 65 ; Grey v. (/) 10 Hare, 106 ; 22 L. J. Ch. Montagu, 3 B. P. C. 314; 2 Ed. 345. 205 ; Massey v. Hudson, uhi supra. (g) French v. CaddeU, 3 Bro. P. C. {d) 3 Jur. N. S. 404. 257; Wellington v. Wellington, 4 (e) Wellington v. Wellington, 4 Burr. 2165 ; i)/ttoa v. ii/tto/i, 4 Bro. Burr. 2165 ; French v. CaddeU, 3 P. C. 441. Bro. P. C. 257; Sandford v. Irhy, (h) See per Turner, V.-C, Rye's 3 B. & Aid. 654 ; Lytton v. Lytton, Settlement Tr., 10 Hare, 106, 111 ; 4 Bro. C. 0. 441 ; Eno v. Fno, 6 22 L. J. Ch. 345. Hare, 171. Sandford v. Irby is Digitized by Microsoft® LIMITATIONS UPON FAILURE OF ISSUE. 193 upon his death, then the sense to be attributed to the Chap. X. words " in default of issue of my body " is " in default of issue living at my death " (i). Where the subject matter of a limitation is an estate Limitation or interest which necessarily comes to an end within the without Issue period allowed by the perpetuity rule, it would seem that °f ^^ <^«'*'« no question ot remoteness can be raised. It is impossible, for example, that any limitation of an estate pur autre vie, even though expressed to take effect upon an event which may not happen within the perpetuity limit, can, in fact, take effect beyond the legal period (Jc). So in Harris v. Davis (l), where the question was one of remote- ness in a gift of leaseholds, Shadwell, V.-C, in delivering judgment against the validity of the gift, expressly stated that he assumed that the leaseholds had more than twenty-one years to run and were not for lives. A limitation of a life interest to a person living at the Limitation, date of the limitation must take effect, if at all, within ^^^ue oTa^^°o the life of the donee. It would seem, therefore, that no ■^■; ^ P^^^so" ™ question of remoteness could arise upon such a limita- the date of the tion (m). It does not appear, however, to have been J|p'^'">"' ^"'^ expressly decided that a limitation of a life estate to B., a living person, upon an indefinite failure of issue of A., is valid. In Simmons v. Simmons (n), where there was a limitation of real and personal estate to A. for life, with power for A. to dispose of it by will amongst her own issue ; but if A. die without issue, to B. for life, with a gift over if B. die before A, it was held that A. took an (i) Per Kindersley, V.-C, Bagot (m) The question was raised but V. Legge, 10 Jur. N. S. 994 ; 34 L. not decided in King v. Cotton, 2 P. J. Ch. 156. W. 674 ; in Oakes v. Chalfout, Pollex. (it) See per Brougham, C, Camp- 38, the limitation for life following hell V. Ha/rding, 2 Russ. & My. 390, life estates to unborn persons was 406. held good. (I) 1 Coll. 416 ; 9 Jur. 0. S. 269. (n) 8 Sim. 22 ; 5 L. J. Ch. 198 ; And see 45 & 46 Vict, u, 39, s. 10, the validity of the gift to Gwiu infra, p. , which seems to assume Simmons, (B), upon the ground the validity of a limitation upon an above suggested does not appear to indefinite failure of issue in certain have been considered. Digitized by Microsoft® 194 LIMITATIONS UPON FAILURE OF ISSUE. Chap. X. estate tail in the real estate, and the personalty ab- solutely. Cases in which the validity of a limitation to B., a living person, for life, upon failure of issue of A. has been discussed, have been decided in favour of the limitation ; but upon the ground that the failure of issue intended was a failure within the lives of A. (o) or of B. {p). And the limitation over to B. being for life only has been relied upon as indicating that a restricted failure was intended, and not as a ground for the validity of the limitation independently of the event upon which it was expressed to take effect {q). Where the limitation over carries, besides the life interest to B., the fee or absolute interest, it has been held that there is no ground for construing failure of issue in the restricted sense (r). Thus in the case of a limitation upon failure of issue of A., to B. for life, with remainder to C. in fee, the limitations to B. and C. would, it seems, be void for remoteness (r). Limitation Where there is a limitation upon failure of issue of A. issue of A. to to a person or class of persons in existence at the date of a person or ^^ instrument or at the testator's death, and it can be class ot persons in existence at collected from the instrument that the limitation was limitation If ^ intended to take effect only in the event of the person they be alive to intended to take being alive at the time of the limitation taking elFect in possession, the failure of issue is not indefinite, and the limitation is not too remote. " There has been a series of authorities from Hughes v. Sayer (s) (o) Boe d. Sheers v. J-y's Estate, 1 L. K. L. K.. 9 Ch. 651. Ir. 296. {q) Green v. Green, 3 De G. & Digitized by Microsoft® LIMITATIONS UPON FAILURE OF ISSUE. 2U5 applied, that the gift over was not too remote ; and that chap. x. A., having attained twenty-one, took the fee defeasible on his death without issue of the age of twenty-one then living. By s. 10 of the Conveyancing Act, 1882 (45 & 46 Vict. Further re- om V • 4. A fU strictionbythe C. 6[)), it IS enacted as lolioWS : Conveyancing Act, 1882, of "Where there is a person entitled to land for an estate in the time within which a limi- fee, or for a term of years absolute or determinable on life, or tation of real for term of life, with an executory limitation over on default or estate on _ ' ■' failure of issue failure of aU or any of his issue, whether within or at any may take specified period or time or not, that executory limitation shall effect, be or become void and incapable of taking effect, if and as soon as there is living any issue who has attained the age of twenty- one years of the class on default or failure whereof the limitation over was to take effect." This enactment applies only to instruments coming into operation after the Slst December, 1882; to limitations of land (t) ; and where the issue whose failure is spoken of is the issue of a person to whom the property is limited in fee, for life, or for a term of years absolute or deter- minable on life (i. e., on the death of some person). It restricts the time within which a limitation on failure of issue within the line of perpetuity may, in the event specified, take effect ; but it does not otherwise touch the question of remoteness. Though the Act purports to apply to limitations upon failure of issue not " within or at any specified period or time " such limitations, except, perhaps, in the case of a term with less than twenty-one years to run, or determinable on death (it), are altogether void for remoteness, and cannot take effect, though the issue fail before any of them attain twenty-one years. {t) There is no definition of would apply, "land" in the Act; but probably («) See supj-a, p. 193. that of 44 & 45 Vict. o. 41, ». 2, Digitized by Microsoft® 206 CHAPTER XI. LIMITATIONS VESTED OR CONTINGENT ; DEFERRED ENJOYMENT. Chap. XI. 'Where money is bequeathed and a future time named Legacy pay- for its payment the legacy is vested or contingent, that is tk^ls'^vrstS^ *° ^^y' 'tested immediately or at the time named for pay- or contingent ment, according as the time is annexed to the gift or the the°time^is'^ payment. If, therefore, the time named is beyond the annexed to the line of perpetuity, and is annexed to the gift, the bequest payment. wiU be void for remoteness. But if the time named is And valid or not annexed to the gift, but is the time named for pay- motenesa ac- Hient of a legacy previously given in absolute terms, the cordmgiy, if direction to pay at a future time is rejected, and the gift beyond the remains absolute. It is rejected, not on grounds of petuTtv^^"^" remoteness, and whether remoteness is involved or not. Direction to because of its repugnancy to the previous gift, which pay at a confers the absolute interest. For it is a rule of law that future tune rejected as re- where a person has an absolute vested interest in pro- ^Se'there is P^^ty' ^^^ ^an give a discharge for it, he is entitled to an an absolute immediate transfer notwithstanding any words purport- ing to restrict the right to possession ; and even though the direction is, to pay or transfer at a future time. The rule was so stated by Malins, V.-C, in a recent case (a) following the well known decision in Saunders V. Vautier (b). In the latter case a testator gave a sum (a) Hilton v. Hilton, L. E. 14 Eq. See also Swaffield v. Orton, I De G-. 468, 475. & Sm. 326. (6) 4 Beav. 115 ; 1 Cr. & Ph. 240, Digitized by Microsoft® DEFEBRED ENJOYMENT. 207 of stock upon trust to accumulate until A. should attain Chap. xi. twenty-five, and then to pay and transfer the stock and accumulations to A., his executors administrators and assigns. It was held that A. was entitled to payment and transfer of the whole upon his attaining the age of twenty-one. A simple application of this rule in connection with the law of remoteness occurs in the case of a gift to the children of a living person, followed by a direction that the property is to be paid, transferred, or enjoyed at an age beyond twenty-one. Such a gift is not void for remoteness (c). But though a limitation to the children of A., payable Common mis- at twenty-two, is valid, a limitation to the children of A. ^ ohUdran of at twenty-two is void for remoteness. The former vests living person, T , T 1 , •■1 1 -1 1 / 1 1 t" vest at an immediately, the latter not until a child (who may be age beyond unborn at the testator's death) attains twenty- two. From twenty-one. the cases mentioned in the subsequent pages of this Chapter it will be seen that the attempt is frequently made to limit property to an unborn person, or to a class which may include an unborn person, so that it shall not vest until the donee, or one of the donees, attains an age beyond twenty-one. No such limitation can be valid. If the gift is to the children of a living person, including children unborn at the testator's death, the limitation is altogether void for remoteness, unless it must vest when or before the youngest of such children attains twenty- one. The books show that this application of the Rule against Perpetuities is frequently overlooked. In the case of an absolute gift, followed by a separate and distinct clause directing payment at a future time, there is no difficulty in determining that the time is annexed to the direction to pay, and not to the gift. In other cases the point is not so clear. The rules by which the testator's intention is ascertained, and the time of (c) See infra, p. 208. Digitized by Microsoft® 208 LIMITATIONS VESTED OR CONTINGENT; Chap. XI. vesting determined, are rules of construction and do not properly fall within the scope of this work. They are fully discussed in the text-books which deal with the subject of construction (c); and it is proposed here to state such of them only as have been illustrated by cases in which the question of remoteness has been involved. Time of vest- Although the general rule is clear, and it has been ous limitations stated in the plainest terms in many cases, that, upon the determined question of Construction, the result as regards remoteness without regard ■'• . _ ' ° to result, as or otherwise is irrelevant (d), there are nevertheless cases motenesr ^ which established rules of construction have not been applied, where the result of applying them would have been to make the limitation void for remoteness, and apparently for that reason only. The rule, so to con- strue an instrument ut magis valeat quam pereat, has its influence where remoteness is involved, as well as on other occasions where one construction will give effect to the limitation and the other destroy it. In a case where the question was whether a gift vested at birth or at twenty-five it was recognised by Wood, V.-C, as "a further objection" to the construction of a vesting at twenty-five that it would have caused the limitation to fail for remoteness (e). Gift to the The following cases illustrate the rule above stated, payable, or to' that a gift to the children of a living person payable, or be paid, or ^q ^g paid, transferred, or divided, at an age beyond transferred, at ^ • i r i an age beyond twenty-one, is not void for remoteness ; the time, in such irnot^vokf' ^ case, being attached to the payment and not to the gift for remote- of the legacy. In Bodaon v. Hay (/) the gift was of residuary real and personal estate to the children of A. ; with a super- added direction that each child should be educated with (c) See 1 .Tarman on Wills, 4tli (d) See pp. 262, seq. ed., 799—863 ; Theobald on Wills, (c) GosKng v. Ooshng, Johns. 265, 2nd ed., 398—423 ; Hawkins on the 274; 5 Jur. N. S. 910. Construction of Wills, 2-21—242. (/) 3 Bro. C. C. 404. Digitized by Microsoft® ness. DEFEKRED ENJOYMENT. 209 the income of his share, and tliat his share should "not Chap. XI. be otherwise claimed or inherited, directly or indirectly, until the said children arrive at the age of twenty-two years, whether married or single." It was held that the gift being, in the first instance, absolute, and the words following being intended only to fix the time of payment, the gift was not void fur remoteness. In Gosling v. Gosling (g) the testator, after devising by his will real and personal estate in absolute terms to persons (some of whom were unborn) in succession for life and otherwise, added in a codicil that his desire was that no one should be put in possession of his estate, or should enjoy the rents and income thereof, until he should attain the age of twenty-five ; and in the meantime the income was to accumulate. It was held by Wood, V.-C, that these expressions related simply to the enjoyment of the property, and did not operate as a revocation of the previous absolute gift. In Coventry v. Coventry (h) there was a gift, by the will of a testator who died in 1855, of real and personal estate, upon trust to accumulate until the year 1875, when the whole was to fall into the residue. The residue was given to A., B., and " all my (the testator's) grand- children." It was held that the grandchildren living at the testator's death were entitled to the real and personal estate immediately, and free from the trust to accumulate. In Packer v. Scott (i) there was a bequest of personal property, in trust, as and when the child and children of A. should severally attain twenty-one, to pay and divide the same between them and the children of such of them as should die under twenty-one ; but so that the children of a deceased child should take, on attaining twenty -one, their parent's share. It was held that the gift to the children was valid ; and that it was not made void for ig) Johns. 265 ; 5 Jur. N. S. 910. 985. (A) 2 Dr. & Km. 470 ; 13 W. E. (i) 33 Beav. 511. Digitized by Microsoft® 210 LIMITATIONS VESTED OR COXTINGENT. Chap. XI. remoteness by the clause directing that the children of a deceased child on attaining twenty-one should take their parent's share. In Blease v. Burgh (A) there was a bequest of residue upon trust to accumulate, and upon trust, as to capital and accumulations, for the children of A. other than B., to be paid on their attaining twenty-three ; with a gift over in the event of the death of all the children under twenty-three. In Greet v. Greet (l) there was a trust of residue, after the death of a person who took a life interest, for the children of the tenant for life, with a direction (in effect) that their shares should be paid at twenty-four. In both these cases the gift to the children was held to be vested at birth ; and, consequently, not void for remote- ness. Farmer v. Francis (m) is a similar case, with reference to real estate. The devise there was upon trust for A. for life, and after her death for all her children then living, equally " to be divided share and share alike when and as they shall respectively attain the age of twenty-four." It ■was held that all the children living at A.'s death took vested interests, and that the gift was, therefore, not void for remoteness. A testator (n) declared that the bequest to a daughter, A., should be enjoyed by her for life, and he directed that after her death it should be " put in trust for the benefit of the child or children which she may leave, and to be divided in equal proportions between her children and after they have attained the age of twenty-five years." And he "in like manner" directed that the bequest to his other daughter, B., should be enjoyed by her for life, and after her death "that the whole amount may be con- tinued in trust, and may be divided equally between (k) 2 Beav. 221 ; 9 L. J. Ch. 226. («,) Saumarez v. Saumare- ^ (!) 5 Beav. 123. Beav. 432. im) 2 Bing. 1.51. Digitized by Microsoft® DEFEURED ENJOYMENT. 211 her children after they have attained the age of twenty- ^^^V- ^^■ five years." It was lield by Lord Langdale that both the gifts to the children were valid ; and that the children took interests which vested at birth. The case is the same when the gift is to A. for life, and after his decease to A.'s children, as they attain a given age ; with a gift over upon A.'s death without issue then living (o). A bequest to the children of a living person, to be paid upon their attaining twenty-five, has been held void for remoteness because of a subsequent gift "if but one child, to such child at twenty-five." The gift to the one child being contingent (p), it was held that the preceding gifts werealso contingent (g). A gift over in the event of no child attaining the given Effect of gift T . 1 •! T T^ ■ ''^er if no age does not prevent vesting meanwhile, in JJavies v. child attains Fisher (?•), and Blease v. Burgh (s), gifts to children of A., *''^ ^"^^ "S^. ]n terms purporting to defer possession beyond twenty- one, were held to be vested at birth, notwithstanding a gift over, in each case, if no child attained the given age. But it was said by Sir J. Leach, in Vawdry v. Geddes (t), that a gift over under the given age rebuts the presump- tion of vesting which arises from a gift of the income until the given age. In some cases a gift over, upon the death of the primarj'- donee under the given age without issue, has been relied on as showing that the principal gift is vested. Thus in Bland v. Williains (ii) there was a gift of residue, upon trust to apply the income, or a sufficient part thereof, in (o) See Bree v. Perfect, 1 Coll. i^ouMs, L.R. 5 Eq. 268; 37 L. J. Ch. 128 ; 8 Jur. 0. S. 282 ; Doe d. 260 ; GrijUh v. Blunt, 4 Beav. 248 ; Dolley V. Ward, 9 A. & E. 582 ; 8 10 L. J. Ch. 372. Ia J. Q. B. 154. {r) 5 Beav. 201 ; 11 L. J. Ch. (p) See infra, p. 213. 338. (q) Judd V. Judd, 3 Sim. 525 ; (s) 2 Beav. 221 ; mpra, p. 210. Hunter v. Judd, 4 Sim. 455. But (i!) 1 R. & M. 203, 208. qucere as to this ; see Walher v. (u) 3 M. & K. 411 ; 3 L. J. Ch. Mower, 16 Beav. 365 ; Johnson v. 218. p2 Digitized by Microsoft® 212 LIMITATIONS VESTED OR CONTINGENT. Chap. XI. the maintenance of the children of the testator's daughters until they should attain twenty-fonr ; and when and as they should respectively attain twenty-four, to pay the residue and unapplied income to the children ; with a gift over, if any child should die under twenty-four and with- out issue, of the share of such chiM to the otlier children attaining twenty-four. It was held by Sir J. Leach that the gift over showed that the gift to the children vested in them at birth. The latter gift, therefore, was not void for remoteness (x). Bree v. Perfect, supra, is a similar case. A gift over, upon the death of one of the class under the given age, to the others, followed by a gift over, in case of death leaving issue, to the issue, has been held to show that there is no vesting before the age mentioned. In Rowland v. Tawney {y) there was a gift of a sum of money, upon the death of A., to the children of B. ; and there was a direction that the legacy which any person should take under the will should " be considered as a vested interest at the age of twenty-five years " ; with a gift over of the share of any legatee dying before his legacy became "so vested" to his brothers and sisters, and in case of his leaving issue, to the issue, to be vested and payable in like manner. There was a power of main- tenance out of shares to which legatees were "presump- tively entitled." The gift was held void for remoteness, there being no vesting before twenty-five. The gift over to issue was relied on, amongst other indications, as showing that the gift vested at twenty-five. A gift to the children of a living person contingent upon a remote event (the attainment of the age of thirty by one of the children) has been held vested by reason of a gift over " if any such child " should die under thirty. The gift over showing that all the children, and not those {x) Thegiftofinoomeuntiltwenty- vested at birth, one does not appear to have been (ij) 26 Beav. G7. relied on, as showing that the gift Digitized by Microsoft® DEFERRED . ENJOYMENT. 213 only who attained thirty, wei-e intended to take vested ^^*P ^^• interests {z). In In re Edmonson's Estate (a) a gift over of shares, which the parents would have taken " if living," to issue, was relied on as showing that the parents took vested interests. A bequest of personal property to, or upon trust to pay J^'f' " ^V' to, an individual or a class, "at," "upon," or "from and "from'and after," attaining a given age; or "where," "if," or "as," *''^™^^?f „y„ he or they attain a given age, is contingent. If therefore or "as," the ,1 • ri • . •^ ^ •^ ^ r t ' 1 j.i donee attains the gilt is to the children ot a living person, and the ^ given a.. 239, 247 ; 47 (u) 20 Beav. 214. L. J. Ch 121. Digitized by Microsoft® 218 LIMITATIONS VESTED OE CONTINGENT. Chap. XI ^Qy|j place at twenty-four. The trust was, therefore, held void for remoteness. In Gromeh v. Lumh {x) a gift to the testator's pre-ent and future grandchildren was followed by a proviso (ap- plicable to this and other gifts), that legacies and thares given by the will should vest at twenty-three. The gift was held void for remoteness. So in Pickford v. Brown (y) there was a gift of resi- duary real and personal estate, upon trust, after the death of B., a tenant for life, for his children, "the share and interest of every son to be vested in him on attaining the age of twenty-five years"; . . . "the said shares" in the meantime to be laid out and applied towards main- tenance, education, and advancement; with a gift over to survivors (to be vested in a similar manner) of shares of children dying under twenty-five. The gift was held void for remoteness. And in Rowland v. Taumey («), above mentioned, an absolute gift, followed by a direction that all legacies were '■■ to be considered as a vested interest at the age of twenty-five years " was held to vest at twenty-five, and not before. Though an express direction as to the time of vesting is paramount, the word is so often used inaccurately that the question generally arises whether by directing a legacy to vest at a particular time the testator did not mean vest in possession, or vest iudefeasibly (a). Gift of income A bequest in terms contingent upon the attainment by until payment ^j^ legatee of a slven age or other future event is never- vests the tJ too principal. theless Vested if the whole of the interest iu the mean- while is given to, or for the benefit of, the legatee. The (x) 3 Y. & C. 565. {a) See supra, p. 42 ; and see In (y) 2 K. & J. 426; 25 L. J. Ch. re Peathei-stone's Tr., 22 Ch. D. Ill, 394; see also Comport y. Austen, 12 where a direction that legacies should Sim. 218, a somewhat complicated vest at the testator's death was held case, but decided upon the same to uiean that only those of the lega- principle. ' tees who survived the testator should (z) 26 Boav. 67 ; supra, p. 212. take. Digitized by Microsoft® DEFERRED ENJOYMENT. 219 result is the same whether the gift of interest is direct, or ^^^"P- ^^- in the form of maintenance (b) ; and whether the interest, up t() the given time, is first given, and then the principal, or vice versa (c). A trust to sell real estate at a time which was beyond the line of perpetuity, and to divide the proceeds amongst a class to be ascertained within the legal period, with a gift of the rents and profits until sale to the same class was, in Goodier v. Johnson (d), held to operate as an absolute gift of the lands to the class, discharged of the trust for sale, which was rejected for remoteness. So also where there is no express gift of income, but a \yhetherthe trust for the legatee until he attains a given age, and ^ express or then for him absolutely, the gift vests immediately. ""*• In Hardcastle v. Hardcastle (e) leaseholds were be- queathed, after the death of a tenant for life, upon trust for all her children, until such children should respectively attain twenty -five, or die leaving issue ; and then upon upon trust for such children so attaining twenty -five or dying leaving issue, equally ; with a similar trust in case one child only should attain twenty-five, or die leaving issue ; and a gift over if there should be no child, or if all should die under twenty-five, or without issue. It was held that the gift to children was not too remote ; that they took interests vested at birth ; and that the gift over was void for I'emoteness. Though the rule as to a gift of income vesting the Reason for corpus is well established, the principle upon which it is ^ gif "o^f ^^ (6) Per Lord C'ottenham, Watsrni see Goodier v. Johnson, infra. V. Hayes, 5 M. & Cr. 125, 133; i (c) Holbs v. Parsons, 2' Sm. & G. Jur. O. S. 186; cited 1 Sm. & G. 212; 23 L. T. O. S. 47. Unless 55; Fnx V. Pox, L. R. 19 Eq. 286 ; perhaps where the age is far beyond 23 W. R. 314; See, however, /n re twenty-one; see per Jessel, M.R., Ashmore's Tr., L. R 9 Eq. 99 ; 39 In re Bann, 16 Ch. D. 47, 48. L. J. Ch. 202; following Puhford (d) 18 Ch. D. 441; 61 L. J. Ch. V. Hunter, 3 Bro. CG. 416 ; and the 369. observations of Hall, V.-C., on Fox (e) 1 H. & M. 405; 7 L. T. N. S. V. Fox in Dewar v. Brooke, 14 Ch. 503. D. 529, 532; 49 L. J. Ch. 374; and Digitized by Microsoft® 220 LIMITATIONS VESTED OR CONTINGENT. Gift to class with gift of income of shades to the members respectively. Chap. XI. founded is not so clear. Tliree reasons have been assigned income vesting wliy, in such a Case, tlae corpus should vest: (1) because, corpus. ^y gQ dealing with the income, the testator implies that the legatee is entitled to it under the gift of corpus (/) ; (2) because a gift of corpus at a future time, with a gift meanwhile of income, is, in effect, an immediate gift of corpus (g) ; and (3) because " for the purpose of interest, the particular legacy is to be immediately separated from the bulk of the property " (h). These various reasons are not, it will be observed, altogether consistent with each other. "Where the gift is to a class, there is some difficulty as to a gift of income vesting the corpus. A distinction has been drawn between a gift to a class as tenants in com- mon with a gift of the income of the respective shares to the members of the class until the time for payment of the corpus, and a gift of an entire fund to a class, with a gift of the income of the entire fund for the benefit of the class. In the latter case it has been said that a mem- ber of the class who dies before the time for payment does not take. In the former case it is clear that the gift vests immediately. Thus in Harrison v. Grimwood (i) a testator directed his residuary estate to be sold ; the proceeds to be held, after the death of his daughter, "upon trust to pay, apply, and divide one-third part of the said principal monies unto and amongst all and every " her children, " when and as they should respectively attain the age of twenty- six years,'' with benefit of survivorship, if any should die under age without issue ; and ujion trust, if any of the children should be under twenty-one, at the daughter's death, to put out at interest their shares, and, during (/) Davies v. Fisher, 5 Beav. 201 ; 11 L. J. Ch. 338. {//) Ifunson v. Graham, 6 Ves. 239, 249; and see per Wood, V.-C, in Pearsvn v . Dolman, L. K. 3 Etj. 315 ; 36 L. J. Ch. 258. (/() Per Sir J. I, each, Vaudnj \. Gcddes, 1 E. & M. 203, 208. (i) 12 Lciiv. 1112; IS L, J. Ch. ■1S5. Digitized by Microsoft® DEFICRKED ENJOYMENT. " 221 their minority, to apply the interest, or a competent part "hap. XI. tliereof, towards their maintenances. There was a power of advancement, and a gift over, in case of death under twenty-six without issue. It was held that the children took vested interests, an'l that the gift was not too remote. In Hohhs v. Parsons (k) a testator directed the income of the proceeds of the sale of his real estate to be paid to his two daughters equally for their lives ; and after their deaths the capital and interest was " to go to their respec- tive children for their support and maintenance until they shall attain the age of twenty-two years severally ; they to receive the principal and interest as they attain such age in equal shares ;" with a gift over to the survivors of the shares of any of them dying under twenty-two. It was held that the gift to the children was not void for remoteness. In Tatham v. Vernon, (l) the testator gave the residue of his estate, after the death of his wife, to his children equally; as to daughters' shares upon trust for them respectively for life, and after the death of each daughter " upon trust to pay and divide her share amongst her children equally at their several ages of twenty-five years ; and in the meantime the interest and dividends of such daughter's share to go and be applied in the main- tenance, support, and education, of such child's issue during his, her, or their respective minorities in equal portions." It was held that the gift to daughters' children vested immediately, and was not too remote. A testator (m) directed his trustees to divide and transfer a fund amongst the children of T., as and when they should respectively attain twenty-five ; " apply- (i) 2 Sm. & G. 212 ; 23 L. T. 0. 23 W. R. 314. See the observa- S. 47. tions of Hall, V.-C, on this case in (I) 29 Beav. 604 ; 4 L. T. N. S. Vetoar v. Brooke, 14 Ch. D. 529, 631. 532; 49 L. J. Ch. 374, (m) Foxv. Fox, L. E. 19 Eq. 286 ; Digitized by Microsoft® 222 IJMITATIOXS VESTED Oil CoXTINGENT. Chap. XI. jj^g from time to time the income of the presumptive share of each child, . . . or so much thereof respec- tively as the trustees or trustee for the time being should think proper, to and for his and her maintenance and education until such share should become payable as aforesaid." It was held by Jessel, M.R, that the gift was vested, and not too remote. Gift to a class ^ j-^^g been said that where the gift is, of an entire equally at a o > given age, fund, payable to a class equally on their attaining a given inconS o£°the ^»®' ^ direction to apply the income of the whole fund in fund for the the meantime for their maintenance, has not the effect of class mean- Vesting the shares of members of the class who die before while. that age (n). The cases do not appear to support this distinction. In Dell V. Cade (o) there was a bequest of £2000 upon trust, after the death of A. (who took a life interest), to pay and divide the same amongst the children of A. on attaining twenty-four ; and in the meantime the interest to be applied for the use and benefit of such children. It was held that, by reason of the direction as to main- tenance, the gift to the children vested at birth, and was not too remote. In Davies v. Fisher (p) there was a bequest upon trust after the death of A. (who took a life interest), for the children of A. " as they severally attain " twenty-five ; the income to be applied during their respective minorities for their respective maintenance ; with a gift over in case no child attained twenty-five. The gift was held to be vested and not too remote. In re Grove's Ti-iisfs (q), and Boulton V. Pilcher (r), are similar cases, except that no question of remoteness was involved. (m) Per Jessel, M.R.,/» re Pdi-fer, (o) 2 J. & H. 122 ; 31 L. J. Ch. Barker v. Barker, 16 Ch. D. 44, 46. 383. See also [n re Ashmore's Tr., L. R. (p) 5 B. 201 ; 11 L. J. Ch 338 9 Eq. 99 ; 39 L. R. Ch. 202 ; per (5) 3 Giff. 675 ; 28 L. J. Uh. 5.i6. James, V.-C, and per Wood, V.-C, (r) 29 Beav. 633 ; 9 W. R. 626. in Lloyd v. Lloyd, 3 K. & J. 20. Digitized by Microsoft® DEFERRED ENJOYMENT. 223 Where tliei-e is a gift to a class to be ascertained at a Chap. XI. future time, a gift of the income, as a common fund, for Gift to a con- the benefit of all the contingent members of the class for tingent class . . _ ° with gilt of the time being, until the ascertainment of the class, does income mean- not vest the corpus. This was the case in In re Hunter's be^j." 'f or the™ Trusts (s), In re Grimshaw's Trusts {t), and in Lloyd v. time being. Lloyd (u). In the last mentioned case there was a trust to apply rents to maintain a class of children until the youngest attained a given age, and then to sell and divide the proceeds (in effect) amongst such of the children as were then living. It is obvious that a child who died before the youngest attained the given age took no interest in the corpus, vested or otherwise («). But though a gift to a class to be ascertained at a future time cannot vest until the class is ascertained, there is no reason why a gift to the children of A. at their age of twenty-two, with a gift of the income meanwhile for the benefit of such children, should not vest immediately if such is the intention (y). A gift of income by way of direction to trustees to Direction to accumulate it, or apply it for the benefit of the legatees, income or as they think fit, is held to be no sufficient indication of fPPly i* ^ "'^ benefit of an intention to vest the corpus. legatees. In Pichford v. Brmvn {z) there was a gift to children of the testator's daughter, the shares to be vested at twenty-five ; with a direction that the income of the children's shares should be applied in their maintenance or advancement or be accumulated at the discretion of the trustees. It was held that the gift vested at twenty- five, and was void for remoteness, both as to income and capital. (s) L. E. 1 Eq. 295. [y] In re Parker, BarTcer v. Bar- it) 11 Ch. D. 406 ; 48 L. J. Ch. l-er, 16 Ch. D. 44 ; Jessel, MR., 399. appears to have considered the class (u) 3 K. & J. 20. to be contingent ; sed qu. [x) See infra, p. 226, Dewar v. (2) 2 K. & J. 426 ; 25 L. J. Ch. Broolce, 15 Ch. D. 529. 702. Digitized by Microsoft® 2-4 LIMITATIOX.S VESTED OK CONTINGENT. Chap. XI. Iq Vawdry v. Geddea (a) the testatrix gave the interest of her residuary estate to her four sisters for life, and directed that upon their deaths the interest on their respective shares should at the discretion of the executors be applied to the maintenance or be accumulated for the benefit of the children of each of them so dying until the children should respectively attain twenty-two; "and upon their (the childrens') attainment to that age, they to be entitled to their mother's share of the principal;'' with gifts over upon death under twenty-two. The gift to children was held void for remoteness. Direction to It seems that an express direction to trustees to employ apply so much gQ ^^^jh of the income as thev think fit towards mainte- ot income as ^ ^ '^ trustees think nauco is Conclusive to show that during minority tlie tenanra'^'"" legatees are not entitled to the whole income; and conse- quently that they do not take vested interests (h). But it is otherwise where the direction is that the trustees shall pay the whole or such part of the income as they shall think tit ; there being also a gift to the legatee of the whole of the income (c). Gift of income The gift of income may be so separated and distinct anYg'ift rf^"^ from that of the corpus that, without having the effect of corpus void for vesting the corpus, it is a valid gift of income ; whilst the gift of corpus is void fur remoteness. Thus in Gooding v. Read there was a gift by will of the rents of real estate for the benefit of the children of A. until the youngest attained twenty-five, followed by a trust to sell the lands and divide the proceeds amongst the children of A. then living. It was held that tlie liift of the rents was valid (d) ; and that of the laud void for remoteness (e). (a) 1 E. & M. 203. The gift (c) Sen per Jpssel, M.E., 16 Ch. over vfas relied oc by 3'r J- Leach D. 46 ; svprn, p. 222. as showing that there was no vest- (d) Gooditiy v. Read, 4 D. M. & G. ing before twenty-twg. 510. (6) See per Wood, V.^C, Hard- {e) Read v. Goodiny, 21 Beav. castle V. Ilardcastle, 1 H. & M. 405, 478. 410; 7L. T. N.S. 503, Digitized by Microsoft® DEFERRED ENJOYMENT. 225 A gift of an annual sum is not equivalent to a gift of ^^^^- ^^• interest, so as to vest the corpus. In Boughton v. Gift of annual James (/) there was a bequest upon trust to pay ^^0 g™ "lent to yearly for the use of daughters of A. born in the tes- gift of interest. tator's life or, afterwards, until they should respectively attain twenty-five or be married with consent of persons named in the will ; and upon their respectively attaining twenty-five or marrying as aforesaid, in trust to pay each of them £1500. It was held that, as to daughters born after the testator's death, the gift of the £1500 was too remote. A gift of the principal and interest in the same terms *^'^' °^ ° . .