•"*****'' —
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
CASES ON THE LAW OF PROPERTY
VOL. L
PERSONAL PROPERTY.
By Harry A. Bigelow, Professor of Law in the
University of Chicago.
VOL. II.
RIGHTS IN ANOTHER'S LANDS.
By Harry A. Bigelow.
VOL. III.
TITLES TO REAL PROPERTY.
By Ralpli W. Aigler, Professor of Law in the
Univorsity of Michigan.
VOL. IV.
FUTURE INTERESTS.
By Albert M. Kales, of the Chicago Law, former-
ly Professor of Law in Harvard University.
VOL. V.
WILLS, DESCENT, AND ADMINISTRA-
TION.
By George P. Costigan, Jr., Professor of Law in
Northwestern University.
4 KLales Prop. (ii)
CASES ON THE LAW OF PROPERTY
VOLUME 4
FUTURE INTERESTS
AND
ILLEGAL CONDITIONS AND
RESTRAINTS
BY ALBERT M. KALES
OF THE CHICAGO BAE
AMERICAN CASEBOOK SERIES
WILLIAM R. VANCE
GENERAL EDITOR
ST. PAUL
WEST PUBLISHING COMPANY
1918
COPYKIGHT 1918
BY
WEST PUBLISHING COMPANY
(4 Kales Prop.)
THE AMERICAN CASEBOOK SERIES
The first of the American Casebook Series, Mikell's Cases on Crim-
inal Law, issued in December, 1908, contained in its preface an able
argument by Mr, James Brown Scott, the General Editor of the Se-
ries, in favor of the case method of law teaching. Until 1915 this
preface appeared in each of the volumes published in the series.
But the teachers of law have moved onward, and the argument
that was necessary in 1908 has now become needless. That such
is the case becomes strikingly manifest to one examining three im-
portant documents that fittingly mark the progress of legal education
in America. In 1893 the United States Bureau of Education pub-
lished a report on Legal Education prepared by the American Bar As-
sociation's Committee on Legal Education, and manifestly the work
of that Committee's accomplished chairman, William G. Hammond,
in which the three methods of teaching law then in vogue — that is, by
lectures, by text-book, and by selected cases — were described and com-
mented upon, but without indication of preference. The next report
of the Bureau of Education dealing with legal education, published
in 1914, contains these unequivocal statements:
"To-day the case method forms the principal, if not the exclusive,
method of teaching in nearly all of the stronger law schools of the
country. Lectures on special subjects are of course still delivered in
all law schools, and this doubtless always will be the case. But for
staple instruction in the important branches of common law the case
has proved itself as the best available material for use practically ev-
erywhere. * * * The case method is to-day the principal method
of instruction in the great majority of the schools of this country."
But the most striking evidence of the present stage of development
of legal instruction in American Law Schools is to be found in the
special report, made by Professor Redlich to the Carnegie Foundation
for the Advancement of Teaching, on "The Case Method in American
Law Schools." Professor Redlich, of the Faculty of Law in the Uni-
versity of Vienna, was brought to this country to make a special study
of methods of legal instruction in the United States from the stand-
point of one free from those prejudices necessarily engendered in
American teachers through their relation to the struggle for supremacy
so long, and at one time so vehemently, waged among the rival sys-
tems. From this masterly report, so replete with brilliant analysis
(V)
6710^2
Vi PREFACE
and discriminating comment, the following brief extracts are taken.
Speaking of the text-book method Professor Redlich says :
"The principles are laid down in the text-book and in the profes-
sor's lectures, ready made and neatly rounded, the predigested essence
of many judicial decisions. The pupil has simply to accept them and
to inscribe them so far as possible in his memory. In this way the
scientific element of instruction is apparently excluded from the very
first. Even though the representatives of this instruction certainly do
regard law as a science — that is to say, as a system of thought, a group-
ing of concepts to be satisfactorily explained by historical research and
logical deduction — they are not willing to teach this science, but only
its results. The inevitable danger which appears to accompany this
method of teaching is that of developing a mechanical, superficial in-
struction in abstract maxims, instead of a genuine intellectual probing
of the subject-matter of the law, fulfilling the requirements of a
science."
