Div. I. CHAPTER II. SECT. 2. So in Collins v. Collins (x) the devise was as follows,-"I give to my PART III. wife Sarah Collins all and every part of my property in every shape and without any reserve, and in whatever manner it is situated for her natural life; and at her death the property so left to be divided in the following manner-one half in equal proportions to my father," and so on, and Sir J. Leach was of opinion, that the remainder-men were not entitled to have a leasehold estate of the testator sold, there being a sufficient indication of the testator's intention, that the widow should enjoy the property in specie: and this decision was afterwards approved of and acted upon by Lord Cottenham in Pickering v. Pickering (y). In Bethune v. Kennedy (z) the testatrix after making two specific bequests of sums in the long annuities, gave the residue of her property, all she did or might possess in the funds, copy or leasehold estates, to her two sisters during their lives; at the decease of both of them to be equally divided share and share alike between her three cousins or their heirs. The residuary estate, after satisfying the two specific bequests, consisted in part of 1507. per annum in the long annuities. The bill was filed by two of the legatees in remainder to have the long annuities converted into a permanent fund, but Sir C. Pepys, M. R., was of opinion, that the long annuities in question were to be enjoyed by the tenant for life as a specific bequest, and dismissed the bill (≈). The next case is Pickering v. Pickering (a), where the testator gave and bequeathed to his wife all the interest, rents, dividends, annual produce and profits, use and enjoyment, of all his estate and effects whatsoever, real and personal, for and during the term of her natural life, and (after giving her certain specified articles) at the decease of his said wife, he gave devised and bequeathed to his son-inlaw, E. R. P., all the rest and residue of his estate and effects whatsoever, both real and personal; it was held by Lord Langdale, M. R., on the general construction of the will, that the widow was entitled to the enjoyment in specie of the perishable property of the testator during her life without any conversion for the benefit of the remainder-man. And this decision was affirmed on appeal by Lord Cottenham (a). In Goodenough v. Tremamondo (b), the testator gave his residue to his trustees in trust, to permit the rents, issues, profits, interest and annual proceeds thereof, to be received by his son Richard during his life, and after his decease upon trust for the two daughters of his son, when they should attain twenty-one; with power for the trustees after x) 2 M. & K. 703. (y) 4 M. & Cr. 300. (z) Bethune v. Kennedy, 1 M. & Cr. 114. (a) Pickering v. Pickering, 2 Beav. 31; S. C. on Appeal, 4 M. & Cr. 289. (b) Goodenough v. Tremamondo, 2 Beav. 512. In a late case it was held by the same learned judge, that a direction that the tenant Div. I. CHAPTER II. SECT. 2. PART III. the death of the son to apply the rents, &c. towards the maintenance of the daughters until the vesting of their shares. Part of the residue consisted of a leasehold house, and at the hearing on further directions it was contended, that this leasehold ought to have been converted; but the Master of the Rolls, (Lord Langdale,) without calling upon the counsel for the other side, said, that he could not declare this to be a case of conversion without striking out of the will the word "rent," which was twice repeated; there being no other property except the leasehold, to which the term was applicable (b). It may be remarked, that the term "rents" was also made use of by the testator in Pickering v. Pickering, although neither of the learned judges, who decided that case, appear to have attached any particular importance to that circumstance. There indeed the testator appears to have been possessed of an estate in land pur autre vie, to which the term "rents" might have applied (c).* The recent decision of the Lord Chancellor in Vaughan v. Buck (d) is also in favour of the enjoyment of the residue in specie by the legatee for life. But in the late case of Benn v. Dixon (e), the testator gave to his wife the whole of the interest arising from his property both real and personal during her life, and at her decease to be disposed of as thereafter named, and should he die without leaving issue he gave the whole of his property both real and personal to his brothers and sister in equal proportions. Part of the testator's estate consisted of a leasehold house, in which he resided, and which his widow continued to оссиру after his death. It was contended on behalf of the widow on the authority of Alcock v. Sloper, Collins v. Collins, and Pickering v. Pickering, that she was entitled to the specific enjoyment of this property; but Sir L. Shadwell, V. C. E., held, that there was nothing on the face of the will to take the case out of the operation of the general rule, according to which the property was to be converted and invested in the funds, in order to