-in principal and at a luture time does not vest, as to the capital, before interest to, the given time, by reason of the gift of interest. It is S®*^'' 't' * ° 'J _ o _ remote time. only when the gift of interest is immediate that it can have the effect of vesting the corpus. In Chance v. Chance (g) the testator gave the interest on a sum of Consols to persons successively for life, and after the death of the survivor he gave the principal " to be divided into two equal half parts or shares, and one such half part or share to be transferred or paid unto and equally divided between all the children of my said son A. at the age of twenty-five years, with all interests and dividends thereon." The gift was held void for remote- ness. Whether a gift of interest during " minority," when Gift of income the gift of corpus is contingent upon attaining an age "minority," beyond twenty-one, will have the effect of vesting the '^"'^ "^ '^"''P™ ,•'„,'_,. „. , ,,^ T rr, at twenty-two. corpus, IS doubtful. In Davies v. Ji%srher {h), and Tatham, V. Vernon (i), gifts to the children of a living person, contingent upon their attaining an age beyond twenty- one, were held to be valid in consequence of gifts of the (/) 1 Coll. C. C. 26. Boughton 57 L. J. Ch. 74. \. Boughton,! H. L. C. 406, ie an (A) 5 Beav. 201; 11 L, J. Ch. appeal on another part of this case. 338. (g) 16 Beav. 572; and see Patch- (i) 29 Beav. 604 ; 4 L. T. N. S. ing V. Barn^tt, 49 L. J. Ch. 665 ; 531. Digitized by Microsoft® 226 LIMITATIONS VESTED OR CONTINGENT. Chap. XI. interest during " minority." But, unless " minority " can be read as meaning " until the time for payment of the corpus," it seems that there will be no vesting (k). In Milroy v. Milroy (I) there was a gift of interest for the benefit of the children of a living person during " minority," and a trust, when the youngest attained twenty-five, to pay interest and principal to the children equally. The language of the will is confused, but there are indications that " minority '' referred to the attain- ment of the age of twenty-five. The gift was held valid. Gift to a class A gift to a class to be ascertained at a future time taiiie(f aTa vests when the class is ascertained, and not before. It future time, is immaterial that the interest is given meanwhile to or interest until for the benefit of the persons who for the time being are class ascer- contingent members of the class. There can be no tamed. . ° . vesting until the members of the class and also the shares in which they take are ascertained («i). In Thomas v. Wilberfmxe (n) there was a gift by will of real and personal estate in trust (after the death of a life tenant) for all the children of the tenant for life who slTould attain twenty-two, with power during minority to apply towards his maintenance the income or fund to which each child should be entitled. The gift was held void for remoteness. In The Marquis of Bute v. Harman (o) the testator bequeathed £50,000 upon trust for A. for life, and after her death upon trust to assign the same unto such child- ren of A. as should attain twenty-five, " the right or share (Jc) See per Wood, V.-C, Pearson M. Dolman, 36 L. J. Ch. 258 ; L. E. 3 Eq. 315, 321. Thomas v. Wilber- force, 31 Beav. 299, is not conclu- sive, because there the class was too remote. (I) 14 Sim. 48; 8 Jur. 0. S. 234. (m) See supra, p. 85. (») 31 Beav. 299 ; see also Bull V. Pritchard, 1 Euss. 213 ; 6 Ha. 567 ; 16 L. J. Ch. 185 ; Dodd v. Wake, 8 Sim. 615 ; Newman v. Neic- man, 10 Sim. 51 ; 8 L. J. Ch. 354 ; Gooding v. Head, supra. (o) 9 Beav. 320. The report here is incorrect as to the validity of the gift. See Southei-n v. WoUaston, 16 Beav. 166; 22 L. J. Ch. 664; .Bwe- ham V. Bignall, 8 Ha. 131, 133, note (d). Digitized by Microsoft® DEFERRED ENJOYMENT. 227 of such child or children respectively to be a vested •"'*P- ^^■ interest and transmissible to his, her, or their personal representatives notwithstanding his, her, or their subse- quent death in the lifetime of the said A." There followed a power for the trustees during minority to apply the whole or any part of the income of " their expectant shares " in maintaining the children respectively. It was held that the gift to the children was void for remoteness. In Ring v. Hardmick (p) there was a gift to children " who shall live to attain the said age of twenty-five years " of certain of the testator's daughters. The gift was held void for remoteness, notwithstanding clauses for maintenance and advancement out of " the shares " of the children. In Blagrove v. Hancock (q) the testator devised real estate to trustees in trust to apply the rents for the main- tenance and support of his wife and his present and future grandchildren during the life of his wife ; and on her "death to convey the same to " all my present and future grandchildren as they respectively attain the age of twenty -five years " as tenants in common. It was held that the trust to convey was void for remoteness. Where the gift is to a class of children when the youngest attains a given age, the class to take is ascer- tained when the youngest child attains the given age ; and no child who fails to attain the given age takes. In such a case a gift of interest, until the youngest child attains twenty-one, for the benefit of the children, does not enlarge the class, or accelerate the vesting, so as to enable a child attaining twenty-one, and dying before the youngest attains twenty-one, to take (r). If, therefore, the period for ascertaining the class is too remote, a gift of interest meanwhile will not make the gift valid. (p) 2 Beav. 352 ; 4 Jur. 0. S. (q) 16 Sim. 371 ; 18 L. J. Ch. 20. 242. ()•) Lloijd V. Lloyd, 3 K. & J. 20. Q 2 Digitized by Microsoft® 228 LIMITATIONS VESTED OR CONTINGENT. Chap. XI. jj. appears that in such cases a direction to apply the interest to maintenance of the children "during their minority " means until the youngest child attains twenty- one (s). A gift, at a future time, to such of a class as attain a given age, with a direction for payment when the youngest attains the given age, may mean that payment is not to be made before that time, and not that the shares of all the children then living are then to vest ; so as to enable a child then living and afterwards dying under the given age to take (t). Trust to accu- iJq ^ gift upon trust to accumulate income until a re- miilate until ° ■*■ remote period mote event, and then to pay capital and accumulations to pay capital* ^ ^^^^^ *° ^® *^^^ ascertained, is void for remotenesss. In and accumuia-_ Palmer V. Holfovd (u) there was a bequest of a fund upon to be then trust to accumulate, and to transfer the whole fund and ascertained, accumulations to the children of a living person who should be living at the expiration of twenty-eight years from the testator's death other than an eldest or only son. The gift was held void for remoteness. And a gift upon trust for the children of a living person until they attain twenty-two, and then for such of them as attain twenty- two, would fail for remoteness (x) ; nor would a gift of income meanwhile assist, for none but children attaining twenty-two can take (y). On the other hand where the persons to take are clear, and the class is ascertained within the legal period, words of seeming contingency will not alter the class and the time of vesting, so as to import remoteness into the limi- tation (z). (s) Lloi/d V. Lloyd, 3 K. & J. 20. [y] Dnmr v. Brooke, 14 Ch. D. (t) Dewar v. Broohe, 14 Ch. D. 629 ; 49 L. J. Ch. 374. 629 ; 49 L. J. Ch, 374. (z) See Pkhen v. Mattkeies, 10 Ch. («) 4 Buss. 403. D.'264 ; 48 L. J. Ch. 150 ; Boughton (x) See Hm-dcasUe v. HardcasUe, v. James, 1 Coll. 26, 43 • and supra 1 H. & M. 405, 411 ; 7 L. T. N. S. pp. 67, sej. 503. Digitized by Microsoft® DEFERRED ENJOYMENT. 229 A legacy in terms contingent and too remote has been chap. xi. held valid by reason of a direction to sever and set apart Direction to from the testator's estate before the legacy becomes ^^'^^l ?'°'^ ^®' ° •' apart from payable, and within the line of perpetuity, a sum to testator's „„ •„ J.1, 1 estate a sum answer the legacy. t„ ^„3^,^ In Greet v. "Greet (a) there was a direction to trustees, legacy given after the death of a tenant for life who was childless, to contingency, set apart a sum of £6000, to be invested in the names of the eldest son of the tenant for life and two trustees, and to accumulate the income for such son " at his attaining the age of thirty years." It was held that the gift to the son was not too remote. In applying rules of construction to ascertain the time Rule of con- of vesting regard must be had to the subject matter of ^g™;„'J'^igg'° limitation. The same words will, in some cases, produce according as opposite results, as regards remoteness, according as the limitation is limitation is of real or personal estate. Where there is a ^^^^ .'"' P^^" ^ . _ sonal estate. difference, it is usually (&) in favour of the vesting of real estate ; so that a limitation of realty may be valid, while a limitation in the same words of personalty would be void for remoteness. Thus a bequest of personal property in trust for the eldest son of A., a bachelor, when he attains twenty-two, and until he attains twenty-two in trust for B.,is void for remoteness as to the son of A., because it does not vest until he attains twenty-two. A similar devise of real estate is valid because it vests immediately. Boraston's' case (c) established the rule that a devise to A. when he attains a given age, and until he attains the given age, to B., confers a vested estate on A. By virtue of this rule the devise in Jackson v. Majoribanks (d), which would otherwise have been void for remoteness, was held valid. In that case a testator gave real and personal estates to (a) 5 Beav. 123. (c) 3 Co. 21, a, b, (6) As to a future gift of residuary (d) 12 Sim. 93 ; 5 Jur. O. S. 885. personalty, see infra. Digitized by Microsoft® 230 LIMITATIONS VESTED OR CONTINGENT. Chap. XI. trustees upon trust to invest the personal estate in the purchase of land, and to pay the rents, subject to certain annuities, to his son for life ; and, in case the son should die leaving no legitimate issue, to pay the rents to the testator's widovsr for life ; but in case the son should die leaving legitimate issue then " at the end of six months after the eldest male child then living of the body lawfully begotten of his said son, A., should have attained the age of twenty-five years," to convey, assign, and transfer all his estates, together vrith rents, unto such eldest male child and the heirs of his body. The testator then pro- vided for the maintenance of the child out of the rents, in case the son should die during the minority of such child, until the child should attain twenty-five. And he directed that in case the son should not die during the minority of the eldest male child, the estates shoiild con- tinue on the trusts aforesaid until six months after the son's death, and then pass to the eldest male child in manner before expressed. It was held that the case was within the authority of Boraston's case, and that the gift to the eldest male child of the son was not void for re- moteness. In James v. Lord Wynford (e) freehold and leasehold estates were devised upon trust (after certain trusts that failed) to receive the rents and apply them for the benefit of the testator's daughter's son, R., and all other sons she should have, until he and they should attain the age of twenty-five ; and on their attaining twenty -five, in trust for their heirs, executors, administrators, and assigns ; with a gift over in default of sons, or upon their death under twenty -five. It was held that the gift to R, and the other sons, was vested and not too remote; and that E., the only son, having attained twenty-five took absolutely. (e) 1 Sm. & G-. 40 ; 22 L. J. Ch. upon the principle of the decision in 450. The devise would, it seems, be Hardcasile -v. Bardcastle, supra, p. validindependentlyof5o)'aston'scase, 96. Digitized by Microsoft® DEFERRED ENJOYMENT. 231 James v. Lord Wynford also illustrates the rule that *'''*?■ ^^■ where freehold and leasehold estates are included in the Gift in the same gift, and the words of the gift create an immediately f^^f^ Y?"^*^^ ?^ vested interest in the freeholds, the leaseholds are also leaseholds. vested (/). Analogous to the rule in Boraston's case is that of ''''^'' ™i^ ^" Edwards v. Hammond (g) — that a devise of real estate to Hammond. A., if or when he attains twenty-one, with a gift over in the event of his death under twenty-one, confers upon A. a vested estate. The effect of this rule as regards remote- ness is illustrated by Doe d. Dolley v. Ward (h). In that case there was a devise of freeholds to the testator's daughter for life, remainder to " such of her children as she now has or may have, if a son or sons at his or her ages of twenty -three " in fee ; and, in case of the death of any son under twenty-three, his share was to go to the survivors at twenty -three ; the rents to be applied to maintenance until the sons attain twenty-three ; with a gift over if all the sons die under twenty-three. It was held that the daughter's children took interests vested at birth, and that the gift was not too remote. The rules in Boraston's case and Ed/uuards v. Hammond apply whether the limitation is to A. " if," or " when," he attains the given age, or " at," " upon," or " from and after " the given age ; whether it is immediate, or by way of executory trust ; and whether it is to an individual or to a class {i). But they do not apply where the attain- ment of the given age is part of the description of the devisee ; as where the gift is to such of the children of A. (/) See Farmer v. Francis, 2 S. v. Rodke, 5 Dow, 202. & S. 505 ; S. 0. 2 Bing. 151 ; Tap- (i) Edwards v. Hammond, 1 B. & scott V. Newcombe, 6 Jur. 0. S. 755 ; P. N. K. 324, n. ; Bromfidd v. Crow- and per Stuart, V.-C, 1 Sm. & G. der, 1 B. & P. N. K. 313; Doe v. 59^ 60. Nowdl, 1 M. & S. 327 ; worn. RandoU '(g) Bos. & Pul. N. E. 324, note. v. Doe, 5 Dow, 202 ; Phipps v. (h) 9 A. & E. 582 ; 8 L. J. Q. B. Achers, 9 C. & F. 583 ; 6 Jur. 0. S. 154 ; following Doe d. Roake v. 745 j Doe d. Cadogan v. EwaH, 9 A. NowM, 1 M. & S. 327, and Randall & E. 636 ; 7 L. J. Q. B. 177. Digitized by Microsoft® 232 LIMITATIONS VESTED OR CONTINGENT. Chap. XI. as attain twenty-two (j). And they have never been applied to a gift of realty and personalty together (fc). In Patching v. Barnett (I) a testator devised real estate unto and to the use of trustees, their heirs and assigns, upon trust to permit his wife to receive the rents during her life ; and after her death, subject to certain trusts for accumulating the rents in the meantime, so long as the same could legally operate, to stand possessed of the real estate in trust for the youngest grandson of A. who should be living at the death of the testator's wife, and who should then have attained, or who should live to attain the age of twenty five years, for life ; and after his death for his first and other sons in tail male. At the death of the widow the youngest grandson of A. had attained twenty-one but not twenty-five. It was held that the gift to the grandson did not vest until twenty-five, and therefore was void for remoteness. Legacies A legacy charged on land does not, as a general rule, landf' °" vest until the time for payment. Thus the bequest to A. of a legacy charged on land, and payable at twenty-one, is contingent until A. attains twenty-one (m) ; and that whether interest is given meanwhile or not (n). But there is an exception to the general rule where the payment is postponed "for the convenience of the estate," and not from considerations personal to the legatee (o). K,ule.s appHo- Legacies payable out of real and personal estate follow payabie^ourof ^^^ ^"^^^ ^ *° Vesting which are applicable to personal real and per- estate, SO far as the personalty extends ; and those ap- U) Festing v. Allen, 12 M. & W. U. 279 ; 5 Ha. 573 ; 13 L. J. Ex. 74 ; (m) Remnant v. Hood, 2 D. F. & In re Finch, AhUss v. Barney, 17 J. 396; 30 L. J. Ch. 71. Ch. D. 211 ; 50 L. J. Ch; 348 ; (n) Parka- v. Hodgson, 1 Dr. & Patching v. £a/rneU, 49 L. J. Ch. Sm. 568 ; 30 L. J. Ch. 590. 665 ; 51 L. J. Ch. 74. (o) King v. Withers, Ca. t. Talb. (k) Per Cotton, L.J., 17 Ch. D. 117; Remnant v. Hood, uU supi-a; 230. Evans v. Scott, 1 H. L. C. 43 ; 11 [1] 49 L. J. Ch. 665 ; 51 L. J. Ch. Jur. O. S. 291. Digitized by Microsoft® DEFERRED ENJOYMENT. 233 plicable to realty, so far as the realty has to be resorted to(p). Legacies payable out of the proceeds of land directed to be sold follow the rules applicable to personal estate (q). Where real and personal property are devised together, with a direction to invest the personalty in the purchase of land, the rule of construction which governs the devise of the land is applicable to the gift of the personalty (r). And the case is the same with a devise in the same terms of freeholds and leaseholds (s). But it appears that the rule in Boraston's case would not be applied to a gift of realty and personalty in the same words (t). There is no reason to doubt that all the rules above stated, by which the vesting of limitations is made to depend upon the subject matter of limitation, apply whether remoteness is involved or not. Some of the rules stated upon pages 232, 233, have not, to the writer's knowledge, been illustrated by cases in which the question of remote- ness has arisen. But since they materially affect the ap- plication of the rules stated in the earlier part of this chapter it has been thought convenient that they should be here stated. Chap. XI. sonal estate or the proceeds of the sale of lands. To a gift of realty and money to be laid out in land. To a gift of freeholds and leaseholds. (p) Duke of Climidos v. Talbot, 2 P. W. 601 ; Prowse v. Abingdon, 1 Atk. 482. (q) In re Hart's Trusts, Ex parte Block, 3 De G. & J. 195. (r) Jackson v. Majoribanks, 12 Sim. 93 ; 5 Jur. 0. S. 885. (s) See James v. Lord Wynford, 1 Sm. & G. 40 ; 22 L. J. Ch. 450, supra, p. 230. (t) See supra, p. 232. Digitized by Microsoft® 234 CHAPTER XII. POWEKS ; THEIR VALIDITY WITH REGARD TO REMOTENESS ; LIMITATIONS IN EXERCISE OF POWERS. Chap. XII. Powers void for remote- neBs. Power of which the purpose is to create a per- petuity. A POWER may be void for remoteness in (1) the scope or purpose of the power, (2) the subject matter, (3) the donee, (4) the objects, (5) the origin, (6) the duration and (7) the time at which the power is exerciseabJe. Whether a power purporting to authorise limitations which would be void for remoteness is altogether void, or whether it is valid so far as it is capable of being exercised without trans- gressing the Rule against Perpetuities, is not clear. Generally speaking, such a power is altogether void ; but, as in the case of limitations of property, the question appears to be one of expression. If the context permits, a power may sometimes be read as consisting of two or more distinct powers, one or more of which are valid, and the others void for remoteness (a). A power of which the aim and purpose is to create a perpetuity — to render the property inalienable beyond the legal period — is simply void (6). In the Duke of Marlborough v. Oodolphin (c) the testator directed the trustees of his will, by which real estate was settled in strict settlement, upon the birth of (a) See AUenborough v. Atten- borough, 1 K. & J. 296 ; 25 L. T. O. S. 155 ; and see infra, p. 240. (6) Sugd. Pow., 8th ed., 161. (c) 1 Eden, 404 ; nam. Spencer v. Duke of Marlborough, 5 Bro. P. C. 592. Digitized by Microsoft® LIMITATIONS IN EXERCISE OF POWERS. 235 each successive tenant in tail, to revoke the uses of the Chap. XII. will, and to limit the estates to such tenant in tail for his life, with remainder to his sons in tail. The power to revoke was by Lord Northington held void as tending to a perpetuity and repugnant to the estate limited by the will. So a trust, antecedent to an estate tail, to raise a sum out of the land upon alienation of the land by any tenant in tail, was held void, as being a device to prevent aliena- tion and inconsistent with the rights of the tenant in tail (d). A power for a like purpose would be equally void. As regards the donee and the subject matter of a power. Remoteness in there is no difference, so far as remoteness is concerned, matter of a between a limitation of property and the creation of a P"^®''- power. A power exerciseable by a person to be ascer- tained at a remote period is void for remoteness for reasons similar to those which make a limitation of property to such a person invalid. The like observation applies to powers, of which the subject matter is not ascertainable within the legal period (e). A power to appoint the proceeds of a sale to be made at a period that is too remote would probably be held void. In a recent case (/) it was held that a gift of the proceeds of a sale, to be made under a trust that was void for remoteness, was invalid. In Blight v. Hartnoll (g) there was a power for the testator's daughter to appoint the proceeds of a sale, to be made when certain mortgages were paid off, amongst such of the testator's present and future grandchildren as should then be living. It was held void for remoteness in the objects. It would appear to have been also void for remoteness in the subject matter. {d) Mainwaring v. Baxter, 5 Ves. case it was held that the objects of 457. the power took the property because ■ (e) See Merlin v. Blagrave, 25 of a trust of the rents until sale in Beav. 125. their favour. (/) Goodier v. Johnson, 18 Ch. D. (g) 19 Ch. D. 294 ; 49 L. J. Ch. 441; 51 Iv. J. Ch. 369. In this 255. Digitized by Microsoft® 236 POWERS. Chap. XII. A power exerciseable by will only is void for remote- Remoteness in ness, if the donee is a person unborn at the creation of the the donee. power. It is immaterial that he is a person who must be born within the legal period, and therefore a person to whom property could be well limited (h). But a general power of appointment exerciseable by deed or will may be limited to an unborn person, provided he is to be born within the legal period (i). Such a power is valid because it is rather " in the nature of property " than a power (k). But such a power, if it is exerciseable only with the consent of a stranger (l), or if, when exercised, it takes effect upon a contingent event, as, for example, upon the marriage of the donee (m), fails for remoteness. The result would probably be the same if the power arose upon a contingent event, or was exerciseable during part, only, of the life of the donee. Remoteness in A power of appointment is not void for remoteness the power. because the objects are not in terms confined within the perpetuity limit ; or because a limitation might be framed which would be at once consistent with the terms of the power, and, at the same time, void for remoteness. Thus under a power to appoint to issue, generally, a valid appointment may be made to issue bom within the line of perpetuity (n). So a power to appoint to an unborn female may be valid, though an appointment to her for her separate use, without power of anticipation, is void for remoteness as to the restraint upon anticipation (o). And a power authorising an appointment for life, with power to appoint the corpus by will, is valid and free from objection (7j) WoUaston v. King, L. R. 8 (»i) Morgan v. Gronow, L. R. 16 Eq. 165 ; 38 L. J. Ch. 61 ; ib. 392. Eq. 1 ; 42 L. J. Ch. 410. (i) Bray v. Bree, 2 01. & E. 453 ; (n) Sugden on Powers, 8th ed., 8 Eli. N. S. -568. 396, 397 ; RoutUdge v. Dmi-U, 2 (k) Sugden on Powers, 8th ed., Ves. 357; Slark v. Dalijm, infra; 683. Attenbm'ough v. Attenborough, 1 K. (;.) As in Webb V. Sadler, 14 Eq. & J. 296. 533 ; 8 Ch. 419 ; 42 h. J. Oh. 103 ; {o) See infra, ib. 498. , Digitized by Microsoft® LIMITATIONS IN EXERCISE OF POWERS. 237 on the ground of perpetuity ( p), although an exercise of Chap. XII. it in favour of a person unborn at its creation, for life, with power for the tenant for life to appoint by will, would be void for remoteness as to the power to appoint by will (q). In Attenhorough v. Attenhorough (r) a power to advance a sum of money not exceeding £5000 to A., or all or any of his children, exerciseable by the trustees for the time being of the will, was held by Wood, V.-C, to be good as to A., though, perhaps, void as to his children. " The power of appointment to the trustees of the will to advance £5000 out of one moiety of the residue to the testator's nephew (A.), or all or any of his children, is not void for remoteness, with respect to its objects ; because those may be selected to whom a valid appointment in this respect may be made; and the nephew (A.), the only object named, is, of course, within the rule." But a power to appoint to objects, none of whom are necessarily ascertainable within the legal period, is altogether void. Thus a power to appoint to, or to divide amongst, such of the testator's (donor of the power) present and future grandchildren as are living when certain incumbrances existing on the property subject to the power are paid off, is void, and cannot be exercised even in favour of grandchildren living at the testator's death (s). So a power to divide amongst the present and future children of a living person who attain twenty-two would, it is submitted, be altogether void for remoteness. If some of the objects of the power are, and others are not, within the line of perpetuity, and the power is not exclusive, or if it requires a share to be appointed to each Ip) Slwrh V. JDakyns, L. R. 15 Bq. (s) See Bli(/ht v. Bartndl, 19 Ch. 307 ; ib. 10 Ch. 35 ; 42 L. J. Ch. D. 294 ; 49 L. J. Ch. 255. It is 524; 44 L. J. Oh. 205. uotclearwhetherinthis case Fry, J., (5) WoUaston v. King, L. R. 8 Eq. considered the power, or the ap- 165 ; 38 L. J. Ch. 61, 392 ; Morgan pointment, or both the power and T. Gronow, Slarh v. Dakyns, ubi supra. the appointment, to be void for (r) 1 K. & J. 296. remoteness. Digitized by Microsoft® 238 POWERS. Chap. XII. Qf ^jjg objects (t), the power would seem to be altogether void (m). Remoteneas in ^ power limited to arise upon a future or contingent the origin or ^ '■ i ■ i i creation of the event must be distinguished from a power which takes power. effect upon a future event, but is presently exerciseable. The former is not exerciseable before the event, upon which it is limited to arise, happens («), and is, it seems, altogether void, unless the event is such that it must happen within the legal period (y). In Goodier v. John- son [z) it was said by Jessel, M.R., that a trust to sell after the death of the testator's son's widow (the son being unmarried at the time) was void for remoteness. A power to sell upon the same event would, it seems, be void for the same reason. Whether a power to arise upon a future event, but exerciseable only by a person living at the date of the instrument creating the power, can be void for remoteness, is not clear. Since it cannot arise unless the event happens within the legal period (the lifetime of the donee), it is difficult to see how it can be too remote. In Blight v. Hartnoll, above mentioned. Fry, J., seems to have con- sidered the power of appointment void, whether exerciseable before the sale or not. There was in that case (1) power for the executors to sell a wharf when the mortgages upon it were paid off; (2) power for the testator's daughter to appoint the proceeds of sale amongst such of the testator's grandchildren as should be living at the time of sale. No time was limited for the payment of the mortgages. It would seem that the power of sale, being limited to arise {t) See 37 & 38 Vict, c 37. appoint on marriage. (u) In 1 Chance on Powers, 124, a (y) See Bristow v. Boothhy, 2 S. & doubt is suggested as to this; sed S. 465; Mainwanng v. Baxter, 5 qumre. Ves. 457 ; Dulce of Marlborough v. (x) See Sugd. Pow., 8th ed., 266, Oodolphin, 1 Ed. 404 ; nam. Spencer .843 ; Want v. StaMibrass, L. R. 8 v. I>ui:e of Marlborough, 2 Bro. Ex. 175 ; 29 L. T. N. S. 293 ; Earle P. C. 592. V. Barker, 11 H. L. C.280; Morgan (z) 18 Gh. D. 441 : 61 L J Ch V. Gronow, L. R. 16 Eq. 1 ; 42 L. J. 369. Ch. 410 ; as to Elizabeth's power to Digitized by Microsoft® LIMITATIONS IN EXERCISE OF POWERS. 239 upon an event which might happen at any distance of Chap. XII. time, was void for remoteness. This does not appear to have been considered. As to the power of appointment it was held that (1) it was void for remoteness in its objects (a) ; (2) that it was not exerciseable before the sale was made. Assuming the second point to have been rightly decided (&) the power would seem to have been valid as regards perpetuity. It was, in effect, a power for the daughter, if the mortgages should be paid off in her lifetime, and after they were paid off, to appoint the proceeds of sale (to be made when the mortgages were paid off) to such of the testator's grandchildren as should then be living. A power which, when exercised, takes effect upon a Remoteness in future or contingent event, is exerciseable either immedi- which the ately or only after the event, according to the terms of its P°^^'^/^ ^**"^' J J . . ciaeaole. creation (c). Whether exerciseable immediately or not, the power would, it seems, be void for remoteness, unless the event, upon which a limitation in exercise of the power takes effect, must happen, if at all, within the line of perpetuity. For until that event happens the owner- ship of the property is in suspense. A power for a person unborn at its creation, by deed executed before or after marriage, to declare the trusts upon which property should be held after marriage, was held void for remoteness (cZ). A power so limited that it may endure, and consequently Remoteness in suspend the absolute ownership of the property, for more of the"power. than a life or lives in being and twenty-one years after- wards, is absolutely void. Thus if lands were limited in fee, with a power of sale in a stranger, or his heirs, exer- ciseable at any time, the power would be void for remote- ness (e). It cannot be exercised at all ; even in favour of (os) But see mpra. {d) Morgan v. Gronow, L. E. 16 (6) But quaere as to this. Eq. 1 ; 42 L. J. Ch. 410. (c) See Sugd. on Powers, 8th ed., (e) SeeperRomilly, M.E.,raio7'rll, ubi siipra ; Beard v. West- coit, 5 Taunt. 393 ; 5 B. and Aid. 801 ; Baile;/ v. Lloi/d, 6 Euss. 330 ; Reid V. Eeid, 25 Beav. 469. (I) See infra p. 259, Digitized by Microsoft® LIMITATIONS IN EXEECISE OF POWERS. 259 a residuaiy devise operating by way of appointment under Chap. XII. the power, the property passes under the residuary devise property com- by virtue of 1 Vict. c. 26, s. 25 (m). P"^^. 691; 41 L. T. N. S. 378;. and Digitized by Microsoft® EFFECT OF THE RULE ON CONSTRUCTION. 263 is, that the meaning of an instrument must be ascertained *'''*?• ^^^I- before its legal effect can be determined, there is a nu- merous class of cases in which the tendency of the Courts so to read an instrument ut res magis valeat quam pereat has in fact imported the law of remoteness into the ques- tion of construction. The general principle, however, applies at least to this And, as a extent : that where there is no ambiguity in the words of cannot affect a limitation, where, without the aid of any canon of con- *.*"'^ constrHc- ■^ . tion of mstru- struction, they are clear and can fairly bear one meaning ments. only, they will not, merely in order to give effect to a limitation which would otherwise be void for remoteness, be held to mean something else. On the other hand, where the words of a limitation are obscure and ambigu- ous, there is no doubt that the construction which will give some effect to the limitation is preferred to that which would make it void for remoteness. And, in some cases, even well-recognised canons of construction have been re- jected, where their application would invalidate the limi- tation. The general rule is thus stated by Wood, V.-C (b) : — " You must first ascertain the objects of the testator's bounty by construing his will without reference to the rules of law against perpetuities; and having, apart from any con- sideration of the effect of those rules in supporting or destroying the claim, arrived at the true construction of the will, you are to apply the rules of law as to perpetuities to the objects so ascertained." The rule is stated in similar terms in many other cases (c). It was recognised, and re-stated, by Lord Selborne, C, in a recent case before the House of Lords, with a qualifi- (5) In Cattlin v. Brown, H Ha. Speakman v. Speakman, 8 Ha. 180; 372 ; 1 W. E. 533. ffeasman v. Pearce, L. R. 7 Ch. 275, (c) See Dungannon v. Smith, 12 283 ; 41 L. J. Ch. 705 ; Cunliffe CI. & F. 546,570; 10 Jur. 0. S. v. 5ra7icitm«-, 3 Ch. D. 393, 399; 46 721; Taylor y. Frohisker, 4 D. J. & L. J. Ch. 128. S. 191, 197; 21 L. J. Ch. 605; Digitized by Microsoft® 264 EFFECT OF THE RULE ON CONSTRUCTION. struction where the words are ob scure or am- biguoua. Chap. XIII. cation where there is ambiguity in the words of the limi- But it may tation : — " You do not import the law of remoteness into affect the con- ^j^g construction of the instrument by which you investi- gate the expressed intention of the testator. You take his- words, and endeavour to arrive at his 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 that are obscure and ambiguous (d), 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 T do say, that, if the construc- tion 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" (e). But expressions which, though ambiguous in themselves, have, by virtue of a canon of construction, acquired a fixed meaning will not, merely ut res viagis valeat quam pereat, be read in a different sense. " Where the testatrix, in executing a power, has adopted language which, when used in an ordinary case of bequest, has a natural, reason- able, and appropriate meaning, a meaning so invariably applied to it by the Courts, that it has become a canon of construction, it would be most dangerous to wrest that language to a different meaning, for no other reason than that, by so doing, we shall make it better suit, and fit on to, the power. I know of no authority that would justify me in so doing; on the contrary it has been decided, over and over again, that it cannot be done, even for the [d) " Where there is an ambiguity it is proper to loolc at the conse- quences of either construction." per Kay, J., In re Hudson, Hudson v. Hudson, 20 Ch. D. 406, 416 ; 61 L. J. Ch. 4,')5 ; though this was said with reference to a case where no question of remoteness arose. (e) Per Selborne, C, in Pearks v. Moseleij, 5 Ap. Cas. 714, 719: 50 L. J. Ch. 57. Digitized by Microsoft® man. EFFECT OF THE EULB ON CONSTEUCTION. 265 purpose of preventing an appointment being altogether Chap. XIII. invalid on account of remoteness ; and that is a case, surely, in which the argument ut res magis valeat would apply much more strongly than to the present case " (/). A striking illustration of the effect of the Rule against Wha^t ™\eg of Perpetuities in determining the meaning of an ambiguous ^iu give way, expression, if not in modifying a canon of construction,"*"^""'^'' ^ . •/ o ^ ^ ' ■valeat quam occurs in the case of the phrase " die without leaving pereat. issue." By a will made before 1838 freeholds and lease- -for'^ *■ C''"'i'- holds ■n'ere devised to A., but if A. should die without ' leaving issue, then to B. Notwithstanding the well settled rule of construction, which was applicable to the case, that a gift upon failure of issue of A. takes effect upon a failure of issue at any time, before or after A.'s death, it was held that the gift of the leaseholds, upon the death of A. " without leaving issue," was not void for remote- ness, being intended to take effect upon failure of issue at A.'s death and not afterwards ; although, as to the freeholds, it was held that the rule of construction as to death without issue meaning failure of issue at any time was applicable, and raised estate tail in A. (g). The only reason for attributing different meanings to the same words, " die without leaving issue," as applicable to dif- ferent kinds of property, was, that, in the case of the realty, the gift over to B. could, without altering the established meaning of the words, take effect as a re- mainder after an estate tail in A. ; while, in the case of the personalty, the gift over must fail for remoteness, unless the words were construed to mean a failure of issue at A.'s death. Other cases may probably be cited where, in determining the meaning of ambiguous expressions as to failure of issue, weight has been given to considerations of remoteness (/) Per Kindersley, V.C, in Har- But see the observations on Bristow vey V. Siracey, 1 Drew. 73, 126 ; 22 v. Boothhy, supra, p. 246, note. L. J. Ch. 23; Sugd. Pow. 8th ed. {g) Forth v. Chapman, 1 P. W. 458 ; Fry v. Capper,- infra, p. 274. 663. Digitized by Microsoft® 266 EFFECT OF THE EULE ON CONSTRUCTION. Chap, xill. lit fes magis valeat quam pereat (h). But it is, neverthe- less, well settled that the mere fact that a gift of personalty, to take effect upon a failure of issue of a specified person at any time, before or after his death, is void for remote- ness, will not, in a limitation of personalty, restrict the meaning of the words to a failure at death (i). The extent to which rules of construction may be set aside in order to give effect to a limitation which, by ordinary rules, would be void for remoteness, cannot accu- rately be stated. That some rules of construction are not inflexible, where remoteness is involved, is clear. It may be convenient here to mention some cases in which con- siderations of remoteness appear to have affected the construction, and to have led the Courts to set aside well recognised rules of construction. It is a rule of construction that where a testartior gives a fund to children as a class, and the share of each child is made payable on attaining a given age, the joeriod of distribution is the time when the^ first child attains the given age, and all children take who are born before that time (k). In two cases (i) where the period of distribution according to this rule (the attainment of the given age), was beyond the line of perpetuity, it was held that only children in existence at the, testator's death were intended to take. Of these cases it may be said that the rule in Andrews v. Partington, being a rule of convenience and not of intention, would perhaps be misapplied where the result of applying it is an intestacy. In Mogg v. Mogg (m) a testator devised lands to trustees upon trust to apply the rents and profits in the main- tenance of the children, begotten and to be begotten, of his daughter, for their lives ; and, after the deaths of such children, he devised the lands to the use of the issue of (h) Cf. Gee V. Uddell, L. K. 2 Eq. C. C. 404. 341 ; 35 L. J. Ch. 640. (I) Elliott v. EUiott, ,12 Sim. 206 ; (i) Svpra, pp. 186, seq. Kevemv. Williams, 5 Sim. 171. (i) Andrews v. Partington, 3 Bro. (m) 1 Mer. 654 Digitized by Microsoft® EFFECT OF THE RULE ON CONSTRUCTION. 