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PRICE 18. *The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: A. GORDON, Esq. of the Inner Vice-Chancellor Wigram's [F. FISHER, Esq. of Lincoln's {A. GORDON, Esq. of the I TENISON EDWARDS, Esq. of the {TEIner Temple, Barristerat Law. The Lord Chancellor's f A. GORDON, Esq. of the Inner ....... '{ Master of the Rolls Court G. Y. ROBSON, Esq. of the Inner Vice-Chancellor of England's Court Vice-Chancellor Knight may ..... :{ TENISON EDWARDS, Esq. of the LONDON, OCTOBER 24, 1846. Inn, Barrister at Law. of Inner Temple, Barrister at Law. D. POWER, Esq. of Lincoln's Appeals under Registra-W. PATERSON, Esq. of Gray's Inn, Barristers at Law. Court of Exchequer.... {W.M. BEST, Esq. of Gray's Inn, Barrister at Law. half century. "In the year of this Jubilee," says the ancient Hebrew law, "ye shall return every man unto his possession." (Lev. cap. 25, ver. 13). And again, "The land shall not be sold for ever: for the land is mine; for ye are strangers and sojourners with me. If thy brother be waxen poor, and hath sold away some of his possession, and if any of his kin come to redeem it, then shall he redeem that which his brother sold; and if the man have none to redeem it, and himself. be able to redeem it, then let him, &c.; but if he be not able to restore it to him, then that which is sold shall remain in the hand of him that hath bought it until the year of jubilee; and in the jubilee it shall go out, and he shall return unto his possession." (Lev chap. 25, vers. 23 to 28). OUR readers will perceive, in this day's JURIST, a communication from a correspondent on the subject of trusts for accumulation. The cases there referred to, and in particular the very recent case of Browne v. Houghton, (10 Jur. 747), afford strong proof of the undeviating wish of men, to perpetuate beyond the grave, their dominion over their property. That such a desire be natural we do not deny, but it is not of course that the law should favour a human propensity merely because it is natural; on the contrary, the object and proper function of law is to control those tendencies of the human mind which are inconsistent with the well-being of society; and there is, perhaps, no subject 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 property. Many persons appear to think, influenced, no doubt, by the habit of considering the great power of disposition by will that the law of England has long given to the owners of property, that the natural law gives to a man the right of absolute testamentary disposition over the worldly goods that he has acquired. The practice of mankind is, however, opposed to any such doctrine. Among the Jews, no power of disposition extended in general beyond half a century; for, as in the year of the Jubilee, that is, every fifty years from the taking possession by the children of Israel of the land of promise, every man who could make out his title to lands that had been sold in the preceding half century was to return to his possession *, it follows that no power of disposition could extend over a greater period than such "Les liberalités, soit par actes entre vifs, soit par testament, ne pourront excéder la moitié des biens dus disposant, s'il ne laisse à son décès qu'un enfant légitime; le tiers s'il laisse deux enfans; le quart s'il en laisse quatre ou un plus grand nombre.. "Les liberalités par actes entre vifs, ou par testament, ne pourront excéder la moitié des biens, si, à défaut d'enfans, le defunt laisse un ou plusieurs ascendans dans chacune des lignes paternelle et maternelle; et les trois quarts, s'il ne laisse d'ascendans que dans une ligne." (Code Civil, liv. 3, tit. 2, ss. 913, 915), Our own law, which, we believe, gives larger powers of testamentary disposition than the laws of any known civilised community, still exercises some sort of con trol over the caprices of testators, by restricting them 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 respectively, who, for the time being, The question, whether a man is to be to any and 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 be done with his property after his death, is, in fact, rents, issues, and profits of the said estates, the said tail, in possession of or actually entitled to the yearly 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 should, during such minority or respective minorities doctrine, it has been thought, would be so far at vaas aforesaid, lay out and invest the said yearly rents, &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 upon to permit a citizen of a civilised state to prolong his stocks, funds, or securities of the like nature, to be also dominion over his property after his death to any great might, during such minority or respective minorities, acfrom time to time altered and varied, so that the same extent, is manifestly inconvenient. cumulate; and to stand possessed of and interested in the sums of money, stocks, funds, and securities to be purchased with such yearly rents, and the interest, dividends, and annual produce respectively, and the ac and annual produce of such accumulations, in trust for cumulations thereof respectively, and the dividends such person or persons respectively as should, immediately upon the expiration of such minority or respective minorities as aforesaid, or the death or deaths of such minor or minors as aforesaid, be tenant or te nants in possession of or entitled to the rents and profits, ther declared, that, in the meantime and until the said and be of the age of twenty-one years; and it was furrents, issues, and profits should amount to a sum competent for the discharge of the incumbrances in the said settlement directed to be discharged, the trustees might invest the same in the purchase of stock, &c., and that in such case the dividends and interest of such last-mentioned stock should be accumulated, and the same and the accumulations thereof be laid out and invested as last thereinbefore mentioned, till the same respectively should be applied in the discharge of the said sums of money so to be discharged." In this country, an immense portion of the litigation with which society is convulsed, arises out of the intricate dispositions that testators, under the sanction of the law, attempt to make of their property, so as to extend their control as far as possible into futurity; and it is a question deserving the serious consideration of the Legislature, whether the testamentary power recognised by the law of England does not far exceed that which the well-being of society requires. Attempts to tie up property, as it is called, so as to protect future generations against their own imprudence, afford them protection only at the expense of depriving them of self-reliance, and of the incentives to prudence; and it may be doubted whether they do