Turning to the case method Professor Redlich comments as follows :
"It emphasizes the scientific character of legal thought ; it goes now
a step further, however, and demands that law, just because it is a
science, must also be taught scientifically. From this point of view it
very properly rejects the elementary school type of existing legal edu-
cation as inadequate to develop the specific legal mode of thinking, as
inadequate to make the basis, the logical foundation, of the separate
legal principles really intelligible to the students. Consequently, as the
method was developed, it laid the main emphasis upon precisely that
aspect of the training which the older text-book school entirely neg-
lected — the training of the student in intellectual independence, in in-
dividual thinking, in digging out the principles through penetrating
analysis of the material found within separate cases ; material which
contains, all mixed in with one another, both the facts, as life creates
them, which generate the law, and at the same time rules of the law
itself, component parts of the general system. In the fact that, as has
been said before, it has actually accomplished this purpose, lies the
great success of the case method. For it really teaches the pupil to
think in the way that any practical lawyer — whether dealing with writ-
ten or with unwritten law — ought to and has to think. It prepares the
student in precisely the way which, in a country of case law, leads to
full powers of legal understanding and legal acumen ; that is to say,
by making the law pupil familiar wath the law through incessant prac-
tice in the analysis of law cases, where the concepts, principles, and
rules of Anglo-American law are recorded, not as dry abstractions, but
as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating,
social and economic life of man. Thus in the modern American law
school professional practice is preceded by a genuine course of study,
the methods of which are perfectly adapted to the nature of the com-
mon law."
PREFACE Vll
The general purpose and scope of this series were clearly stated in
the original announcement :
"The General Editor takes pleasure in announcing a series of schol-
arly casebooks, prepared with special reference to the needs and limi-
tations of the classroom, on the fundamental subjects of legal educa-
tion, which, through a judicious rearrangement of emphasis, shall pro-
vide adequate training combined with a thorough knowledge of the
general principles of the subject. The collection will develop the law
historically and scientifically ; English cases will give the origin and
development of the law in England ; American cases will trace its ex-
pansion and modification in America ; notes and annotations will sug-
gest phases omitted in the printed case. Cumulative references will be
avoided, for the footnote may not hope to rival the digest. The law
will thus be presented as an organic growth, and the necessary con-
nection between the past and the present will be obvious.
"The importance and difficulty of the subject as well as the time that
can properly be devoted to it will be carefully considered so that each
book may be completed within the time allotted to the particular sub-
ject. * * * If it be granted that all, or nearly all, the studies re-
quired for admission to the bar should be studied in course by every
student — and the soundness of this contention can hardly be seriously
doubted — it follows necessarily that the preparation and publication of
collections of cases exactly adapted to the purpose would be a genuine
and by no means unimportant service to the cause of legal education.
And this result can best be obtained by the preparation of a systematic
series of casebooks constructed upon a uniform plan under the super-
vision of an editor in chief. * * *
"The following subjects are deemed essential in that a knowledge of
them (with the exception of International Law and General Juris-
prudence) is universally required for admission to the bar :
Administrative Law. Evidence.
Agency. Insurance.
Bills and Notes. International Law.
Carriers. Jurisprudence.
Contracts. Mortgages.
Corporations. Partnership.
Constitutional Law. Personal Property.
Criminal Law. r> i o ^ f ^^^ ^^^'■•
r^ ■ ■ , T, J Keal Property. 4 2d
Crimmal Procedure. (_ 3d
Common-Law Pleading. Public Corporations.
Conflict of Laws. Quasi Contracts.
Code Pleading. Sales.
Damages. Suretyship.
Domestic Relations. Torts.
Equity. Trusts.
Equity Pleading. Wills and Administration.
VIU PREFACE
"International Law is included in the list of essentials from its in-
trinsic importance in our system of law. As its principles are simple
in comparison with municipal law, as their application is less technical,
and as the cases are generally interesting, it is thought that the book
may be larger than otherwise would be the case.
"The preparation of the casebooks has been intrusted to experienced
and well-known teachers of the various subjects included, so that the
experience of the classroom and the needs of the students will furnish
a sound basis of selection."
Since this announcement of the Series was first made there have
been published, or put in press, books on the following subjects:
Administrative Law. By Ernst Freund, Professor of Law in the
University of Chicago.
Agency. By Edwin C. Goddard, Professor of Law in the University
of Michigan.
Bills and Notes. By Howard L. Smith, Professor of Law in the Uni-
versity of Wisconsin, and William U. Moore, Professor of Law
in the Columbia University.
Carriers. By Frederick Green, Professor of Law in the University of
Illinois.
Conflict of Laws. By Ernest G. Lorenzen, Professor of Law in the
University of Minnesota.
Constitutional Lazv. By James Parker Hall, Dean of the Faculty of
Law in the University of Chicago.
Corporations. By Harry S. Richards, Dean of the Faculty of Law in
the University of Wisconsin.
Criminal Laiv. By William E. Mikell, Dean of the Faculty of Law in
the University of Pennsylvania.
Criminal Procedure. By William E. Mikell, Dean of the Faculty of
Law in the University of Pennsylvania.
