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No. 511–Vol. X. OCTOBER 24, 1846.

PRICE ls. ** The following are the Names of the Gentlemen who favour Tue Jurist with Reports of Cases argued and

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half century. “In the year of this Jubilee,” says the

ancient Hebrew law, “ye shall return every man unto OUR“ readers will perceive, in this day's JURIST, & his possession.” (Lev. cap. 25, ver. 13). And again, communication from a correspondent on the subject of “The land shall not be sold for ever: for the land is mine; trusts for accumulation. The cases there referred to, for ye are strangers and sojourners with me. If thy and in particular the very recent case of Browne v. brother be waxen poor, and hath sold away some of Houghton, (10 Jur. 747), afford strong proof of the un- his possession, and if any of his kin come to redeem it, deviating wish of men, to perpetuate beyond the grave, then shall he redeem that which his brother sold; their dominion over their property. That such a de- and if the man have none to redeem it, and himself sire may be natural we do not deny, but it is not of be able to redeem it, then let him, &c.; but if he be course that the law should favour a human propensity not able to restore it to him, then that which is sold merely because it is natural; on the contrary, the object shall remain in the hand of him that hath bought it and proper function of law is to control those tendencies until the year of jubilee; and in the jubilee it shall go of the human mind which are inconsistent with the out, and he shall return unto his possession." (Leks well-being of society; and there is, perhaps, no subject chap. 25, vers. 23 to 28). to which the influence of a wholesome and effective law By the law of France at this day, no man has unlican be better directed, than that of the almost universal mited testamentary power of disposition over his prodesire of mankind to dictate to as much of future gene-perty, whether he has acquired it by descent or by his rations as possible, the mode in which they shall enjoy own industry; but the law disposes of a given portion property.

of it to his family, both in the ascending and descendMany persons appear to think, influenced, no doubt, ing line, leaving him a testamentary disposition only by the habit of considering the great power of disposi- l over the remainder.

: basa tion by will that the law of England has long given to “Les liberalités, soit par actes entre vifs, soit par the owners of property, that the natural law gives to a testament, ne pourront excéder la moitié des biens.dus man the right of absolute testamentary disposition over disposant, s'il ne laisse à son décès qu'un enfant légitime; the worldly goods that he has acquired. The practice of le tiers s'il laisse deux enfans; le quart s'il en laisse mankind is, however, opposed to any such doctrine. quatre ou un plus grand nombre.. Among the Jews, no power of disposition extended in “Les liberalités par actes entre vifs, ou par testament, general beyond half a century; for, as in the year of ne pourront excéder la moitié des biens, si, à défaut d'enthe Jubilee, that is, every fifty years from the taking fans, le defunt laisse un ou plusieurs ascendans dans possession by the children of Israel of the land of pro- chacune des lignes paternelle et maternelle ; et les troisa. mise, every man who could make out his title to lands quarts, s'il ne laisse d'ascendans que dans une ligne.” that had been sold in the preceding half century was to (Code Civil, liv. 3, tit. 2, ss. 913, 915), return to his possession *, it follows that no power of Our own law, which, we believe, gives larger powers disposition could extend over a greater period than such of testamentary disposition than the laws of any known

civilised community, still exercises some sort of con* See Leviticus, cap. 25.

trol over the caprices of testators, by restricting them VOL. X.


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from so tying up property as to make it inalienable for “that during the minority or respective minorities of any more than a given period after the testator's death. person or persons respectinely, who, for the time being, The question, whether a man is to be to any and what should,

what should, by virtue of the limitations in the said settlement extent deprived of the power of prescribing what shall

contained, be immediate tenant for life, in tail male, or in

tail, in possession of or actrially entitled to the yearly be done with his property after his death, is, in fact, rents. issues, and profits of the said estates, the said entirely one of conventional, and not of natural law. trustees should receive and take the said yearly rents, By the natural law, it would seem, if, indeed, there be &c., and, after payment thereout of the charges and any such thing as a natural law of property, that with incumbrances which should then affect the said estates, life all dominion over property must cease. But this sa

at this should, during such minority or respective minorities

| as aforesaid, lay out and invest the said yearly rents,

do &c., in the purchase of public stocks or funds, or upon riance with the ordinary feelings of mankind, as to im- government or real securities in England, to be from pede the operation of the desire of acquiring pro- time to time altered and varied as occasion should reperty; and hence, we find, in most codes of law, some quire; and receive the dividends, interest, &c., and lay testamentary powers recognised. On the other hand, out and invest the same in the purchase of or upor to permit a citizen of a civilised state to prolong his

stocks, funds, or securities of the like nature, to be also

from time to time altered and varied, so that the same dominion over his property after his death to any great

might, during such minority or respective minorities, acextent, is manifestly inconvenient.