produce the same interest to the remainder-man as was enjoyed by the tenant for life (f). However in the subsequent case of Daniel v. Warren (g), before Sir K. Bruce, V. C., there was a residuary gift of all the testator's property in trust for S. M. W. for life, and after her death unto her children in equal proportions, and in the event of her death without leaving issue to attain * In Mills v. Mills, 7 Sim. 501, the same expression occurred, but Sir L. Shadwell, V. C., notwithstanding, held, that the property ought to have been converted in favour of the remainder-man. twenty-one, the whole of the property to be sold by public auction. The Vice-Chancellor held, that S. M. W. was entitled to the enjoyment in specie of leaseholds, which formed part of the testator's estate. And in the still later case of Hinves v. Hinves (h), a testator bequeathed to his executors to dispose of his property in the manner after mentioned, all debts and funeral expenses paid, viz. to his wife S. H. the whole income of his property of all descriptions whatsoever for her life at her own disposal, but not to sell without the consent of all parties. He then gave certain particular legacies to his wife, and the residue of his estates or property whatsoever equally to his five brothers. It was held by Vice-Chancellor Wigram, that the testator's wife was entitled to the income of leaseholds and long annuities in specie. And his Honor in the course of his judgment, remarked upon the cases of Mills v. Mills and Benn v. Dixon, as differing in principle from the current of the modern authorities. PART III. Div. I. SECT. 2. to reversionary If any part of the property, given for life with remainder over, con- Rule for consist of a reversionary interest, which produces no immediate available version applies income, but which admits of being valued and converted into money, interests. the same rule which in the cases hitherto considered works for the benefit of the persons entitled in remainder, will also hold good (to the same extent and subject to the same exception) for the benefit of the tenant for life: and according to that rule it is primâ facie the duty of the trustees at once to dispose of such an interest, and invest the proceeds in stock, which will produce an immediate income available for the benefit of the tenant for life (i). join in evicting life, are personally liable. the tenant for If the trustees of a settled estate join with the remainder-man to Trustees, who evict the tenant for life from the possession of the property, they will be personally liable to make good the whole rent from the time of such eviction, without any allowance for any accidental deficiencies in the amount actually received (k). A trust for the accumulation of the income of property settled for life, is one of very frequent occurrence, more especially where the settlement is made by will. Previously to the statute 39 & 40 Geo. III. c. 98 (usually called the Thellusson Act,) the enjoyment of the income of property might have been suspended for as long a period, as the vesting of the estate itself; viz. for a life in being, and a subsequent period of twenty-one years (1). The abuse of this legal right in the case of the will of the late Mr. Thellusson, induced the legislature to interfere for the purpose of curtailing the period for accumulation, and that period is now restricted by that act to four alternative terms, viz. (h) 3 Hare, 609. (i) Fearns v. Young, 9 Ves. 549, 552; Dimes v. Scott, 4 Russ. 200. (k) Kaye v. Powell, 1 Ves. jun. 408. Trusts for ac cumulation, how far good. Div. I. CHAPTER II. SECT. 2. PART III. 1st, The life of the settlor; 2nd, Twenty-one years from the death of the settlor; 3rd, The minority or minorities of any person or persons living at the death of the settlor, or 4th, During the minority or minorities of any person or persons, who if of full age would be entitled under the limitations to the income, which is directed to be accumulated. But the act contains an exception in favour of any accumulation directed for the payment of debts, or for raising portions for children. Cost of substantial repairs to be borne by cestui que trust for life. Right of representatives of It has been determined that these four periods are alternative and not accumulative, that is to say a testator may direct the income of trust property to be accumulated for twenty-one years after his death, or for the minority of A., but not for twenty-one years from his death, and during that minority (m). The act goes on to direct, that any accumulations directed contrary to its provisions shall be void, and that the income directed to be accumu lated shall go to the person who would have been entitled to it, if there had been no such direction. Upon the construction of this provision it has been held, that any accumulation directed for too long a period is void only for the excess, and not in toto (n). And when the period allowed by the act for accumulation has expired, the income during the residue of the time appointed for its accumulation by the testator, will