Damages. By Floyd R. Mechem, Professor of Law in the University
of Chicago, and Barry Gilbert, Professor of Law in the Uni-
versity of Illinois.
Equity. By George H. Boke, Professor of Law in the University of
California.
Insurance. By W. R. Vance, Dean of the Faculty of Law in the
University of Minnesota.
Legal Ethics, Cases and Other Authorities on. By George P. Costigan,
Jr., Professor of Law in the Northwestern University.
Partnership. By Eugene A. Gilmore, Professor of Law in the Uni-
versity of Wisconsin.
Persons (including Marriage and Divorce). By Albert M. Kales, Pro-
fessor of Law in the Northwestern University, and Chester G.
Vernier, Professor of I^aw in the University of Illinois.
PREFACE IX
Pleading {Common Lazv). By Clarke B. Whittier, Professor of Law
in the Stanford University, and Edmund M. Morgan, Professor
of Law in the University of Minnesota.
Property (Titles to Real Property). By Ralph W. Aigler, Professor
of Law in the L'niversity of Michigan.
Property {Personal). By Harry A. Bigelow, Professor of Law in the
University of Chicago.
Property (Wills, Descent, and Administration) . By George P. Costi-
gan, Jr., Professor of Law in the Northwestern University.
Property (Future Interests). By Albert M. Kales, Professor of Law
in the Northwestern University.
Quusi Contracts. By Edward S. Thurston, Professor of Law in the
University of Minnesota.
Sales. By Frederic C. Woodward, Professor of Law in the University
of Chicago.
Suretyship. By Crawford D. Hening, Professor of Law in the Uni-
versity of Pennsylvania.
Torts. By Charles M. Hepburn, Professor of Law in the University
of Indiana.
Trusts. By Thaddeus D. Kenneson, Professor of Law in the Univer-
sity of New York.
Wills and Administration. By George P. Costigan, Jr., Professor of
Law in the Northwestern University.
It is earnestly hoped and believed that the books thus far published
in this series, with the sincere purpose of furthering scientific training
in the law, have not been without their influence in bringing about a
fuller understanding and a wider use of the case method.
The following well-known teachers of law are at present actively
engaged in the preparation of casebooks on the subjects indicated be-
low:
Edward W. Hinton, Professor of Law in the University of Chicago.
Subject, Evidence.
Arthur L. Corbin, Professor of Law in the Yale University. Subject,
Contracts.
James Brown Scott, Professor of International Law in the Johns
Hopkins University. Subject, International Lazv.
A. M. Cathcart, Professor of Law in the Stanford University. Sub-
ject, Code Pleading.
Harry A. Bigelow, Professor of Law in the University of Chicago.
Subject, Property (Rights in Another's Lands).
William R. Vaxce,
General Editor.
January, 1918.
AUTHOR'S PREFATORY NOTE
This collection of cases for the American Casebook Series is an abridg-
ment of a larger casebook, also published by the West Publishing Com-
pany, covering more fully the same subjects as are here presented. The
larger edition contains approximately twice as many pages and is de-
signed to serve a course for which two lectures a week are assigned.
This abridged edition is suitable for a course of two lectures each week
for half a year.
Both the larger and smaller editions are designed for use with Profes-
sor Aigler's casebook on Titles, published in the American Casebook
Series. Professor Aigler's collection includes the subjects of dower,
curtesy, joint ownership, fraudulent conveyances, and registration, and
these subjects have therefore been omitted from both the larger arid the
abridged edition of this casebook on Future Interests.
The compiler of these cases in this preface (as also in the preface to
the larger edition) acknowledges his great indebtedness to the Harvard
Law School, first, for the privilege of using Mr. Gray's collection of
cases in preparing the manuscript for this work ; and, second, the op-
portunity of giving at the Harvard Law School during the year 1916-
1917, the course known as Property 111, and in this way testing with
the class the effectiveness of the arrangement and cases now presented.
It is the desire of the compiler, through this abridged edition, as well
as through the larger edition, that Mr. Gray's collection of cases and
his analysis of the subjects dealt with should continue to live and serve
the great body of law students of the country, and that the present
work, in the abridged edition as well as the larger one, while it must
bear another's name, should play an important part in achieving that
e"d- Albert M. Kales.
Cambbidge, June 1, 1917.