cumulate; and to stand possessed of and interested in In this country, an immense portion of the litigation the sums of money, stocks, funds, and securities to be with which society is convulsed, arises out of the intri- purchased with such yearly rents, and the interest, dicate dispositions that testators, under the sanction of vidends, and annual produce respectively, and the acthe law, attempt to make of their property, so as to

cumulations thereof respectively, and the dividends

and annual produce of such accumulations, in trust for extend their control as far as possible into futurity; / mo

scurty, such person or persons respectively as should, immeand it is a question deserving the serious consideration diately upon the expiration of such minority or to of the Legislature, whether the testamentary power re- spective minorities as aforesaid, or the death or deaths cognised by the law of England does not far exceed of such minor or minors as aforesaid, be tenant or tethat which the well-being of society requires. Attempts | nants in possession of or entitled to the rents and profits, to tie up property, as it is called, so as to protect future

and be of the age of twenty-one years; and it was fur

ther declared, that, in the meantime and until the said generations against their own imprudence, afford them

rents, issues, and profits should amount to 8 sum comprotection only at the expense of depriving them of petent for the discharge of the incumbrances in the self-reliance, and of the incentives to prudence; and it said settlement directed to be discharged, the trustees may be doubted whether they do not more mischief to might invest the same in the purchase of stock, &c., society by destroying independence of character, than

and that in such case the dividends and interest of such

last-mentioned stock should be accumulated, and the they do good by restraining waste. On the whole, we

same and the accumulations thereof be laid out and in should be much inclined to think that our law would be

vested as last thereinbefore mentioned, till the same reimproved, if it went further than it does in controlling spectively should be applied in the discharge of the the disposition of men to regulate the devolution of their said sums of money so to be discharged." property after their own death, and, in particular. in l. “Under this settlement,” observes the accurate suchecking every attempt at withdrawing property from

thor of the Treatise on the Thellusson Act*, "since

there might possibly be an indefinite succession of circulation, by a compulsory accumulation, long after any

tenants in tail dying under twenty-one years of age. living mind can preside over it, and judge of its fitness the aforesaid trust might cause an accumulation of to the existing wants of the community.

the rents and profits of the said settled estates for an indefinite period.(Treatise on the Thellusson Act,

p. 93). And this is the view that was taken of the Correspondence.

case both in the arguments at the bar, and in the judg.

ment. “This,” said Sir W. Grant, * is an attempt TO THE EDITOR OF “THE JURIST."

wholly to sever the surplus rents and profits from the

legal ownership of the estate for a time that may extend Sir, I have been rather surprised by the strictures much beyond the period allowed for executory devises contained in your last Number (p. 414) upon the case or trusts of accumulation, and to give them to 8 person of Browne v. Houghton, (10 Jur. 747), and particularly by the attempt to distinguish that case from

ucularly, who may not come into existence until after that peo

Lord riod. .... As to the possibility that Lord SouthSorthampton v. Hertford, (2 Ves. & Bea, 64). Your ampton may attain the age of twenty-one, that never correspondent, X., argues, that, because the trusts for has been held to be an answer to the objection, that the accumulation were secured in the latter case by a term trust, as originally created, is too remote. Supposing of years preceding the estates tail, they could not be this accumulation allowed to go on, and he dies under destroyed; and that in that consists the distinction be- twenty-one, what is to become of the accumulated fund! tween the two cases; the trusts for accumulation being, The deed says, it shall go to the first person entitled to as he urges, in Browne v. Houghton, engrafted upon the the estate who shall attain twenty-one, though there very limitations of the estates tail, in partial defeasance should be no such person for a century to come." I thereof, and destructible by any tenant in tail baving is clear, from these passages, that the vice of the trust, attained twenty-one.

in the view of Sir W. Grant, was, that, by its terms, if It appears to me, that, if the case of Lord Southamp- there was no person entitled within twenty-one years ton v. Hertford is carefully examined, it will be found

after the lives in being, who should attain twenty-one, that no such distinction substantially exists.

the vesting of the accumulated fund was intended to be The trusts for accumulation secured by the term, in suspended till there should be a person entitled who Lord Southampton v. Hertford, were, (and I cite them should attain twenty-one, at whatever time that might at length, that your readers may see clearly whether they support the arguments that I found upon them), l * Treatise on the Thellusson Act, by John F. Hargrave.

happen: in other words, that the measure of the pe- possession, attaining twenty-one, either by reason of riod for the vesting of the accumulated fund should not the form of the trust itself, or of any act of the person be necessarily a period not exceeding twenty-one years entitled affecting such trust, the trust is, in both cases, after the termination of the lives in being, but the hap-void, on the ground of its tending to perpetuity; bepening of an event which might not happen till some cause it is so constructed, that, if there should be period infinitely beyond the twenty-one years.

successive minorities extending over a greater period " It is true, as X. suggests, that the term preced than twenty-one years after the lives in being, the ing the estate tail could not be destroyed by any trust for accumulation would not, according to its terms, tenant in tail under the settlement. But that does cease, and the accumulated fund would not vest; while not affect the question. It would not have been ne- at the same time the trust, even if destructible, could cessary for & tenant in tail, having attained twenty- not be destroyed so as to accelerate the vesting of the one, to destroy the term or its trusts in order to ar accumulated fund, by reason of the personal incapacity rest the secumulation, so far as his estate was con of the owner of the estate. If this be kept in view as cerned; because the trust for accumulation itself di- the true principle of the decisions in Lord Southampton rected that the accumulated fund should go to the first v. Hertford and Browne v. Houghton, it will be seen person entitled who should attain twenty-one. Such that they are in perfect harmony with each other, and person would take it under, and not in derogation of, the that neither is inconsistent with the general rule relied trust. But the question was, whether, if the trust was upon by your correspondent X.

