Mr. Kindersley, for Mr. Montriou, contended that such a declaration was premature, and that there ought to be a previous inquiry as to the investment of the funds.

Mr. Campbell and Mr. E. F. Smith, for other parties.

The MASTER of the ROLLS said, that where a trustee admitted the trust fund to have been sold out and converted from a proper state of investment, and failed to shew that it was then properly invested, he was liable, in the first instance, to have a decree made against him. Here the trustee admitted that the fund had been sold out, but could not say whether any part was now properly invested. It must therefore be declared that he was liable to make good the fund sold out.

1842.

MEYER

V.

MONTRIOU.

THE

CURTIS v. LUKIN.

HE questions in this cause were, first, whether the trustees and executors of the will of the testator, Mr.Shadrach Venden, had committed a breach of trust, by

July 13.

A gift is too

unless, according to the

remote,

intention of not the testator,

some person

must necessarily be in existence, with legal power to dispose of the property, within the period limited by the rules of law.

A gift must not only vest within the time limited by the rule against perpetuities, but the interests of the respective parties in the property, must be capable of ascertainment within that period, otherwise the gift will be void.

A testator bequeathed leaseholds in Church Street, having sixty years unexpired, and as to which there was no obligation on the part of the lessor to renew, to A. for life, with remainder to the children she should leave, and in default to B. He bequeathed to trustees other leaseholds, upon trust to accumulate the rents, until the leases of the Church Street property "should become nearly expired," and then to apply such part thereof as should be necessary in the renewal of the Church Street property, "for the benefit of the respective persons to whom he had before, by his will, given the same;" and the residue, after answering the purpose aforesaid, he gave to his residuary legatees. The testator died before the Thellusson Act came into operation. Held, that the trust for accumulation and renewal was void for remoteness and uncertainty.

1842.

CURTIS

1.

LUKIN.

not investing the rents of three leasehold houses in Oxford Street and Audley Street, so as to accumulate and form. a fund for the renewal of the leases of two houses in Church Street, which had been bequeathed for the benefit of his neice the Defendant Mrs. Curtis and her children; and secondly, whether the Plaintiff, who was one of the children, was now entitled to call for the performance of this trust, or to charge the representatives of the executors of Shadrach Venden with the breach of trust.

The testator was possessed of two leasehold houses in Church Street for a term, of which between sixty and seventy years were unexpired, and he possessed three other leasehold premises in Oxford Street and Audley Street.

By his will, dated in 1794, he bequeathed the two houses in Church Street to four trustees, upon trust for the Defendant Elizabeth Curtis (then Elizabeth Cheverell) for life, for her separate use, and from and after her decease, upon trusts which were expressed as follows:

"to the use and benefit of any child or children my said neice Elizabeth Cheverell may leave by any husband or husbands she may happen to marry, equally to be divided amongst them, if more than one, share and share alike, and if but one child, the whole to such one child; but in case my said neice Elizabeth Cheverell shall not, at her decease, leave any child or children, then to the use of my nephew Shadrach Venden Cheverell."

66

upon

The testator then bequeathed to his trustees the three leasehold houses in Oxford Street and Audley Street, upon trusts which he declared as follows: trust, that they my said trustees shall and do, from time to time, receive the rents, issues, and profits of the above three

three leasehold messuages or dwelling houses situate in Oxford Street and Audley Street aforesaid, and lay out the same at interest till my several leasehold messuages or tenements hereinbefore mentioned, situate and being in Church Street aforesaid shall become nearly expired, and then, to pay and apply such part thereof as shall be necessary, in the renewal of my several leasehold messuages or tenements situate and being in Church Street aforesaid, for the benefit of the respective persons to whom I have before, by this my will, given the same." And he gave the money arising from the rents of his houses in Oxford Street and Audley Street, and the interest arising therefrom after answering the several purposes aforesaid, between Edward Venden, Shadrach Venden Cheverell, and Elizabeth Cheverell, and he also gave his residuary estate to the three last-mentioned persons.

The testator died in 1795, so that the Thellusson Act (a) was inapplicable to this case.

After the testator's death, the trustees and executors, for some time, continued to accumulate the rents of the Oxford Street and Audley Street property. The leases expired in 1817, and it was stated, that the accumulated fund was afterwards divided amongst the residuary legatees.

Mrs. Curtis, the tenant for life, was still living, and this bill was filed by one of her children, seeking a declaration, that the rents of the Oxford Street and Audley Street property ought to have been accumulated for the purpose of renewing the leases of the Church Street property; that the trustees and their represent

(a) 39 & 40 G. 3. c. 98.

atives

1842.

CURTIS

บ.

LUKIN.

1842.

CURTIS

V.

LUKIN.

atives might be held responsible for the breach of trust, in not doing so, and that the money recovered might be applied in the renewal of the leases of the Church Street property.

The Defendants, the representatives of the trustees, insisted, first, that the trust was void for uncertainty ; 2dly, that the period during which the accumulation had been directed might possibly exceed the limits allowed by law, and was therefore void.

Mr. Kindersley and Mr. Younge, for the Plaintiff.

The trust for accumulation is valid, for the whole interest must necessarily vest in Mrs. Curtis's children and the residuary legatees within the period limited viz., within a life in being and twenty-one years after. Immediately on the death of Mrs. Curtis every contingency will end, and her children and the residuary legatee will then have the power of disposing of the accumulated fund, and of stopping the further accumulation. This is all that is required by the rule which prescribes only the time within which the property Where there is a gift which vests within the limited period, but which is not payable until afterwards, the gift is not void, but the Court directs payment immediately on the legatee attaining twenty-one. Saunders v. Vautier. (a)

must vest.

Again, Mrs. Curtis may survive the leases, and then there could be no objection to the trust for renewal.

The Plaintiff, therefore, has a right to have the rents accumulated until the death of his mother; and the trustees

(a) Cr. & Ph. 240., and 4 Beavan, 115.

trustees having neglected to do so, are answerable for their breach of trust.

Mr. Baily, for the widow and the other children.

Mr. Pemberton, Mr. Hodgson, and Mr. D. James, for the representatives of the surviving trustees.

The trust for accumulation and renewal is void, both for uncertainty and for remoteness.

There is to be an accumulation until a few months. before the expiration of the leases, which will happen in 1863, and then an application is to be made to the landlord to renew the lease; but for what term is it to be renewed? for 100 or 1000 years; what is to be the rent, is it to be at a rack rent, or at a pepper-corn rent? What meaning is to be given to the expression "nearly expired?" and what is to be done if the landlord refuses to renew the lease? would the children in that event be entitled to the fund which would be necessary to renew? and if so how is the amount to be ascertained?

The Plaintiff will only be entitled in the event of his surviving the tenant for life, and it will be impossible, even then, for the Court to say, what sum he is interested in; for, until the expiration of the lease the amount necessary to obtain a renewal cannot be ascertained.

But assuming there is no vagueness or uncertainty in the trust, yet, it is void in consequence of its violating the rule of law against perpetuities. Every trust for accumulation which is not necessarily limited to the term of a life or lives in being, and twenty-one years after is absolutely and wholly void. Thus a trust

1842.

CURTIS

V.

LUKIN.