(xi)*
TABLE OF CONTENTS
PART I
Classification of Future Interests
CHAPTER I
Rights of Entry fob Condition Broken
Section Page
1 . Validity and Construction 1
2. Who may Take Advantage of the Breach of Condition 5
3. Mode of Perfecting a Forfeiture 10
4. Relief Against Forfeiture 12
I. License 12
11. Waiver 15
CHAPTER II
Escheat and Possibilities of Reverter 20
CHAPTER III
Reversions, Vested Remainders and Executory Interests 30
CHAPTER IV
Contingent Remainders
1. Validity 41
2. Construction 66
3. Alienability '. 81
CHAPTER V
Limitations to Classes 9G
CHAPTER VI
Freehold Interests' Subject to a Term 103
CHAPTER VII
Rule in Shelley's Case 110
CHAPTER VIII
Future Interests in Personal Property
1. Chattels Real 145
2. Personal Property Other than Chattels Real 171
4 Kales Prop. (xiii)
xiv TABLE OF CONTENTS
PART II
COXSTRUCTIOX OF LIMITATIONS
Section CHAPTER I Page
Introduction 1S4
CHAPTER II
Meaning of Heirs in a Limitation to tjie Testator's Heirs or the
Heirs of a Living Person 190
CHAPTER III
"Survivor" Construed vs. "Other" 197
CHAPTER IV
Vesting of Legacies 204
CHAPTER V
Guts Over Upon the Death of a Previous Taker Simpliciter, or
Without Children, or Without Issue Surviving the First
Taker 235
CHAPTER VI
Gifts on Failure of Issue 245
CHAPTER VII
Implication of Cross-Limitations 256
CHAPTER VIII
Determination of Classes « 257
CHAPTER IX
Divesting Contingencies and Conditions Precedent to the Taking
Effect of Executory Devises and Bequests
1. Failure of Executory Devise or Bequest 279
2. Failure of Preceding Interest 292
:). Acceleration 29S
TABLE OF CONTENTS XV
PART III
Powers
„ ,. CHAPTER I
Section Page
Operation, Classification, Release and Discharge 301
CHAPTER II
Contracts to Appoint and Appointments in Fraud of the Power. . 315
CHAPTER III
ScRvivAL OF Powers 333
CHAPTER IV
Powers in Trust and Gifts Implied in Default of Appointment. . 344
CHAPTER V
Appointed Property as Assets 357
CHAPTER VI
Defective Execution 365
CHAPTER VII
What Words Exercise a Power 379
CHAPTER VIII
Powers in Life Tenants to Dispose of the Fee 401
PART IV
Rules Against Perpetuities
CHAPTER I
The Rule and Its Corollaries 40S
CHAPTER II
Interests Subject to the Rule 4G1
CHAPTER III
The Rule Against Perpetuities Distinguished from the Rule
Which makes Void Restraints on Alienation, and Provisions
Requiring a Trusteeship (Otherwise Valid) to be Effective at
Too RE^roTE a Time 407
4 Kales Prop. — b
XVi TABLE OF CONTENTS
Sfectlon CHAPTER IV Page
Limitations to Classes 519
CHAPTER V
Sepabable Limitations, Independent Gifts, and Limitations to a
Series 533
CHAPTER VI
Modifying Clauses 557
CHAPTER VII
Powers 563t
CHAPTER VIII
Charities 57S
PART V
Illegai. Conditions and Re;straints
chapter i
Forfeiture of Estates of Inheritance
1. On Alienation 597
2. On Failure to Alienate 607
CHAPTER II
Forfeiture on Alienation of Estates for Life and for Tears. ... 636
CHAPTER III
Restraints on the Alienation of Estates of Inheritance 648
CHAPTER IV
Restraints on the Alienation of Estates for Life and for Years 662
CHAPTER V
Indestructible Trusts of Absolute and Indefeasible Equitable
Interests 695
CHAPTER VI
Illegal and Impossible Conditions 703
TABLE OF CASES
[titles of cases printed uerein are set in ordinary type, cases cited in
footnotes abe indicated by italics.]