be held in trust for his heir at law or next of kin, according to the nature of the estate (o), or for his residuary legatees, if the residuary clause be so framed as to pass the interest thus becoming undisposed of (p). Where real estate is settled in trust for a tenant for life with remainder over, the trustees will not be justified in raising out of the corpus of the estate any sums, which may be requisite for the substantial repairs of the mansion house or estate (although occasioned by the existence of dry rot); but such expenses must be defrayed out of the interest of the tenant for life in possession (9). Previously to the act 4 & 5 Will. IV. c. 22, the representatives or tenant for life assigns of tenants for life of rents annuities or stock, &c., were not entitled to any apportionment in case of the death of the tenant for life, in the interval between the regular days of payment; unless indeed there were an express provision for that purpose. But by that statute to apportion ment of periodical pay ments. (m) Griffiths v. Vere, 9 Ves. 136; 1 Jarm. Pow. Dev. 418,9; Ellis v. Maxwell, 3 Beav. 587. (n) Lade v. Holford, Ambl. 479; Eyre v. Marsden, 2 Keen, 564; S. C. on Appeal, 4 M. & Cr. 231, and cases cited; Marshall v. Holloway, 3 Swanst. 432; Griffiths v. Vere, 9 Ves. 129; Longdon v. Simpson, 12 Ves. 295; Lord Southampton v. Hertford, 2 V. & B. 61; Haley v. Banister, 4 Mad. 277. (0) Eyre v. Marsden, 2 Keen, 564; 4 M. & Cr. 231; M'Donald v. Bryce, 2 Keen, 271. (p) O'Niel v. Lucas, 2 Keen, 313; Ellis v. Maxwell, 3 Beav. 587; Att.-Gen. v. Poulden, 3 Hare, 555. (9) Bostock v. Blakeney, 2 Bro. C. C. 653; Hibbert v. Cooke, 1 S. & St. 552; Nairn v. Marjoribanks, 3 Russ. 582; Caldecott v. Brown, 2 Hare, 144. the right to such an apportionment is given in all cases, where the right PART III. to the payment is created by any instrument or will executed or coming into operation after the passing of the act (r). The tenant for life, who is in the possession of the estate, is liable to all rates and taxes, and the trustees will not be justified in defraying those charges out of the general trust fund (s). Div. I. CHAPTER II. SECT. 2. Tenant for life liable to rates and taxes. clauses of forfeiture on alienation or bankruptcy or insolvency. It not unfrequently happens, that the interest given to a cestui que Validity of trust for life, is directed to go over for the benefit of other parties on his bankruptcy or insolvency, or any attempt at alienation. And it has repeatedly been decided, that such a direction is valid, and that the assignees of the cestui que trust for life will take no interest in the trust property so limited (t). But if any beneficial interest remains in the tenant for life; as for instance, where the property in the event contemplated, is to be in trust for the benefit of him and his wife and family, in that case whatever benefit he is entitled to, will unquestionably go to his assignees (u). However where it is left entirely in the discretion of the trustees to continue or withhold any benefit to the bankrupt or insolvent, his assignees will not be entitled to anything, as long as nothing is given to him by the trustees (x). But whatever interest they should actually give him in the exercise of that discretion, will unquestionably go to the assignees (y). And in these cases the intention, to exclude the assignees on the bankruptcy or insolvency of the cestui que trust for life, must be clearly expressed; and where the forfeiture seems only to contemplate a particular and voluntary alienation, it will not be extended to an alienation by act of law (2). VII.-Of Trustees for Infants. Infants and their property are in an especial manner under the protection of the Court of Chancery; which regards with peculiar jealousy anything approaching to a dereliction of duty by their trustees. belonging to laid out in infants to be three-percents. It is the settled rule of the court, and one that is never varied Trust money without special circumstances, that trust money belonging to an infant must be laid out by the trustee in the three-per-cents.: and the court will not even direct a reference to the Master, to inquire whether it would be for the infant's benefit, that the fund should be laid out on real security, unless there is something very special in the case, to induce it to relax the general rule (a). (r) See re Markby, 4 M. & Cr. 484; Michell v. Michell, 4 Beav. 549. (8) Fountaine v. Pellet, 1 Ves. jun. 342. (t) Dommet v. Bedford, 3 Ves. 149; Cooper v. Wyatt, 5 Mad. 482; Shee v. Hale, 13 Ves. 404; Lewes v. Lewes, 6 Sim. 304; Twopenny v. Peyton, 10 Sim. 487; Page v. Way, 2 Beav. 20; Brandon v. Aston, 2 N. C.C. 24. (u) Rippon v. Norton, 2 Beav. 63; Lord v. Bunn, 2 N. C. C. 98; Green v. Spicer, 1 Russ. & Milne, 395; Piercy v. Roberts, 1 M. & K. 4; Snowdon v. Dales, 6 Sim. 524; (x) Godden v. Crowhurst, 10 Sim. 612; (y) Lord v. Bunn, 2 N. C. C. 98; Kearsley v. Woodcock, 3 Hare, 185. (2) Lear v. Leggett, 2 Sim. 479; 1 R. & M. 690; Whitfield v. Prickett, 2 Keen, 608. (a) Norbury v. Norbury, 4 Mad. 191. |