267 such children and their heirs as tenants in common. It Chap. XIII. was held that all the childi-en of the daughter (of whom four were born before, and five after, the testator's death) took equitable interests for their lives, and that, upon the determination of the estate devised to the trustees during the lives of the nine children, the lands passed to the issue (held to mean children) of the four children who were born in the testator's life, as tenants in common in fee. It does not appear from the report of the case why the class of issue was thus limited. It was noticed in argument that, if " issue " included issue of those children who were born after the testator's death, the gift would be void for remoteness ; and it would seem that this consideration induced the Court to limit the class. Leach v. Leach (n) is a very similar case. There the gift was of personalty upon trust, after the deaths of the testator's wife, brother, and sister, to pay the income to the eldest daughter, and the other children of his brother, equally for their lives ; the principal to be divided amongst all the issue of the daughter and of the other children of the brother. It was held that the daughter, and two other children of the brother, who were born in the testa- tor's life, took the principal. In Gosling v. Gosling (p) an absolute devise of real estate by the will was followed by a direction in a codicil that the devisee should not have possession until he attained twenty-five. It was held that the lands vested under the will, and that the codicil had not the effect of deferring vesting until twenty-five ; and the Court (Wood, V.-C.) added that it was a "further objection" to the con- struction which would defer vesting, that it would have the effect of rendering the limitations of the will void for remoteness. In Christie v. Gosling (p) the consideration that a Inclination of (») 2 Y. & 0. C. C. 495. ip) L. K. 1 H. L. 279 ; 32 Bear. (0) Johns. 265 j 5 Jur. N. S. 910. 58; 1 D. J. & S. 1 ; 35 L. Ch. 667. Digitized by Microsoft® 268 EFFECT OF THE RULE ON CONSTRUCTION. Chap. XIII. the Courts to construe dis- positions of heir-looms, and other pro- perty, by reference, so that they shall not fail for re- moteness. Effect of the Eule against Perpetuities upon the con- struction of executory trusts ; the cy pres doc- trine. Ilumhevston v. Humherston. disposition of personalty by reference to limitations in the same will of settled real estate, would, if applicable to tenants in tail by descent as well as tenants in tail by pur- chase, be too remote, appears to have influenced the majority of the House of Lords (5) in restricting the prima facie meaning of the words to tenants in tail by purchase. .Ajid amongst the cases of this class, where property is limited by reference, will be found more than one in which the Courts have shown an inclination to construe a direction that the property shall be enjoyed by successive owners of other settled property in a restricted sense, in order that the entire disposition may not be void for remoteness {r). It will be seen in a subsequent chapter (s) that the Court will, in some cases, reject words in a will, the effect of which would be to make a limitation void for remote- ness, where such words purport to modify, in a manner not allowed by the Rule against Perpetuities, a previous absolute and valid limitation. The strict rule of construction, as laid down in Cattlin V. Brown, supra, p. 263, has never been applied to execu- tory limitations. Where a testator, disposing of real estate, directs a conveyance to be executed containing specific limitations, which, if followed literally, would be void for remoteness, the Court will mould the trust so that the testator's intentions may be carried out as far as the law will permit. Thus, in Humherston v. Humherston (t), there was a devise to trustees in trust to convey to A. for life, and after his death to his first son for life, and so to the first son of that first son for life, with remainders, in default of issue male of the first son of A. to the second and other sons of A. and their sons, for life, in like manner. It was held that the trust would be executed by a conveyance to {q) Lords Chelmsford and Cran- worth dissmtiente Lord St. Leon- ards. (r) See supra, pp. 124, scq. (s) Infra, p. 278. (t) 1 P. W. 331 ; Free. Chane. 455, nom. Ilumcrston v. Ilumertton; Digitized by Microsoft® THE CY PRfeS DOCTRINE. 269 the sons of A. living at the testator's death, successively, Chap. xili. for life, with remainders to their issue, with remainders to the unborn sons of A. in tail. The rule in Huynberston v. Humberston, by which the terms of an executory trust are capable of modification, so far as they infringe the Rule against Perpetuities, is called the cy pris doctrine. It is thus stated and explained by Rolfe, B., in Monypenny v. Bering (u) : " The doctrine of cy pr^s, in reference to questions of perpetuity, arises where a testator gives real estate to an unborn person for life, with remainder to the first and other sons of such person in tail male, or with remainder to the first and other sons of such person in tail general, with remainder to the daughters as tenants in common in tail, with cross remainders amongst them. In such a case the course of succession designated by the testator is one allowed by the law ; but the direction that the first taker should take for life only, with remainder to his children as purchasers, is illegal, as tending to a perpetuity .... Such a devise has, therefore, been held to give an estate in tail male, or general, as the case may be, to the first taker. By these means the estate, if left, as it were, to itself, will go in the precise course marked out by the testator ; though it will be (contrary to what he intended) liable to be divested from that course by the act of the first taker." Lord St. Leonards in his work on Powers (x), thus states the principle of the rule : " It is a rule of law that where a testator has two objects, one particular and the other general, and the particular intent cannot be effected unless at the expense of the general one, the latter shall be carried into effect at the expense of the former. This is the case where a man gives an estate for life, with remainder to his issue ; but the estate is so given that all (m) 16 M. & W. 418, 428 ; 17 {x) 8th ed. p. 498. L. J. Ex. 81. Digitized by Microsoft® 270 EFFECT OP THE RULE ON CONSTRUCTION. The cy pres doctrine Chap XIII. ^Y^Q jgg,jg cannot take, unless through the parent. The particular intent is, that the parent shall take only for life; the general intent is, that all the issue take ; and in these cases the Court will effectuate the general, at the expense of the particular, intent, by giving the parent an estate tail." The rule of construction adopted in Humberston v. applies to ap- Humberston, or cy prls doctrine, applies to appointments pomtments. ^^ ^^-^^ ^^ exercise of a power. In Robinson v. Hard- castle (y), under a power in a marriage settlement to appoint to children, the husband appointed to a son for life, with remainder to trustees to preserve, &c., with remainder to the first and other sons of the son in tail, with remainders over. It was held that the son took an estate tail (s). And its application is not confined to cases where the limitation is strictly executory, that is to say, where a con- veyance or settlement is directed to be executed ; it applies also where the testator declares his intention in general terms and leaves the trustees to carry it out in the best way they may. Thus, in a recent case (a), a testator bequeathed leaseholds upon such trusts as, regard being had to the difference in tenure, would best or most nearly correspond with the uses declared of real estate devised by the will. The uses of the realty included a shifting clause, which, if applied literally to the leaseholds, would have been void for remoteness. It was held that the operation of the shifting clause was restricted ; that the intention to confine its operation within the line of perpetuity was sufficiently expressed by the words declar- ing, in general terms, the trusts of the leaseholds. But a limitation of heirlooms, or other personal estate, upon trust to follow settled real estate into the hands of successive tenants for life, and tenants in tail of the realty. (ll) 2 T. K. 241,781; 2 Bro. C. C. 22, 344. {z) Cf. also Pitt V. Jackson, 2 Bro, C. C. 51 ; Line v. /lill, 43 L. J, Ch. 107. (fl) Miles V. Harford, 12 Ch. D. 691; 41 L. T. N. S. 378. Digitized by Microsoft® THE CY PEi;S DOCTRINE. 271 is not executory, merely by reason of a direction that the ^^^T?- ^m- limitation is to take effect so far as the law, or the rules of law and equity, will permit. Whatever effect these, and similar expressions, may have, it is well settled that they do not give rise to an executory trust (6). The rule in Huniberston v. Humberston is a rule of con- It is a rule on ... J ,. ,, J-J.J- i construction, struction, and applies as well to a direct devise as to a ^^^^ applies to limitation by way of executory trust. Thus in Vande?-- ^^^'^*^ devises as well as to plank V. King (c) a testator devised (in effect) to A. for executory life, with remainder to her children, as tenants in common, *™^*^- for life, with remainder, as to the share of each child, to the children of such child, as tenants in common in tail, with cross remainders amongst them. It was held that the children of A., who were born in the testator's life, took estates for life, with remainder to their children in tail respectively ; and that a child of A., who was born after the testator's death, took an estate tail. This case was approved and followed by E-omilly, M.E.., in Parfitt V. Hwmber (d). In that case the Master of the Rolls de- scribed the application of the cy prh doctrine as follows : — " I think the doctrine of cy prha established by Humberston V. Humberston is not a doctrine to be confined to cases where the testator has made a will of an executory cha- racter, and has imposed on the Court or on persons sur- viving them (qy. him) the duty of carrying his general intention into effect, by framing a settlement for that purpose ; but that this doctrine is a rule of construction, and that when the Court finds that the object expressed by the testator is to give A. an estate for life, to his eldest son another estate for life, and so on, the Court will carry that intention into effect, as nearly as it can, by giving to A. an estate for life, and to his eldest son, if unborn at the death of the testator, an estate in tail male, or, if he be (6) See further as to this subject, (c) 3 Ha. 1 ; 12 L. J. Oh. 497. supra, p. 128, seq. {d) L. R. 4 Ecj. 443. Digitized by Microsoft® 272 THE CY PEt;S DOCTEINE. Chap. XIII. aiiye at the death of the testator, an estate for life, with remainder to his eldest son in tail male" (e). The cy prhs rule has been carried so far as to give the first taker an estate tail, where the intention expressed by the testator was that his children should take as tenants in common in tail. This was the case in Pitt v. Jack- son (/). Previously to his marriage, a husband covenanted to lay out money in the purchase of lands to be settled to the use of himself and his intended wife, successively, for life, with remainder to the use of the children of the mar- riage as he should appoint. By his will, in execution of the power, the husband directed part of the money to be laid out in the purchase of lands to be conveyed in trust for a daughter of the marriage, for her life, with remainder to trustees to preserve contingent remainders, with re- mainder to the children of the daughter, as tenants in common in tail, with remainders over. It was held that the daughter took an estate tail. This case is con- sidered to have carried the cy pres doctrine to its extreme limits (g). It appears that, according to the ultimate de- cision in Pitt V. Jackson, the point as to the application of the cy prh rule did not, in fact, arise (h), but the case has since been treated as a binding decision, and was fol- lowed by Sir E. Sugden in Ireland (i). Limita of the The cy prh doctrine has no application where the inten- the mi^pris ° ^i°^ °^ ^^^ testator is to create a succession of life estates, rule. limited in number. Thus where a testator devised lands to A. for life, with remainders to A.'s eldest or other son for life, with remainder to as many of his descendants, issue male, as should be heirs of his or their bodies, down to the tenth generation, for their lives, it was held that no estate (e) And see per Jessel, M.R., to Kenyon in Brudenellv.Elwes,! "East, the same effect, Hampton v. Hoi- 442, 451 ; and of Lord Eldon in man, 5 Ch. D. 183, 190 ; 46 L. J. Brudcndl v. Elwes, 1 Ves. 382. Ch 248. (h) See Sug. Pow. 8th ed. 600. (/) 2Bro. C. C. 51. (i) In Stackpoolev. Stackpoole, i (g) See the observations of Lord Dr. & War. 320. Digitized by Microsoft® THE CY PRkS DOCTRINE. 273 tail was raised in A., or auy of his issue ; and that all, Chap. XIH. except the devise to A. for life, was void for remote- ness (k). But where the intention is to create a series of life estates, indefinite in number, the rule would, it seems, apply and give the first taker an estate tail (I). Nor does the cy pres doctrine apply where the intention is to create successive terms of years determinable on death (m) ; or, generally (n), vs^here the effect of applying it would be, to carry the property to persons not intended by the testator to take. Where an estate tail is expressly, or by implication, limited to the ancestor, and is followed by limitations of life estates to his children or issue, which life estates are void for remoteness, effect cannot be given to the limitation to the ancestor, while those to his children or issue are rejected (o). It does not apply where the devise is to an unborn person for life, remainder to his children in fee ; or, in other cases, where the intention is, that the lands should go in a course which they would not take under a limitation in tail (p). In Bristow v. Warde (q) lands were settled upon chil- dren, as the father should appoint, and, in default of appointment, to the children as tenants in common in tail, with cross remainders amongst them in tail. The father appointed to a son for life, with remainder to the son's children, as the son should appoint. It was held that the cy pris rule did not apply, and that the son did not take an estate tail. It does not apply to personal estate (r) ; to a limita- (k) Seaward v. Willoch, 5 East, 2 Sir W. El. 1159, 198. (o) See per Lord St. Leonards, [l) See per Kolt, L.J., Farsbi^ooh Monypenni/ v. Dering, 2 D, M. V. Forsbrooh, L. E. 3 Oh. 93 ; 16 & G. 145, 177, 178 ; 22 L. J. Ch, W. K. 290. 313. (m) Beard v. Westcott, 5 B. & {p) Bristow v. Warde, 2 Ves. Aid. 801 ; Somerville v. Letkbridge, 386 ; Hale v. Peia, 25 Beav. 335. 6 T. R. 213. iq) 2 Ves. 336. (n) See, however, Niclwllv. NicJioU, (r) Routledye v. Daiyil, 2 Ves. 357. T Digitized by Microsoft® 274 EFFECT OF THE RULE ON CONSTRUCTION, Chap. XIII. tion by deed (s) ; or, it seems, to limitation of a mixed fund (i). In Fry v. Capper (u), where an appointment to a married woman for life, with a restraint upon anticipation, was too remote as 'regards the restraint upon anticipation, it was suggested by the Court that the appointment might be modiiied under the cy pri.s doctrine, so as to take effect according to the power. It seems doubtful whether the cy prhs doctrine could be applied to such a purpose (x). In Fry v. Capper the restraint upon anticipation could clearly be rejected, without recourse to that doctrine, and according to a well established rule (y). In Lyddon v. Ellison (z) there was a bequest to the present and future children of a living person followed by a direction to settle the shares of daughters upon them for life for their separate use with remainder to their children. It was held by Romilly, M.R., that the direction to settle was not void for remoteness, but that it was an executory trust, which the Court by the doctrine of cy pres would carry into effect so far as it could. In this case it does not appear to be necessary to apply, the doctrine of cy pris. The direction to settle was clearly valid as to children born at the testatrix' death, though void for re- moteness as to other children (a). Eftect, on con- Where the testator expressly refers to the Rule against struotion, of Perpetuities, for the purpose of confining within legal an express f: ' .... . . reference to' limits the operation of a limitation, which might take against Per-' effect, according to its terms, beyond the line of perpe- petnities. tuity, effect must, of course, be given to the words limit- ing the operation of the instrument to the legal period. Even a general intention, appearing upon the will, that it (s) Brudenell v. Elwcs, 1 East, (»■) See per Kindersley, V.-C, 442 ; 7 Ves. 382 ; Adams v. Adams, Harvey v. Stracey, supra, p. 264. Cowp. 651. (y) See infra, p. 281. (t) Bowffhton V. James, 1 Coll. (z) 19 Beav. 565 ; 18 Jur. O. S. C. C. 26, 44. 1066. {«) Kay, 163. {n) See infra, p. 282. Digitized by Microsoft® EXPRESS REFERENCE TO THE RULE. 275 shall not be construed so as to operate contrary to the law, Chap. XIII. may incline the Court to a construction which will not be open to the objection of remoteness. In Martelli v. Rol- loway (b) Chelmsford, C, said ■: — " In eadeavouring to as- certain the meaning of the testator in a clause of his will which is ambiguous, and which, read in a particular way, sins against the Rule as to Perpetuities, it is not improper to take into consideration that in the whole of the will he has carefully provided that the limitation of his estates shall not be open to the objection of being contrary to the law. And if the clause in question is open to two con- structions, one of which would render it void upon a ground which the testator, throughout his will, seems to be guarding against, and the other of which is reconcilable with all his previously expressed intentions, there can be no doubt which of them ought to be adopted " (c). Where a conveyance was made to trustees, upon trust, after the death of the settlor, to assure and convey the lands so that they should go along with a dignity " so far as the law would permit, " with a proviso disposing of the rents and profits during every suspension or abeyance of the dignity " within the limits prescribed by law for strict settlements," it was held that the trust was not void for remoteness ; that it required such a settlement of the lands to be made as, having regard to the Rule against Perpetuities, would effect the testator's intention (d). The cases illustrating the effect upon the construction of an instrument of a reference in the instrument itself to the Rule against Perpetuities are, for the most part (e), those in which the question of remoteness (6) L. R. 5 H. L. 532, 548 ; 42 executed by order of the Court in L. J. Ch. 26, this case is set out in 7 Jur. 210 ; (c) Of. also Christie v. Gosling, L. and Lewis Perp. Appendix III : K. 1 H. L. 279, 290 ; 35 L. .J. Ch. see also sup-a, p. 133. 667. (e) As to the effect of a direction {d) BanJces v. Le Despencer, 10 to accumulate income so long as the Sim. 576 ; 11 Sim. 608 ; 9 L. J. Ch. law will allow, see infra, p. 330. 185. The settlement which was T 2 Digitized by Microsoft® 27G EFFECT CiF THE RULE ON CONSTRUCTION. Chap. XIII. has aiiseu in connection with the settlement of heir- looms or real estate, so as to go along with either other property in settlement, or with a dignity. This class of cases is dealt with in a previous chapter (/). It will be sufficient here to state the general result of the decisions. The rule seems to be that, even where no executory trust is created, a direction that property shall accompany a dignity, or other settled property, so far as the law will -perxait, or so far as the rules of law and equity will permit, or so far as the different nature or tenure of the property will permit, is a disposition which operates only within the line of perpetuity. Where the limitation in question is by way of executory trust, there is no doubt that such is the rule. Limitations A limitation that is itself void for remoteness may be moteness may resovted to in order to construe another part of the instru- affect the con- j^ent in which it is contained. The rest of the instrument struction of ..... the rest of the must iiot be construed as if the void limitation were struck mstniment. ^^^^.^ ^^^ ^^ ^^ ^^^ B-ule against Perpetuities existed. Not only must full effect be given to the words importing re- moteness, although they destroy the limitation in connec- tion with which they are used, but a limitation which is itself too remote, although it cannot take effect as a limi- tation, will have its effect in determining the meaning of uther parts of the instrument. Such void dispositions " are not the less part of his (the testator's) will, and to be resorted to as part of the context for all purposes of con- struction, as if no such rule (as that against Perpetuities) had been established " (g). Estate void Expressions, which ordinarily would raise an estate by not raised by ^ implication, would probably be held not to have that effect, implication, where the estate so raised would be void for remoteness (Ji). if) Su237-a, fp. 1 24, scq. of a gift over, which is itself void (i/) Per Jiimes, L. J., Ileaeman for remoteness. V. Pearse, L. R. 7 Ch. 275, 28-3 ; 41 (A) See Chapman v. Bmm, 3 L. .1. Ch. 705. And see tnfra, Burr. 1626 ; 6 Ves. 404. p. 281, as fo the effect on vesting Digitized by Microsoft® EFFECT OF THE RULE ON CONSTEUCTION. 277 And in Forth v. Chapman (i) we have seen that, for a Chap. Xiii. similar reason, a limitation of personalty upon the death without issue of a previous taker, does not imiDort a general failure of issue, so as to destroy the limitation over upon failure of his issue. (i) Supra, p. 186. Digitized by Microsoft® 278 CHAPTER XIV. ABSOLUTE LIMITATION FOLLOWED BY MODIFYING CLAUSE THAT IS TOO REMOTE. EEJECTION OF WORDS IMPORT- ING REMOTENESS. Chap. XIV. Rejection of words modi- fying in a manner not allowed by the Kule against Perpetuities an absolute interest previously limited. The Court will semeti'mes reject words, the effect of which would be to defeat the testator's intention by introducing the vice of remoteness into a limitation, which, apart from the words, is free from objection. This course is adopted where the limitation of an absolute interest is followed by a separate and distinct clause, modifying, in a manner not allowed by the law, the absolute interest previously limited. Thus a testatrix having; in exercise of a power of appoint- ment contained in the settlement executed upon her marriage, appointed a fund to her five children absolutely, by a subsequent clause of the will, declared and appointed " so far as she lawfully or equitably could or might " that the share of each daughter should be held upon trust for the daughter, for life, for her separate use without power of anticipation, and after her death for her children ; and, in default of children, in trust for such persons as the daughter should appoint ; and in default of appointment for her next of kin. It was held that the daughters took absolute interests for their separate use without power of anticipation (a) ; and that the appointment to the daughters' (a) As to the restraint upon anti- the restraint is void for remoteness ; cipation, see infra, p. 281. In sub- see ibid. sequent cases it has been held that Digitized by Microsoft® WORDS REJECTED FOR REMOTENESS. 279 children was- altogether void (6). Some reliance, in this ''^^P- ^^^■ case, was laid upon the words whereby the appointment was expressed to be made " so far as (the appointor) law- fully or equitably could"; but in a subsequent and very similar case it was held that those words are not ma- terial (c). In Carver v. Bowles and Kampf v. Joues the limitations whether the were in exercise of powers, but the rule above stated is not in exercise of confined to cases where, besides beina; too remote, the clause ^ P°'^^^' °^ not. is in excess of a power (d). In Ring v. Hardwick (e) there was a bequest (not in exercise of a power) to the testator's widow for life, and after her death to the testator's four sons and daughters, by name ; the sons' shares to be paid immediately, and daughters' shares to be invested and held upon trust for them respectively for life, with remainder (in effect) to such of their children as should attain twenty-five ; and a gift over of the share of each daughter, in default of children attain- ing twenty-five, to the children attaining twenty-five of the other sons and daughters of the testator. It was held that the testator's daughters took absolute interests, and that the gifts to their children attaining twenty-five, and the gifts over in default of children attaining twenty-five, were void for remoteness. The principle of these cases does not apply unless, in the first instance, there is a clear gift of the absolute interest. Thus in Whitehead v. Rennett (/) a testator gave and devised to trustees all his freehold, leasehold, and personal property upon trust for sale ; the proceeds to be invested " for the benefit of " his three daughters ; the interest of Ifi) OoAiier V. Bowles, 2 Russ. & is a similar case ; but so far as it M. 301. decides that the gift over, in the case (c) Kampf V. Joues, 2 Keen, 756 ; of grandchildren living at the testa- 7 L. J. Ch. 63. trix' death, i.s invalid, is no longer (rf) See Whitehead v. Rennett, 22 law ; see per Kindersley, V.-C, in L. J. Oh. 1020. Knappiny v. Tomlinson, 34 L. J. Ch. (e) 2 Beav. 352 ; 4 Jur. O. S. 242, 3, 10. Arnold v. Congreve, 1 R. & M. 209. (/) 22 L. J. Ch. 1020. Digitized by Microsoft® 280 CLAUSE MODIFYING I'llEVIOUS ABSOLUTE LIMITATION. Chap. XIV. Kejection of clause of for- feiture, or re- mote gift over. each daughter's share to be paid to her for life ; on the death of each of the daughters one-half of her share to be paid to the children of the daughter so dying, at the age of twenty-one; and the interest of the other half to the same children (of the daughter so dying) for life, with remainder, as to the capital, to their children at twenty-one. It was held that the gift to children of grandchildren was void for remoteness, and that the daughters took for life only, and not an absolute interest [g). So where an absolute limitation is followed by a clause of forfeiture or cesser, distinct from it, and not restricted as to its operation in point of time, and capable, according to its terms, of operating beyond the line of perpetuity, the previous limitation takes effect without regard to the forfeiture clause. Thus the donee (li) of a power of ap- pointing amongst her children appointed by will to a daughter, who was born after the creation of the power, for life. The will contained a clause of forfeiture in case the daughter, either before or after the death of the appointor, married a Christian ; with a gift over in the event of a daughter so marrying. The daughter having married a Christian after the appointor's death, it was held that the forfeiture clause was too remote and void, and that the absolute appointment took effect unaffected by it. There are numerous instances of gifts to an individual or to a class, absolute in the first instance, and vesting within the limit of perpetuity, with words superadded purporting to defer the possession or enjoyment to an age or time beyond that limit, and a gift over upon death of the legatee or any of the class within the age or before the time named for possession. In all such cases the gift of the absolute interest remains, and the words, both as to the deferred enjoyment and the gift over, are rejected. {g) In Saumarez v. Saumarez, Si Beav. 432 (sMjjra, p. 210), a trust for *' the benefit of " a class of children, to be paid at twenty-five, was held to be vested at birth. {k) Hodgson v, Halford, 11 Ch. D. 959; 48 L. J. Ch. 548. Digitized by Microsoft® WORDS REJECTED FOE REMOTENESS. 281 One instance of this cIeIss of cases may here be mentioned ; Chap. XIV. many others will be found stated in a previous part of this work (i). In Hardcastle v. Hardcastle (k) residuary estate was bequeathed upon certain trusts during A.'s life, and after A.'s death upon trust for all her children until they should respectively attain twenty-five, and, upon each child attaining twenty-five, upon trust, as to such child's share, for him or her, with a gift over in default of children attaining twenty-five or leaving issue. It was held that the children took interests which vested at birth, and that the gift over was void for remoteness. It must be remembered that the rejection of words in a Words re- will on account of remoteness is not a rejection of them j^ot^ngg'^'^ '^^' for purposes of construction. " It is against the settled material for ., T r -n purpose of rules of construction to strike out any words from a will construction, because they offend against the perpetuity rule. For all purposes of construction the will must be read as if no such rule existed " (l). Thus a gift over upon death under twenty-four, which itself was void for remoteness, has been relied on as showing that a previous gift to the children of a living person vested at birth, and not at the age of twenty-four (m). A restraint upon anticipation annexed to a limitation EestrainUpon to a woman who was unborn at the date of the limita- annexed to"! tion is void for remoteness, and is rejected ; the limitation limitation to, . _, (1) an unborn taking eff'ect as if it had been omitted, in Carver v. person ; Boivles (n) an appointment, under the usual power in a marriage settlement, to a daughter of the marriage, for her separate use without power of anticipation, was held good as to the restraint upon anticipation. This case has not been followed, and in several subsequent cases (o) it has (i) Swpra, pp. 206, seq. 411. {h) 1 H. & M. 405 ; 7 L. T. N. S. (») 2 Rnss. & Myl. 301. 503 (o) Thornton v. Bright, 2 M. & {i) Per James, L.J., Reasmom, v. Or. 230 ; 6 L. J. Ch. 121 ; Fry v. Pmrse, L. R. 7 Ch. 276, 283. Ca'p^er, Kay, 163 ; In re Tmgut's (rii) Rowland v. Tawney, 26 Beav. Settlement, L. E. 10 Eq. 564 ; 22 67 • Bland v. WiUiams, 3 M. & K. L. T. X. S. 742 ; In re Gtmyng- Digitized by Microsoft® 282 CLAUSE MODIFYING PREVIOUS ABSOLUTE "LIMITATION. Chap. XIV. (2) A class including un- born persons. Limitation to a class followed by a been held that, in such a case, the restraint upon antici- pation is too remote and must be rejected. The question as to the validity of the restraint upon anticipation was discussed in a recent case {p) by Jessel, M.R, who, although he followed the cases which held the clause to be void for remoteness, doubted their correctness. Ihe Master of the Eolls was of opinion that the restraint upon anticipation was an exception, as well to the Rule against Perpetuities, as to the general law that all property is alienable. Both the restraint upon anticipation and the Rule against Perpetuities were, he said, inventions of the Chancellors ; the one in favour of married women, and opposed to the general law that all property is alienable ; the other in aid of the general law, and in favour of alienation. But until the cases above cited are overruled it must be taken to be the law that a restraint upon anti- cipation cannot be attached to a limitation to an unborn person (g). Words in restraint of alienation, applicable to all the shares of all the members of a class comprising persons not necessarily born at the date of the limitation, may take effect as to some of the shares, though as to others they are rejected as being void for remoteness. And the -same rule applies to a direction to settle, in a manner not allowed by the Rule against Perpetuities, the shares of the members of a class to which there has been a previous valid and ab- solute limitation. Thus in Wilson v. Wilson (■)■) a testator bequeathed a fund to trustees, upon trust for such of the present and hame's Settlement, L. R, 11 Eq. 324 ; 40 L. J. Oh. '247 ; Cooper v. Laroche, 17 Ch. D. 369 ; In re MichaeVs Trusts, 46 L. J. Ch. 651. In Hodg- son V. Halford, 11 Ch. D. 959 ; 48 L. J. Ch. 648, the point does not appear to have been decided (as re- gards the plaintiff's share). (p) In re Ridley, Buckton v. Hay, 11 Ch. D. 645 ; nom. Buckton v. May, 48 L. J. Ch. 563. (q) In a subsequent case. Cooper- V. Laroche, 17 Ch. D. 369 ; 29 W. R. 438, Malius, Y.-C, expresses con- currence mth the cases questioned by Jessel, M.R., in In re Midley. (r) 4 J-ax. 1076 ; 28 L. J. Ch. 95. Digitized by Microsoft® WOEDS REJECTED FOR REMOTENESS. 283 future children of A. as should be living at the death of the Chap. Xiv. testator's widow, as tenants in common. And he declared direction to that, as to such of the children as should be daughters, ^f''^® *^® . , . . o I shares, which, their respective shares should be held by the trustees upon as to some of trust for each daughter for her separate use for life with- ^f th^X^s^s out power of anticipation, with remainder to her children, void for re- in the case of a daughter who was living at the testator's death, it was held that the limitation to her children was not too remote ; and the reasoning which supported the gift to the children applies equally to the restraint upon alienation. The validity of the restraint upon anticipation in such cases is established by a recent decision of Hall, V.-C. (s). A husband and wife, who had two children, daughters, assigned a sum of money to trustees, upon certain trusts during the joint lives and the life of the survivor of them, the husband and wife, and after the death of the survivor, for their children as they or the survivor of them should appoint, and, in default of appointment, for all their chil- dren who, being sons, should attain twenty-one, or, being daughters, should attain that age, or marry, equally, and, as to daughters' shares, for their separate use without power of anticipation. There were no children of the marriage other than the daughters, and no appointment was made. It was held that the daughters were re- strained from anticipation. The facts in Wilson v. Wilson and HerheH v. Webster did not call for a decision as to the effect of the restraint upon anticipation in the case of children unborn at the testator's death. It was assumed throughout, that, as to such children, it would be void for remoteness (t) ; but it (s) HerheH v. Webster, 15 Ch. D. 46 L. J. Ch. 651, theVice-Chancellor 610 ; 49 L. J. Ch. 620 ; the point declined to follow those cases, under discussion, not having been (i) See In, re Ridley, and the cases called to the attention of the Court cited above, p. 281, as to the re- inlnre RkUeij,l\Gh..V>.6i5; 48L.J. straint upon anticipation in such a Ch. 563; ov In re Michael's Trusts, case. Digitized by Microsoft® 284 CLAUSE MODIFYING PREVIOUS ABSOLUTE LIMITATION. Chap. XIV. was held that, nevertheless, it was valid as regards the other children. In Lyddon v. Ellison (u) a direction to settle the shares of a class comprising persons possibly unborn at the testator's death, which, if executed literally, would have been void for remoteness, was supported as an executory trust, to be carried out so that it should not be void for remoteness as to any of the shares. A testatrix gave personal property to trustees in trust for the younger children of her daughter, A., and directed that, upon their marriage, their shares should be settled upon them for life, with remainder to their children. It was held that the direction to settle was not void for remoteness ; that it was an executory trust to be carried out cy pres, that is, in such a way as to effect the intention of the testatrix so far as the rules of law would permit. It is the same with any other condition or restriction annexed to a valid limitation of an absolute interest to a class ; as, for example, a direction to settle the shares, as in Wilson V. Wilson (x), or a gift over by way of substi- tution, or otherwise (y). The superadded clause may be either void for remoteness altogethei', or it may be valid as to some of the shares, and void for remoteness as to others. In either case, it is rejected, so far as it trans- gresses the Rule against Perpetuities. As regards those shares upon which it cannot operate, the previous limi- tation takes effect, as if the clause in question were struck out (z). There is another class of cases where the partial rejec- tion of a limitation for remoteness does not prevent its operation in the cases where there is no remoteness. This is where the limitation, though in form single, operates as a series of separate and distinct limitations to different Gift of a specified sum to each mem- ber of a class including re- mote objects. (u) '19 Beav. 565 ; 18 .Tiir. 0. S. 1066. (x) Uhi supra, (ij) Blcase v. Stiryh, 2 Beav. 221, 226 ; 9 L. J. Ch. 226. {z) See Pearks v. Mosdcij, 5 Ap. Ca. 714, 719; 50 L. J. Ch. 67. Digitized by Microsoft® "WORDS EEJECTED FOR REMOTENESS. 2.S5 persons. Thus a bequest of £1000 to each of the grand- Chap. X iv. children of a specified person is, in effect, a series of sepa- rate and distinct bequests to individuals ; and takes effect as to those who are within the line of perpetuity — that is to say, in the case of grandchildren born at the testator's death — and is void for remoteness as to the others (a). The cases establishing this rule are Griffith v. Voiv- nall (i), Storrs v. Benhoxu (c), Cattlin v. Brown (d), Knap- ping V. Tovilinson (e), Wilson v. Wilson (/), all which cases are fully stated elsewhere (g). To these may be added the cases above mentioned in which a restraint upon anticipation was held valid, as to some of the interests limited, though void for remoteness as to others; the rules established by the two classes of cases being very similar. Some difficulty has been , created by Greenwood v. Roberts Qi), and Webster v. Boddingion (i). As to the former case, it is submitted that it cannot be reconciled with Cattlin v. Brown, Storrs v. Benbow, and the cases following them. In Greemoood v. Roberts there was a gift of an annuity to the testator's brother, and, after the death of the brother, to such of his children as should be then living equally for their lives ; with a provision that at the death of any of them, so much capital as produced the annuity to which the child so dying had been entitled during his or her life should be converted into money and divided equally amongst the children of him or her so dying, as they should severally attain twenty-one ; and he gave them vested interests therein, and directed, that if any child of his brother should, at his decease, be dead, and had left issue, such issue should take the share the (a) Storrs v. Benhow, 3 D. M. & (/) 28 L. J. Ch. 95; i Jur. N. S. G. 390 ; 22 L. J. Ch. 823. 