Page
Abbiss V. Burnev 449
Abbott V. Bradstrect 192, 193
Abbott V. Essex Co 246
Abbott V. Jenkins 45, 77
AbeVs Case 110
Abrams v. Watson 25
Adams v. Savage lOG
Adams v. Yakntitie 3
Adams* Trust 237
Adamson, In re 651
.^tna Life Ins. Co. v. Hoppin. .88, 130
JEtna Life Ins. Co. v. Hoppin. .32, 45
Airey v. Boicer 399
Alexander v. Masonic Aid Ass'n. . 193
Allen, Matter of 264
Allison V. Allison 192, 193
Ambler v. Woodbridge 23
Ames V. Cadogan 391
Amory v. Meredith 396
Amory v. Meredith 399
Anderson v. Anderson 136
Anderson v. Carj^ 651
Anderson v. Jackson 246
Anderson v. Menifee 232
Andre ii; v. Andrei'- 297
Andrei's v. Lincoln 204, 232
Andrews v. Partington 265
Afidreics v. Yoye 611, 630
Angus v. Noble 506
Annin's Ex'rs v. Vandoren's Adm'r 626
Anonymous 175
Anonymous 171, 600, 635
Archer v. Brockschmidt 143
Archer v. Jacobs 99
Archer's Case 43, 116
Archer's Case 42, 45
Armstrong v. Barber 517
Armstrong v. Kent 635
Arnold v. Woodhams 651
Ashforth, In re 4S5
Ashley v. Ashley 444
Ashley v. Ashley 257
Ashmore's Trusts, In re 225
Ashto)i's Estate, In re 193
Askeiv V. Askew 198, 257
Astley V. Micklethicait 50, 58
Atkins V. Hiccocks 207
Atkinson v. Barton 257
Atkinson v. Doivling 307, 312
4 Kales Prop. (xy
Page
Attorney General v. Corporation of
South Mmdton 3
Attorney General v. Gleg 343
Attorney General v. Hall 608
Attorney General v. Merrimack
Mfg. Co 4
Attorney General v. Wax Chand-
lers Co 3
Attaater v. Attwater 599
Atwaters v. Birt 3.34
Augustus V. Seabolt 299
Austin V. Cambridge Port Parish.. 4, 10
Averill, In re 276
Avem V. Lloyd 446
Avery v. New York Cent, etc., R.
Co a
Avery v. U. S 4
Ayer v. Aycr 634
Ayling v. Kramer 3
Ayton V. Ay ton 260
Bacon, In re 343
Badger v. Gregory 198
Baggett V. Meiix 650
Bagshaw v. Spencer 113
Bailey v. Morris 45
Bails V. Davis 116
Bainton v. Ward 362
Baleh V. Pickering 201
Ballance v. Fortier 2
Bangs v. Sm ith 399
Banks v. Easkie 468
Barber's Will. In re 192
Barclay v. Piatt 32
Barker v. Barrows 4
Barlow v. Barlow 136
Barlotc v. Salter 255
Barnitz v. Casey 86
Barr v. Gardner 55
Barrett v. Barrett 291
Bartholomew, In re 204
Barton v. Barton 617
Barton v. Briscoe 314, 651
Barton v. Thaw 475
Bastard v. Proby 115
Bateman v. Faher 651
Batcman v. Gray 265
Bates v. Gillett 67
Batsford v. Kebbell 218
ii)
xvni
TABLE OF CASES
Pago
Bax V. Whithrcad 332
Bayley v. Morris 11^
Bvachcroft v. Broome <''f>'^
Bcnrd v. Wcstcott -^7
Bcckton V. Barton --^J
Bcldinff V. J'orsous 5J>
Belficid V. Booth 532
Bell r. Bair fi51
Belmont v. O'Brien 343
Bcnee, In re 54S
Betwough r. Edridge 430
Bennett v. Bennett 143
Bennett r. Morris 45. 55
Benton. In re 650
Bergman v. Arnhold 75
Berrien v. Berrien 335
Berry v. Williamson 115
Beverley's Case 110
Beyfus v. Lawley 332, 361
Bey f us v. Lawley 364
Bibhem v. Potter 237
Bieldey v. Guest 311
Bi{]elow V. Cady 505
Bilderhack v. Boyce 390
Bindon (Lord) v. Earl of Suffolk
237, 238
Bingha/m's Appeal 390
Bird V. Luekie 196
Black more v. Boardman 468
Blakcman v. Miller 493
Blanchard v. Blanchard 88
Blanchard v. Brooks 87
Blanchard v. Detroit, L. & L. M.
R. Co 3
Bland v. Bland 60S, 669
Blatchford v. Xewbcrry 299
Bleccker v. Smith 24
Blomfield v. Eyre 284
Blore V, Sutton 369
Blunt's Trusts, In re 588
Boatman v. Boatman 88
Bochm V. Baldwin 96
Bolding v. Strugnell 225
Bolls V. Winton 35
Bond V. Moore 61
Bond V. Moore 55, 95, 196
Bonnitcell v. Madison 24
Booth, In re 241
Booth V. Booth 209
Boothhy v. Boothby 88
Boraston's Case 42, 45, 69
Boscawen v. Bliss 14
Boston Safe Deposit & Trust Co.
V. Collier 657
Boston Safe Deposit d Trust Co.