C. S.D. to be held valid, there would not be, in events which might happen, an accumulated fund, at a period exceeding the period when the estate in the land could A REPOSITORY OF POINTS IN EQUITY AND remain unvested ;--and it was clear that such a state of

CONVEYANCING*, things might happen consistently with the intention of Desioned to combine the Advantages of an Abridgment of, the declared trust; indeed, that, upon the construction and an Index to, the recent Cases, and of an original of the trust, such was its very intention. Now, it must Statement of the Points established thereby. not be forgotten that the rule against perpetuities is not, that an estate shall not be inalienable, by reason of any

BY JOSIAH W. SMITH, B.C.L., personal incapacity of the owner to convey, for more


Editor of Pearne'. Contingent Remainders, and Author of a Treatise on than twenty-one years after lives in being; but only

Executory Interests. that its vesting, and consequent capacity of being aliened, shall not be suspended beyond that period. Hence it is, that, indirectly, an estate tail may be in fact inalienable

PART II. for much more than the twenty-one years; not because

ADMINISTRATION it is not susceptible of alienation, but because it may be of the Estate of an Executor who had bequeathed his Tesin the possession of an owner personally incapable of tator's Assets as his own. - Where an executor deals doing the acts necessary for its alienation.

with, and ultimately bequeaths, certain canal shares of The test of validity in a trust for accumulation his testator with some of his own, as if they were all dehors the Thellusson Act must be the same. If it be so his own, and dies indebted to his testator's estate, what framed that the accumulated fund must vest within the is due from his estate to that of his testator is not to be twenty-one years, it will be good, although it might exclusively or primarily paid out of the canal shares of vest in an owner personally incapable of disposing of it; I his testator, but the legatees of those shares take them but, if its terms be such, that, if allowed to take effect,

as if they were his property; and the debts due from it would suspend the vesting of the accumulated fund

his estate to the estate of his testator must be paid in beyond the twenty-one years, then it is wholly bad. the same manner as his other debts; that is, his It is from confounding, as it appears to my judg general personal estate must be applied first in payment, the trust for accumulation of the rents, with

ment of them; and, if that is insufficent, the specific the limitations of the estate, that your correspondent legatees of the canal shares and the specific legatees of has fallen into the error of distinguishing Browne v. othechattels (if any) must contribute proportionably Houghton from Lord Southampton v. Hertford, and of to make up the deficiency. Ibbetson v. Ibbetson, 13 denying the soundness of the former decision. The trust | Sim. 644. for accumulation in Browne v. Houghton is, it is true, in Legacy to a Debtor of a Testator whose Debt is a certain sense, engrafted upon the limitations of the eg

| barred. An executor is not obliged to pay a legacy to tate; that is to say, the estates are first limited, and then

a legatee who is indebted to the testator in the amount the trusts as to the rents are fastened upon those limita

of the legacy, although the debt may have been barred tions by way of partially cutting them down. But it

by the Statute of Limitations before the testator's death: is not strictly correct to say, that, in this case any more than in Lord Southampton v. Hertford, a recovery by a

for the statute does not extinguish the debt; it only

y takes away the means of recovering it. The debt, tenant in tail having attained twenty-one would de

therefore, is a part of the testator's assets ; and the stroy the trust. The trust for accumulation in Browne

executor has a right to say to the legatee, “Pay your5. Houghton ceases, by virtue of its very terms, as it

10 self out of that portion of the assets in your hands." did in the earlier case, upon any person attaining Courtnay y. Williams, 15 Law J. 204-L.C. twenty-one. And though it may be true, that, if it did not so cease, it might be destroyed by the recovery of

Contribution between specific Legatees and Devisees the tenant in tail, that is no reason for supporting

towards Payment of Debts.-General Rules of Construcit as a valid trust, if it is found that it cannot be,

tion.]—Where a testator, whose assets are wholly legal, and is intended from its very structure not to be,

| devises all his real estate, no part of which is in morta destroyed in events that may happen, and under which l gage, or specifically charged with any debt, and gives the estate tail cannot be barred; that is, if it can

2 * See Preface to Part I, ante, p. 185. This Second Part com. not be destroyed upon the vesting of an estate tail,

tall, prises the points which occur in THE JURIST and the Law Jour. which cannot be actually aliened, by reason of the mi

m. nal, from the beginning of April to the end of July, and in the nority of the tenant in tail. The principle of the deci- other Reporto published during the same period; namely, rions in both the cases referred to is, Sir, I conceive, 7 Beavan, part 3; 13 Simons, part 4; 4 Hare, part 4; 14 the same: viz. that, without reference to what may Meeson & Welsby, part 4; 6 Adolphus & Ellis, part 2; Da. happen or be done to the trust for accumulation, on vidson & Merivale, part 5; 7 Manning & Granger, part 4; any of the persons to whom the estate is limited in I and 1 Manning, Granger, & Scott, part 4.

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