1076. (5) 13 Sim. 393. (g) See pp. 100, 255, 283, and sup. (c) UU supra. (h) 15 Beav. 92; 21 L. J. Ch, (d) 11 Ha. 372 ; 1 W. E. 533. 262. (e) 34 L. J. Ch. 3. (J) 26 Beav. 128. Digitized by Microsoft® 286 CLAUSE MODIFYING PREVIOUS ABSOLUTE LIMITATION. Chap. XIV. ■ parent would have had if he had outlived the brother. Wood, V.-C, distinguishes this case from Gattlin v. Brown, on the ground that in Greenwood v. Roberts the children of the brother who were living at the testator's death might all have been dead at the death of the brother. As pointed out by Kindersley, V.-C. (/c), the same observa- tion applies to Gattlin v. Brown (as regards the children of Thomas Bannester Gattlin) ; and in Wilson v. Wilson {ubi supra), where the distinction in question existed, it did not affect the decision. In Webster v. Boddington {I) the gift was to the testa- tor's daughter for life, with remainder to her present and future children and the issue of such children, who, being sons, should attain twenty-one, or being daughters, should marry with consent of the daughter, equally ; such issue to take their parent's share. It was held that the gift was to a class to be ascertained at too remote a period, and therefore void for remoteness. In this case, Ro- milly, M.R. (in), approves the distinction taken by Wood, V.-C, and above mentioned, between Greenwood v. Roberts and Gattlin v. Broivn ; sed quaere. Knapping v. Tomlinson, ubi supra, was a decision by Kindersley, V.-C, upon a devise in the same words in the same will as that in Cattlin v. Brown. Though differing from Wood, V.-C, as to the distinction taken by him between Greenwood v. Roberts and Cattlin v. Broivn, Kindersley V.-C, approves and follows the decision in Gattlin v. Brown. The judgment in Knapping v. Tom- linson contains an exhaustive review of the cases iinder discussion. Arnold v. Gongreve (n), so far as it conflicts with Cattlin V. Brown, must be considered as overruled. The point under discussion was not there considered by the Court (o). (i) In Knapping v. Tomlinson, 34 (m) 1 Ruas. & Myl. 209. L. J. Ch. 3, 8. (o) See per Kindersley, V.-C, in {I) 26 Beav. 128. Knapping v. Tomlinson, vhi supra, (m) P. 136. Digitized by Microsoft® WORDS REJECTED FOR REMOTENESS. 287 The class of cases of which Storrs v. Benhoiv and Gattlin Chap, xiv V. Brown are examples must be distinguished from those discussed in former chapters, where the limitation is to a class including possibly remote objects (p), or to the member of a similar class or series of persons successively answering a common description who first acquires a given qualification (q), or where the limitation is of suc- cessive life interests to a similar class or series {r). In such cases we have seen that the limitation cannot be good as to some members of the class, and void for remoteness as to the others. If any one member of the class or series is, or by possibility may be, beyond the line of perpetuity, the whole is void for remoteness. {p) As in PearJss-v. Mosdey, supra, siipra, p. 113. ■p. 87. (»•) See s^lpra, pp. 119, seq. iq) Ag in Dungannon v. Stnith, Digitized by Microsoft® 2SS CHAPTER XV. EFFECT OF LIMITATION VOID FOR REMOTENESS ON SUB- SEQUENT LIMITATIONS. Chap. XV. A LIMITATION ulterior to or dependent or expectant upon a previous limitation that is too remote cannot A limitation ulterior to another that is void for re- moteness can- not take effect. Though it is such that it must take effect, if at all, within the legal period. take effect. Although the object is a competent object and the limitation is so expressed that it must take effect, if at all, within the legal period, and although the pre- vious remote limitation never vests, or its object never exists, the result is the same. " There is nothing better settled than that, when a gift is void for remoteness, its avoidance does not bring into life, or accelerate, the subsequent limitations, but, on the contrary, they are equally void " {a). Thus a limitation to the first son of A. who shall attain a given age or take holy orders, and if no son attains the age or takes orders to B., is void as to B. {b). It is immaterial that the ulterior limitation is such that it must take effect, if at all, within the legal period. In Palmer v. Holford (c) there was a bequest to a class to be ascertained at too remote a period, with a gift over on failure of the class, if he should be then living, to A., a person alive at the testator's death. It was held that the gift over could not take effect. In re Thatcher's Trusts (d) (a) Per Sir E. Sugden, 1 Dr. & W. 509, .539, 540. (i) Proctor V. Bishop of Bath and Wdk, 2 H. Bl. 358. (c) 4 Russ. 403. (d) 26 Beav. 365. Digitized by Microsoft® LIMIT7iTI0N FOLLOWING ANOTHER THAT IS TOO KEMOTE. 289 the bequest was to A. for life, with remainder to such of Chap. XY. his children as should attain twenty-five, and in case no child attained twenty-five to B., a living person, for life. It was held that the gift to B. was void. So a limitation by way of remainder expectant upon A remainder 11 • • ,. ■ 1- • ,■ 1 , • expectant the determination oi a previous limitation that is too remote upon a limita- is not accelerated, and is altogether void. In Robinson v. tion that is too ' *^ ^ remote is not Hardcastle (e) there was an appointment, in exercise of a accelerated, power in a marriage settlement in favour of children of the RoU"fony. '^ . ° . Mardcastle. marriage, to a son (unborn at the creation of the power), for life, with remainder to his children, and in default of children to a daughter of the marriage. The son died cliild- less. It was held that the appointment to the daughter could not take effect ; not because it was subsequent to the appointment to grandchildren, who were strangers to the power (/), but because it could not be supposed that the daughter was intended to take to the exclusion of persons (children of the son) to whom prior interests were limited. The rule giving an effect destructive of subsequent limi- tations to a limitation which is itself void for remoteness is not confined to limitations in exercise of a power. In Burley v. Evelyn (g) a testator bequeathed a sum of money upon trust to pay the income to A. for life, and after his death to A.'s first unborn son for life, and after the death of such son to the son's child or children, and " for default of such issue " to other persons who were competent objects. It was held that the ultimate gift did not take effect upon the death of A. unmarried. "There is nothing in this will which authorises me to say that the words ' in default of issue male of John ' mean a total failure of the issue of John or his sons at any particular time. But it is plain to (e) 2 Bro. C. C. 22, 344 ; 2 T. R. appointment to the daughter jn- 241, 7S1. See also Routledge v. valid; Crosier v. Crazier, 3 Dr. & Borril, 2 Ves. 357. War. 353. (/) The mere fact of their being {g) 16 Sim. 290 ; 12 Jur. 0. S. strangers would not have made the 712. U Digitized by Microsoft® idO EFFECT ON SUBSEQUENT LIMITATIONS Chap. XV. jne that the testator intended all the limitations in the will, after the limitation to John for life, to take effect as re- mainders. He has, however, so expressed his intention that the law will not allow it to prevail " (h). It is difficult to distinguish this case from the following, in which the House of Lords discovered a sufficient expres- sion of intention that the limitation should take effect in the alternative. In Williams v. Lewis (i) the testator bequeathed leaseholds to trustees upon certain trusts until his grandson Benjamin (the only son of his son Benjamin) should attain twenty-one, and upon his attaining twenty- one upon trust for him for life, and after his death upon trust for his heirs male, and in default of heirs male upon trust for the second and every other son of bis son Benjamin and the heirs male of their hodies ; and in default of such issue upon trust for his son Lewis and his sons in similar terms; and in default of issue of Lewis, upon trust for the son of his daughter Abigail in a similar vvay. Benjamin and Lewis having died without issue male, it was held that the gift to the son of Abigail took effect as an alternative limitation, and thatit did not fail as a limitation in remainder after a limitation which was void for remoteness. It has already been stated that a disposition of personalty or heir-looms to follow settled realty does not fail for remoteness because none of the class to whom prior estates tail in the realty are limited ever come into existence (k). The limitation is taken to be in the alternative, as in the case last mentioned, — to the issue if there are an}', if none, over. A limitation ulterior to or expectant upon another that is too remote must be distinguished from a limitation expressed to take effect upon alternative events, of which (/t) Per SbadwcU, V.-C, 16 Sim. 605; ncm.Zcicis\:Iloplcins,3'Dtcv.: 2JS. COS. (!) C H. L. C. 1013 : 2S L. J. Ch. (i) Snp-a, p. 127. Digitized by Microsoft® OF LIMITATION THAT IS TOO REMOTE. 291 one is too remote and the other not. Such a limitation Ctap. xv. will take effect if the latter event happens, and the fact that the alternative limitation is void for remoteness is immaterial. Thus a limitation to A., if B. dies without issue living at his death, or if B. dies leaving issue living at his death and such issue afterwards fail, takes effect if A. dies without issue living at his death (Z). And whether the remote alternative conies before or after the other in order of limitation is clearly immaterial. This subject is fully considered in a former chapter (m). The decision of the House of Lords in Tregonwell v. Sydenham (n) has been questioneil by Lord St. Leonards, as being contrary to the rule that a limitaiion expectant upon another that is void for remoteness cannot take effect (o). In that case land was devised in remainder expectant upon a term limited to trustees Upon trust to raise a sum of money, and therewith buy lands to be con- veyed to uses which, in the event, proved too remote. It was held that the heir-at-law took the term as a chattel in- terest carved out of the real estate which was undisposed of by the will. The question was there treated as being, whether the devise was of the lands, subject to the term, so far as the trusts of the term were capable of being executed; or whether the term was expressly excepted out of the devise. The devise in Tregomvell v. Sydenham was held to be of the latter description. The reason, above stated, for the invalidity of a limi- f- limitation ... . depending tation by way of remainder (p) after a limitation that is upon the con- too remote, applies also to a limitation depending upon i^iStitn ''''"^" the contingent determination, within the legal period, of within the a preceding limitation that is void for remoteness, a prio/limita"- " Where there are gifts over which are void for perpetuity, ^^°'^ cannot ' take effect. (I) Zonr/hcad d.ffopkins V. Phelps, p. 3C2, note (s), "I prefer the de- 2 W. Bl. 703. cision of the Court of Exchequer." (m) Supra, pp. 74, seq. {p] Robinson v. Bardcastle, supra, \n) 3 Dow. 194 ; supm, p. 136. p. 289. (o) Sugdon'B Law of Property, ir 2 Digitized by Microsoft® 292 EFFECT ON SUBSEQUENT LIMITATIONS Chap. XV. a,nd there is a subsequent and independent clause on a gift over, which is within the line of perpetuities, effect cannot be given to such a clause, unless it will dovetail in, and accord with, previous limitations which are valid " (q). The case which establishes this rule is Beard v. West- cott (r). There a testator devised lands to his grandson, A., for ninety-nine years if he should so long live, with remainder to the grandson's (unborn) first son for years or life as aforesaid; with remainders (in effect) to the first son of such first son of A., and successive generations of sons, in like manner ; " and in case there shall be no issue male of A., nor issue of such issue male at the time of his death, or in case there shall be such issue male at that time, and they shall all die before they respectively attain their respective ages of twenty-one years without lawful issue male," to B. and his issue. The question was whether, the limitations to issue of A. beyond his first son being clearly void, the limitation to B. would take effect in the event of issue of A. alive at his death afterwards dying under twenty-one without issue. After much dis- cussion, and contrary decisions, in the Courts of Common Pleas and King's Bench, it was finally held that the devise could not take effect ; "not because it was not within the line of perpetuity, but expressly upon the ground that that limitation over was never intended by the testator to take effect, unless the persons whom he intended to take under the previous limitation would, if they had been alive, been capable of enjoying the estate ; and that he did not intend that the estate should wait for persons to take in a given event, when the person to take was actually in existence, but could not take " (s). If, for instance, A. had died leaving issue only a grandson en ventre, that child could not take, because of remoteness ; (q) PerLordSt.Iieonards, 3/on!/- (r) 5 Taunt. 393; 5 B. & Aid. penny v. Derini;, 2 D. M. & G. 14.5, 801 ; T. & R. 25. 182 ; 22 Ij. J. Ch. 313; speaking (s) Per Lord St. Leonards, 2 D. of Beard v. Westcott, infra. M. & G. 182. Digitized by Microsoft® OF LIMITATION THAT IS TOO REMOTE. 993 and until liis birth, and twenty-one years afterwards, no ''^^P ^^ person would be entitled to a vested interest under the will, although the person intended to take was in exist- ence. A bequest of a sum to be applied, partly to an object Bequest to be that is too remote, and as to the residue to a valid object, part'to a re° takes effect, it seems, as to the whole sum in favour of ™°*e object the valid object. This appears to be the effect of recent due to a valid decisions as to gifts of a sum upon trust to keep up a °'^J^<='- tombstone, and subject thereto, or as to the surplus, upon trust for a valid object. The point, however, cannot be considered free from doubt, for the cases are conflicting (t). It is difficult to see why, if the amount required for the invalid object can be ascertained, the gifc should take effect as to that part in a manner not intended by the testator. It" does not appear to have been held or sug- gested in any of the cases, that the failure of the jjrimary trust invalidated the gift of the surplus, because of the remoteness of the primary gift. The question discussed was, whether the gift of the surplus was not void for imcertainty as to the amount ; or, if valid, upon how much of the fund it operated. It will be seen elsewhere that a limitation subject to a Limitation power that is void for remoteness takes effect entirely ^"^^''\u°t''- unaffected by the void power («-) ; and that a residuary void for re- appointment, subject to a previous partial appointment that fails for remoteness, carries the property which was the subject of the invalid appointment (x) ; also that the execution of a power which is void for remoteness raises {t) Hunter v. Bidlodc, L. R. 14 6 Ves. 404; 3 Burr. 1626; Att- Eq. 45 ; 41 L. J. Ch. 637 ; Pisk v. Gen. v. Ilinxman, 2 J. & Cr. 270 : Att.-Gen., L. R. 4 Bq. 521 ; Dawson Cramp v. Plai/foot, 4 K, & J. 479 ; V. Small, L. E. 18 Eq. 114 ; 9 Cli. Limlrey v. Gurr, 6 Mad. 151 ; Mit- 651 ; 43 L. J. Ch..406 ; In re Wil- ford v. Reynolds, 1 Ph. 185 ; Magis- liams, 5 Ch. D. 735 ; 47 L. J. Gh. trates of Dundee v. Morris, 3 Macq. 92; In re Birkett, 9 Ch. D. 576 ; 134 ; Hoare v. Osborne, L. E. 1 Eq. 47 L. J. Cb. 846 ; but see contm 585 ; 35 L. J. Ch. 345. Fowler v. F., 33 Beav. 616; 10 {u) Stipra, p. 259. ]j. T. N. S. 682; Chapman v. Brou:i, (x) Supra, p. 259. Digitized by Microsoft® 294 EFFECT ON SUBSEQUENT LIMITATIONS. Chap. XV. po case of election in favour of the appointees, as against persons entitled to the subject matter of the power and taking benefits under the instrument executing the power {y). [y] Supra, p. 249. Digitized by Microsoft® 295 CHAPTER XVI. CHARITABLE TRUSTS. Property held upon trust for charitable purposes is for Chap. xvi. ever inalienable ; but upon grounds of public policy the charitable law permits the creation of such trusts : and a disposition trusts excep- p, ■/• ci'-f t^°° from Rule of real or personal property m favour of charity is free against Per- from objection on the ground of remoteness. " The law P^t"''y- of England has however made an exception also (from the Eule against Perpetuities) . .• . on grounds of public policy in favour of gifts for purposes useful and beneficial (a) to the public, and which, in a wide sense of the term, are called charitable uses " (6). Charitable purposes have been thus defined by Lord What are Langdale (c) : — " A charitable purpose must be, either one poses.* epar- of those purposes denominated charitable in the statute of Elizabeth (43 Eliz. c. 4), or one of such purposes as the Court construes to be charitable by analogy to those men- tioned in the statute." Those mentioned in the statute are as follows :— Relief of aged, impotent, and poor people ; maintenance of sick and maimed soldiers and mariners ; schools of learning, free schools, and scholars in the uni- versities ; repairs of bridges, ports, havens, causeways, (a) A "charitable 'purpose is not R. 16 Eq. 19, 24; 42 L. J. Ch. necessarily useful or beneficial ; see 809 . per Campbell, C, in Jefries v. Alex- {b) Per Sir M. E. Smith, Neo v. ander, 8 H. L. C. 594, 648 ; 7 Jur. Neo, L. R. 6 P. C. 381, 394. N. S. 221; and per Selborne, C, in [c] In Ktndall v. Grainger, 5 Beav. Farrer v. St. Catharine's College, L. 301; 11 L. J. Ch. 405. Digitized by Microsoft® 296 CHARITABLE TEUSTS. Chap. XVI. churches, sea bank.s, and highways ; education and pre- ferment of orphans ; relief, stock, and maintenance of houses of correction ; marriages of poor maids ; supportation, aid, and help of young tradesmen, handeycraftsmen, and persons decayed ; relief and redemption of prisoners and captives ; aid and ease of any poor inhabitants concerning payment of fifteens and setting out of soldiers or taxes. Amongst the purposes which the Courts have held to be charitable, by analogy to those above mentioned, are trusts for the following persons or purposes : — The poor, gene- rally, or of a particular locality or family ; or poor relations ; persons emigrating ; widows and orphans ; unsuccessful literary men; decayed tradesmen ; for releasing debtors ; the master and fellows of a college ; the master and governors of a ho.spital ; a priest and his successors ; the advancement of learning and education ; building a school, or a school for the sons of gentlemen ; maintaining a schoolmaster ; , founding a scholarship, fellowship, or lectureship at Oxford or Cambridge ; Queen Anne's Bounty ; building, or repair- ing, or ornamenting, a church, chimes, or organ ; distribut- ing bibles or religious books ; a minister for preaching ; an organist for playing; and, generally, any public religious object whatever, provided the religion is not one subversive of morals, and the object is not superstitious ; rebuilding St. Paul's Cathedra], after the Great Fire ; building a Sessions House ; paving, lighting, or improving a town ; the British Museum ; a public garden; a lifeboat; advanc- ing the study of animals useful to man ; the Chancellor of the Exchequer for the benefit of the country. This list might be largely extended {d). A case recently before the House of Lords seems to extend the class of cases excepted from the operation of the Rule against Perpetuities, on the ground of the trust [d) A collection of the authorities in Conveyancing, and Whiteford's will be found in the notes to Corbyn Law of Charities, pp. 16, geq, V. French in Tudor's Leading Cases Digitized by Microsoft® CHAKITABLE TRUSTS. 297 being charitable, beyond any of the instances above men- '"'^P ■'^^^• tioned. ' In Goodman v. Mayor . 431; 7 Q. B. D. Cairns, contra, see ibid. 642, 6,50 106 ; 49 L. J. C. P. 565 ; 50 L. J (g) 9 Mod. 64. C. P. 508. Digitized by Microsoft® 298 CHARITABr-E TRUSTS. Chap. XVI. formly beneficial to the public. Probably the range of "charitable" purposes will not be extended. "A man," said Lord Campbell, " has a natural right to enjoy his property during his life and to leave it to his children at his death ; but the liberty to determine how property shall be enjoyed in scecula swculorum,yfhen he who was once the owner of it is in his grave, and to destine it, in perpetuity, to any purposes, however fantastical, useless, or ridiculous, so that they cannot be said to be directly contrary to religion and morality, is a right and liberty which, I think, cannot be claimed by any natural or divine law, and which, I think, ought by human law to be strictly watched and guarded " (h). If the purpose of a gift is charitable, the Eule against Perpetuities is altogether excluded. It is immaterial whether the gift is to an individual, or to an association of persons, corporate or unincorporated ; and whether, in the latter case, the donees are a class of persons having, or intended to have, a perpetual existence or not (i). And it would seem that the Hule is excluded if the purpose of the gift is charitable within the wide meaning of that term as above defined ; and that, although the exception of charit- able trusts from its operation is said to be founded on public policy (/c), a trust which is neither beneficial nor useful to the public, but which is, in the legal sense of the word, charitable (l), cannot be void for perpetuity. Trusts for The question has arisen in some recent cases whether Eocieties^xist- trusts for the benefit of voluntary societies established and ing for reli- existing for religious, devotional, or social purposes are gious, or social, t • -, ^ ii • n r i*- purposes. charitable, or whether gitts ot property to such societies are void for remoteness. A voluntary society or institu- tion, unincorporated, but by its constitution intended to (7j) Per Campbell, C, Jeffries v. p. 300 ; Harbin v. MaMerman, L. E. Alexander, 8 H. L. C. 594, 648 ; 7 12 Eq. 559 ; 40 L. J. Ch. 760. Jur. N. S. 221. (k) See supra, p. 295. (i) See Cocks v. Manners, infra, (I) See supra, p. 295, note (a). Digitized by Microsoft® CHARITABLE TRUSTS. 299 exist, or capable of existing, for an indefinite period, and Chap. XVI. the primary object of which is the benefit of its members ' for the time being, ig not a charitable institution. Unless a power of alienating its property is provided by its rules or constitution, a gift to such a society is void for remoteness. It appears that the power inherent in a voluntary associa- tion of individuals, who are unanimous, to dissolve the association, or to abrogate or alter the rules or contract of association, and so to acquire a power of alienating the property of the association, will not aid the gift. It has been so held where the gift was in such terms as to make the subject of it part of the permanent property of the society, and not part of its income, to be spent upon the current expenses of the year (m). The gift in Came v. Long (ii), the case above referred Came v. Lonff. to, was of real estate by will for the benefit of the Penzance Library. This library was established and kept up by subscription, and was for the use of subscribers only, who were elected by ballot. The property of the library was vested in officers chosen by the subscribers as trustees for the subscribers. One of the rules provided that the library should not be broken up so long as ten subscribers remained. In the judgment of Lord Campbell, C, is the following passage : " The gift is to the trustees for the time being of the society, and their successors, to be held by them and their successors for ever, they holding it for the use, benefit, maintenance, and support of the library. If the devise had been in favour of the existing members of the society, and they had been at liberty to dispose of the property as they might think fit, then it might, I thmk, have been a lawful disposition not tending to a perpetuity. But looking to the language of the rules of this society it is clear that the library was intended to be a per- petual institution, and the testator must be presumed to (m) Carne v. Lonr/, infra. 589 ; 29 L. J. Ch. 503. («) 2 D. F. & J. 75 ; 27 L. J. Ch. Digitized by Microsoft® 300 CHARIfAELE TRUSTS. Chap. XY I. have known what the regulations were. By one of these it is provided that the society is not to be broken up so long as ten members remain. The devise, therefore, is for the benefit of a subsisting society, and one which is intended to subsist so long as ten members remain, and the property comprised in the devise is, therefore, to be taken out of commerce and to become inalienable, not for a life and lives in being and twenty-one years afterwards, but so long as ten members of the society remain " (o). A bequest to the Ringwood Friendly Society {p), a society whose members provided by subscription and fines a fund for their common benefit in case of sickness, lame- ness, or old age, was held by Hall, V.-C, on the authority of Game v. Long, to be non-charitable, and void as aiming at creating a perpetuity. But a gift to a non-charitable society, as a club or a limited company, so constituted that it may exist for an indefinite time, is not void for remoteness merely because it is possible that the society may have perpetual exist- ence. If, as in Came v. Long {su2Jra), effect can only be given to the testator's intentions by a trust to apply the income of the property for an indefinite time in accordance with the rules of the societ}' which regulate the appli- cation of income, the gift is void for remoteness. But if, as in the case mentioned below {Cocks v. Manners), the gift is absolute, and unfettered by any trust which prevents its immediate alienation, there is no perpetuity, and the gift is valid. Oocks V. Man- In Cocks V. Manners (q) the testatrix bequeathed pure and impure personalty to a Dominican convent at C, and to the Sisters of Charity of St. Paul at O. ; and di- rected the payment to be made to the Superiors of the two Institutions. The former Institution was a voluntary (o) It will be observed that the 497 ; 45 L. J. Ch. 199. gift being of real estate by will (q) L. R. 12 Eq. 574; 40 L. J. would have been void if charitable. Ch. 640. (p) In re Clai-l's Trusts, 1 Ch. D. Digitized by Microsoft® ners. CHARITABLE TRUSTS. 301 association of persons living together under a Superior for ''^^P- ^^^• the purpose of sanctifying themselves by prayer and con- templation. The latter was a similar association, whose jDrimary purpose was the sanctification of the members for the time being ; as a means to which they taught the poor and nursed the sick. It was held by Wickens, V.-C, that the Sisters of Charity were a charitable institution, and that the Dominican convent was not ; also that the gift to the convent was not void for perpetuity. " As regards the Dominican convent the case is a little different and more difficult. There are two questions, whether the gift is a charitable gift, and whether it is good, if not charitable." The Vice-Chancellor proceeds to define a charitable gift, and concludes that the gift to the convent, a voluntary association of women formed for the purpose of working out their own salvation by religious exercises and self-denial, and not by external charitable work, is not charitable (r). " The question remains whether the gift to the Dominican convent, which seems to me not charitable, is void for perpetuity. It is argued that it is a gift in trust for the purposes of a perpetual institu- tion, and therefore on a perpetual trust, and Came v. Long (s) is relied upon. That case does not, I conceive decide that a gift to a perpetual institution, not charitable, is bad — for instance, a gift to a club or a limited company — but merely that the gift in question there was a gift which the trustees could only give effect to by holding the property (which seems to have been all real estate) for ever and applying the income according to the rules Nothing of the sort is directed here. The gift is ordered to be paid to the Superior for the time being ; and the Superior, when she receives it, will be bound to account for it to the convent ; to put it, so to speak, in a common chest, and when there it will be subject to no trust which (r) Cf. KeJwe v. Wilson, 7 L. E. (.s) Supra, p. 299. Ir. 10. Digitized by Microsoft® 302 CHARITABLE TRUSTS. Chap. XVI. In re Dutton. ThmK-On v. Shakspeare. will prevent the existing members of the convent from spending it as they please. It would, I conceive, be an extreme stretch of the Rule against Perpetuity to hold that it applies to a gift of this sort" (t). The Athenaeum and Mechanics Institute at Tunstall was established for literary purposes, and was kept on foot by the subscriptions and for the benefit of the subscribers. The property of the Institute was vested in trustees. A testator left a sum of money to be applied in paying off a mort- gage on the building occupied by, and belonging to, the Institute. It was held that the gift was void as tending to a perpetuity (w). In his judgment, Kelly, C.B., said: " There are several cases, amongst others Thomson v. Shakspeare {x), which go to show that where, by the con- stitution of the society, there is nothing necessarily to put an end to its existence, so that it may last an indefinite time, and the gift is in such terms as to make the subject of it an accession to the capital or permanent property of the society, and not a sum to be brought into the annual accounts as a part of the year's income, to be disposed of by the then members, then there is a tendency to a perpetuity, and the bequest is void." Huddleston, B., appears to have considered that if the members for the time being had been competent to dissolve and divide the property of the Institute amongst themselves, the decision would have been different. In the case before him such a division of the property was prevented by the Literary and Scientific Institution Act (17 & 18 Vict. c. 112, s. 30.) But it seems doubtful whether the existence of such a power would make valid a trust which, apart from the power, creates a perpetuity {y). In Thomson v. Shakspeare (e) a testator bequeathed {t) Cocks V. Manners was recently followed in Ireland, In re Delany^s Estate, 9 L. E. Ir. 226. (m) In re Dutton, 4 Ex. D, 54 ; 48 L. J. Ex, 350. (x) Infra, p. 303. {y) See supra, p. 299. (z) Johns. 612 ; 1 D. F. & J. 399 ; 29 L. J. Oh. 140, 276. Digitized by Microsoft® CHARITABLE TRUSTS. 303 £2500 to his trustees and executors, to be laid out by Chap. xvi. them, with the concurrence of some persons described in the will as trustees of Shakspeare's house, in forming a museum at Shakspeare's house, and for such other pur- poses as the trustees of the will in their discretion should think fit, in order to give effect to his wishes. He also devised a rent-charge for the support of a custodian of Shakspeare's house. That house had been purchased by a number of subscribers, and conveyed to a committee, for the purpose of being preserved as a memorial to Shak- speare. The testator had, during his life, vested money in trustees for the purpose of keeping the house in preser- vation and repair. It was held by Lord Campbell, C, that the gifts were void, because, assuming that they were for the purpose of erecting and endowing in Shakspeare's house at Stratford-on-Avon a museum which was to endure in scecula scecwlonim, — " that is a perpetuity, and, not being a charity, it is void." By Knight Bruce, L.J., they were held to be void because the gifts were upon a non-charitable trust, which possibly might be incapable of being executed or enforced. Turner, L.J., appears to have held the gifts void on both grounds. Land granted to a community, or aggregate body of men, not incorporated, cannot, by virtue of the original grant alone, be transmitted to their successors (a). The societies of the Inns of Court are not corporations, but voluntary societies. They have held the land which they now occupy for centuries. It is said that, in order to con- tinue the succession, as soon as the number of the trustees (the benchers), in whom the land is vested, is considerably reduced, the survivors convey the lands to a person in trust to convey to all the existing members of the bench (6). By virtue of 5 & 6 Will. IV. c. 76, s. 2, certain property Property held by municipal (a) 10 Co. 26, b. Kyd on Cor- (5) Kyd on Corporations, 6, 7 ; porations, 6. Grant on Corporations, 58, note, a. Digitized by Microsoft® 304 CHARITABLE TRUSTS. Chap. XVI. referred to in the Act may be held by a municipal cor- corporations in poration for the benefit of the freemen of the borough for trust for free- gygj. /gy rpj^^ ^g.^^,. ^j ^^^ statute is to prevent the men m per- ^ ^ -^ ^ ■*■ petuity. objection of remoteness being raised to the trust. Whether a limitation of propei'ty, upon trust for the inhabitants, or freemen, of a borough, could be supported as a charity, or whether it would be void for remoteness, is not clear. From Came v. Long (d), and other cases mentioned above, such a gift would seem to be not cbaritable ; but from a recent case before the House of Lords it would seem that it is not void for perpetuity (e). Trust for the A gift to the poor of a particular family, or to the poor poor of a speci- , t j_ _o -i^ ^ r _l t i fied family. descendants 01 a specined person lor ever, creates a vahd charitable trust for successive generations of poor persons of the specified class. In White v. White (/) the gift was for putting out as apprentices " our poor relations," mean- ing the poor of two families. In Bernal v. Bernal {g) it was in favour of relations " if they shall come to want." In Attorney-General v. Price (h) it was upon trust for ever to distribute a yearly sum amongst " my poor kins- men and kinswomen and amongst their issue which shall dwell within the county of Brecon." In Isaac v. JDe Friez (J.) it was to the " poorest " relations of the testator and his wife. In this case " poorest '' was held to mean " very poor " ; for under such a gift no one can take who is not poor, in the sense of being an object for charity (/<;). In Gillam v. Taylor (l) the gift was for "such of the lineal descendants '' of a specified person, " as they may severally need." In all these cases the trusts were sup- ((■) See Prestncy v. Mayor, 3 ™id. limitations. If the contingency is too remote, the gift is void. " Such a contingent gift, although for charity, having the effect of rendering the property inalienable during the whole continuance of the preceding non-charitable estates, must, in order to be valid, necessarily vest within the same limits of time as if the trustees had taken the residue (upon the same condition) for their own benefit, or for any other charitable objects" (i). In the Commissioners of Charitable Donations v. De Clifford (k) the testator gave the surplus rents (beyond a specified amount) of freeholds, which he had devised to trustees in trust for an almshouse, to the person or persons of the S. and C. families who, for the time being, should be lords of the manor of D. ; with a gift over to the charity in case the families mentioned should not protect the charities, or if they should become extinct. It was held that the S. and C. families took the surplus rents in fee simple, and that the gift over was too remote. So In re Johnsons Trusts (l) a gift of £10,000 to a charity upon an indefinite failure of issue of A. was held clearly void for remoteness. It happens not unfrequently that an advowson is vested Trust of ad- in trustees upon trust that they shall, from time to time, as benefit of the vacancies occur, present to the living the nominee of the ^habitants of / ■ 1 mi 1 • "^'^ parish. inhabitants of the parish, ihat such a trust is not void (A) In Harbin v. Masterman, L. R. herlayne v. Brockett, L. R. 8 Ch. 12 Eq. 559 ; 40 L. J. Ch. 760; the 206, 211 ; 41 t,. J. Ch. 789. question was raised, but not decided, (k) 1 Dr. & W. 245. whether the Thelluson Act applies {I) L. R. 2 Eq. 716 ; 12 Jur. N. S. to a trust to accumulate for a par- 616. The charity does not appear tioular charity. to have been represented. (i) Per Selborne, C, in Ck'im- Digitized by Microsoft® no CHARITABLE TRUSTS. Chap. XVI. for perpetuity appears to be certain ; though, so far as the writer is aware, the point has never been expressly decided Upon wliat grounds its validity rests is not clear. There is no doubt that a limitation to an individual of an advowson must comply with the Rule against Perpetuities, like any other disposition of property (m) ; and there is difficulty in holding a trust such as that above described to be charit- able (n). The better opinion- seems, however, to be that such trusts are exempt from the Rule against Perpetuities as being, in a sense, charitable. The nature of these trusts is discussed by Jessel, M.R., incidentally, in Attwney- General v. Tfe^sfer (o): — "Now it must be remembered that where the advowson is so held, the parishioners can get no individual profit ; all they can get is the right to nominate their own rector or vicar — they get no personal benefit ; and I think it is possible to reconcile that line of cases on this theory, that it is a mere mode of selecting the charity trustee, because the man who performs divine service and ministers to the spiritual wants of the parish is in a sense, and in a grand sense, a trustee for the parish. The parishioners, having the perpetual right of nomina- tion, have only the right of choosing the parson of the parish, which is, no doubt, from its nature, a very im- portant thing. At the same time I admit at once that it is an anomaly, and it is very difficult to find out how such a right of nominatio7i could be properly vested in the parish- ioners from time to time, to elect at their own will and pleasure. However, it is so established" (p). This view of the reason for excepting such trusts from the operation of the Rule against Perpetuities is illustrated by the analo- gous exception which exists (q) in the case of the ordinary (m) See Proctor v. Bishop of Bath [p) By many oases, of which and Wclh, 2 H. El. Sr.B. f^haw v. Thmipson, 3 Ch. D. 233; (n) See Lewis on Perp. CO-l — • 45 L. J. Cli. 827, is one of the 709. latest. (o) L. R. 20 Eq. 483, 491 ; 44 [n] See supra, p. 247, L. J. Ch. 76G. Digitized by Microsoft® CHARITABLE TRUSTS. 