V. Luke 690
Bourke's Trusts, In re 237
Bowen, In re 586
Bowen v. Lewis 124
Botven v. Scoireroft 238
Baices v. Goslctt 609
Bowler v. Bowler 67
Pago
Bowles, In re 460
Bown, In re 650
Boyee v. Boyrc 706
Boi/d V. Strahan 175
Boyes V. Cook 399
Boykin v. Anerum 95
Braclenbury v. Gibbons. .. .57, 60, 99
Bradford v. Griffin 35
Bradford v. Monks 343
Bradley v. Peixoto 002
Bradly v. Westeott 6:35
Bradshaw, In re 323
Bradshaw v. Bradshaw 323
Bradstreet v. Clark 24
Brandon v. Robinson 662
Brant v. Virginia Coal & Iron
Co 401
Brassey v. Chalmers 335
Bray v. Bree 564
BrechbeUer v. Wilson 80
Brcdenburg v. Bardin 335
Brennan v. Brennan 706
Brian v. Cawsens 608
Brickenden v. Williams 356
Bristow V. Boothby 563
Broadway Bank v. Adams 687
Brokaw v. Ogle 88
Bromley v. Smith 88
Brook, In re 192
Brook V. Pearson 647
Brookman v. Smith 296
Broomfield v. Crowder 69
Brown v. Brown 32,192,193
Broivn v. Chicago d N. W. R.
Co 3
Brown v. Eiggs 345, 350
Broton v. Kelh r 2
Brown v. Lyon 136
Broivn v. Macgill 694
Brown V. Renshaw 305
Brown v. Tilley 4
Browne, In re 468
Broione v. Browne 52, 78
Bruce V. Charlton 204
Brummell v. Macphcrson 14
Brummet v. Barber 178
Bryan v. Spires 35
Buck V. Lantz 86
Buckley v. Simonds 34
Bucklin v. Crcighton 115, 143
Buckton V. Hay 497
Bull V. Kingston 609
Bull V. Pritchard 52, 78, 234
Bullard V. Goffe 116
Bullock, In re 676
Bulteel V. Plummcr 323
Bunn, In re 225
Burleigh v. Clough 45, 390, 635
Burrough v. Foster 246
Burrough v. Philcox 347
Burton v. Gagnon 84, 190
TABLE OF CASES
ZIX
Page
Bushl)y V. Dixon 105
Butcher V. Butcher ?>'.V2
Butcher V. Leach 2'2C,
Butter field v. Reed G!)f»
Cadell V. Palmer 430
CalUson v. Morris 04
Cambridge v. Rous 237
Camp V. Cleary 598, 603
Canedy v. Haskins 116
CantiJlon's Minors, In re 208
Caraher v. Lloyd 87, 88
Carpenter v. Hubbard 115
Caripenter v. Sangamon Loan d
Trust Co 238
Carroll v. Biim-s 136
Carter v. Bloodgood's Ex'rs 201
Carter v. Carter 32
Carter's Heirs v. Carter's
Adm'rs 716
Carthew v. Euraght 346
Cartlcdge, In re 204
Canrardine v. Carwardine 45
Cash man's Estate, In re 407
CaskclTs Trusts, In re 650
Cassidy v. Mason 4
Casterton v. Sutherland 346
Cattlin V. Brown 550
Chadock v. Cowley 245
Chadu-ick v. Parker 11
Chaffers v. Abell 204
Chains V. Doe 57
Challis V. Doe d. Evers 536
Chamberlain v. Hutchinson 356
Chamberlain v. Runkle 143
Chamberlayne v. Brockett 591
Chambers v. Tulane 335
Chandos v. Talbot 205
Chapin v. Crow 81
Chapin v. Nott 84
Chapman v. BUssett 261
Chapman v. Cheney 95
Chapman v. Pingree 3
Cheney v. Teese 67
Chettvood v. Winston 250
Cliild V. Baylie 150, 408
Child V. Baylie 151
Cholmondley v. Meyrick 205
Christ's Hospital v. Grainger.... 578
Chudleigh's Case 42
Cincinnati v. Babb 705
City of Peoriu v. Darst 41, 81
Clache's Case 257
Clatlin V. Claflin 698
Claflin V. Claflin 657, 702
Clapp V. Foglcinan 248
Clapp V. Ingraham 357
Clark V. Henry 237
Clark V. Middlesicorth 407
Clark V. Neves 136, 143
Clark V. Shaiven 32
Page
Clarke v. Fay 94
Clarke's Trusts, In re 651
Clny, In re 338
Clay V. Clay 193
Clay V. Hart 335
Clemens v. Heekseher 143
Clere's Case 30. 301, 379
Clerk V. Day 116
Clifford V. Clifford 369
Clinfelter v. Ayres 335
Clive V. Carew 651
Clobberie's Case 204
Cloberry v. Lampen 204
Close V. Railroad 4
Coates Street, In re 87, 88
Cole V. Creyon 264
Cole V. SGtcell 45, 198
Cole V. Wade 343
Coleman, In re 670
Collins V. Brackett 4
Columbia Trust Co. v. Christo-
pher 314
Comberbach v. Perry n 260
Combs V. Combs 635
Com. V. Crowley 193
Com. V. Duffield 301, 364
Compton V. McMahan 338
Conduitt V. Soane 261
Conklin v. Egerton's Adm'r 338
Cannelly v. O'Brien 94
Conner v. Johnson 264
Conrad v. Lang 704
Constable v. Bull 237
C'ooA; V. Cook 97, 101
Cook V. Councilman 135
Cook V. Hammond 86
Cook's Estate, In re 299
Cookes' Contract, In re 343
Coombes, In re 650
Cooper V. Cooper 198
Cooper v. Martin 367, 378
Cooper V. Stuart 484
Coover's Apipcal 299
Corbet's Case 600
Corporation of Bristol v. West-
cott 15
Corr V. Corr 208
Cory V. Cory 24
Cote's Appeal 86, 87
Cotton V. Heath 153
Courtenay, In re 265
Cov V. Cunninf/hani 2
Craft V. Indianapolis, D. d W. R.