not more mischief to society by destroying independence of character, than they do good by restraining waste. On the whole, we should be much inclined to think that our law would be improved, if it went further than it does in controlling the disposition of men to regulate the devolution of their property after their own death, and, in particular, in checking every attempt at withdrawing property from circulation, by a compulsory accumulation, long after any living mind can preside over it, and judge of its fitness to the existing wants of the community. Correspondence. TO THE EDITOR OF "THE JURIST." Sir,-I have been rather surprised by the strictures contained in your last Number (p. 414) upon the case of Browne v. Houghton, (10 Jur. 747), and particularly by the attempt to distinguish that case from Lord Southampton v. Hertford, (2 Ves. & Bea. 54). Your correspondent, X., argues, that, because the trusts for accumulation were secured in the latter case by a term of years preceding the estates tail, they could not be destroyed; and that in that consists the distinction between the two cases; the trusts for accumulation being, as he urges, in Browne v. Houghton, engrafted upon the very limitations of the estates tail, in partial defeasance thereof, and destructible by any tenant in tail having attained twenty-one. It appears to me, that, if the case of Lord Southampton v. Hertford is carefully examined, it will be found that no such distinction substantially exists. The trusts for accumulation secured by the term, in Lord Southampton v. Hertford, were, (and I cite them at length, that your readers may see clearly whether they support the arguments that I found upon them), "Under this settlement," observes the accurate au thor of the Treatise on the Thellusson Act*, "since * Treatise on the Thellusson Act, by John F. Hargrave. happen: in other words, that the measure of the period for the vesting of the accumulated fund should not be necessarily a period not exceeding twenty-one years after the termination of the lives in being, but the happening of an event which might not happen till some period infinitely beyond the twenty-one years. possession, attaining twenty-one, either by reason of the form of the trust itself, or of any act of the person entitled affecting such trust, the trust is, in both cases, void, on the ground of its tending to perpetuity; because it is so constructed, that, if there should be 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 a 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 accumulation, 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 remain unvested;-and it was clear that such a state of things might happen consistently with the intention of the declared trust; indeed, that, upon the construction of the trust, such was its very intention. Now, it must not be forgotten that the rule against perpetuities is not, that an estate shall not be inalienable, by reason of any personal incapacity of the owner to convey, for more A REPOSITORY OF POINTS IN EQUITY AND Designed to combine the Advantages of an Abridgment of, BY JOSIAH W. SMITH, B.C.L., than twenty-one years after lives in being; but only Editor of Fearne's Contingent Remainders, and Author of a Treatise on 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 for much more than the twenty-one years; not because it is not susceptible of alienation, but because it may be in the possession of an owner personally incapable of doing the acts necessary for its alienation. Executory Interests. PART II. ment of them; and, if that is insufficent, the specific legatees of the canal shares and the specific legatees of other chattels (if any) must contribute proportionably to make up the deficiency. Ibbetson v. Ibbetson, 13 Sim. 544. of the Estate of an Executor who had bequeathed his Testator's Assets as his own.]-Where an executor deals 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; 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 the limitations of the estate, that your correspondent has fallen into the error of distinguishing Browne v. Houghton from Lord Southampton v. Hertford, and of denying the soundness of the former decision. The trust for accumulation in Browne v. Houghton is, it is true, in a certain sense, engrafted upon the limitations of the estate; that is to say, the estates are first limited, and then the trusts as to the rents are fastened upon those limitations by way of partially cutting them down. But it is not strictly correct to say, that, in this case any more than in Lord Southampton v. Hertford, a recovery by a tenant in tail having attained twenty-one would destroy the trust. The trust for accumulation in Browne 1. Houghton ceases, by virtue of its very terms, as it did in the earlier case, upon any person attaining twenty-one. And though it may be true, that, if it did not so cease, it might be destroyed by the recovery of it as a valid trust, if it is found that it cannot be, the tenant in tail, that is no reason for supporting and is intended from its very structure not to be, destroyed in events that may happen, and under which the estate tail cannot be barred; that is, if it cannot be destroyed upon the vesting of an estate tail, which cannot be actually aliened, by reason of the minority of the tenant in tail. The principle of the decisions in both the cases referred to is, Sir, I conceive, the same: viz. that, without reference to what may happen or be done to the trust for accumulation, on any of the persons to whom the estate is limited in Legacy to a Debtor of a Testator whose Debt is barred.]-An executor is not obliged to pay a legacy to of the legacy, although the debt may have been barred a legatee who is indebted to the testator in the amount by the Statute of Limitations before the testator's death: for the statute does not extinguish the debt; it only therefore, is a part of the testator's assets; and the takes away the means of recovering it. The debt, executor has a right to say to the legatee, "Pay yourself out of that portion of the assets in your hands." Courtnay v. Williams, 15 Law J. 204—L. C. Contribution between specific Legatees and Devisees devises all his real estate, no part of which is in morttowards Payment of Debts.-General Rules of Construction.]-Where a testator, whose assets are wholly legal, gage, or specifically charged with any debt, and gives * See Preface to Part I, ante, p. 185. This Second Part comprises the points which occur in THE JURIST and the Law Journal, from the beginning of April to the end of July, and in the other Reports published during the same period; namely, 7 Beavan, part 3; 13 Simons, part 4; 4 Hare, part 4; 14 Meeson & Welsby, part 4; 6 Adolphus & Ellis, part 2; Davidson & Merivale, part 5; 7 Manning & Granger, part 4; and 1 Manning, Granger, & Scott, part 4. |