311 power in a settlement of appointing new trustees, with its ''^^P- ^^• incidental power of revocation and new appointment. In Attorney-General v. Master of Brentwood School (r) it was held that a perpetual right of nominating the master of a grammar-school, granted, by the charter of incorpora- tion, to the founder and his heirs, was alienable. Such a right, therefore, like an advowson, is property, and can be exercised by an alienee ; and it is not objectionable on the ground of perpetuity. The attempt has sometimes been made by a direction in G-jft to charity .,, . . , . - . with reserva- a Will, or a covenant m a conveyance, creating a charitable tion or dispo trust, to confer on the testator's or settlor's kindred a per- ^''1;'?° °* P^"^* ■•^ of the property petual right or interest in the property given to charity, for the benefit Such attempts have invariably failed. kindred"^ ^ By an Indenture dated in 1539, conveying lands to a municipal corporation for charitable purposes, the corpora- tion covenanted, for themselves and their successors, that if any of the heirs of the body of a person named in the deed, being of consanguinity and kindred of the grantor, should come claim and make lawful request to the mayor and burgesses for the time being to' have a new lease to him or her, to be made within a year of the existing lease falling in, then and so often as such request should be made, the mayor and burgesses for the time being would make a new lease to him or her for thirty-one years at the yearly rent of twenty marks (s). It was held that the covenant was invalid as creating a perpetuitj^ Knight Bruce, L.J., spoke of the covenant as " a provision which directly tends to create, and if valid does create, a perpe- tuity, such as the principles and rules of the English law did before and throughout the reign of King Henry VIII. prohibit, have ever since forbidden, and do now forbid." (r) 3 B. & Ad. 59. 7 D. M. & G. 647 ; 25 L. J. Ch. (s) Kope V. Mayor, Aldermen and 145. Citizens of the City of Gloucester, Digitized by Microsoft® 512 CHABITABLE TKUSTS. Chap. XVI. Charitable trusts valid in British colonies. Statutes of Mortmain. In Attorney- General v. Greenhill (t) the testator de- vised lands to two colleges for charitable purposes, and directed that part of the lands should be leased to his wife's kindred for ever at one-third part under its true value. It was held that the direction to lease was void for perpetuity, and that the colleges could lease to whom they pleased. In Attorney-General v. The Master of Catharine Hall{u) a direction not to raise the rents was held void as incon- sistent with the devise of the lands to the college. The Rule against Perpetuities being part of the law in force in British colonies, is subject in the colonies to the same exception in favour of charity as in England (oc). Although the Rule against Perpetuities is relaxed in favour of charities, gifts of land to charitable and other corporations, whereby it becomes inalienable, have been restrained by the legislature from very early times. From Magna Charta to the Statute of Mortmain (9 Geo. II. c. 30, entitled, "An Act to restrain the disposition of lands whereby the same become unalienable ") a succession of Acts have been passed dealing with the subject. The operation of these Acts is not within the scope of the present work. Their policy has varied with the times which produced them {y). The earlier of them were passed in the interest, not of the public, but of the lords who were deprived of their rights of escheat, and other feudal profits, by alienations to ecclesiastical houses having perpetual existence. The last mentioned Act was passed with two objects — first, to prevent the locking up of land and real property from being aliened, which is made the title of the Act ; secondly, to prevent persons in their last moments from being imposed on to give away their (t) 33 Beav. 193; 33 L. J. Ch. 394. 208. (m) Jacob, 381. (x) Neo V. Neo, L. R. 6 P. C. 381, (y) For an account of the laws prohibiting alienation in mortmain see 2 Blackst. Con m. 2G8, seq. Digitized by Microsoft® CHARITABLE TRUSTS. 313 real estates from their families (z). The policy of this Act, Chap. xvi. therefore, as well as of the other Acts now in force pro- hibiting corporations from holding lands without a license in mortmain (a), is, at least in part, the same as that of the Eule against Perpetuities — " to prevent the locking up of land and real property from being aliened." (z) Per Hardwioke, C. (in AtL- [a] See 7& 8 Will. III. c. 37; and Gen. V. Day, 1 Ves. sen. 218, 223), as to limited companies for charit- wlio was Lord Ciiief Justice of tiie able purposes, 25 & 26 Vict. c. 89, King's Bench when the Act was s. 21. Digitized by Microsoft® 314 CHAPTER XVII. ACCUMULATION. Chap. XVII. Prior to the passing of the Thelluson Act, hereafter Before the mentioned, the only limit to the duration of a trust for ThellusonAct, accumulation (a) of income of real or personal property cumulation was that imposed by the Rule against Perpetuities on dunng the ^j^^ vesting of limitations. A trust to accumulate income whole of the ° ^ period allowed for a life or lives in being and twenty-one years afterwards, onimitatkin"^ ^'^'^' ^^ addition, for the period of gestation, where gestation wa3 valid. existed, was valid for the whole of the period named (6). And as to trusts declared before the 28th of July, 1800, this is still the law. Trusts declared since that date are subject to the Act above mentioned, which places further limits on the period during which accumulation may be directed. Trust for accu- A trust for accumulation beyond the period above beyond"hat mentioned, whether declared before or after the Thelluson period is ^ A.ct, is altogether void for remoteness. In Lord Southam2oton v. Marquis of Hertford (c) lands were settled, subject to a term, in strict settlement. The trusts of the term were that the trustees should, during the minority of any tenant for life or in tail under the settlement, receive and accumulate the rents, and hold (a) A trust for accumulation af- L. J. Ch. 268 ; 4 D. J. & S. 565. fects the income of the property [b) See per Lord Eldon, Griffiths subject to the trust, and then again v. Yei-e, 9 Ves. 127 ; Thelluson v. the income of that income when in- Woodford, 4 Ves. 227 ; 11 Ves. 112 vested ; see Green v. Gascoyne, 24 (c) 2 V. & B. 54. Digitized by Microsoft® wholly void. BEFORE THE THELLUSON ACT. 315 the accumulations in trust for the person who, upon the Chap. xvii. expiration of the minority, or upon the death of the minor, should be entitled to the rents and should be of the age of twenty-one years. The trust was held void for remoteness. In Marshall v. Holloway (d) the trust was, to accumulate the income of real and personal property limited by the will in strict settlement as often as any person entitled under the limitations should be under the age of twenty-one. The trust was, by Lord Eldon, held to be wholly void for perpetuity. Although accumulation such as that directed in Marshall V. Holloivay during minorities of tenants in tail by de- scent as well as by purchase cannot be directed and take effect under the terms of a trust, the same accumulation may take place by operation of law in the ordinary course of administration, or under the provisions of 44 & 45 Vict, c. 41, s. 42. The two cases above mentioned show that a trust to accumulate during minorities of all the tenants in tail under a strict settlement cannot be " split," so as to be good as to minorities of tenants for life and tenants in tail by purchase (which must necessarily occur within the legal period), and as to the rest, void for remoteness. Generally speaking, a trust for accumulation, which is to endure beyond the legal period, is altogether void, whatever may be the object of the accumulation, and whatever the destination of the accumulated fund. There Exceptions are, however, certain exceptions. Accumulation for .General rule as charity ; for the purpose of paying off the testator's or *» the mvali- settlor's debts ; for raising a sum already existing as a to accumulate charge upon the. property ; for raising a sum charged upon leTaTperiod the property by the instrument creating the trust ; a trust to accumulate rents of settled realty which is barrable by the tenant of a prior estate tail ; and, generally, trusts for (d) 2 Sw. 432. The trust in this described as a "dancing" trust for case was by Lord Eldon (p. 448) accumulation. Digitized by Microsoft® 3] 6 ACCUMULATION. Chap. XVII. accumulation which can necessarily be put an end to within the legal period by the person or persons entitled to the property subject to the trust, are untouched by the Rule against Perpetuities. Accumulation First, as to a trust to accumulate income of property an y. (Jevoted to charitj'. Where there is a clear gift of the whole property to charity, a direction to accumulate the income beyond the line of perpetuity for a particular charitable purpose, though it will not be carried out by the Court, will not invalidate the gift (e). Accumulation A trust for accumulation for payment of the testator's debts. O'^ settlor's debts is not within the scope of the Rule against Perpetuities. Subject to the right of the creditors to obtain payment of their debts out of the corpus, such a trust may be directed, and may continue, for an indefinite period. In Bateman v. HotchJcin (/) the testator devised real estate in strict settlement, subject to a term of 2000 years, which was limited to trustees upon trust to raise every year £500, to be invested and accumulated as a sinking fund for payment of his (the testator's) debts, and for pay- ment of charges created by the will. It was held by Lord Langdale, M.R., that the trust, though imlimited in its duration, was valid. The grounds of the decision were (1) that the first tenant in tail attaining twenty-one would obtain absolute dominion over the property, subject to the debts and charges ; (2) that, on that event taking place, the trustees of the term would become trustees for the owner of the estate, who might deal with the term and with the estate at his own discretion, subject onlj' to the debts and charges. Without the consent of the owner of the estate the trust for accumulation could not continue (c) Martin v. Marc/ham, 14 Sim. L. J. Ch. 388, supra, p. 308. 230 ; nom. Martin v. Maugham, (/) 10 Beav. i26 ; 16 L. J. Ch 13L. J. Ch. 392; and see Sinndt 514. V. Herbert, h. E. 7 Ch. 232; 41 Digitized by Microsoft® BEFORE THE THELLUSON ACT. 317 beyoud the time during which the law permits the Chap. xvii. suspension of full power over the estate. Bateman v. Hotchkin followed the previous case of Bacon v. Procter (g). It has been followed in the sub- sequent cases of Briggs v. Earl of Oxford (k) and Tewart V. Lawson (i). A trust to accumulate for payment of debts comes to an end when the debts are paid, whether by means of the accumulated fund, or otherwise (k). A trust to accumu- late for payment of debts, or, if the debts are otherwise paid, until the sum which would have been required for their payment is reached, would be void for remoteness (l). A direction to accumulate until a certain sum is pro- Accumulation duced, which will not necessarily be reached within the charges period allowed by the Rule against Perpetuities, is not, it pi^^f *"^ Digitized by Microsoft® Ji40 ACCUMULATION. Chap. XVII. interest, to be held upon such trusts as he should by his will appoint. By his will he directed that the £6000 and interest should form part of his residuary personal estate ; and he directed that his residuary personal estate should be invested in the purchase of land ; and he directed the trustees to accumulate the rents of the lands so purchased for a period exceeding that allowed, by the Thelluson Act. It was held that the interest of the £6000 accruing after the expiration of twenty-one years from the testator's death belonged to the testator's next of kin (/). Income of per- Where there is a residuary bequest income of personal (1) where ' estate (not being residue) directed to be accumulated there is a resi- contrary to the statute, and also income of such accumu- ' lations, fall into and become part of the capital of the residue {g). But a bequest of residue upon trust, as to part of the income, to accumulate the same during the life of A., and upon A.'s death, as to the residue and the accumulations (after payment of certain legacies), to B., does not carry to B. accumulations beyond twenty-one years from the testator's death which were void under the Act. As to such accumulations there is an intestacy (A). In Triclcey v. Trickey (i) there was a bequest of residuary personal estate upon trust to pay the income to the testator's daughter for her life, and, after her death, upon trust as to capital and income for the daughter's children. There followed a proviso that if the income exceeded £200 the surplus should accumulate for the children. It was held that the daughter was entitled to the whole of the income (whatever the amount) after twenty-one years from the testator's death ; she being the (/) Simmons v. Pitt, L. E. 8 Ch. 265 ; O'Neal v. Zmcas, 2 Keen, 313. 978 ; 43 L. J. Ch. 267. But see Harbin v. Masterman, L. R. (g) Haley i. Bannister, i Mad. 12 Eq. 559 ; 40 L. J. Ch. 760. . 275; In re Dralcdey's Estate, 19 (A) WeatheraU v. Thm-nburgh, 8 Beav. 395 ; Jones v. Maggs, 9 Ha. Ch. D. 261 ; 47 L. J. Ch. 658 ; see 605 ; 22 L. J. Ch. 90 ; EUis v. also Talbot v. Jevers, L. K. 20 Eq. Maxwell, 3 Beav. 587 ; Orawley v. 255 ; 44 L. J. Ch. 646. Crawley, 7 Sim. 427 ; 4 L. J. Ch. (i) 3 M. & K. 560. Digitized by Microsoft® AFTER THE THELLUSON ACT. 341 person who would have been entitled if the accumulations Chap, xvii. had not heen directed. Where there is no residuary bequest the income of (2) Where ■^ ■ there is no personal property directed to be accumulated, and accrumg residuary after the expiration of the statutory period, passes to the ^®1"^^*- next of kin (k). And the next of kin take income of Or the mcome residuary personalty accruing after the expiration of the statutory period (T). Money charged on land, of which the income is, by an instrument executed after that creating the charge, directed to be accumulated, is for this purpose personal estate (m). But the residuary legatee, and not the next of kin, will take such income, where the trust for accumulation is annexed to a previous absolute gift of the residue, for life, or otherwise (n). Income of a fund consisting partly of real and partly of Income of a personal property, the accumulation of which is contrary to the Act, passes to the heir at law or next of kin, or to the residuary devisee or legatee, according to the character of the property from which it arises (o). Income of real estate directed to be sold for the purposes of the will only passes to the heir at law (jo). A trust for accumulation contrary to. the Act which Person en- titled to ex- follows an absolute gift of the property lor lite, or other- cessive acou- wise, is simply void ; and the absolute gift takes effect, ^^g„'a°nlbso and carries the income to the donee, as if the trust to lute gift is accumulate beyond the statutory period were struck out (q). direction to accumulate {k) Pride v. Fooks, 2 Beav. 430. (m) See Trickey v. Trickey, 3 M. contrary to (I) McDonald v. Bryce, 2 Keen, &K. 560; (7o»i5ev. SwpAes, 34L. J. jjjg ^„j. 276; 7L. J. Ch. 173; Elborm v. Ch.344; 34 Beav. 127; 2D.J. &S. Goode, 14 Sim. 165 ; 13 L. J. Ch. 657. 394; Eyre v. Marsden, 2 Keen, (o) Eyre v. Marsd^n, 2 Keen, 56i; 564 ; 4 M. & Cr. 431 ; 7 L. J. Ch. 4 M. & Cr. 431 ; 7 L. J. Ch. 220 ; 220 ; Oddie v. Erorni, 4 De G. & Talbot v. Jemrs, L. E. 20 Eq. 255 ; J. 179 ; 28 L. J. Ch. 542 ; Matthews ii L. J. Ch. 646 ; Balph v. Carrick, V. EeMe, L. E. 3 Ch. 691 ; 37 L. J. 5 Ch. D. 984 ; 11 Ch. D. 873 ; 40 Ch. 8, 657 ; Talbot v. Jevers, L. E. L. T. N. S. 505. 20 Eq. 255 ; 44 L. J. Ch. 646 ; (p) Eyre v. Marsden, iibi supra ; Weatherall v. Thornhurgh, 8 Ch. D. In re Drakeley's Estate, 19 Beav. 395. 261 ; 47 L. J. Ch. 658. (?) Trickey v. Trickey, 3 M. & K. (m) Simmons v. Pitt, L. E. 8 Ch. 560 ; Combe v. Hughes, 34 Beav. 978 ; 43 L. J. Ch. 267. 127 ; 2 D. J. & S. 667 ; 34 L. J. Ch Digitized by Microsoft® 342 ACCUMULATION. Devolution of income of accumula- tions. Chap. XVII. A testator bequeathed his residuary estate to his two sons and his daughter in equal shares. He directed that the sons' shares should be paid to them as soon as con- venient ; but that the daughter's share should not be paid to her, and that the income of her share should be accu- mulated during the life of her husband ; and upon the death of the husband her share and the accumulations were to be held upon certain trusts by the will declared. It was held that the daughter was entitled to the income at the expiration of twenty-one years from the testator's death, and during the remainder of the husband's life (r). Income accruing, after the expiration of twenty-one years from the testator's death, from accumulations, follows income acciruing after the same period from the property itself. Thus income of accumulated rents of real estate passes to the residuary devisee or the heir-at-law (s). Income of accumulations of personal property, not being residue, passes to the residuary legatee or next of kin. Where rents of real estate are directed to be accumulated and added to the personal estate, the income of accumu- lations will follow the income of the personalty. If the residue is bequeathed for life, with remainder over, the question arises whether the tenant for life is entitled to such income absolutely, or whether it must be invested, and the income of the investments paid to the tenant for life. There appears to be some doubt as to this. In Crawley v. Crawley (t) and O'Neil v. Lucas (w) the latter course seems to have been adopted ; in a recent case (a;) Malins, V.-C, held that there could be no invest- ment of the income, and that the tenant for life of the residue took it as income as it accrued due. Where the property is settled. 344 ; and see suipra, pp. 319, 333, as to the right of a person absolutely entitled to stop accumulation. (r) Combe v. Hughes, uhi swpra ; and see Trickey v. Trickey, ubi supra. (s) Eyre v. Ma/rsden, 2 Keen, 569, 577 ; 4 M. & Cr. 431 ; 7 L. J. Ch. 220. (t) 7 Sim. 427 ; 4 L. J. Ch. 265. («) 2 Keen, 313, 316. (x) In re Phdlips, Phillips t. Lem/, 49 L. J. Ch. 198. Digitized by Microsoft® AFTER THE THELLUSON ACT. 343 Where a legacy of £5000 with accumulations was be- Chap, xvii, queathed to A. contingently on her marriage, and the residue was given to B. for life, remainder over, it was held that income arising beyond twenty-one years from the testator's death and in A.'s lifetime from accumu- lations made in B.'s lifetime belonged to B. or her legal personal representatives; and that income arising from accumulations made after B.'s death belonged to the legatee in remainder of the residue {y). In Bryan v. Collins {£) £1400 was bequeathed in trust to accumulate for the eldest daughter of A., payable at twenty-one or marriage, and if no daughter of A., for the eldest daughter of B., payable in like manner. A. never had a daughter and died forty-two years after the testator. B. had a daughter who died an infant eighteen years after the testator. It was held by Romilly, M. E., (following Morgan v, Morgan) that upon the death of A., B.'s daughter's representatives were entitled to the £1400 and accumulations made before the death of the daughter, with simple interest on the whole to the day of payment. In Trickey v. Trickey (a) and also in Gombe v. Hughes(b), where the direction to accumulate followed an absolute gift of residue for life, the tenant for life was held to be entitled to the income of accumulations as well as the income of the residue itself after the expiration of the twenty-one years. By the second section of the Act provisions for payment Exceptions of debts, for raising portions, and with regard to the pro- (i°)°PTOvi.° ' duce of timber, are excepted from the operation of the ^'o"!^ f'"' *^« Act. With regard to the exception in favour of debts, debts. Lord St. Leonards was of opinion that the effect of the Act is " that a man may by his will provide for the debts {y) Morgan v. Morgam, 20 L. J. {a) UM supra. Ch. 109, 441 ; 4 De G. & Sm. 164. (6) UM mpra. (z) 16 Beav. 1 4. Digitized by Microsoft® 344 ACCUMULATION. Chap. XVII. Qf himself or anyone else within the old limit " (c) ; differ- ing from Turner, V.-C, who had held that the words " or other person or persons" were to be read in the sense, that a testator, settlor, or any other person may provide for his own debts. In Matthews v. Keble (d), Page Wood, and Selwj^n, L.JJ., took the view of Lord St. Leonards, that provisions for payment of other persons' debts are within the exception. In Varlo v. Faden (e) future liabili- ties, in respect of a share in a newspaper bequeathed by the will, were held to be within the exception. The Rule against Perpetuities requires that a trust to accumu- late for the payment of the debts of a person other than the settlor or testator must be restricted in its operation to a life or lives in being and twenty-one years after. It seems that there is no limit for the duration of a trust to accumulate for payment of the settlor's or testator's own debts (/). The debts spoken of in the Act are future as well as existing debts (g). The trust must be bond fide for the purpose of paying debts. If accumulation is directed in all events, and the direction for payment of debts applies only in certain events {Ji); or if the trust is to accumulate rents, not for the purpose only of paying -debts, but for that purpose or, in case they are paid by sale or foreclosure of the land, for the purpose of raising a sum equal in amount to the value of the land sold or foreclosed, the trust is not within the exception of the second section (i) In the last men- tioned case, if the debts are paid by sale of the land, accumulation will not continue in order to recoup the corpus (fc). A trust to set apart so much of the rents of real estate (c) Barringten, Lord, v. LiddeU, 2 (/) Supra, p. 316. D. M. & G. 480, 498 ; 22 L. J. {c/) Bamnyton v. UddeU, Varlo Ch, 1. V. Faden, ubi supra. {d) L. R. 3 Ch. 691, 698 ; 37 (h) Mattheios v. Keble, ubi supra. L. J. Ch. 657. [i] Tewart v. Lawson, L. R. 18 (e) 27 Beav. 255 ; 1 D. F. & J, Eq. 490 ; 22 W. R. 822. 211 ; 29 L. J. Ch. 230. (*) TewaH v. Lawson, ubi supra. Digitized by Microsoft® AFTER THE THELLUSON ACT. 345 as in fifteen years will amount to £30,000, followed by a Chap. xvil. charge of that sum on the land, is not a trust to accumu- late to pay debts within section 2 (l). The second exception from the operation of the Act is (2-) Provi- _ in respect of accumulations for " raising portions for any i^g portions. child or children of any person taking any interest under such conveyance settlement or devise." These words have caused much difficulty. The subject of the exception is doubtful. " Portions " is a word " a precise definition of which no judge has ventured to give " (m). It has been held that it does not mean a gift to the chance survivor of the children of a class of persons taking a small interest under the will (n) ; but it includes portions already created (o) as well as portions created by the instrument itself (p). A direction to accumulate income of a speci- fied sum (g), or of the residue (r), or the whole (s) of the testator's estate for a specified period, and then to transfer the capital and accumulations to the children of a person named, is not within the exception as a trust for raising portions. Middleton v. Losh (t) must be mentioned as conflicting with these cases. There Stuart, V.-C, held that a trust to accumulate so much of the income of a pecuniary legacy as was not required for the support of A., and to divide the capital and accumulations, on A.'s death, amongst A.'s children, was within the exception of the (Q Evcms V. Hellier, 5 C. & F. uhi supra. 114. (r) Bourne v. BucMon, 2 Sim. (m) Per Kindersley, V.-C, Watt N. S. 91 ; 21 L. J. Ch. 193 ; T. Wood, 1 Dr. & Sm. 56, 60 ; 31 Edwards v. Tuck, 8 D. M. & G. L. J. Ch. 338. , 40; 22L. J. Ch. 523; 23L.J. Ch. (n) Burt V. Sturt, 10 Ha. 415, 204 ; BuH v. Sturt, 10 Ha. 415 ; 426. 22 L. J. Ch. 1071 ; Matthews v. (o) Balford v. Stains, 16 Sim. KeUe, L. R. 3 Ch. 691 ; 37 L. J. 488 ; 13 Jur. 0. S. 73 ; Bao'rington Ch. 8, 657. V. LiddeU, 2 D. M. & G-. 480, 499 ; (s) Edwards v. Tuck, uhi supra ; 22 L. J. Ch. 1. WUdes v. Dames, 1 Sm. & G. 475 ; (p) Beech V. Lord St. Vincent, 22 L. J. Ch. 495. 3 De G. & S. 678 ; 19 L. J. Ch. 130. (t) 1 Sm. & G. 61 ; 22 L. J. Ch. (j) Jones V. Magffs, 9 Ha. 605 ; 422. 22 L. J. Ch. 90; Watt v. Wood, Digitized by Microsoft® 346 ACCUMULATION. Chap. XVII. second section. The Vice-Chancellor appears to have relied, wrongly, on Barrington v. Liddell as an authority in point (u). A trust to accumulate for portions of children of a person who never has any children is void beyond the statutory period (x). But a trust to accumulate for por- tions of children, if there are any, and, if not, for other persons is good or bad, according to the result (y). It seems that the words describing the parent of the child whose portion may be accumulated— " taking any interest, &c." — do not refer only to the particular property of which the income is to be accumulated (z). Any interest taken under the will, however small or remote, and whether in the property to be accumulated or not, appears to be sufficient (a). If the portions are for a class of children, the trust will not be within the exception of section 2, unless all the members of the class are children of persons taking an interest under the will (6). (3.) Directions By the Second section of the Act it is provided that produce of nothing therein shall extend to any directions concerniag timber. ^j^g ppoduce of timber (c). This exception probably originated, partly in the fact that the produce of timber is not usually dealt with as annual income of the land, and partly in a desire to encourage the planting and growth of timber for naval purposes (d). No case has arisen with reference to the exception of timber. It appears that a trust to accumulate profits arising from timber for the whole of the period allowed by the Rule (u) See per Kindersley, V.-C, 114, 126. 2 Dr. & Sm. 60. (6) %re v. Marsden, 2 Keen, 564, (x) In re Clulow's Tr,, 1 J. & H. 673 ; Burt v. Sturt, uhi supra. 639 5 28 L. J. Ch. 696. (c) Cf. Pepy's Memoirs, quoted (y) In re Clulow'a Tr., supra. in Hargreaves on the TheUuson (z) Barrington v. Liddell, 22 L. J. Act, p. 206 : " Timber is an excre- Ch. 1 ; 2 D. M. & G. 480 ; Burt v. scence of the earth, provided by Stu/rt, 10 Ha. 415, 420 ; 22 L. J. God for the payment of debts." Ch. 1071. (d) Cf. Hargreaves on the Thel- (a) Evans v. SeUiei; 5 CI. & F. luson Act, p. 206. Digitized by Microsoft® AFTER THE THELLUSON ACT. 347 against Perpetuities is still valid ; and that an accumula- Chap XYII. tion may, in this way, be devised as extensive as that directed by the Thelluson will (e). In Eyre v. Marsden (f) it was held that the costs of Costs of ad- •^ . . . , . ministration an action resulting in a declaration that accumulation caused by in- was directed contrary to the Act should be borne by the the Artf"* °^ general estate of the testator, and not entirely by the part consisting of illegal accumulations. But costs of separating excessive accumulations, where they had been allowed by the persons entitled to be mixed with other funds, were, in Ralph v. Garrick (g), thrown on the excessive accumu- lations. (c) See per Preston, arguendo, Bengough v. Edridge, 1 Sim. 173, 247 ; Dorchester r. Effingham, 3 Beav. 180, note ; G. Cooper, 319 ; Ferrand v. Wilson, 4 Ha. 344 ; 9 Jut. 0. S. 860 ; Briggs v. Barl of Oxford, 1 D. M. & G. 363 ; 21 L. J. Oh. 829 ; as to trusts relating to the produce of timber. (/) 4 M. & Or. 231 ; foUowed in Barrett v. Buck, 12 Jur. 0. S. 771 11 L. T. 0. S. 352. ig) 5 Ch. D. 984 ; 11 Ch. D. 873 40 L. T. N. S. 505. See, also, Green V. Oascoyne, 4 De G. J. & S. 665 34 L. J. Ch. 268, as to such costs. Digitized by Microsoft® Digitized by Microsoft® INDEX. ACCUMULATION OF INCOME, trust to accumulate applies to income^of corpus and income of accumulations, 314, 325 trust, express, or implied, to accumulate until an executory limitation of corpus vests, 318, 325, 330 trust to accumulate during minorities of tenants in tail, 156, 160, 314, 319 trust liable to be put a stop to by tbe owner of tbe property, 318, 319 trust to accumulate for payment of debts, 316 trust to accumlate to raise a sum limited so as to vest witbin tbe legal period, 317, 332 trust to accumulate for cbarity, 316 accumulation before the Thelluson Act, 314, 320 , Tbelluson Act gives no validity to a trust whicb transgresses tbe Eule against Perpetuities, 325 trusts subject to the Thelluson Act, 320, seq. See Thelluson Act. accumulation in case of limitation in tbe alternative, 321 trust to accumulate so long as tbe law permits, 330 rents of foreign land, 334 rents of heritable Scotch property, 334 rents of land in Ireland, 333 ADVOWSON, trust of, to present nominee of parishioners, not void for remoteness, 309 ALIENATION, power of, inseparable from absolute ownership, 2, 7 condition not to alienate, 6 charge to arise on alienation by tenant in tail, 160 condition not to alienate to particular persons, 7 condition in a lease not to assign without license, 7 restraint on, attaching to married woman's separate property, 7 restraint on, where donee is an unborn female, 281 restricted by statute in various cases, 21 where there is a right of pre-emption, 14, 19, 20 Digitized by Microsoft® 350 INDEX. A LIENATION— continued. to charity. See Charitable Trusts. in mortmain, 312 property inalienable owing to successive minorities of tenants in tail, 21 existence of a power of alienation not conclusive upon the question of remoteness, 51 — 66 power of alienation apart from ownership does not prevent remote- ness, 66 ALTERNATIVE, LIMITATIONS IN, may be valid as to one event and void for remoteness as to the other, 74-78 _ accumulation in case of, 331 limitation of personalty to follow settled realty, where the issue in tail never exist, 127 death without issue and death with issue, 201 ANTICIPATION, RESTRAINT ON, attached to separate property of married woman, 7 void for remoteness where the donee is an unborn person, 281 APPOINTMENT. See Power. cy pr^s, application of doctrine to, 265, 270 validity as regards remoteness, 250, seq. vesting of limitation subject to a power, 42 AUTRE VIE, ESTATE PUB, remainders of, 171 limitation of, on death without issue, 193 BURIAL PLACE, disposition of land for a private, 22, 306 trust to keep up tomb, 305 BEQUEST. See Limitation. as to part to remote object, and as to residue to a valid object, 293 CHARITABLE TRUSTS not subject to the Rule against Perpetuities, 24, 295 validity of, in British colonies, 312 what are charitable trusts, 295, seq. gift to the poor of a specified family is charitable, 304 trusts that are not charitable, 298 — 306 trust to keep tombs in repair, 305 trust for voluntary society, 298 trust for celebrating religious rites for the dead, 306 disposition of land for private burial place, 306 Digitized by Microsoft® INDEX. 351 CHARITABLE TEUSTS— cojittTOied. gift to charity valid, though the particular object is too remote, 306 gift to charity upon a remote event, 309 gift to charity with a reservation for the benefit of individuals, 311 trust to accumulate for charity, 309 gift over from one charity to another at a remote period, 307 trust of advowsou for parishioners, 309 trust of property held by municipal corporations, 22 Statutes of Mortmain, 312 application of cy prh doctrine where the particular object of charity is too remote, 307 CHATTELS. See Personal Property. limitation of, as heirlooms, 124 — 135 CHILDREN, limitation to. See Class Limitation. issue meaning children, 199 CHURCH PROPERTY is held upon charitable trust, 24, 296 CIRCUMSTANCES MATERIAL upon the question of remoteness, 27 woman past child-bearing, 68, 69 where the limitation is in exercise of a power created by will, 251 CLASS, LIMITATION TO A. And see Vesting definition of a class limitation, 84 two kinds of class limitations, 84, 85, 119 void for remoteness, if any member of the class may be too remote, 84—86, 119 where the limitation is in exercise of a power, 254 cannot take effect as to some members of the class and not as to others, 87, 119 vesting of, 48 class must be ascertained within the legal period, 88 to each member of a class or series in succession, 1 19 — 123 to a class of competent objects, to vest at a remote period, 98, 99 to a class upon a contingent event, 49, 99 to each of a class a specified sum, is not a class gift, 100 to A. and a class, 101 to a class to be ascertained at the expiration of a previous estate tail, 102, 146 cross remainders for life amongst a class of unborn tenants for life, 102 to a class to be ascertained at the death of an unborn person, 102, 103 to a class of remote descendants to be ascertained within the legal period, 107 trust to sell upon a remote event and divide amongst a class of (1) remote, (2) competent, objects, 103, 104 to such of a class of competent objects as are living at a remote period, and the issue of such of them as are then dead, 87 Digitized by Microsoft® 352 INDEX. CLASS, LIMITATION TO A— continued. to a class of competent objects with, a remote divesting, substitutionary, or modifying clause, 95 — 97 to a class of unborn persons for life, with cross remainders, 102 to a class at a future time, with gift of income meanwhile ; time of vesting, 220—223 to a contingent class, 99, 223 to a class by way of remainder, 104 to a class to be ascertained upon the expiration of a prior estate tail, 146 to a series of persons answering a common description in succession for life, 84 time for ascertaining class, and question of construction, 105 cases in which class limitations have been held valid, 107 — 110 cases in which class limitations have been held void for remoteness, 110, 111 COMMON LAW, application of Eule against Perpetuities to common law interests, 4 CONDITION not to alienate, 7 precedent or subsequent, 43 remote condition annexed to absolute limitation, 256 qualification annexed to exercise of power of sale in a mortgage, 5, 248 the Rule against Perpetuities applies to conditions, 5 CONDITION A.L LIMITATION, limitation of a determinable interest, 70 —72 of estate tail, 150 to unborn person for life, 176 CONSTRUCTION. See Woeds. not generally affected by Rule against Perpetuities, 262 even where the limitation is in exercise of a power, 264 except in rare cases ; instances, 105, 106, 266 and where the words are ambiguous, 264 rales of, as to vesting, 206, seq. of exeo^Ttory trusts, 268—274 remoteness often a question of expression, 72 limitation void for remoteness material upon construction of other limitations, 276 time for ascertaining class, a question of, 105 cy pi'is doctrine, 268 — 274 effect of express reference to the Rule against Perpetuities 274 estate void for romoteness not raised by implication, 276 equitable limitation not construed as legal, in order to avoid remote- ness, 170 whether a trust is executed or executory, 127, seq. " die without issue," meaning of. See Die without Issue. Digitized by Microsoft® INDEX. 