Co 41
Crai-g v. Warner 55
Graven v. Brady 299
Crawford v. Wearn 143
Creery v. Lingwood 237
Crigan v. Baines 237
Crocker v. Old South Society 24
Croughton's Trust, In re 650
xz
TABLE OF CASES
Page
Crozier v. Crozier 284, 299
Cruder v. Phelps 704
Cnimp I', yoruood 55. 136
Cummiugs v. Hamilton 95, 96
Cumston v. Burthtt 399
CunUffe V. Brauckcr 52, 58
Cunningham v. Moody 72. 75
Carrey, In re 651
Curtis V. Liikin 596
Curtis V. Price 113
Cuthbert v. Pitrrier 635
Dale V. Bartley 299
Daniel v. Thomson 250, 251
Dart V. Dart 87
Daubeney v. Cockbnrn 364
Davenport v. Queen, The 20
Davids' 'Trusts, In re 385
Davidson v. Dallas 267
Davics, Ex parte 252
Davies v. Euguenin 314
Da vies V. Aloreton 25
Davies v. Thorns 384
Davies' Trusts. In re 356
Davis V. Christian 335
Davis V. Ripley 96
Dawbin, In re 651
Deadman v. Yantis 32
Dean. v. Dean 60
Dean v. Eandley 237
Dee V. Dee 96
Delaney v. McCormack 196
Den V. Allaire 246
Dendy v. Xicholl 16
Denn d. Nowell v. Roake 387
Demi d. Nowell v. Roake 390
Dennett v. Dennett 55, 115
De Peyster v. Michael 598
Deticold, In re 647
Devisme v. Mello 259
Dewar v. Brooke 232
De Wolf V. Middleton 196
D ick V. Harby 335, 336
Diffenderfer v. Board of Public
Schools 468
Diltard v. Dillard 343
Dixon, In re 616
Dog v. Baker 11
Doe V. Considine 67
Doe V. Eyre 287
Doe V. Frost 196
Doe V. Gladwin 24
Doe V. Laming 136
Doe V. Peck 24
Doe V. Pearson 599
Doe V. Pritchard 14
Doe V. Provoost 67
Doe d. Anihler v. Woodbridge. . . . 23
Doe d. Blomfield v. Eyre 284
Doe d. Boscaicen v. Bliss 14
Doe d. Comberhach v. Perryn. . . . 260
Page
Doe d. Freeman v. Bateman 2
Doe d. Gallini v. Gallini 124
Doe d. Gorges v. Webb 256
Doe d. Herbert v. Selby 45, 534
Doe d. Mussell v. Morgan 45
Doe d< Norfolk v. Hawke 604
Doe d. Noivell v. Roake 390
Doe d. Pilkington v. Spratt 193
Doe d. Planner v. Scudamore. . . . 76
Doe d. Planner v. Scudamore . ... 45
Doe d. Scott V. Roach 45
Doe d. Stevenson v. Glover 609
Doe d. Tanner v. Dorvell.. .72, 75, 256
Doe d. Willis v. Martin 70
Doe ex dem. Wigan v. Jones 302
Dommett v. Bedford 641
Donnelly v. Eastes 24
Dorr V. Lovering 556
Dott V. Cunnington 143
Doty V. B urdick 2
Douglas v. Congreve 115
Dove V. Torr 192, 193
Doyley v. Attorney General 345
Drake v. Attorney General 363
Druecker v. McLaughlin 3
Drummond's Ex'r v. Drummond. . 291
Drury v. Drury 96, 264
Ducker v. Burnham 67, 88, 94
Dugdale, In re 603
Duke V. Dvches 175
Duke of Norfolk's Case 153, 408
DuU's Estate, In re 143
Dutupor's Case 12
Dumpor's Case 14
Duncan v. Bluett 115
Duppa V. Mayo 11
Dusenben-y v. Johnson 284
D'Wolf V. Gardiner 87
Dales V. Drake 356
Early v. Earhj 86
Earnhart v. Earnhart 135
Eaton V. Boston Trust Co 690
Eaton V. Brown 189
Eaton V. Smith 343
Eaton V. Straw 297, 634
EavestafC v. Austin 298
Eccles V. Birkett 230
Eckhart v. Irons 3
Eddowes v. Eddowes 101
Edie v. Babington 359
Edward Clere's Case 36, 301, 379
Edwards v. Burt 88
Edwards v. Edwards 237, 238
Edwards v. Hammond 69
Edwards v. Varick 87
Egerton v. Massey 53
Egerton v. Massey 55
Eichelbergcr v. Barnitz 250
Elliott V. Elliott 209
Elliott V. Smith 237
TABLE OF CASES
XXI
Page
Ellis's Trusts, In re 651
Elyton Land Co. v. South & N. A.