353 CONTINGENCY, limitation to a class upon, 99 of indefinite occurrence, limitation on, 3, 52, 182, 191, 309 failure of issue of a specified person ; see Die without Issue. with a double aspect, 75, 290 CONTINGENT REMAINDER. See Remainder. vesting of, 40 may be void for remoteness, 166 on death without issue of owner of prior estate for life or in tail, 183 CONTRACT, Rule against Perpetuities not part of the law of, 25 as to the use of land, 16— 19 not to alien, 8 covenant for renewal in a lease, 15 personal contract not subject to Rule against Perpetuities, 2S to give a right of pre-emption, 9, 14 for sale, binds the land, 20 not to disentail, 9 as to payment off of incumbrances, between tenant for life and tenant in tail, 10 clause of re-entry to secure performance of, 15 trust to secure purchaser of land in case of defective title, 60 vesting of interest arising under, 45 CONVENT, gift to, 300 COPYHOLDS, remainders of, 171 application of Forth v. Chapman to, 187 determinable fee in, 72 CORPORATION, possibility of reverter on grant to, 11 cannot now hold land in mortmain, unless so licensed, 313 municipal, may hold certain property upon perpetual trust, 22, 303 COSTS of administration caused by infringement of the Thelluson Act, 347 COVENANT, application of Rule against Perpetuities to ; see Contract. running with the land, 13 for renewal, in a lease, 15 CROSS REMAINDERS between unborn persons, 102, 177 A A Digitized by Microsoft® 354 INDEX. CROWN, unbarrable estate tail where reversion is in the Crown, 23 lands of, iaalienable, 22 C7 PRks, DOCTEINE OF, stated, 269 its application, 268—274 its limits, 262 is a rule of construction, 271 not confined to executory trusts, 270 applies to limitations in exercise of a power, 270 and to limitations not in exercise of a power, 268 attempt to create indefinite succession of life estates, 273 or a succession of life estates Umited iu number, 272 or a succession of terms of years determinable on life, 273 no person not intended to take can take by means of it, 273 does not apply to limitations by deed, 273 or to personal estate, 273 or a mixed fund, 274 whether a limitation can be modified so as to take effect according to its power, 265, 274 existence of cy pris rule not conclusive on question of application of Eule against Perpetuities to remainders, 166 gift to a particular charitable object that is too remote applied cy pris, 307 DEATH WITHOUT ISSUE. See Diu without Issue. DEBTS, power of sale for payment of, 247 trust for payment of, 316 Thelluson Act does not apply to provisions for payment of, 344 limitation upon death without issue upon trust to pay, 192 trust for payment of, ceases when debts are paid, 317 devise subject to payment of, 42 DEFERRED ENJOYMENT, 206—233. See Vesting. DEFINITIONS of a perpetuity, 1 of a class limitation, 84 DETERMINABLE INTERESTS, limitation of, 70-72 DIE WITHOUT ISSUE, meaning of, previously to the Wills Act, 182 meaning of, after the Wills Act, 203, 204 cases to which the Wills Act does not apply, 204 Digitized by Microsoft® INDEX, 355 DIE WITHOUT ISSUE— coiiimiMd further restriction on limitations upon failure of issue by Conveyancing Act 1882. ..205 limitation on failure of issue of A. at any time is void for remoteness, 52, 182 limitation of realty on failure of issue of prior tenant in tail, 183, 184 limitation of personalty to A. and the heirs of his body, and if he die without issue, over, 183 limitation of realty to A., and if he die without issue, over, 183 to A. for life, remainder to his children as he shall appoint, and if he die without issue, over, 200 context may show that failure of issue at death is intended, 201 issue to fail may be issue living at testator's death, 201 to A., if B. die without issue, and if B. die leaving issue, to C, 202 limitation upon death without issue corresponding with limitation upon death leaving issue, 201 or corresponding with limitation upon death without issue then living, 202 to A. in fee, with gifts over if he die without issue, and also if he die leaving issue then living, 202 to A. for-life, remainder to B., with gift over on B.'s death without issue, 203 whether limitation upon A.'s death without issue takes effect if A. die and his issue fail in testator's life, 203 limitation of reversion if tenant in tail die without issue, 68, 144, 148, 184 charge to arise on failure of issue in tail, 146 to B. if A., testator's heir, die without issue, 184, 190 to A. and his heirs, and in default of heirs to B., a collateral heir of A., 184 to A. and his issue, and if A. die without issue, to B., 185 to A., remainder to his issue as purchasers, and if A. die without issue, over, 185 expressions having same meaning as " die without issue," 185 death without issue associated with event personal to him whose issue is spoken of, 188 die without leaving issue ; rule in Forth v. Chapman, 186 the rule in Forth v. Chapman does not apply to copyholds not admitting of entail, 187 or to deeds, 188 gift over if A. die without issue and without having disposed of the property, 189 to A. on failure of issue of B., a prior taker, at, on, or after B.'s death : realty, 189 ; personalty, 190 condition to be performed by taker under gifton failure of issue, 190 to A. on failure of testator's own issue, 192 limitation on A.'s death without issue in trust to pay debts, 192 effect of direction to pay to a living person a sum to be raised on death without issue, 190, 191 limitation of estate pur autre vie on death of A. without issue, 193 limitation to a living person on A.'s death without issue, 191, 194 to A. for life on B.'s death without issue, 193 to living persons, and on the death of auy without issue, to the sur- vivors for life, 195 A A 2 Digitized by Microsoft® 356 INDEX. DIE WITHOUT ISSVF,— continued. failure of issue after the death of the ancestor and within the per- petuity limit, 196 . _ failure of a class of issue who must all die within the perpetuity limit, 196 referential construction : — failure of issue before spoken of, 199 to A. for life, remainder to his children, and if he die without issue, to B., 200 to A. lor life, remainder to some of his children, and if he die without issue, over, 199 DISPOSITIONS OF PROPERTY. See Limitatioks. to which the Rule against Perpetuities applies, 4 by way of contract, 20 of personalty to follow settled realty, 124 — 135 DISTRESS, power of, in a lease, 12 in a mortgage, 12, 248 to secure a rent-charge, 248 DURATION of property the subject of limitation, 24, 193 of estate or interest limited, 69 of trusts to accumulate, 314 of powers, 239, 254 of determinable interests, 70 — 72 EASEMENTS not s\ibject to Rule against Perpetuities, 20 covenant operating as a grant of, 13 ELECTION not raised by void limitation, 249 ENTAITi. See Estate Tail. ENJOYMENT, DEFERRED. See Deferred Enjoyment ; VBSTiNa. ENTRY, RIGHT OF, to secure performance of covenants in a lease, 15, 248 to secure payment of mortgage debt, 12, 248 to secure payment of a rent-charge, 12, 248 EQUITABLE REMAINDERS. See Remainders. whether Rule against Perpetuities applies to them, 167 Digitized by Microsoft® INDEX. 357 ESTATE, PARTICULAR. See Particular Estate. ESTATE PUB AUTRE VIE. See Authe Vie. ESTATE TAIL, restriction on right of barring, invalid, 9, 160 implication of, from gift,on failure of issue, 183 limitation of reversion expectant upon, 68, 144, 148, 184 unbarrable by statute, 21 remainder or reversion in tbe Crown, 23 determinable, 150 power collateral to, 150, 243 power to arise on expiration of, 246 power to manage during minorities of tenants in tail, 156 — 160, 244 trust to sell and divide on expiration of, 146 trust to accumulate income during minorities of tenants in tail, 156 — 160, 244 charge of a sum of money to arise on expiration of, 146, 160 name and arms clause in a strict settlement, 149 legal remainder expectant upon, 142, 143 limitation to class to be ascertained on expiration of, 146 limitation barrable by tenant in tail not void for remoteness, 141 except in certain cases, 147 whether the estate tail is in possession or in remainder, 141 and whether vested or contingent, 141 hut the estate tail must itself be valid, 141 and must arise, 141 limitation to arise after expiration of estate tail, 146, 147 limitation by way of executory use taking effect before or after ex- piration of, 140 by way of executory use collateral to and defeasance of estate tail, 148 in exercise of power collateral to estate tail, 150 trust taking effect out of estate antecedent to estate tail, 151 — 160 term to arise on alienation by tenant in tail, 160 executory use that may, or must, arise after expiration of estate tail, 147 term antecedent to estate tail, 151 — 155 term subsequent to estate tail, 145, 154, 161 limitation of personalty by reference to limitations of settled realty, 124—135 conditional fee, in case of copyholds not admitting of entail, 72 EVENT, limitation on indefinite event, 3, 182 limitation upon failure of issue of A. ; see Die without Issue. limitation on alternative events, 74 — 78 limitation valid or void for remoteness according to the event, 74 EVIDENCE, parol not admissible to avoid remoteness, 31 facts material on question of remoteness, 27 — 31 Digitized by Microsoft® 358 INDEX.. EXCHANGE, power of, in strict settlement, not restricted as- to duration, 241 condition formerly implied upon an exchange, 11 EXECUTORY LIMITATION, introduction of, gave rise to Rule against Perpetuities, 2, 36 vesting of, 41 accumulation in case of, 318 that will or may take effect after expiration, of estate tail, 147 EXECUTORY TRUSTS, application of Rule against Perpetuities to, 112 — 139 application of cy prh doctrine, 268 ; see Cy Pe^s. to settle property, how executed, 136 — 138 remoteness of, tried by what circumstances, 27, 138 direction that personalty shall follow settled realty so far as the law will permit does not create an executory trust, 128 EXPRESSION, remoteness as a question of, 67 — 83, 160 a single limitation cannot be split, 73, 76, 315 FACTS by which remoteness is tried, 27 — 31 parol evidence to exclude remoteness not admissible, 31 FAILURE OF ISSUE. See Die without Issue. FORFEITURE, clause of, attached to Umitation to unborn person, 176, 177 rejection of forfeiture clause where it is too remote, 280 clause of, distinguished from conditional limitation, 70 FRIENDLY SOCIETY, limitation to, 300 GESTATION, period of, allowed where gestation exists, 35 two periods of, when allowed, 35 GIFT OVER if donee dies before time named for payment, effect on vesting, 211 on death without issue, sometimes raises an estate tail, 182 — 186 on remote event, of property given absolutely, 256 of shares of members of a class who die to sm'vivors, 92 — 97 GRAVE, trust for keeping up, 305 Digitized by Microsoft® INDEX. 359 HEIRLOOMS, settlement of, to follow realty, 124 — 135 HBIES, FAILUEE OP. See Die without Issue. HEIRS OP THE BOBY, gift of personalty to, 183, 186 of personalty to follow settled realty, 124 — 135 IMPLICATION of estate tail, on gift upon failure of issue, 182 — 184: none, of estate void for remoteness, 276 INCOME, gift of income for ever vests tKe corpus, 26 gift of income to person from time to time answering given descrip- tion, 117—119 gift of, to A. or his heirs, 46 gift of, untU. time named for payment of corpus, vests the corpus, 218 reason for the rule, 219 it applies to class limitations, 220 except where the class is contingent, 223 gift of, until sale, to persons entitled under a remote trust for sale, 219' gift of so much income as trustees think fit, 224 gift of income during minority, and of corpus at twenty-two, 225 gift of principal and income together at remote period, 225 trust to accumulate during minorities of tenants in tail, 156 — 160, 314 direction to accumulate or apply for legatee's benefit at trustee's dis- cretion, 223 accumulation of ; see Accumulation ; Thelluson Act. INPANCY. See Minority. property inalienable owing to, 21 period of twenty-one years allowed without regard to, 35 accumulation directed during ; see Accumulation. ISSUE, PAILURE OP. See Die without Issue. LEASE, proviso for re-entry in, 7, 15, 248 covenant to renew, 15 covenants in, running with the land, 13 LEASING, power of, in settlements, 241 LEAVING ISSUE. See Die without Issue. Digitized by Microsoft® 300 INDEX. LEGACY, rules of construction as to vesting of, 206, seq. gift of, at a future time, 43 cliarged on land, rules as to vestiug, 232 LIFE, what lives may be taken to fix time of vesting, 32 child begotten is a life in being, 35 LIFE ESTATE. See Tenant for Life. may be limited to unborn person, 174 — 181 and may be determinable on marriage, 176 succession of life interests, limited or unlimited in number, 272 to unborn persons ; see Unboen Person. LIMITATION after or in defeasance of estate tail ; see Estate Tail. in exercise of a power ; see Power ; Appointment. to a class ; see Class Limitation. upon failure of issue ; see Die without Issue. by way of remainder ; see Remainder. to an unborn person for life, 174 — 181 ; see Unborn Person. vested or contingent ; see Vesting. to charity ; see Charitable Trust. vesting of ; see Vesting. of personalty by reference to limitations of realty, 124 — 135 capable of taking effect as a remainder or as an executory limitation according to the event, 73, 74 by deed or by will, difference as regards remoteness, 28, 251 depending upon contingent determination of prior remote interest, 291 by way of executory trust, 27, 127 future limitation of personalty, 43, 44 executory, must vest within the legal period, 3 when it vests, 41 taking effect on alienation, 7, 160 of personalty, 3, 206 name and arms clause in a settlement, 148 effect of a remote limitation on limitations following it, 288, seq. subject to a power which is void for remoteness, 29.3 trust to sell upon remote event and pay proceeds to persons ascer- tained within the legal period, 219 similar trust where donees are not ascertainable until sale, 239 restraint upon anticipation, 7 where the donee is an unborn female, 281 Bounding remotely, 67 by reference, 119, seq. subject to a power of appointment, 42 subject to payment of debts, 42, 259 ulterior to a limitation that is too remote cannot take effect, 288 — 294 upon alternative events, 74 — 78 of determinable interest, 70 Digitized by Microsoft® INDEX. 361 LUiVrATlO'S— continued. upon condition, 43 vipon one event including two or more contingencies, 73 upon event of indefinite occurrence, 3, 52, 182, 191, 304 upon remote event, of property given to charity, 309 upon death of survivor of A. and future husband or wife, 175 failure of remote limitation does not accelerate ulterior limitation, 288, seq. void limitation material on question of construction, 276 vested with deferred enjoyment, 206 — 233 vested subject to be divested, 43 vested sicb modo, 41 substitutional, 48 terms of, rather than substance, are material on question of remote- ness, 72 of absolute interest, followed by remote divesting or modifying clause, 287, -seg. of personalty to follow settled realty, 124, seq. of personalty upon future event, 43, 44 of realty to A., remainder to B., if he survive A., 42 of realty upon faikire of issue of prior taker, or of A., 182, seq. of realty to A. until B. attains twenty-one, and then to B., 229 of rent-charge or term to arise on future event, 8 of i ncome for ever, 26 of a reversion after an estate tail, 34, 68, 144, 148, 184 of a term of years antecedent to an estate tail, 151, seq. of a term of years subsequent to an estate tail, 145, 154, 161 of a short term of years or an estate pur autre vie on a remote event, 24, 193 of property to be ascertained or to arise upon a remote event, 46 of freeholds and leaseholds in the same words, 231, 233 rule in Forth v. Chapman as to meaning of " die without leaving issue '' in case of personalty, 186 to A. and a class, 101 to A. " or is heirs,'' 46 to A. when, if, as, upon, from and after, a given age, 213, 231 to A. payable at a future time, 206 to A. for life, remainder to his children attaining a given age, 41 to A. if he attains twenty-one, with gift over on death under twenty- one, 231 to A. after the death of an unborn tenant for life, 175 to A. on B. or his heirs becoming entitled to other property, 116 to A. upon failure at any time of issue of B. , 52 to each of a series of persons answering a common description, for life, 84, 85, 119—123 to the first of a similar series who acquires a given qualification, 112—119 to tlie children of A. at twenty-two, 207 to the children of A. payable at twenty-two, 208 to such of the children of A. as attain twenty-two, 109 to a person at a future time answering a given description, 112, seq. to the survivor of a class of unborn persons, 46 to unborn persons for life, 174 — 181 Digitized by Microsoft® 362 INDEX. LITERAEY INSTITUTE, gift to, 302 alienation of property of, 22, 302 MANAGEMENT, trust for, during minorities of tenants in tail, 156 — 160, 244 MINOEITY, land may be inalienable for centuries owing to a succession of minorities, 20, 21 trust for management or accumulation of rents of settled land during minorities of tenants in tail, 156—160, 244, 314, 319 gift of income during minority wbere corpus payable at a given age, 225 accumulation in case of minority, bow aflfected by tbe Tbelluson Act, 330 MORTGAGE, power of sale in, 12 condition annexed to power of sale in, 248 MORTMAIN, perpetuity, wben property held in mortmain, 312 statutes of, tbeir policy, 312 MUNICIPAL CORPORATION may bold certain property for benefit of freeman for ever, 22 NAME AND ARMS CLAUSE, its operation as regards remoteness, 149 OPTION OF PURCHASE. See Pre-emption, Right of. PARTICULAR ESTATE, contingent remainder after particular estate limited to unborn person, 166 PAYMENT deferred after vesting, 206, seq; see "Vesting. PERIOD ALLOWED FOR ACCUMULATION. See Thelluson Act. PERIOD ALLOWED FOR VESTING fixed by tbe Rule against Perpetuities, what it is, 3, 32 when it begins to run, 34 Digitized by Microsoft® INDEX. 3G3 PEEIOD ALLOWED FOE NESTING— continued. what lives may be taken, 32 what period allowed when no lives are taken, 34 period of gestation, when allowed, 35 term of twenty-one allowed without regard to infancy, 34, 35 PERPETUITY. See Rule against Perpetuities ; Remoteness. definition of, 1 perpetuities created by statute, 21 — 24 charitable trusts, 295—313 PERSON, UNBORN. See Unboen Person. PERSONAL PROPERTY, future limitation of, is executory, 43, 44 limitation of, so as to foUow settled realty, 124, seq. PORTIONS, provisions for raising, are excepted from the Thelluson Act, 345 trust for raising additional, on failure of primary limitations, 154 POSSIBILITY distinguished from an interest, 45 POWERS, of which the object is to create a perpetuity, 234 remoteness in donee or subject matter, 235 remoteness in the objects, 236 remoteness in the origin, 238 remoteness in the time at which power is exerciseable, 239 remoteness in duration of power, 239 exerciseable by persons of whom some are too remote, 240 of sale, exchange, and leasing in settlements, 241 limited to arise after an estate tail, 246 collateral to an estate tail, 150, 243 of sale, for payment of debts, 247 of appointing new trustees, 247 of distress and entry to secure rent or mortgage debt, 248 of sale in mortgage, condition annexed to, 248 of management during minorities of tenants in tail, 156 — 160, 244 of sale to raise legacy vesting within legal period, 247 void in part for remoteness, whether void altogether, 240 not void because some of the objects too remote, 236 but void, if none are necessarily ascertainable within the legal period, 237 execution of void power does not raise case of election, 249 facts occurring after execution of, are material where there is a re- appointment, 259 limitation subject to remote power, 259 Digitized by Microsoft® 364 INDEX. POWER interests whicli, in point of remoteness, may be created under a general power, 250 and under a special power, 250 distinction according as the power is created by deed or will, 251 appointment to person unborn at creation of power, with, power to appoint by will, 252 or with power to appoint by deed or will, 252 appointment of interests of which some are, and some are not, too remote, 255 appointment of absolute interest with remote condition or modifying clause, 256 appointment to class including possibly remote obj ects, 254 ai>pointment of particular estate with remainder void for remoteness, 258 appointment of remainder expectant upon remote particular estate, 258 appointment upon failure of issue, 261 appointment by will of residue carries property appointed remotely, 258 cy prds, doctrine of, applied to appointments, 270 appointment in exercise of a power operating only within legal period, 254 ■where power, but not appointment, includes only valid objects, 254 PRE-EMPTION, RIGHT OF, of reversion in a lease, 14 of fee simple, 19, 20 is an interest in property, 9, 19 application of Rule against Perpetuities to, 19 PROPERTY, right of alienation inseparable from, 2, 7 except in case of married woman, 7, 282 personal ; see Personal Peopkrtt. power of alienation apart from, does not exclude the Rule against Perpetuities, 66 RE-ENTRY, proviso for, in a lease, 7, 15, 248 REJECTION FOR REMOTENESS of clause purporting to cut down a previous absolute limitation, 95, 97, _ 255, 256, 278—287 gift of specified sum to each of the members of a class including remote objects, 284 of one limitation does not afi'ect the construction of others, 276, 281 of clause applicable to a class gift, as to some of the members only, 282 restraint on anticipation attached to a limitation to an unborn person, 281 or to a class which may include an unborn person, 282 Digitized by Microsoft® INDEX. S65 RELIGIOUS RITES, trust to celebrate, over the dead, 306 REMAINDER, application of Rule against Perpetuities to limitation by way of, 163—173 vesting of, 40 vesting of contingent remainder, 40 cy pr^s doctrine, 166 after estate tail, 142—146 after remote limitation, 258 after estate tail, to a class to be tben ascertained, 102, 146 of copyholds, 171 contingent remainder may be void for remoteness, 166 contingent remainders made valid by 40 & 41 Vict. c. 33. ..172 limitation to a class by way of, 104 expectant upon life estate limited to unborn person, 166 cross-remainders between unborn persons, 102, 177 equitable limitations of realty, by way of, 167 — 169 to child of unborn tenant for life, 166, 180 after life estate in unborn person, 174 expectant upon estate limited to (1) living or (2) unborn person, 165, 166 REMOTENESS. See Rule against Perpetuities. facts by which it is tried, 27 — 31 sometimes a question of form rather than substance, 72 when a question of substance, 24, 67 as it affects limitations subsequent to that which is too remote, 288, seq. in trust for accumulation ; see Acoumctlation. in interests in laud arising under contracts, 12, seq. in event determining a life interest limited to an unborn person, 176 limitation sounding remotely, 67 words descriptive of estate limited, 69 — 72 in one alternative, in limitations with a double aspect, 74^78 in executory trusts, 27, 268 ; see Cy Pres . in limitation to unborn person ; see Unborn Person. in limitation to an unascertained person, 112, seq. in limitation after or in defeasance of estate tail ; see Estate Tail. in gift to charity, 306, 309 in clause purporting to out down absolute interest, 79 — 83, 97, 278, seq. in class limitation ; see Class Limitation. in gift over, 79—83, 92—98, 256 in conditions ; see Condition. in limitation of a rent-charge, 8 in limitation of a term to arise in futuro, 8 of a clause does not affect construction of rest of instrument, 276 of remainders ; see Remainder. of powers, 234—250 of limitations in exercise of powers, 250 — 261 of limitations upon failure of issue ; see Die without Issue. Digitized by Microsoft® 366 INDEX. RENEWAL, covenant for, in a lease, 15 RENT-CHAEGE to arise in remote event, 8 REPUGNANCY, rejection of clause restraining alienation, 6 of condition, 6 of trust to enter and manage during minorities of tenants in tail, 246 RESTRAINT UPON ANTICIPATION allowed in case of married woman, 7 otherwise void for repugnancy, 6, 7 cannot be annexed to estate limited to unborn person, 281 annexed to a class gift, where some of the class are too remote, 177, 281, 283 RESTRICTION on the use of land, 16 on alienation ; see Restraint upon Anticipation. REVERSION, limitation of, on failure of issue in tail, 68, 144 limitation of, on failure of issue generally, 144, 148, 184 where it is in the Crown, estate tail is inalienable, 23 RIGHT OF ENTRY, 7, 15, 248 EIGHT OE PRE-EMPTION. See Pre-emption, Eight of. RULE AGAINST PERPETUITIES, statement of the Rule, 3 its scope and object, 2 its origin and history, Butler's account, 36 — 38 its policy, 2 is part of the law of property, not of contract, 25 is an invention of the Chancellors, 2 not statutory, 2 is a rule of law, not of construction, 262 remoteness as a question of expression rather than substance, 72 whether the Rule affects the construction of instruments, 262, seq. what facts are material in applying the Rule, 27 applies to every disposition of property, 4 applies to every kind of property, 4 applies in the colonies, 4 applies to conditions, 4 requires vesting in interest, not necessarily in possession, 31 property may be inalienable for centuries notwithstanding the Rule, 21 cy pris, doctrine of ; see Cy Pres. Digitized by Microsoft® INDEX. SG7 RULE AGAINST PERPETUITIES— coniimted anomalous operation of the Rule, 31 applies though property alienaUe forthwith, 51 — 66 cases in which the contrary has been held or stated, 56 — 61 statutory perpetuities, 21 — 23 unbarrable estate tail created by statute, 21 unbarrable estates tail where the reversion is in the Crown, 23 period allowed for vesting, 32 fixed by analogy to the old law, 37 what it is, 32 lives may be taken arbitrarily, 32 unborn person, if begotten, is a life in being, 35 whether two periods of gestation allowed, 35 twenty-one years allowed if no lives taken, 34 application of the Rule to trusts for accumulation, 314, seq. ; see Accumulation ; Thelluson Act. name and arms clause in strict settlement of realty, 149 powers ; see Powers. limitations to classes ; see Class Limitation. limitation to unascertained person, 112, seq. limitation of realty by way of remainder ; see Remainder. limitation purporting to defer possession after vesting, 206, seq. contracts binding land in equity, 12, seq. right of pre-emption ; see Pre-emption, Right of. executory limitation taking effect after expiration of estate tail, 140, 147 limitation antecedent to or in defeasance of estate tail ; see Estate Tail. limitation to unborn person for life, 174, seq. limitation on failure of issue ; see Die without Issue. limitation of reversion expectant upon an estate tail, 68, 144, 148 rent-charge or term of years to arise in future event, 9 future limitation of personalty, 43 clause afi'ecting two or more limitations valid as to some, and void for remoteness as to others, 79 — 83 limitation of personalty byreference to limitationsof realty, 119 — 136 limitation on alternative events, 74 — 78, 127 limitation which may take effect either as a remainder or as an executory limitation, 74 absolute limitation followed by remote divesting clause, 95 — 98, 278—287 executory trusts, 27, 127 — 139 possibilities, 45 express reference to the Rule confining the limitation to the legal period, 274 contract not to alienate, 8 eftect of the Rule in the case of a limitation following another that is too remote, 288, seq. exceptions from the Rule, 11, 241 limitations after an estate tail ; see Estate Tail. gifts to charity ; see Charitable Trusts. trust to accumulate for payment of debts, 316 Digitized by Microsoft® 3C8 INDEX. KULE AGAINST PERPETUITIES-conriiiMerf. exceptions from the Eiile, personal contracts, 25 power of sale for paj'ment of debts or legacies, 247 covenant for renewal in a lease, 15 power of appointing new trustees, 247 condition implied by law on exchange, 11 condition or qualification annexed to power of sale in a mortgage, 248 easements, 13, 20 restrictions on the use of land created by contract, 16 trust of advowson, to present nominee of parishioners, 309 limitation of short term of years, or estate pur autre vie, 24, 193 power of sale in a mortgage, 12 power of distress and entry to secure rent or mortgage debt, 12 limitation in exercise of a power operating only during the legal period, 254 powers of sale and leasing and exchange in a strict settlement of land, 241 SALE, contract for, vesting of interest arising under, 12, 45 power of, for payment of debts or legacies, 247 power of, in mortgages, 5, 12, 248 trust or power for sale on remote event and division of proceeds, 219, 238 unlimited power of, in settlements, 241 power of, apart from ownership, does not exclude the Rule, 66 trust for sale upon expiration of estate tail, 146 SHIFTING USE. See Execdtort Limitations. vesting of, 41 collateral to or in defeasance of an estate tail, 146 — 151, 244 in a strict settlement, 148 annexed to ultimate remainder in a strict settlement, 149 name and arms clause, 148 operating upon eviction from land taken in exchange, 11 SOCIETY, literary and scientific institutions, their power of alienation, 22 gift to literary institutions, 302 non-charitable and volrmtary, gift to, 298 grant to unincorporated society cannot operate in favour of successive members, 303 SPRINGING USE. See Shifting Use ; ExECUTORr Lijiitations. STATUTES, 34 & 35 Hen. VIH. c. 20...23 43Eliz. c. 4... 295 7 & 8 Will. IIL c. 37. ..22, 313 10 & 11 Will. IIL c. 16. ..35 Digitized by Microsoft® INDEX. 369 STATUTES— continued. 9 Geo. II. c. 30.. .312 39 & 40 Geo. III. c. 98. ..320 41 Geo. III. c. 59... 21 54 Geo. III. c. 161. ..21 3&4'Will. IV. c. 74... 23 5 & 6 Will. IV. c. 76... 303 1 Vict. c. 26... 30, 203, 259, 338 8&9 Vict. c. 106...45, 57, 66 15 & 16 Vict. c. 85.. .22 16 & 17 Vict. c. 134... 22 17 & 18 Vict. c. 112.. .22, 302 25 & 26 Vict. c. 89. ..22, 313 25 & 26 Vict. c. 145... 338 40&41 Vict. c. 33... 45, 172 44 & 45 Vict. 0. 41. ..19, 315, 338 45&46 Vict. c. 38...66 45 & 46 Vict. c. 39... 193, 205 STATUTORY PERPETUITIES, 21—23 SUBJECT MATTER OF LIMITATION estate ^Mr autre vie, 171 material in question of remoteness, 24, 68, 186 gift of (1) real estate, (2) personalty, on death of A. without leaving issue, 186 short term of years, 24 reversion after estate tail, 68, 184 rule of construction as to vesting differs according as the property is real or personal, 186 SUBSEQUENT LIMITATION cannot take effect where prior limitation is too remote, 288, seq. SUBSTITUTIONAL LIMITATION vesting of, 48 in class limitations, 92 SURVIVOR, limitation to, when it vests, 46 limitation to, of a class of unborn persons, 46, 178 TENANT FOR LIFE, limitation to unborn person for life, 174 limitation to survivor of class of unborn tenants for life, 178 cross remainders amongst unborn tenants for life, 102, 177 succession of tenants for life, ct/ pris rule, 272 TENANT IN TAIL. See Estate Tail. proviso as to heirlooms not vesting in tenant ilci tail dying under twenty-one, 124 B B Digitized by Microsoft® 370 INDEX. TERM OF YEARS, limitation of, antecedent to estate tail, 151 subsequent to estate tail, 145, 154, 161 whether Rule against Perpetuities applies to limitation of short term, 24 THELLUSON ACT. See Accumulation. text of the Act, 322 invalidates a trust for accumulation pro tanto, 323 does not give any validity to a trust for accumulation which infringes the Rule against Perpetuities 325 applies where no express trust to accumulate, 325 and whether accumulation at simple or compound interest is directed, 325 accumulation where accumulated fund vests within legal period, 332 does not apply to Ireland, 333 acciimulation at discretion of trustees or upon contingency, 332 does not accelerate interests, 335 trust to accumulate so long as law permits, 330 application to heritable property in Scotland, 334 application to rents of realty in foreign country, 334 accumulation in case of alternative executory bequests, 331 accidental accumulation or in breach of trust, 331 exceptions from the Act, provisions for payment of debts, 343 whether debts of a stranger are intended, 344 provisions for raising portions, 345 what are portions, 345 provision as to produce of timber, 346 four periods allowed for accumulation are not cumulative, 335 first period ; the life of any grantor, &c., 336 second period ; twenty-one years from the death of any grantor, &c., 336 third period .; minority of any person living at the death of any grantor, (fee, 337 fourth period ; minority of any person entitled to income, &c., 337 devolution of income directed to be accumulated contrary to the Act, 338. where the income consists of rents of real estate, 338 where it is income of personalty, 340 where there is a residuary bequest, 340 where there is no residuary bequest, 341 where the income arises from residuary personalty, 341 where it arises from a mixed fund, 341 person entitled where there is an absolute gift followed by illegal direction to accumulate, 341 devolution of income of accumulations, 342 where the property is settled, 342 costs of administration caused by infringement of the Act, 347 TIMBER, power for trustees to £nter and cut during minorities, 158, 244 accumulation of proceeds of sa)le of, 1 58 provisions as to tlie produce of, excepted from the Thelluson A^t, 346 Digitized by Microsoft® INDEX. S7l TOMB, trusts for keeping in repair, 305 disposition of land for, 306 under the Burial Acts, 22 TRUSTS, charitable ; see Charitable Trusts. executory ; see Executory Trusts. of personalty to correspond with limitations of settled real estate, 113, seq. executory and executed, difference as regards remoteness, 27 application of cy pr^s rule to executory trusts, 268 to enter and manage settled estates during minorities, 156 — 160, 2M to accumulate rents during minorities of tenants in tail, 156, 319» executory, to settle property, how executed, 133 of advowson, to present nominee of parishioners, 309 to arise on expiration of estate tail, 146, 246 for sale ; see Sale. for keeping up tombs, 305 for celebrating religious rites over the dead, 306- TRUSTEES, power of appointing new, 247 UNASCERTAINED PERSON. See Limitation. limitation to, 112, seq. UNASCERTAINED' PROPERTY, limitation of, 46 UNBORN PERSON. See Limitation. if begotten, is a life in being within Rule against Perpetuities, 35 limitation to, for life is valid, 174 whether that in remainder vests at the same time or not, 174 limitation to survivor of unborn tenants for life, 178 limitation to child of, by way of remainder, 166, 180 determinable life interest limited to, 176 cross remainders amongst unborn tenants for life, 102, 177 limitation to vest upon event happening in the life of, 177 limitation to vest upon death of, 175 restraint upon anticipation attached to life interest in, 281 power exerciseable by donee, an unborn person, on marriage, 253 power exerciseable by donee, an unborn person, by will, 253 power exerciseable by donee, an unborn person, by deed or will, 262 unascertained person, limitation to, 112, seq. USES, STATUTE OF, Rule against Perpetuities introduced in consequence of, 2, 36 USES. See Exbcutoey Use ; Shifting Use. Digitized by Microsoft® 372 INDEX. VESTING, meaning of the word, 39 inaccurate use of the word aa meaning transmissible, or indefeasibly vested, 42 vesting suh modo, 41, 49 vesting in interest, not in possession, required by the Rule against Perpetuities, 31 time for vesting allowed by the Rule, 32 ; see Rule against Per- PBTTTITIBS. importance of determining time of vesting, 39 direction as to heirlooms not vesting in tenants in tail under twenty- one, 124 time of vesting of various limitations, contingent remainder, 40 to A. for a term, remainder to B., 40 to A. for life, remainder to children of B. who attain twenty-five, 41 executory limitations, 41 to A. subject to a power of appointment in B., 42 devise subject to payment of debts, 42 interest arising under contract for sale or giving right of pre-emp- tion, 20, 45 substitutional limitation, 48 trust for sale and division, 47, 219 future limitation of personalty, 43, 44 limitation subject to divesting clause, 43 limitation to unascertained person, 46, 112, seq. of unascertained property, 46 limitation to A. " or his heirs," 46 limitation subject to condition precedent, 43 limitation subject to condition subsequent, 43 limitations vested or contingent, a question of construction, 207, 208 determined without regard to result as regards remoteness, 208 legacy payable at a future time, 206 legacy to vest at future time, 206 bequest to the children of A. at twenty-two void for remoteness, 207 bequest to the children of A. to be paid at twenty-two valid, 208 gift of income until time of payment vests the corpus, 218 reason of the rule, 219 whether the gift of iucome is express, or not, 219 whether the gift is to an individual or a class, 220, 222 gift to a contingent class with gift of income to members for time being, 223, 226 direction to accumulate income or to apply it for benefit of legatee, 223 direction to apply so much income as trustees think fit, for mainten- ance, 224 gift of income distinct from gift of corpus, 224 gift of annual sum not equivalent to gift of income, 225 gift of principal and income at future time, 225, 228 gift of income during " minority," 225 gift of principal and income to a future class, 226 to the children of A. to be paid at an age beyond twenty-one, 208 effect of gift over if no child attains the age, 211 Digitized by Microsoft® INDEX. 373 VESTING— co»«mwd. to the children of A. at or if they attain a given age, 213 absolute gift not controlled by ambiguous expressions as to vesting, 216 trust to sell and divide at future time, with gift of income meanwhile, 219 express direction as to time of vesting, 217 limitation by way of trust to pay, transfer, or convey at future time, 214 direction to set apart a sum to answer legacy payable at future time, 229 effect of gift over on death before time named for payment, 211 rule of construction as to vesting varies according as the limitation is of realty or personalty, 229 rule in Boraston's case, 229 rule in Edwards v. Hammond, 231 rule applicable to legacies charged on land, 232 to legacies payable out of mixed fund, 233 to gift of land and money to be laid out in land, 233 to gift of proceeds of sale of land, 233 to gift of freeholds and leaseholds in the same terms, 231, 232, 233 VOLUNTARY SOCIETY, gift to, 298 WOEDS, " so far as the rules of law and equity will permit," direction that personalty shall follow settled realty, 127 " regard being had to the difference in the tenures of the premises," 132 " die without issue ; " see Die withoot Issue. " tenants.in tail," whether tenants in tail by descent intended, 124 what words create an executory trust to settle personalty by reference, 128 direction to accumulate so long as the rules of law permit, 330 THE END. W. I. BICHAEDSON, PRINTBB, 4 AND 5, GREAT QUEEN STREET, LONDON, W.C. Digitized by Microsoft® Digitized by Microsoft® Muroh. 1883 OP LAW WORKS, PUBLISHED BY STEVENS AND SONS, 119, OHANCEEY LANE, LONDON, W.C. (And at 14, Bell Yard, Lincoln's Inn). Note. — All letters to he addressed to Ohancery Lane, not to Bell Yard. Acts of Parliament. — Public and Local Acts from an early date, may be had of the Publishers of this Catalogue, who have also on sale the largest collection of Private Acts, relating to Estates, Enclosures, Railways, Roads, &c., &c. ACTION AT LAW.— Foulkes' Elementary View of thfi Ppoceedlngs in an Action. — Founded on "Smith's Action at Law." By W. D. I. FOCTLKES, Esq., BarriBter-at. Law. Second Edition. 12mo. 1879. 10s. 6rf " A manual, by the study of which he (the student) may easily acqiK're a gener.^ knowledge of the mode of procedure in the various stages of an action in the sevciM divisions of the High Court. — Law Tiirtes. Prentice's Proceedings in an Action in the Queen's Bench, Common Pleas, aiid Exche- quer Divisions of the High Court of Justice. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. Second Edition. Koyal 12mo. 1880. 12s. ADMIRALTY.— Pritchard's Admiralty Digest.— Second Edition. By R. A. PRITCHARD, D.C.L., Bamster-at-Law, and W. T. PRITCHARU. With Notes of Cases from French Maritime Law. By ALGERNON JONES, Avooat a la Conr Imperiale de Paris. 2 vols. Royal 8vo. 1865. 3/. Roscoe's Treatise on the Jurisdiction and Practice of the Admiralty Division of the High Court of Justice, and on Appeals there- from, with a chaptei' on the Admiralty Juris- diction of the Inferior and the Vice-Admiralty Courts. With an Appendix containing Statutes, Rules as to Fees and Costs, Forms, Precedents of Pleadings and Bills of Costs, By EDWARD STANLEY ROSCOE, Esq., Barrister-at-Law. Second Edition. Revised and Enlarged. Demy 8vo. 1882, II. is, " A clear digest of the law and practice of the Admiralty Courts." " A co&iprehensive and useful manual of practice."— Solicitm-s' Journal. ADVOCACY — Harris' Hints on Advocacy. Conduct of Cases Civil and Criminal. Classes of Witnesses and suggestions for Cross-Examiningthem, &c.,&o. By RICHARD HARRIS, Barrister at-Law, of the Middle Temple and Midland Circuit. Si;:th Edition. (Further Revised and Enlarged.) Royal l-2mn. 1 882 7s. 6rf. " Full of good sense and just observation. A very complete Manual of the Advo- cate's art in Trial by Jury." — Solicitors' Journal. " A book at once entertaining and really instructive. . . Deserves to be cai cfully read by the young barrister whose career is yet befoi-e him." — Low Mayarin, May, lSS:i [No. 27.] A Digitized by Microsoft® 2 STEVENS AND SONS' LAW PUBLICATIONS. AGENCY.— Petgrave's Principal and Agfent.— A Manual of the Law of Principal and Agent. By B. C. PETGBAVE, SoKcitor. 12mo. 1857. 7s. 6d. Russell's Treatise on Mercantile Agency. — Second Edition. 8vo. 1873. 14«. AGRICULTURAL LAW.— Addison's Practical Guide to the Agricultural Holdings (England) Act, 1875, and Treatise thereon showing the Alterations in the Law, &c. By AliBERT ADDISON, SoKcitor. 12mo. 1876. Net,i3.6d. Cooke's Treatise on the Law and Practice of Agricultural Tenancies. — New edition, in great part rewritten with especial reference to Unexhausted Improvements, with Modern Forms and PrScedents. By G. PRIOR GOLDNEY, of the Western Circuit, and W. RUSSELL GRIFFITHS, LL.B., of the Midland Circuit, Barristers-at-Law. Demy 8vo. 1882. M. 1«. *' In its present form it will prove of great value to politicians, lawyers and agri- culturalists." - Late Times, June 3, 18S2. ' ' A book of great practical utility to landlords and tenant farmers, as well as to the legal profession." — Law Magazine, May, 1882. I3ixon's Farin. — Vide "Farm." ARBITRATION.— Russell's Treatise on the Po-wer and Duty of an Arbitrator, and the Law of Sub- missions and A-wards; with an Appendix of Forma, and of the Statutes relating to Arbitration. By FRANCIS RUSSELL, Esq., M.A.. Barrister-at-Law. Sixth Edition. By the Author and HERBERT RUSSELL, Esq., Barristerat-Law. Royal 8vo. 1882. 36.5. "The cases are carefully collected, and their effect is clearly and shortly given. This edition may be commended tn the profession as comprehensive; accurate and practical." — Soticitors' Journal, January 13, 1883. ARTICLED CLERKS.— Rubinstein and Ward's Articled Clerks' Handbook. — Being a Concise and Practical Guide to aU the Steps Necessary for Entering into Articles of Clerkship, passing the Preliminary, Intermediate, Final, and Honours Exami- nations, obtaining Admission and Certificate to Practise, with Notes of Cases affecting Articled Clerks, Suggestions as to Mode of Read ing and Books to be read during Articles, and an Appendix con- taining the questions asked at the recent Preliminary, Intermediate, Final, and Honours Examinations. Third Edition. By J. S. RUBINSTEIN and S. WARD, SoUcitors. 12mo. 1881. 4s. '• No articled clerk should be without it." —Law Timet. *' "We think H omits nothing which it ought to contain." — Law Journal. ARTICLES OF ASSOCIATION.— Palmer.— Fide "Conveyancing." ATTORNEYS.— Cordery.—Ft(ie " Solicitors." Pulling's Law of Attorneys, General and Special, Attomeys-at-Law, Solicitors, Notaries, Proctors, Conveyancers, Scriveners, Land Agents, House Agents, &c. , and the Offices and iVppointments usually held by them, &c. By ALEXANDEK PULLING, Serjeant-at-Law. Third Edition. 8vo. 1862. 18s. Smith.— The La-wyer and his Profession.— A Series of Letters to a Solicitor commencing Business.. By J. OITi'ON SMITH. 12mo. 1860. ii. ASSETS, ADMINISTRATION OF, — Eddis' Principles of the Administration of Assets in Payment of Debts. By ARTHUR SHELLY EDDIS, one of Her Majesty 's Counsel. Demyfivo. 1880. 6s. '' The subject is one of considerable importance, and we have no doubt that the author's treatment of it wiii assist student and others in acquiring the elementary principles of this head of equity jurisprudence. The cases are brought down to the present time." — I^.w Times. *♦*/ ^^ standard Lain Worijorc Tceptin Slock, in law calf and other bindings. Digitized by Microsoft® 119, CHANCERY LANE, LONDON, W.C. b AVERAGE — Hopkins' Hand-Book on Aversfge.— Fourth Edition. 8vo. {In preparation.) Lowndes' Lavir o-f General Average. — English and Foreign. Fourth Edition. By RICHARD LOWNDES, Author of "The Admiralty Law of Collisions at Sea," "The Law of Marine Insurance." {In prepca'ation.) BALLOT. — FitzGerald's Ballot Act.— With an Intkoddotion, Forming a Guide to the Procedure at ParKamentaf y and Municiiial Elections. Second Edition. Enlarged, and containingthe Municipal Elections Act, 1875, and the Parliamentary Elections (Returning Officers) Act, 1875. By GERALD A. R. FITZGERALD, M. A., of Lincoln's Inn, Esq., Barrister-at-Law. Foap. 8to. 1876. 5s. 6d "Ansefiil guide to all coucemed in Parliamentary and Municipal Elections." — Law Magaeine. "We should strongly advise any person connected with elections, whether acting as candidate, agent, or in any other capacity, to become possessed of this manual." BANKING Walker's Treatise on Banking Law. In- cluding the Crossed Checks Act, 1876, with dissertations thereon, also references to some American Cases, and full Index. By J. DOUGLAS WALKER, Esq., Barrister-at-Law. Demy 8to. 1877. 14s. *^ Persons who are interested in banliing law may be guided out of many a difQcolty by consulting Mr. Walker*s volume." — Lavo Times. BANKRUPTCY.— Bedford's Final Examination Guide lO Bankruptcy. — Fourth Edition. (In pr^aration.) Haynes. — Vide "Leading Cases." Pitt- Lewis. — Vide "County Courts." Salaman. — Vide "Liquidation by Arrangement," Scott's Costs in Bankruptcy. — Tick "Costs." Smith's Manual of Bankruptcy. — A Manual relating to Bankruptcy, Insolvency, and Imprisonment for Debt ; comprising the New Statute Law verbatim, in a consolidated and readable form. With the Rules, a Copious Index, and a Supplement of Decisions. By JOSIAH W. SMITH, B.C.L., Q.C. l-2mo. 1873. 10». *^* The Supplement may be had separately, net, 2s. 6cJ, Williams' Law and Practice in Bankruptcy: comprising the Bankruptcy Act, the Debtors Act, and the Bankruptcy Repeal and Insolvent Court Act of 1869, and the Rules and Forms made under those Acts. Second Edition. By ROLAND VAUGHAN WILLIAMS, Esq., and WALTER VAUGHAN WILLIAMS, Esq., assisted by Fbanois Halleti Habdcastle, Esq., Barristers- at-Law. 8vo. 1876. \L 8s. ' ' It would be difficult to speak in terms of undue praise of the present work." BAR, GUIDE TO THE — Shear'wood. — Ftde "Examination Guides." BILLS OF EXCHANGE — Chalmers' Digest of the La^^^ of Bills of Exchange, Promissory Notes, and Cheques. By M. D. CHALMERS, of the Inner Temple, Esq., Barrister-at-Law. Second Edition. Demy 8vo. 1881. 15.s. " In its present form this work contains a very complete digest of the subjects to which-it relates." — Law Times. " As a handy book cf reference on a difficult and Important branch of the law, it is most valuable, and it is perfectly plain that no pains have been spared to render it complete in every respect. The index is copious and well arranged."— iSofwrday Review. Chltty on Bills of Exchange and Promissory Notes, ■with references to the law of Scotland, France and America. — Eleventh Edition. By JOHN A. KUSSELL,Esq., LL.B., one of Her Majesty's Counsel, and Judge of County Courts. Demy 8vo. 1878. 11. 8s. *,* All standard Law Woriis are Jcept in Stock, in law calf and other himUngs, A 2 Digitized by Microsoft® 4 STEVENS AND SONS' LAW PUBLICATIONS. BILLS OF LADING.— Leggett's Treatise on the Law of Bills of Lading; comprising the various legal incidents attaching to the Bill of Lading ; the legal effects of each of the Clauses and Stipulations ; and the Eights and Liabilities of Con- signors, Consignees, Indorsees, and Vendees, under the BiU of Lading. With an Appendix, containing Forms of Bills of Lading, Ac. By EUGENE LEGGETT, Solicitor and Notary Public. Demy 8vo. 1880. !'■ !«■ BILLS OF SALE Fithian's Bills of Sale Acts, 1878 and 1 882. With an Introduction and Explanatory Notes showing the changes made in the Law with Respect to Bills of Sale. By EDWAE.D WILLIAM riTHIAN, of the Middle Temple, Esq., Barrister-at- 'La.w (Draftsman of the Bill of 1S82). Pvoyal 12mo. 1882. 5s. ** Mt. Fithian's book will maintain a high place among the most practically useful editions 'of the Bills of Sale Acta, 1S7S and 1882."— Imw Mugazine, November, 1882, CARRIERS. — Bro-wne on Carriers. — A Treatise on the Law of Carriers of Goods and Passengers by Land and Water. With Keferences to the most recent American Decisions. By J. H. B. BROWNE, Esq., Barrister-at-Law. Svo. 1873. 18«. CHANCERY, and Fide " EQUITY." Daniell's Chancery Practice.— The Practice of the Chancery Division of the High Court of Justice and on appeal therefrom, being the Sixth Edition of Daniell's Chancery Practice, with alterations and additions and references to a companion Volume of Forms. By L. FIELD, E. C. DUNN, and T. RIBTON, assisted by W. H. Upjohn, Barristers-at-Law. In 2 vols. Vol. I. (with Table of Cases and an Index), demy 8vo. 1882. 21. 2s. " This new edition of the Standard Chancery Practice will be generally welcomed, and we are glad that we can speak favourably of the manner in which the editors have accomplished their difficult task of deciding what parts of the old work should be rejected, and of adapting the parts retained to the new pi actice. There is to be found, in every part of the book we have examined, evidence of great care ; the cases are not merely jotted down, but analysed and considered, and no pains appear to have been spared to render the information given both accurate and complete. This is high praise, but we think it is fuUy warranted by the result of our examination of the work. . . . It is exactly what it professes to be — a concise and careful digest of the practice." — Solicitors' Journal, July 1, 1882. " All the portions relating to the practice introduced by the Judicature Acts and Rules are well done." — Law Timei, April 1, 1882. • " The learned authors have spared no pains to make this new book of practice as comprehensive in scope and as accurate in detail as that which so long enjoyed an almost unique reputation as * Daniell's Practice.' Indeed if any fault is to be alleged it would be that the work la perhaps somewhat too exhaustive ; a fault, however, which is on the right side in a book of practice, which is not intended to be read through, but to serve as a mine of information for ready reference whenever the practitioner may have occasion to seek for guidance." — Law Magazine, May, 18S2. *,* Vol. II. is m the press, and will be published shortly. Daniell's Forms and Precedents of Proceed- ings in the Chancery Division of the High Court of Justice and on Appeal therefrom ; with Dissertations and Notes, forming a complete guide to the prac- tice of the Chancery Division of the High Court and of the Courts of Appeal. Being the Third Edition of "DanieE's Chancery Forms." By WILLIAM HENRY UPJOHN, Esq., of Gray's Inn, &e Demy 8vo. 1879. 21. 2s " Mr. Upjohn has restored the volume of Chancery Forms to the place it held before the rf»cent changes, as a trustworthy and complete collection of precedents. It has all the old merits ; nothing is omitted as too trivial or commonplace ; the solicitor's clerk 6nda how to indorse a brief, and how, when necessary, to give notice of action ; a.jd the index to the forms is full and perspicuous. "— jSoitcieor*' Journal. " It wUl be as useful a work to practitioners at Weatminster as it will be to those in Lincoln's Inn." — Law Times. *„* All standard Law Wm'lcs arekept in Stock, inlaw calf and other bindings. Digitized by Microsoft® 11&, CHANCEKY LANE, LONDON, W.C. CHANCERY.-0»i^i»wd. Haynes' Chancery Practice.— The Practice of the Chancery Division of the High Court of Justice and on Appeal therefrom.— By JOHN S. HAYiNTES, LL.D. Demy 8™. 1879. 11. 5s. Morgan's Chancery Acts and Orders.— The Statutes, Gveueral Orders, and Kules of Couxt relating to the Practice, Pleading, and Jurisdiction of the Supreme Court of Judicature, particulailf^ with reference to the Chancery Division, and the Actions assigned thereto. With copious Notes. Fifth Edition. Adapted to the new Practice by GEORGE OSBOKNE M0E6AN, M.P., one of Her Majesty's Counseliand CHALONER W.CHITTB, Barrister- at-Law. Deujy 8vo. 1876. V. 10s. ' ' This- edri)tioa oS Mb.. Morgan's tseatise must, we believe, be the most pepulfer with the profe.s6ion." — Law Timei. Morgan and Wurtzburg's Chancery Costs. — Vide "Costs." Peel's Chancery Actions. — A Concise Treatise on ttie Practice and Procedure in Chancery Actions. — Second Edition. Including the Practice in Chambers. By SYDNEY PEEL, of the Middle Temple, Esq., Barrister-at- Law. Demy 8vo. 1881. 8s. M. " Mr. Peel's little work gives a very commendable sketch of the modem practice of the Chancery l>ivision. ... It contains some chapters upon Proceedings at Chambers and oa Further Consideration,, which are liktjy to be valuable from the extreme paucity of all printed information upon these subjects ; and it is enriched vrith a very full list of caocs bearing upon the practice of the Chancery Division giving references t» all the Reporta.." — Law Journal. " The book will give to the student a good general view of the effect on chanccrj practice of the Judicature Acta and Orders." — Solicitors^ Journal.- ■ CHANCERY PALATINE OF LANCASTER Snow and V/in- stanley's Chancery Practice. — The Statutes,. Consoli- dated and General Orders and Rules of Court relating to the Practice,. Pleading and Jurisdiction of the Court of Chancery, of the County Palatine of Lancaster. With Copious Notes of all practice cases to the end of the year 1879, Time Table and Tables of Costs and Forms, By THOMAS SNOW, M.A.,. and HERBERT WiNSTANLEY Esqrs,, Barristers-at-Law. Royal 8yo. 1880. \l. 10s. CIVIL LAW. — Bowyer's Commentaries on the Modern Civil Law.— Royal 8vo. 1848. 18s. Bowyer's Introduction to the Study an>d Use of the Civil Law.— Royal 8vo. 1874. 5«. COLLISIONS.— Lowndes' Admiralty Law of Collisions at Sea.— 8vo. 1867. 7s. 6rf. Marsden on Maritime Collision. — A Treatise on the Law of Collisions at Sea. With an Appendix containing Extract* from the Merchant Shipping Acts, the International Regulations (of 1863 and 1880) for preventing Collisions at Sea; and local Rules for the same purpose in force in the Thames, the Mersey, and else- where. By REGINALD G. MARSDEN, Esq., Barrister-at-Law. Demy 8vo. 1880. l'2s. COLONIALLAW.— Clark's Summary of Colonial Law and Practice of Appeals from the Plantations. 8vo. 1834. 1/. 4s. COMMENTARIES ON THE LAWS OF ENGLAND— Broom and Hadley's Commentaries on the Laws of Eng- land. By HERBERT BROOM, LL.D., ajid ED-WARD A. HADLEY, M.A., Barristers-at-Law. 4 vols. 8vo. 1869. (Pvb- lishedat SI. 3s.) J^et, II. Is. * ♦ All standard Law Woi'hs are Jcept in Stoch,inlaw calf and other lindings. Digitized by Microsoft® STEVENS AND SONS' LAW PUBLICATIONS. COMMERCIAL LAW Goirand's French Code of Com- merce and most usual Commercial Laws. With a Theoretical and Practical Commentary, and a Compendium of the judicial organization and of the course of procedure before the Tribunals of Commerce ; together with the text of the law ; the most recent decisions of the Courts, and a glossary of Frsaich judicial terms. By LEOPOLD GOIRAND, Licenci^ en droit. In 1 Tol. (850 pp.). Demy 8vo. 1880. 21. 2i. Levi. — Vide " International Law." COMMON LAW.— Apchbold's Practice of the Queen's Bench, Common Pleas and Exchequer Divi- sions of the High Court of Justice In Actions, etc., in which they have a common jurisdic- tion.— Thirteenth Edition. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. 2 vols. Demy 8vo. 1879. SI. 3». Archibald's Country Solicitor's Practice; a Handbook of the Practice in the Queen's Bench Division of the High Court of Justice; with Statutes and Forms. By W. P. A. ARCHIBALD, Esq., Barrister-at-Law, Author of " Forms of Summonses and Orders, with Notes for use at Judges' Chambers." Koyall2mo. 1881. IZ. 5s. *' We are much mistaken if it does not become as widely used among the profession as the best known editions of the Judicature Acts. ... In every place in which we have tested the work we find it thoroughly trustworthy. . . . Its arrangement is excellent, and sdtogether it is likely enough to become a popular solicitors' handy- book "— The Times, January 7, 1882. " "We have no doubt that it will meet with due appreciation at the hands of both London and Country solicitors." — The Law Magazine, February, 1882. " The author is to be very much complimented on this most careful and compre- hensive manual. . . . Admirably arranged and indexed." — Saturdaif Review, December 3,1881. " The commentary is extremely well written . . Mr. Archibald has succeeded in producing a useful and well-arranged book." — Solicitor's Jourjiat. Ball's Short Digest of the Common Law; being the Principles of Torts and Contracts. Chiefly founded upon the works of Addison, with Illustrative Cases, for the use of Students. By W. EDMUND BALL, LL.B., late "Holt Scholar "of Gray's Inn, Barrister-at-Law and Midland Circuit. DemySvo. 1880. 16s. " The principles of the law are very clearly and concisely stated. ' — Law Journal. Bullen and Leake. — Fide " Pleading." Chitty.— Vide "Forms." Foulkes.— Fid* "Action." Prentice. — Vide "Action." Shirley. — Vide "Leading Cases." Smith's Manual of Comnnon Law. — ^For Practitioners and Students. Comprising the fundamental principles and the points most usually occurring in daily life and practice. By JOSIAH W. SMITH, B.C.L., Q.C. Ninth Edition. 12mo. 1880. 14s. COMMONS AND INCLOSURES.— Chambers' Digest of the Law relating to Commons and Open Spaces, including Public Parks and Recreation Grounds, with various official documents ; precedents of by-laws and regulations. The Statutes in full and brief notes of leading cases. By GEORGE F. CHAM- BERS, Esq., Barrister-at-Law. Imperial 8vo. 1877. 6s. 6d. COMPANY LAW.— Palmer's Private Companies, their Formation and Advantages ; or, How to Convert your Business into a Private Company, and the benefit of so doing. With Notes on " Single Ship Companies." Fourth Edition. By F. B. PALMER, Esq., Barrister-at-Law. Author of " Company Precedents." 12mo. 1883. JSfet, 2s. Palmer. — Vide "Conveyancing." *." Ail standard Law W'vrks are kept in Stock, in law calf and other hindiru/i. Digitized by Microsoft® 119, CHANCERY LANE, LONDON, W.C. COMPANY LKiN -Continued. Palmep's Shareholders' and Directors' Legal Companion. — A Manual of every-day Law and Practice for Promoters, Shareholders, Directors, Secretaries, Creditors and Solici- tors of Companies, under the Companies' Acts, 1862 to 1880. Fourth Edition. With an Appendix on the Conversion of Business Concerns into Private Companies. By F. B. PALMEK, Esq., Bar- rister-at-Law. 12mo. 1883. iVeJ, 2s. 6d. Thring.— Fide «' Joint Stocks." CONTINGENT REMAINDERS.— An Epitome of Fearne on Contingent Remainders and Executory De- vises. Intended for the Use of Students. By W. M. C. Post 8vo. 1878. 6s. 6rf. " The student will find a perusal of this epitome of great value to him." — Law Journal. CONTRACTS. — Addison on Contracts.— Being a Treatise on the Law of Contracts. Eighth Edition. By HORACE SMITH, Esq., Barrister-at-Law, Recorder of Lincoln, Author of " A Treatise on the Law of Negligence," &c. Royal 8vo. 1883. 2Z. 10s. " To the pi-esent editor must be given all praise which untiring industry and in- telligent research can command. He has presented the profession with the law brought down to the present dato clearly and fuUy stated." — Lim Times. February 17, 1S83. Fry. — Vide "SpeciBc Performance." Leake on Contracts. — An Elementary Digest of the Law of Contracts (being a new edition of " The Elements of the Law of Contracts"). By STEPHEN MARTIN LEAKE, Barrister-at- Law. 1vol. DemySvo. 1878. IZ. 183. Pollock's Principles of Contlj-act.— Being a Treatise on the General Principles relating to the Validity of Agreements in the Law of England. Third Edition, revised and partly re- written. By FREDERICK POLLOCK, of Lincoln's Inn, Esq., Barrister-at-Law. Demy 8vo. 1881. \l. 8s. The late Lord chief Justice of Engrland In his judgment In Metropolitan Rauway Company V. Brogden and others, said, "The Law ia well put by Mr. Fredericlc Pollock in ids very able and learned worfc on Contracts."— TVie Times. *' "We have nothing but praise for this (third) edition. The material recent cases have been added and the whole work has been carefully revised." — Soticitoi's' Journal. " A work which, in our opinion, shows great ability, a discerning intellect, a comprehensive mind, and painstaking industry." — Law Jsumal. "Jj'or ilie purposes of the student ihere is no book equal to Mr. Pollock's." " He has succeeded in writing a book on Contracts wnich the working lawyer will find aa uetfill for reference as any of its predecessors, and which at the same time will give tiie student what he will seek for in vain elsewhere, a complete rationale of the law."— Law Mirgazine and Review. Smith's Law of Contracts. — Seventh Edition. By V. T.THOMPSON, Esq., Bairi8ter-at-I,aw. DemySvo. 1878. 11. \s. CONVEY ANCINC.-Dart Vide "Vendors and Purchasers." Dawson's Synopsis of the Conveyancing and Law of Property Act, 1881; with Index and Forms. By J. W. DAWSON, SoUcitor. 1881. Net, 2s. U. Harris and Clarkson's Conveyancing and Law of Property Act, 1881, and the Vendor and Purchaser Act, 1874 ; with Introduction, Notes and Copious Index. By W. MANNING HARRIS, M.A., and THOMAS CLARKSON, M.A., of Lincoln's Inn, Barristers-at.Law,and Fellows of King's College, Cambridge. Demy 8vo. 1882. 9.5. *' The notes in this volume aj-e more copious and exhaustive than those in any other edition of these Acts which has at present appeared." — The Law Jouimal, Jan. 28, 1882. '," All Standard Law Works a/re kevt m Stock, in law calf and other bindings. Digitized by Microsoft® S STEVENS AND SONS' LAW PUBLICATIONS. CONVEY MiC\tia.-Contmmd. Greenwood's Manual of Conveyancing. — A Manual of the Practice of Conveyancing, showing the present Practice relating to the daily routine of Conveyancing in Solicitors' Offices. To which are added Concise Common Forms and Precedents in Conveyancing. Seventh Edition. Including a Supplement written with special reference to ill* Acts of 1882, aud an Appendix, comprising the Order under the Solicitors' Reriraneration Aet, 1881, with Notes thereon. Edited by HAKKY GEEEiSrWOOD, M.A., Esq., Bar- rister-at-Law, Demy 8vo. 1882. 16s. *»* Tlie Suppltmextt men/ be had sepanUely. Price 2s. *' The Aiithor has cai'efuUy wcwked tlae proTjieions of the Act into bis text, calling &pcciiU attention to tlie effect of tliose sections which make absolute changes in the law, as distinguished from those which are merely optional for adoption or exclusion." ■ — The Laic Mayaziue, Febi'uary, 18S2. ""We should like to see xt^, or some such work, placpd by his principal in the hands of every articled clerk, at a very early period of nis articles. It is, altogether, one of the most useful practical works we have ever seen. • . Invaluable for general purposes. ' — ItuUmuiur's Law Student's Jom-aal. Humphry's Comnnon Precedents in Convey- ancing. Adapted to the Conveyancing Acts, 1881-82, and the Settled Land Act, 1882, &c., together with the Acts, an Introduction, and Practical Notes. Second Edition. By HUGH M HUM- PHRY, M.A., of Lincoln's Inn, Esq., Barrister-at-Law. Demy 8vo. 1882. Vis. 6d. "The collection of Precedents is sufficiently comprehensive for ordinary use, and is supplemented by concise foot notes mainly composed of extracts from statutes neces- sary to be borne in mind by the draftsman." — Laie Ma azine. "A work that we think the profession will appreciate,"— Zair TLmeB. Palmer's Connpany Prec,edents.— For use in relation to Companies subject to the Companies' Acts, 1862 to 1880. Arranged as follows : — Agreements, Memoranda and Articles of Association, Prospectus, Kesolutions, Notices, Certificates, Deben- tures, Petitions, Order?, Reconstruction, Amalgamation, Arrange- ments, Private Acts. VVith Copious Notes. Second Edition. By FRANCIS BEAUFORT PALMER, of the Inner Temple, Esq", Barrister-at-Law. Royal 8vo. 1881. \l. 10«. " To those conceraed in getting up companies, the assistance given by Mr. Palmer must be very valuable, because he does not confine himself to bare precedents, but by intelligent and learned commentary lights up, as it were, each step that he takes. There is an elaborate index." — Law 2i}]ies. " To those who are acquainted with the first edition we recommend the second edition !is a great improvement." — Law Jouiiial. Prldeaux's Precedents in Conveyancing. — With Dissertations on its Law and Practice. Twelfth Edition. Tho- roughly revised and adapted to the Conveyancing Acts, 1881, 1882, the t'etlled Land Act, 1882, the Married Women's Property Act 1882, and the Bills of Sale Act, 1882. By FREDERICK" PR].' ])EAUX, late Professor of the Law (tf Real and Personal Property to the Inns of Court, and JOHN WHITCOMBE, Esqrs., Barris- ters-at-Law. 2 vols. Royal 8vo. 1883. (Just ready.) 31, lOs. " The most useful work out on Conveyancing," — Law Jow-iiat. " The whole of the Precedents have been revised by the light of the new Act with discriminating care The conciseness and scientific precision of these Precedents of the Future are at once plensing aud stai-tling xho Valuable Dissertations on the law and practice, which have always formed a feature of these volumes, have been revised thoroughly, and brought into conformity with the various changes and modifications mtvodueed by the new Aet." — Luw Magazine *»* All Standard Law Works are kept m Siocic, in las calf and otiier bindings Digitized by Microsoft® 119, CHANCERY LANE, LONDON, W.O. 9 CONVICTIONS.— Paley's La-w and Ppactice of Sum- mary Convictions under the Summary Juris- diction Acts, 1848 and 1879 ; including Proceedings preliminary and subsequent to Convictions, and the responsibility of convicting Magistrates and their Officers, with Forms. Sixth Edition. By W. H. MACNAMAEA, Esq., Barrister-at-Law- Demy 8vo. 1879. 11. is. Templer. — Vide "Summary Convictions." Wigram. — Vide "Justice of the Peace." CORONERS.— J ervis on the Office and Duties of Coroners. — With Forms and Precedents. Fourth Edition. By E.E.MELSHEIMEE,Esq.,Barrister-at-Law. PostSvo. 1880. 12s. COSTS. — Morgan and Wurtzburg's Treatise on the Law of Costs in the Chancery Division of the High Court of Justice. — Being the Second Edition of Morgan and Davey's Costs in Chancery. With an Appendix, containing Forms and Precedents of Bills of Costs. By the Eight Hon. GEOEGB OSBOENE MORGAN, one of Her Majesty's Counsel, Her Majesty's Judge Advocate General, and B. A. WUETZBUEG, of Lincoln's Inn, Esq., Barrister-at-Law. DemySvo. 1882. 30s. *• Cannot fail to be o use to solicitors and tlielr Chancery managing clerks." — Zaw limes, July 22, 1882. Scott's Costs in the High Court of Justice and other Courts. Fourth Edition. By JOHN SCOTT, of the Inner Temple, Esq., Barrister-at-Law, Keporter of the Com- mon Pleas Division. Demy 8vo. 1880. li. 6s. " Mr. Scott's introductory notes are very useful, and the work is now a compendium on the law and practice regarding costs, as well as a book of precedents." — Law Times. Scott's Costs in Bankruptcy and Liquidation under the Bankruptcy Act, 1869. Eoyal 12mo. 1873. Net, 3s. Summerhays and Toogood's Precedents of Bills of Costs in the Chancery, Queen's Bench, Common Pleas, Exchequer, Probate and Divorce Divisions of the High Court of Justice, in Conveyancing, Bankruptcy, the Crown Office, Lunacy Arbitration under the Lands Clauses Consolidation Act, the Mayor's Court, London ; the County Courts, the Privy Council, and on Passing Eesiduary and Succession Accounts ; with Scales of Allow- ances and Court Fees, the Law Society's Scale of Commission in Conveyancing ; Forms of Affidavits of Increase, and Objections to Taxation. By Wm. FEANK SUMMBEHAYS, SoUcitor, and THOENTON TOOGOOD. Fourth Edition. [In preparation.) Webster's Parliamentary Costs. — Private BUls, Election Petitions, Appeals, House of Lords. By EDWARD WEBSTEE, Esq., of the Taxing and Examiners' Office. Fourth Edition. By C. CAVANAGH, Esq., Barrister-at-Law. Author of "The Law of Money Securities." PostSvo. 1881. 203. "This edition of a well known work is in great part a new publication : and it contains, now printed for the first time, the Table of Fees charged at the House of Lords We do not doubt that Parliamentary agents will iind the work eminently useful," — Zaw Joun}al %* All stcmda/rd Law Works are kept in Stock, in law calf and other bindings. A 3 Digitized by Microsoft® 10 STEVENS AND SONS' LAW PXIBLICATIONS. COUNTY COURTS.— Pitt-Lewis' County Court Prac- tice. — A Complete Practice of the County Courts, including Admi- ralty and Bankruptcy, embodying the Acts, Rules, Forms and Costs, with Additional Forms and a FuU Index. Second Edition, con- taining the County Courts (Costs and Salaries) Act, 1882, and the Important Legislation (as to Married Women's Property, Bills o£ Sale, Inferior Courts Judgments, &c. &o.) of the Session, 1882. By G. PITT-LEWIS, of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, sometime Holder of the Studentship of the Four Inns of Court, assisted by H. A. Da Coltak, Esq., Barrister- at-Law. In 2 parts. Demy 8vo. 1883. (Just ready.) 21. lOj. *,* Part I., with Index, sold separately, price 30s. "The late lord Chief Justice of England in his written judgrment in Stooke V. Taylor, says, 'The law as to the difference between set-off and counter-claim is correctly stated by Mr. Pitt-Lewis, in his very useful work on County Court Practice.' " — See Law Times Reports, October 16, 1880, p. 204. Jlr. Justice Fry in Beddall v. Maitland also cites and approves the same passage. — See L. Ji., Chancery, June, 1880. " It is very clearly written, and is always practical. ... Is likely to become the standard County Court practice." — Solicitors' Journal. " One of the best books of practice which is to be found in our legal literature." — Law Times " We have rarely met with a work displaying more honest industry on the part of the author than the one before us." — Law Journal. "Hr, Pitt-Lewis has, in fact, aimed — and we are glad to say snccess- fuUy — at providing for the County Courts' practitioner what ' Chitty's Archbold' and ' Daniell's Chancery Practice' have long been to practi- tioners in the High Court." — Lata Magazine. CRIMINAL LAW,— Archbold's Pleading and Evidence in Criminal Cases. — With the Statutes, Precedents of Indictments, &c., and the Evidence necessary to support them. Nineteenth Edition, including the Practice in Criminal Proceedings V Indictment. By WILLIAM BEUCE, Esq., Barrister-at-Law and Stipendiary Magistrate for the Borough of Lee>Is, Koyal 12mo. 1878. 11. Us. 6d. Roscoe's Digest of the Law of Evidence in Criminal Cases.— Ninth Edition. By HORACE SMITH, Esq., Barrister-at-Law. Royal 12mo. 1878. li. llj. 6rf. Russell's Treatise on Crimes and Misdemea- nors.— Fifth Edition. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. 3 vols. Royal 8vo. 1877. 51. 15s. 6d. "What better Digest of Criminal Law could we possibly hope for thau 'Russell ou Crimee ? * *' — Sir James Fitzjames StepJten's Speech on Codification. "Alterations have been made in the arrangement of the workwhich without interfering with the general plan are snfflcient to show that great care and thonsht have been bestowed We are amazed at the patience, industry and skill which are exhibited in the collection and arrangement of all this mass of learning." — Tiie Times. Shirley's Sketch of the Criminal Law.— By W. SHIRLEY SHIRLEY, M.A., Esq., Barrister-at-Law, Author of " Leading Cases made E.tsy," assisted by C. M. ATKINSON, M.A. B.C.L., Esq., Barrister-at-Law. Demy Svo. 1880. 7s. 6d. " As a primary introduction to Criminal Law, it will be found very acceptable to Students." — Law Students' Journal. DECREES — Seton.— Vide " Equity." *^* All standard Law Works are kept in Stock, in law calf and other bindings. Digitized by Microsoft® 119, CHANCERY LANE, LONDON, W.C. 11 DIARY — La-wyer's Companion (The), Diary, and La^w Directory for 1883.— For the use of the Legal ProfeseioD, Public Companies, Justices, Merchants, Estate Agents, Auctioneers, &c., &c. Edited by JOHN THOMPSON, of the Inner Temple, Esq., Barrister-at-Law ; and contains Costs in Conveyancing and business other than in any Action, Court, or Chambers, General Charges in Conveyancing, before 1st January, 1883 ; a Digest of Useful Decisions on Costs ; MontMy Diary of County, Local Govern- ment, and Parish Business ; Oaths in Supreme Court ; Summary of Legislation of 1882; Alphabetical Index to the Practical Statutes ; a Copious Table of Stamp Duties; Legal Time, Interest, Discount, Income, Wages and other Tables ; Probate, Legacy and Succession Duties ; and a variety of matters of practical utUity. Pdblished Aknuallt. Thirty-seventh Issue. (Noxo ready.) Contains the most complete List published of the English Bar, and London and Coimtry Solicitors, with date of admission and appointments, and is issued in the following forms, octavo size, strongly bound in cloth : — s. d. 1. Two days on a page, plain 5 3. The above, intebleaved for Attendakoes . . .70 3. Two days on a page, ruled, with or without money columns 5 6 i. The above, intebleaved for Attendances . . . .80 5. Whole page for each day, plain . . . . .76 6. The above, intebleaved for Attendances . . .96 7. Whole page for each day, ruled, with or without money cols. 8 6 8. The above, intebleaved for Attendances . . . 10 6 9. Three days on a page, ruled blue lines, without money cols. 5 The Diary contains memoranda of Legal Business throughout the Year. "An oxcellent work." — The Timet. " A publication which has long ago secured to itself the favour of the profeBBion, and whtch, as heretofore, justifies by its contents the title assumed by it." — Law Journal. " Contains all the information which could be looked for in such a work, and gives it in a most convenient form and very completely. We may unhesitatingly recommend the work to our readers." — Solicitors' Journal. ** The ' Lawyer's Companion and Diary ' is a book that ought to be in the possession of every lawyer, and of every man of business." "The 'Lawyer's Companion' is, indeed, what it is called, for it combines everything required for reference in the lawyer's office." — Law Times. " It is a book without which no lawyer's library or office can be complete." — Irish Law Times, " This work has attained to a completeness which is beyond all praise." — Mwning Post. DICTIONARY — Student's (The) Pocket La-w Lexicon, or Dictionary of Jurisprudence. Explaining Technical Words and Phrases used in English Law, together wiih a Literal Translation of Latin Maxims. Pep. 8vo. 1882. 6s. " A wonderful little legal Dictionary." — Indermaur's Law Students' Journal. " A very handy, complete, and useful little work." — Saturday Review, April 8, 1882. Wharton's Law Lexicon. — A Dictionary of Jurispru- dence, explaining the Technical Words and Phrases employed in the several Departments of English Law ; including the various Legal Terms used in Commercial Transactions. Together with an Explanatory as well as Literal Translation of the Latin Maxima contained in the Writings of the Ancient and Modem Commentators. Sixth Edition, Enlarged and revised in accordance with the Judicature Acts, by J. SHIEESS WILL, of the Middle Temple, Esq., Barrister-at-Law. Super royal 8vo. 1876. 21, 2s, No law library is complete without a law dictionary or law lexicon. To (,be practi- tioner it is always useful to have at hand a book where, in a small compass, he can Had an .explanation of terms of infrequent occurrence, or obtain a reference to statutes op mout subjects, or to books wherein particular subjects are treated of at full length."— iawj Times. *^'AU standard Law Works are hept in Stock, in law oalf and other bindings. a4 Digitized by Microsoft® 12 STEVENS AND SONS' LAW PUBLICATIONS. DIGESTS.— Bedford.— Fide " Examination Guides." Chambers'— Fide "Public Health." Chitty's Index to all the Reported Cases decided in the several Courts of Equity in England, the Privy Council, and the House of Lords, with a selection of Irish Cases, on or relating to the Principles, Pleading, and Practice of Equity and Bankruptcy ; from the earliest period. The Fourth Edition, wholly revised, reclassified and brought down to the date of publication by WILLIAM EKANK JONES, B.C.L., M.A., and HENRY EDWARD HIRST, B.G.L., M.A., both of Lincoln's Inn, Esqrs., Barristers- at-Law. In 5 or 6 vols. {Vol. J., price 11. lis. 6d., nearly ready.) ^^* Volume I. will contain the Titles "Abandonment" to '• Bankruptcy." The Title Bankruptcy will be a Complete Digest of all cases, including the Decisions at Common Law. Volume II. is in active preparation, and will be issued shortly, and it is confidently expected that the whole work will be com- pleted by the end of 1883. Godefroi Vide "Trusts and Trustees." Leake. — Vide "Real Property" and " Contracts." Notanda Digest in Law, Equity, Bankruptcy, Admiralty, Divorce, and Probate Cases. — By H. TUDOR BODDAM, of the Inner Temple, and HARRY GREENWOOD andE. W. D. HANSON, of Lincoki's Inn, Esqrs., Barristers-at-Law. Third Series, 1873 to 1876 inclusive, half-bound. Net, 11. lis. 6d Ditto, Eourth Series, for the years 1877, 1878, 1879, 1880, 1881, and 1882, with Index. Each, net, 11. Is. Ditto, ditto, for 1883. By H. TUDOR BODDAM and E. W. D. MANSON, Esqrs., Barristersat-Law. Plain Copy and Two Indexes, or Adhesive Copy for insertion in Text-Books (without Index). Annual Subscription, payable in advance. Net, 21«. *** The numbers are issued regularly every alternate month. Each number contains a concise analysis of every case reported in the Laiw Reports, Law Journal, Weekly Reporter, Law Times, and the Irish Law Reports, up to and including the cases contained in the parts for the current month, with references to Text-books, Statutes, and the Law Reports Consolidated Digest, and an alfhabetioal INDEX of the subjects contained in each NnMBEE. Odgers. — Vide "Libel and Slander." Pollock. — Vide "Partnership." Roscoe. — FWe " Criminal Law " and "NisiPrius." DISCOVERY.— Hare's Treatise on the Discovery of Evidence. — Second Edition. Adapted to the Procedure in the High Court of Justice, with Addenda, containing aU the Reported Cases to the end of 1876. By SHERLOCK HARE, Barrister-at- Law. Post Svo. 1877 . 12s. " The book is a useful contrlbutiou to our text-books on practice." — Solicitor^ Journal. Sichel's Discovery.— The Law relating to Interrogatories, Production, Inspection of Documents, and Discovery, as well in the Superior as in the Inferior Courts, together with an Appendix of the Acts, Eorms and Orders. By WALTER S. SICHEL, M.A., and WILLIAM CHANCE, M.A., Esqrs., Barristers-at-Law. Demy Svo. (In the press. ) Seton.— Fide "Equity." *„*, AU standard Law Works wi-e heptin Stock, in law calf and other bindings. Digitized by Microsoft® 119, CHANCERY LANE, LONDON, W.C. 13 DISTRICT REGISTRIES-Arehibald.— Fide "Judges' Chambers Practice." DIVORCE.— Bro-wne's Treatise on the Principles and Practice of the Court for Divorce and Matrimonial Causes:— With the Statutes, Kules. Fees and Forms relating thereto. Fourth Edition. (Including the Additional and Amended Rules, July, 1880.) By GEORGE , BROWNE, Esq., Barrister-at-Law. Demy 8vo. 1880. IZ. 4s. The book i3 a clear, practical, and, bo far as we have been able to teat it, accurate exposition of divorce law and procedure."— Soiicitors' Journal. Haynes.— Fide "Leading Cases." DOMICIL.— Dicey on the Law of Domicil as a branch of the Law of England, stated in the form of Rules.— By A. V. DICEY, B.C.L., Barrister-at-Law. Author of " Rules for the Selection of Parties to an Action." Demy 8vo. 1879. 18!. " The practitioner will And the book a thoroughly exact and trustworthy summary of the present state of the \a.vt."—The Spectator. EASEMENTS.— Goddard's Treatise on the Law of Easements.— By JOHN LEYBOURN GODDARD, Esq., Barrister-at-Law. Second Edition. Demy 8vo. 1877. 16». ** The book is invaluable : where the cases are silent the author has taken paina to ascertain what the law would be if brought into question."— iaw Journal. "Nowhere has the subject been treated so exhaustively, and, we may add, so Bcientlfl- cally, as by Mr. Goddard. We recommend it to the most careful study of the law student, as well as to the Ubrary of the practitioner." — Xaw Times. ECCLESIASTICAL LAW.— Dodd's Burial and other Church Fees and the Burial Act, 1880 :— With Notes. By J. THEODORE DODD, M.A., Barrister-at-Law, of Lincoln's Inn. Royal 12mo. 1881. 4s. Phillinaore's (Sir R.) Ecclesiastical Law. — The Ecclesiastical Law of the Church of England. With Supplement, containing the Statutes and Decisions to end of 1875. By SiB ROBERT PHILLIMORE, D.C.L., Official Prmoipal of the Arches Court of Canterbury; Member of Her Majesty's Most Honourable Privy Council. 2 vols. 8vo. 1873-76. Zl. 7s. 6d. *»* The Supplement may be had separately, price 4s. 6d., sewed. ELECTIONS — Bro-wne (G. Lathom.)— F«fe "Registration." FitzGerald.— FWe "Ballot." Rogers on Elections, Registration, and Election Agency. — Thirteenth Edition, including Petitions and Muni- cipal Elections and Registration. With an Appendix of Statutes and Forms. By JOHN CORRIE CARTER, of the Inner Temple, Esq., and Midland Circuit, Barrister-at-Law. Royal 12mo. 1880. 11. 12s. "Petition has been added, setting forth the procedure and the decisions on that subject; and the statutes passed since the last edition are explained down to the Parliamentary Elections and Corrupt Practices Act (1880)."— r/ie Timet. " We have no hesitation in commending the book to our readers as a useful and adequate treatise upon election law. " — Solicitors' Joitrnal. " A book of long standing and for information on the common law of elections, of which it contains a mine of extracts from and references to the older authorities, will always be resorted to." — Law Journal EMPLOYERS' LIABILITY ACT.— Macdonell.-F«e "Master and Servant." Smith. — Vide "Negligence." ENGLAND, LAWS OF,— Bowyer.— Fide " Constitutional Law." Broom and Hadley. — Fide " Commentaries." Chitty's Equity Index.— Fide "Digests." *^* All standard Law Works are kept in Stock, in law calf and other iindings, Digitized by Microsoft® 14 STEVENS AND SONS' LAW PUBLICATIONS. EQUITY, and Tide CHANCERY. ' Seton's FoPrns ot Decrees, Judgments, and Orders in the High Court of Justice andCourts of Appeal, having especial reference to the Chancery Division, with Practical Notes. Fourth Edition. By K. H. LEACH, Esq., Senior Kegiatrar of the Chancery Division ; f. G. A. V.'ILLIAMS, of the Inner Temple, Esq. ; and the late H. W. MAY, Esq. ; suc- ceeded by .TAMES EASTWICK, of Lincoln's Inn, Esq., Barristers- at-Law. 2 vols, in 3 parts. Koyal 8vo. 1877—79. il. 10s. *^* Vol. II., Parts 1 and 2, separately, price each 11. 10«. "The Editors of this new edition of Seton deserve much praise for what is almost if not absolutely, an innovation in law books. In treating of any division of their subject they have put prominently forward the result of the latest decisions, settling the law so far as it is ascertained, thus avoiding much useless reference to older cases. . . There can be no doubt that in a book of practice like Seton, it is much more important to be able to see at once what the law is than to know how it has become what it is ; and the Editors have evidently taken gi-eat pains to carry out this principle in pre - eenting the law on each division of their labours to their readers." — The Times. " Of all the editions of ' Seton' this is the best. , . . We can hardly speak too highly of the industry and intelligence which have been bestowed on the preparation of the notes." — Solicitors' Journai. "Now the book is before us complete; and we advisedly say complete, because it has scarcely ever been our fortune to see a more complete law book than this. Exten- sive in sphere, and exhaustive in treatise, comprehensive in matter, yet apposite in details, it presents all the features of an excellent work . . . The index, extend- ing over 278 pages, is a model of comprehensiveness and accuracy." — Law Journal. ■ Smith's Manual of Equity Jurisprudence.— A Manual of Equity Jurisprudence for Practitioners and Students, founded on the Works of Story, Spence, and other writers, and on more than a thousand subsequent cases, comprising the Fundamental Principles and the points of Equity usually occurring in Creneral Practice. By JOSIAH W. SMITH, B.C.L., Q.O. Thirteenth Edition. 12mo. 1880. 12s. 6d. "There is no disguising the truth ; the propsr mode to use this book is to learn its pages by heart." — Law Magazine and Review. " It will be found as useful to the practitioner as to the stadent,"— iSoZict^ora' Jottmal. Smith's Practical Exposition of the Principles of Equity, illustrated by the Leading Decisions thereon. For the use of Students and Practitioners. By H. ARTHUR SMITH, M.A., LL.B., of the Middle Temple, Esq., Barrister-at-Law. Demy 8vo, 1882. 20s. " The book seems to us to be one of great value to students."— 5oK«7ors" Jout-nal, December 16, 1882. "In a moderately -sized volume, such-as no lawyer who has his own advantage in view could object to 'read, mark, learn, and inwardly digest,' Mr. Smith sets fortli succinctly and in due order all the fundamental principles administered by Courts of Equity, showing how they have by recent enactment been engrafted on the Common Law, and carefully abstaining from overlaying his subject-matter with multifarious details of practice which might tend to confuse and mystify. . . . "We must again state our opinion that this is a most remarkable book, containing in a reasonable space more information, and that better an'anged and conveyed, than almost any other law book of recent times which has come under our notice." — Saturday/ Jievieic, Julys, 1SS2. EXAMINATION GUIDES.— Bedford's Guide to the Pre- liminary Examination for Solicitors.— Fourth Edition. 12mo. 1874. A^et, Ss, Bedford's Digest of the Preliminary Examina- tion Questions in Latin Grammar, Arith- metic, French Grammar, History and Geo- graphy, with the Answers. Second Edition. DemySvo. 1882. 18s. Bedford's Preliminary Guide to Latin Gram- mar.— 12mo. 1872. iVe«, 3s. Bedford's Student's Guide to Smith on Con- tracts. Demy 8vo. 1879. 3s. 6d. *,* All stavdard Law Works owe kept in Stock, in law calf and other bindings. Digitized by Microsoft® 119^ CHANCEKY LANE, LONDON, W.C. 16 EXAMINATION CUIDES.-ConrtBweif. Bedford's Final Examination Guide to Bank- ru p t cy. — Pour'^h Edition. {In preparation. ) Bedford's Student's Guide to the Eighth Edition of Stephen's New Commentaries on the Laws of England.— Second Edition. DemySvo. 1881. 12s. " Here is a book which will be of the greatest service to students. It reduces the ' Commentaries ' to the form of question and answer . . . We must also give the author credit, not only for his selection of questions, but for his answers thereto. These are inodels of fulness and conciseness, and lucky will be the candidate who can hand in a paper of answers bearing a close resemblance to those in the work before us." — Law Journal. Bedford's Final Examination Digest : containing a Pigest of the Final Examination Questions in matters of Law and Procedure determined by the Chancery, Queen's Bench, Comiron Pleas, and Exchequer Divisions of the High Court of Justice, and on the Law of Real and Personal Property and the Practice of Conveyancing, with the Answers. Svo. 1879. 16s. " Will furnish students with a large armoury of weapons with which to meet the attacks of the examiners of the Incorporated Law Society." — Zaw Times. Shearwood's Law Student's Annual.— Containing the Questions with Answers to the Solicitor's and Bar Examinations (Michaelmas Term, 1881, to Trinity Term, 1882, inclusive), with Kemarks and Comments. A list of Books suggested for Students, the Kules for the Solicitors' and Bar Examinations, 1883, and the Scholarships, etc., at the different Inns of Court, Cases and Statutes, Extracts from Law Students' Debating Societies, and a subject for Prize Essays. Edited by JOSEPH A. SHEARWOOD, Esq., Bar- rister-at Law, Author of ''A Concise Abridgment of Real Property," and of " Personal Property," etc. Demy 8vo. 1882. 6s. ''This is a book of a thorough character. . . . Much care and labour hav evidently been expended on the book, which will be found of great advantage to students." — Law Journal, December 9, 1882. " We know of no other manual which contains the same quantity of information in such a concise form." — Solicitors' Journal, January 20, 1883. "The remarks on the examinations are very interesting, and there are some valuable hints as to what books the candidate for honours and a pass respectively should use." — Gibson's Law ffotes. January, 1883. Shearwood's Student's Guide to the Bar, the Solicitor's Intermediate and Final and the Universities Law Exanninations. — With Suggestions as to the books usually read, and the passages therein to which attention should be paid. By JOSEPH A. SHEARWOOD, B.A., Esq., Barrister-at-law. 8vo. 1879. 5s. 6d. *' A ny studeut of average in lelligence who conscientiously follows the path and obeys the Instructions given him by the author, need not fear to present himself as a candidate for any of the examiuations to which this book is intended as a guide." — Law Journal. EXECUTORS.— Maeaskie's Treatise on the Law of Executors and Administrators, and of the Adminis- tration of the Estates of Deceased Persons. With an Appendix of Statutes and Eorms. By STUART CUNNINGHAM MA- CASKIE, of Gray's Inn, Esq., Barrister-at-Law. 8vo. 1881. 10s. 6d. "An able summary of the law of administration, now forming one of the subjects set for the general examination for call to the bar." " Students may read the book with advantage as an introduction to 'Williams,' and by practitioners not possessing the larger work it will undoubtedly be found useful."— iaio Journal. ' * AH Standard Law f^'orl-n arr Iccpt in Stock, in law calf a/nd other lindingi. Digitized by Microsoft® 16 STEVENS AND SONS' LAW PUBLICATIONS. EXECUTORS.— ConHrmcci. Williams' La-w of Executors and Adminis- trators.— By the Bt. Hon. Sir EDWAKD VATJGHAJN WILLIAMS, late one of the Judges of Her Majesty's Coart of Common Pleas. Eighth Edition. By WALTEB VAUG-HAN WILLIAMS and KOLAND VAUGHAN WILLIAMS, Esqis., Barristers-at-Law. 2 toIb. Eoyal 8vo. 1879. . /l" l°f' " A treatise which occupies an unique position and which is recognised toy tne Bench and the profession as liaving paramoxmt authority in the domain of law wltn which it deals," — Law Journal. FACTORY ACTS.—Notcutt's La-wv relating to Factories and "Workshops. Second Edition. 12mo. 1879. 9s. FARM, LAW OF.— Addison ; Cooke.— Fide " Agricultural Law. Dixon's Law of the Farm.— A Digest of Cases connected with the Law of the Farm, and including the Agricultural Customs of England and Wales. Fourth Edition. (Including the " Ground Game Act, 1880.") By HENRY PEEKINS, Esq., Barrister-at-Law and Midland Circuit. Demy 8vo. 1879. 1'. 6». " It is impossible not to be struck witli the extraordinary research that must have been used in the compilation of such a book as this." — Law Journal. FINAL EXAMINATION DIGEST.-Bedford.— Fide "Examination Guides." FOREIGN JUDGMENTS Piggott's Foreign Judgments their effect in the English Courts. Part I. The English Doctrine, Defences, Judgments in Rem. Status.— By F. T. PIGGOTT, M.A., LL.M., of the Middle Temple, Esq., Barrister-at-Law. Eoyal 8vo. 1879. 15s. Part II.— The Effect of an English Judgment Abroad. Service on Absent Defendants. Eoyal 8vo. 1881. 15». FORMS. — Archibald. — Vide "Judges' Chambers Practice." Bullen and Leake. — Vide "Pleading." Chitty's Forms of Practical Proceedings in the Queen's Bench, Common Pleas and Ex- chequer Divisions of the High Court of Jus- tice : with Notes containing the Statutes, Eules and Practice relating thereto. Eleventh Edition. By THOS. WILLES CHITTY, Esq., Barrister-at-Law. Demy 8vo. 1879. li. 18s. Daniell's Forms and Precedents of Proceed- ings in the Chancery Division of the High Court of Justice and on Appeal therefrom ; with Dissertations and Notes, forming a complete guide to the Practice of the Chancery Division of the High Court and of the Courts of Appeal. Being the Third Edition of " Daniell's Chancery Forms." By WILLIAM HENRY UPJOHN, Esq., of Gray's Inn, &c., &c. Demy 8vo. 1879. 21 2s. *'Mr Upjohn has restored the volume of Chancery Forms to the place it held before the recent changes, as a trustworthy and complete collection of precedents.'* — Solicitors' Journal. " So careful is the noting up of the authorities, so clearly and concisely are the notes expressed, that we have found it of as much value as the ordinary text books on the Judi- cature Acts. It will be as useful a work to practitioners at Westminster as it will be to those in Lincoln s Inn." — Law Times. FRENCH COMMERCIAL LAW.-Goirand.-ride"CommercialLaw." HIGHWAYS.-Baker's Law of Highways in England and Wales, including Bridges and Locomotives. Comprising a succinct code of the several provisions under each head, the statutes at length in an Appendix ; with Notes of Cases, Forms, and copious Index. By THOMAS BAKEE, of the Inner Temple, Esq., Barrister-at-Law. Eoyal 12mo. 1880. 15s. "*,* All standwrd Law Workt are Jccpt in Stock, in law calf and' other bindings. Digitized by Microsoft® 119, CHANCERY LANE, LONDON, W.C. 17 H lOHW AYS .-CoittiriMed. "This is distinctly a well-planned book, and cannot faU to bo useful, not only to lawyers, but to those who may be locally engaged in the management of highways." — Law Journal. " The general plan of Mr. Baker's book is good. He groups together condensed statements of the effect of the provisions of the different Highway Acts relating to the same matter, giving in all cases references to the sections, which are printed in full in the appendix. To each condensed section, or group of sections, he appends a note, stating concisely the effect of the decisions." — Solicitors' Journal. Chambers' Law relating to Highvirays and Bridges, being the Statutes in full and l)rief Notes of 700 Leading Cases; together with the Lighting Act, 1833. By G-EO. F. CHAMBERS, Esq., Barrister-at-Law. 1878. Reduced toVls INJUNCTIONS.— Seton.— Fi& " Equity." INLAND REVENUE CASES Highmore's Summary Pro- ceedings in Inland Revenue Cases in England and Wales. By NATHANIEL JOSEPH HIGHMORE, of the Middle Temple, Esq., Barrister-at-Law, and of the Inland Revenue Department. Royal 12mo. 1882. 63. " A complete treatise on procedure applied to cases under the Revenue Act, and as a book of practice it is the best we have seen." — Tke Justice of the Peace, Jan. 28, 1882. INSURANCE. — Arnould on the Law of Marine Insu- rance.— Fifth Edition. By DAVID MACLACHLAN, Esq., Barrister-at-Law. 2 vols. Royal 8vo. 1877. %l. *' As a text book, * Arnould ' is now all the practitioner can want, and we congratulate the editor upon the skill with which he has incorporated the new decisions." — Law Times. Hopkins' Manual of Marine Insurance.— 8vo. 1867. 18s. Lovirndes on the Law of Marine Insurance. — A Practical Treatise. By RICHARD LOWNDES. Author of " The Law of General Average," &c. Demy 8vo. 1881. 10s. M. " It is rarely, indeed, that we have been able to express such unqualified approval of a new legal work."— SoJicitors' Journal. INTERNATIONAL LAW — Amos' Lectures on Inter- national Law. — Delivered in the Middle Temple Hall to the Students of the Inns of Court, by SHELDON AMOS, M.A., Pro- fessor of Jurisprudence (including International Law) to the Inns of Court, &c. Royal 8vo. 1874. 10s. 6d. Dicey. — Vide "Domicil." Kent's International Law. — Kent's Commentary on International Law. Edited by J. T. ABDY, LL.D., Judge of County Courts. Second Edition. Revised and brought down to the present time. Crown 8vo. 1878. 10s. 6d. " Altogether Dr. Abdy has performed his task in a manner worthy of his reputation. His book will be nseful not only to Lawyers and Law Students, for whom it was primarily Intended, out also for laymen."— So(»«iulff News, .January 80. 1883. " Mr. Macdonell has done his work thoroughly and well. He has evidently bestowed great care and laboiu: on his task, and has, therefore, produced a work which will be of real value to the practitioner. The information, too, is presented in a most accessible form." — Law Times, Janu.ary 27, 1883. MERCANTILE LAW.— Boyd.— Tide "Shipping." Smith's Compendium of Mercantile Law. — Ninth Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., one of Her Majesty's Counsel. Royal 8to. 1877. II. 18». Tudor'e Selection of Leading Cases on Mercan- tile and Maritime Law^.— With Notes. By 0. D. TUDOR, Esq., Barrister-at-Law. Second Edition. Royal 8to. 1868. 11. 18«. METROPOLIS BUILDINQ ACTS.-Woolrych's Metpopoli- tan Building Acts, together with such clauses of the Metro- polis Management Acts as more particularly relate to the Building Acts, with Notes and Eorms. Third Edition. By W. H. MAC- NAMARA, Esq., Barrister-at-Law. 12mo. 1882. 10s. MINES.— Rogers' La-w relating to Mines, Minerals, and Quarries in Great Britain and Ireland; with a Summary of the Laws of Foreign States, &c. Second Edition Enlarged. By ARUNDEL ROGERS, Esq., Judge of ■ County Courts. 8vo. 1876. 11. Us. 6d. "The volume will prove invaluable as a work of legal reference." — TIu Mining Journal. MONEY SECURITIES — Cavanagh's Law^ of Money Secu- rities. — In Three Books. I. Personal Securities. II. Securities on Property. III. Miscellaneous; with an Appendix of Statutes. By C. CAVANAGH, B.A., LL.B. (Lond.), of the Middle Temple, Esq., Barrister-at-Law. In 1 vol. Demy 8vo. 1879. 21». " An admirable synopsis of the whole law and practice with regard to securities of every sort." — Saturday Review. * * All standard Law Works a/re kept in Stock, in law cay and other bindings. Digitized by Microsoft® 119, chancehy lane, London, w.c. 23 MORTGAGE —Coote's Treatise on the Law of Mort- gage.—Fourth Edition, Thoroughly revised. By WILLIAM WYLLYS MACKESON, Esq., one of Her Majesty's Counsel. In 1 Vol, (1436 pp.) Koyal 8vo. 1880. 21. 2s. " The -work is most comprehensive in its scope and exhaustive in its treatment.— LoAO Magazine. "A complete, terse, and practical treatise for the modern lawyer." — Solicitors^ Journal. " Will be found a valuable addition to the library of every practising lawyer."— Law Journal. MUNICIPAL CORPORATIONS.-Chambers' Digest of the Law relating to Municipal Corporations, with the Statutes in full, \arious Precedents ; various Official Documents ; Brief Notgg „{ Leading Cases. By GEO. F. CHAMBERS, Barrister-at-Law. Imperial 8vo. 1882. 12s. Lely's Law of Municipal Corporations.— Con- taining the Municipal Corporation Act, 1882, and the Enactments incorporated therewith, with a Selection of Supplementary Enact- ments, including therein the Electric I-ighting Act, 1882, with Notes thereon. By J. M. LELY, of the Inner Temple, Esq., Barrister- at-Law. Editor of " Chitty's Statutes," &c. Demy 8vo. 1882. 15«. " An admirable edition of one of the most important consolidating statutes of the year. . . . The summary is tersely written, and the notes appear to be to the IJoint. Nothing required for the due understanding and working of the Act seems to be absent."— ia?!i Journal, December 9, 1882. " His marginal notes and index are good, and the book reflects great credit on its author." — Law Times, January 27 1883. NAvy.— Thring's Criminal Law of the Navy, with an Introductory Chapter on the Early State and Discipline of the Navy, the Eules of Evidence, and an Appendix comprising the Naval Discipline Act and Practical Forms. Second Edition. By THEODORE THRING, Barrister-at-Law, and C. E. GIEEOKD, Assistant-Paymaster, Eoyal Navy. 12mo. 1877. 12s. 6d. NEGLIGENCE — Smith's Treatise on the Law of Negligence, with a Supplement containing " The Employers' Liability Act, 1880," with an Introduction and Notes. By HORACE SMITH, B.A., Esq., Barrister-at-Law, Recorder of Lincoln. Demy 8vo. 1880. 10s. 6d. NISI PRIUS.— Roscoe's Digest of the Law^ of Evidence on the Trial of Actions at Nisi Prius.— Fourteenth Edition. By JOHN DAY, one of Her Majesty's Counsel, and MAURICE POWELL, Bajrister-at-Law. Royal 12mo. 1879. 21. NOTANOA.— Fide "Digests." NOTARY. — Brooke's Treatise on the Office and Prac- tice of a Notary of England. — With a fuU collection of Precedents. Fourth Edition. By LEONE LEVI, Esq., P.S.A., of Lincoln's Inn, Barrister-at-Law. 8vo. 1876. 11. is. OATHS.— -Braithwaite's Oaths in the Supreme Courts of Judicature. — A Manual for the use of Commissioners to Administer Oaths in the Supreme Courts of Judicature in England and Ireland, &c. Part I. containing practical information respecting their Appointment, Designation, Jurisdiction, and Powers ; Part II. comprising a collection of officially recognised Forms of Jurats and Oaths, with Explanatory Observations. Fourth Edition. By T; W. BRAITHWAITE, of the Central Office. Fcap. 8vo. 1881. ,, 4s. 6d. The recognised guide of commissioners to administer oaths." — Solicitors' Journal. PARISH LAW.— Steer's Parish Law ; being a Digest of the Law relating to the Civil and Eooleassitical Government of Parishes and the Relief of the Poor. Fourth Edition. By W. H. MAC- NAMARA, Esq., Barrister-at-Law. Demy 8vo. 1881. 16s. " An exceedingly useful compendium of Parish Law." — Laio Times. *,* All atcmdard Lam Works wre kept in Stock, in law calf and other bindings. Digitized by Microsoft® 24 STEVENS AND SONS' LAW PUBLICATIONS. PARTNERSHIP.— Pollock's Digest of the La-w of Part- nership. — Second Edition, with Appendix, containing an anno- tated reprint of the Partnership Bill, 1880, as amended in Committee. By FEEDEEICK POLLOCK, Esq., Barrister-at-Law. Author of " Principles of Contract atLaw and in Eqmty."Demy 8vo. 1880. 8s. 6d. " Of the execution of the work, we can speak in terms of the highest praise. The an§:uag6 is simple, concise, and clear ; and the general propositions may bear com- parison with those of Sir James Stephen." — Law Magazine. " Mr. Pollock's work appears eminently satisfactory . . . the book is praise- worthy in design, scholarly and complete in execution." — Saturday Revieto. PATENTS.— Johnson's Patentees' Manual; being a Treatise on the La-w and Practice of Letters Patent, especially intenedd for the use of Patentees and Inventors.— By JAMES JOHNSON, Barrister-at-Law, and J. H. JOHNSON, Solicitor and Patent Agent. Fourth Edition. Thoroughly revised and much enlarged. Demy 8vo. 1879. 10s. 6d. " A very excellent manual." — Lavi Times* Thompson's Handbook of Patent La-w of all Countries.— ThirdEdition, revised. By WM. P. THOMPSON, C.E. 12mo. 1878. Net, 2«. 6d. PAWN. — Turner's Contract of Pawn, as it exists at Common Law, and as modified by the Eactors' Acts, the Pawn- brokers' Acts, and other Statutes. By FKANCIS TURNER, of the Middle Temple, Esq., Barrister-at-Law. Second Edition. 8vo. 1882. (Nearly ready.) 12s. Turner's Pa-wnbrokers' Act, 1872. — With Explanatory Notes. By EEANCIS TURNER, Esq., Barrister-at-Law. Third Edition. 1883. Net, 2s. 6d. PERSONAL PROPERTY.— Shear-wood's Concise Abridg- ment of the La-w of Personal Property; showing analytically its Branches and the Titles by which it is held. By JOSEPH A. SHEARWOOD, of Lincoln's Inn, Esq., Barrister-at- Law, Author of " Concise Abridgment of Law of £eal Property," A''igram. — Vide "Justice of the Peace." SUMMONSES AND ORDERS.— Archibald.— FiWe "Judges' Cham- bers Practice." TAXES ON SUCCESSION.-Trevor's Taxes on Succes- sion. — A Digest of the Statutes and Cases (including those in Scotland and Ireland) relating to the Probate, Legacy and Succession Duties, with Practical Observations and Official Forms. Completely rearranged and thoroughly revised. By EVELYN FKEETH and ROBERT J. WALLACE, of the Legacy and Succession Duty Office. Fourth Edition, containing full information a« to the Altera- tions made in the above Taxes by the 44 Vict. c. 12, and the Stamp Duty thereby imposed on " Accounts." Royal 12mo. 1881. 12s. 6d. ** Contains a great deal of practical information, which is likely to make it very useful to solicitors." — Law J&urnal. " The mode of treatment of the subject adopted by the authors is eminently prac- tical." — Solicitors' Journal. TORTS. — Addison on Wrongs and their Remedies. — Being a Treatise on the Law of Torts. By C. G. ADDISON, Esq., Author of "The Law of Contracts." Fifth Edition. Re-written. By L. W. CAVE, Esq., M.A., one of Her Majesty's Counsel (now one of the Judges of the High Court of Justice). Royal 8vo. 1879. 11. 18s. " As now presented, tbis valuable treatise must prove highly acceptable to judges aud the profession."— Zaw JHm^s. ■ ** Cave's ' Addison on Torts ' will be recoguized as an indispensable addition to every lawyer's library." — Law Magazine. Ball.— Vide "Common Law." *^*AU Standard Law Works are kept in Stock, in law calf and other Undinga. Digitized by Microsoft® 80 STEVENS AND SONS' LAW PUBLICATIONS. TRADE MARKS.— Hardingham's Trade Marks: Notes on the British, Foreign, and Colonial Laws relating thereto. Compiled for the nse of Manufacturers, Merchants, and others interested in Commerce. By GEO. GATTON MELHUISH HARDINGHAM, Assoc Mem. Inst. C.E., Mem. Inst M.E., Consulting Engineer and Patent Agent. Eoyal 12mo. 1881. Net, 2s. 6d. Sebastian on the Law of Trade Marks. — The Law of Trade Marks and their Kegistration, and matters connected therewith, including a chapter on Goodwill, Together with Appen- dices containing Precedents of Injunctions, &e. ; The Trade Marks Kegistration Acts, 1875 — 7, the Rules and Instructions thereunder; The Merchandise Marks Act, 1862, and other Statutory enactments; The United States Statute, 1870 and 1875, the Treaty with the United States, 1877 ; and the Rules and Instructions issued in February, 1878. With a copious Index. By LEWIS BOYD SEBASTIAN, B.C.L., M.A., of Lincoln's Inn, Esq., Banister-at- Law. 8vo. 1878. 14». •* The Master of the Rolls in his judgment in Re Palmer's Trade Marks, said * He was glad to see that the well-known writer on trade marks, Mr. Sebastian, had taken the same view of the Act.' " — The Times, May 5, 18S2. " The book cannot fail to be of service toalar^e class of lawyers." — Solicitors' Joui-nal. *' Mr. Sebttstian has written the fullest and most methodical book on trade marks which has appea*'ed in England since the passing of the Trade Marks Registratioa Acts." — Trojde Marks. *' Viewed as a compilation, the book leaves little to be desired. Viewed as a treatise on a snhject of Rowing importance, it also strikes us as being well, and at any rate carefully executed." — Saw Journal. ' Sebastian's Digest of Cases of Trade Mark, Trade Name, Trade Secret, Goodwill, &c., de- cided in the Courts of the United Kingdom, India, the Colonies, and the United States of America. By LEWIS BOYD SEBASTIAN, B.C.L., M.A., of Lincoln's Inn, Esq., Barrister-at-Law, Author of "The Law of Trade Marks." Demy 8vo. 1879. li Is. " A digest which will be of very great value to all practitioners who have to advise on matters connected with trade marks," — Solicitors^ Journal. Trade Marks Journal. — 4to. Sewed, (Issued fortnightly.) Nos. 1 to 272 are now ready. Net, each Is. Index to Vols. I. to VI. Each Net, 3«. TRUSTS AND TRUSTEES.— Godefroi's Digest of the Principles of the La-w of Trusts and Trus- tees.— By HENRY GODEFROI, of Lincohi's Inn, Esq., Barrister-at-Law. Joint Author of " Godefrol and Shortt's Law of Railway Companies." Demy 8vo. 1879. 11. Is. *' No one who refers to this book for information on a question within its range is, we tliiak, likely to go away unsatisfied." — Saturday Review. " Is a work of great utility to the practitiouerl " — Law Magazine. "Asa digest of the law, Mr. Godefroi's work merits commendation, for the author's statements are brief and clear, and for bis statements he refers to a goodly array of authorities. In the table of cases the references to the several contemporaneous reports are given, and there is a very copious index to subjects." — Law Journal. USES— Jones (W. Hanbury) on Uses.— 8vo, 186f, 7s. VENDORS AND PURCHASERS.— Dart's Vendors and Pur- chasers.— A Treatise on the Law and Practice relating to Ven- dors and Purchasers of Real Estate. By J. HENRY DART, of Lincoln's Inn, Esq.. one of the Six Conveyancing Counsel of the High Court of Justice, Chancery Division. Fifth Edition. By the AUTHOR and WILLIAM BARBER, of Lincoln's Inn, Esq., Barrister-at-Law. 2 vols. Eoyal 8vo, 1876, Zl. 13s, 6rf. " A standard work Uke Mr. Dart's is beyond all praise." — The Law Journal. STEVENS & SONS, 119, CHANCERY LANE, LONDON, wicT^ Digitized by Microsoft® 119, CHANCERY LANE, LONDON, W.C. 31 VOLUNTEER L^W — A. Manual of the Law regulating the Volunteer Forces. — Uncluding the Volunteer Acts,' 1863 to 1869, and other Acts relating to Volunteers. With Forms of Complaint, Summons and Order, &o. By \V. A. BU"R>f and W. T. RAYMOND, Esqrs., Barristers-at-Law, and Captains in H.IM. Volunteer Forces. Royal 12mo. 1882. Net, is. WATERS. — Woolryeh on the Law of Waters.— Including Rights in the Sea, Rivera, &o. Second Edition. 8vo. 1851. Net, 10s. Goddard. — Vide " Easements." WATERWORKS— Palmer.— Vide "Conveyancing." WILLS. — Rawlinson's Guide to Solicitors on taking Instructions for Wills.— 8vo. 1874. 4s. Theobald's Concise Treatise on the Law of "Wills.— With Statutes, Table of Cases and Full Index. By H. S. THEOBALD, of the Inner Temple, Esq., Barrister-af.-Law, and Fellow of Wadham Colleffe, Oxford. Second Editiou (with Addendum, containing a Summary of the Alterations made in the Law relating to Wills by the Married Women's Property Act, 1882, and the Conveyancing Act, 1882). Demy 8vo. 1881. \l. is. *»* The Addendum may he had sepwratdy. Price Sd. OPINIONS OF THE PRESS ON THE FIRST EDITION. *' Mr. Theobald has certainly given evlrtence of extensive mvestigatiou, conscientiotiB labour, and clear exposition.'* — Law Magazine. '•We desire to record our decided impression, after a somewhat careful examination, that tbis ia a book of great ability and value. It bears on every page traces of care and sound judgment. It is certain to prove of great practical usefulness, for it supphes a want which was beginning to be distinctly felt." — Solicitors' Journal. "His arrangement being good, and his statement ot the effect of the decisions being clear, his work cannot fail to be of practical utility, and as such we can commend it to the attention of the profession, " — Lauj Times. Weaver's Precedents of "Wills. — A collection of con- cise Precedents of Wills, with Introduction, Notes, and an Appendix of Statutes. By .Cliarks Weaver, B.A., of Trinity College, Dublin, Post Svo. 1882. 6s; WRONGS.— Addison.— Vide " Torts." IREFOS.I'S. — A large stock new and second-hand. Prices on application. BircsTUilsrG-. — Executed m the best manner at mode- rate prices and with dispatch. The Law Reports, Law Journal, and all other Reports, bound to Ofpce Patterns, at Office Prices. FZEai-VAorE API'S — fhe Publishers of this Cata- logue possess the largest known collection of Private Acts of Parliament (including Public and Local), and can supply single copies commencing from a very early period. TT-AXi'p-A.TXOJsrs — For Probate, Partnership, or other purposes. Digitized by Microsoft® STEVENS & SONS' ANNOUNCEMENTS OF NEW WORKS AND NEW EDITIONS. Chitty's Index to all the Reported Cases decided in the several Courts of Equity in England, the Privy Council, and the House of Lords. With a selection of Irish Cases, on or relating to the Principles, Pleading, and Practice of Equity and Bankruptcy ; from the earliest period. 'J'he Fourth Edition, wholly revised, re- classified and brought down to the date of publication by WWiam, Frank Jones, B.C.L., M.A., and Henry Edward Hirst, B.C.L., M.A. both of Lincoln's Inn, Esqrs., Barristers-at-Law. In 5 or 6 vols. ( Vol. I. in the press.) Daniell's Chancery Practice.— Sixth Edition. By L. Field, E. C. Dunn, and T. Sibton, assisted by W. H. Upjohn, Esqrs., Barristers-at-Law. In 2 Vols. l)emy 8vo. ( Vol. J I. nearly ready ) Haynes' The Honours Examination Digest.— By John F. Haynes, Uj.!). and. T. A. Nelham, SolicitoT. {In preparation.) Lush's Law of Husband and Wite; with a chapter on Marriage Settlements. By C. Montague Lush, of Gray's Inn and North Eastern Circuit, Esq., Barrister-at-Law. (In preparation.) Marsden's Rule against Perpetuities.— A Treatise on Eemoteness in Limitatiims ; with a chapter on Accumulation and the Thellusson Act. By Regiriald G. Marsden, Esq., Barister-at-Law. {In the press.) Reports of Trials for Murder by Poisoning.— By 0. Latlwm Brownie, of the Midland Circuit, Barrister-at-Law, and C. G. Stewart, of the Laboratory of St. Thomas's Hospital. (In the press.) Shelford's Real Property Statutes.— Ninth Edition. Bv T. H. Carson, Esq., Barrister-at-Law. (In the press.) Shirley's Leading Cases. — A Selection of Leading Cases in ' the Common Law. By W. Shirley Shirley, M.A., B.C.L., Esq., Barrister-at-Law. Second Edition. (Nearly ready.) Slchel and Chance's Discovery. — The Law relating to Interrogatories, Production, Inspection of Documents, and Discovery, as well in the Superior as in the Inferior Courts, together with an Appendix of the Acts, Forms and Orders. By Walter S. Sichd, M.A., and WUliam. Chance, M.A., Esqrs., Barristers-at Law. (In the press.) Sutton's Tramway Acts of the United Kingdom ; with Notes on the Law and Practice. With an Appendix. Second Edition. By .Sewj/ B.C.L., M.A., both of Lincoln's Inn, Esqvs., Barrieters-at-Law. In 5 or 6 vols. {Vol 1. nearly ready. Price 11. lis. 6d. cloth.) , *,^* Volume I. will contain the Titles "Abandonment" to "Bankruptcy. The Title Bankruptcy will be a Complete Digest of all cases, incloding the Decisions at Common Law. ' Volume II. is in active preparation, and will be issued shortly, and it is confidently expected that the whole work will be completed by the end of 1883. .. - "^ Pollock's Digest of the Law of Partnership. — Second Edi- tion, with Appendix, containing an annotated reprint of the Partnership BUI, 1880, as amended in Committee. By PRBDERICK POLLOCK, of Lincoln's Inn, Esq., Barrister-at-Law. Demy 8vo. ' IgSO. Price 8s. Gd. cloth,. " Of the execu tion of the work, we can speak in terms of the highest praise."— iam Magaane. Addison on Wrongs and their Remedies — Being a Treatise on the Law of Torts. Fifth Edition. Re-wrilten. By L. W. CAVE, Esq., one^ot Her Majesty's Counsel. (Now a, Justice of the High Court.) Royal Svo. 1879. Price 11. 18s. cloth. "Cave's * Addison on Torts ' will be recognized as an indispensable addition to every lawyer s library." — -^w Magazine. ' Odgers on Libel and Slander. — A Digest of the Law of Libel and Slander, with the Evidence, Procedure, and Practice, both in Civil and Criminal Cases, and Precedents of Pleadings. By W. BLAKE ODGERS, M.A., LL.D., Barrister-at-Law. Demy 8vo. 1881. {pp.- 820.) Price 11. 4s. cloth. " So good is the book, which in its topical arrangement is vastly'superior to the general run of law books, that criticism of it is a compliment rather than the reverse," — Laio Jout*nal. Stone's Practice for Justices of the Peace, Justices' Clerks, and Solicitors at Petty and Special Sessions, in Summary Matters and Indictable Offences, with a list of Summary Convictions, and Matters not Criminal. With Forms. Ninth Edition. By WALTER HENRY MACNAMARA, Esq., Barrister-at-Law. Demy 8vo. 1882. Price 25s. cloth. Browne and Theobald's Law of Bailway Companies.— Being a Collection of the Acts and Orders relating to Railway Companies. With Notes of all the Cases decided thereon, and Appendix of Bye-Laws, and Standing Orders of the House of Commons. By J. H. BALFOUR BROWNE, Registrar to the Railway Commissioners j and H. S. THEOBALD, Esqrs., Barristers-at-Law. In 1 vol.. Demy Svo. 1881. Price 11. 12s. cloth. " Contains in a very concise form the whole law of railways." — The Timet. Harris' Hints on Advocacy. — Conduct of Cases^ Civil and Criminal, Classes of Witnesses and suggestions for Cross-Examining them. By RICHARD HARRIS, Barrister-at-Law, of the Midland Circuit. Sixth Edition. (Further Revised and Enlarged). Boi/aJ 12mo. 1882. Price 7s. 6(J. cJotTi. " Full of good senseand just observation. A very complete Manual of the advocate's.art in trial by jury." — SolicUort' Journal. * ' "Wigram's Justices' Note-Book, containing a Short Account of the Jurisdiction and Duties of Justices, and an Epitome of Criminal Laiv. By W. KNOX WIGRAM, of Lincoln's Inn, Barrister-at-Law, J.P. Middlesex and Westminster. Third Edition. Corrected and Revised to December, 1882. With a Copious Index. Royal 12mo. 1883. Price 12s. 6d. cloth, "This is altogether a capital book. Mr. Wigram is a good lawyer and^ good justices' lawyer." —Law Journal. "We can thoroughly recommend the volume to magistrates." — Law Times. Chitty's Statutes from Magna Charta to 1880. — New Edition. A Collection of Statutes of Practical TTtility. Arranged in Alphabetical and Chrono- logical Order ; with Notes thereon. The Eowrth Edition. Containing the Statutes and Cases down to the end of the second Session of the year 1880. By J. M. LELY, Esq., Barrister-at-Law. In 6 vols. Royal &vo. (8346 pp.) Price 12!. 12s. cloth. Supplement to above, 4A amd i5 Vict. (1881). Royal 8vo. Price 8s. sewed. Ditto i5 and 4,6 Vict. (1882). Royal Svo. Price 16s. sewed. ' ' The practitioner has only to take down one of the compact volumes of Chitty , and he has at once before him all the legislation on the subject in hand." — Solicitors' Journal. *^* All Standard L(Eiigitir}S(elrbyeJ^WlSeiff^aw calf and other lindingi. - Digitized by Microsoft®