R. Co 3
Emmet's Estate, In re 265
Emperor v. Rolfe 205
EfjuitabU TruMt Co. v. Fisher 41
Evans v. Evans 135
Evans v. Scott 205
Evans v. Walker 172, 449
Evans v. Weatherhead 143
Eve, In re 204
Eyres v. Faulkland 170
Faber v. Police 45
Faith V. Boules 4
Faloon v. Simshauser 97
Fargo v. Miller 196
Farnam v. Faniam SO
Farrar v. McCue 336
Fancell v. Easton 24
Faulkner v. Lowe 343
Faulkner v. Wynford 347
Fernclei/s trusts. In re 502
resting V. Allen 50, 78
Fcsting v. Allen 57
Field V. Providence 4
Fifer v. Allen 238
Finch V. Lane
Fitehie v. Brown
Fitzgerald v. Sta7idish
Flanders v. Clark
Fleming v. Buchanan 359,
Flinn v. Davis 250,
Flower, In re
Forbes v. Peacock
Forsythe r. Lansing's Ex'rs
Fortescue v. Satterthwaite
Forth V. Chapman
Fortier v. Ballance
Fosdick V. Fosdick
Foster v. Roberts
Fothergill v. Fothcrgill
Foulkes V. Williams
Foiclcr v. Black
Fox V. Fox
Fox V. Fox
Fox's Estate
Frazer v. Board of Sup'rs
Freeland v. Pearson
Freeman v. Bateman
Frith, In re
Frogmorton v. Holyday
Frogmorton v. Wharrey 45,
Frost, In re
Fuller v. Chamier
Fu7ik V. Eggleston
Furness v. Fox
Furnish v. Rogers
Fusselman v. Worthington
Page
Galland v. Leonard 237
Oallinger v. Farlinger 599
Gallini v. Gallini 124
Game, In re 502
Garde Broicne, In re 468
Garfoot v. Garfoot 337
Garland v. Smyth 198
Garrison v. Hill
Gaicler v. Standerwick.
Genet v. Ilunt.
422
335
608
364
626
577
335
94
87
248
444
S8
369
399
143
227
232
201
55
349
. 2
196
292
117
490
116
399
204
. 88
2
Gaines v. Fender 343
Gainsford v. Dunn 332
86
205
574
Gibson v. Doeg 24
Giles V. Austin 25
Giles V. Little 407
Gill V. Worrall 257
Gilman v. Bell 359
Gilmore v. Severn 264
Gimblett v. Purton 265
Girard Triist Co. v. Russell 595
Glover v. Condell 40
Glover v. Stillson 407
Gluck V. Elkan 24
Godfrey v. Davis 261
Godfrey v. Ilarben 360
Colder v. Bressler 343
Golladay v. Knock 81
Gooch V. Gooch 101
Goodder v. Edmunds 577
Goodill V. Brigham 37
Goodrich v. Goodrich 96
Goodright v. Davids 16
Goodiitle v. BiUingion 45
Goodtitle v. White 55
Goodtitle d. Gurnall v. Wood 417
Goodwin v. Clark 562
Gore V. Gore 1^^
Gorges v. Webb 256
Gorman v. Byrne 301
Gotch V. Foster 234
Goulder, In re 606
Gowland v. De Faria 88
Gozzard v. Jobbins 606
Graeft v. De Turk 332
Grant v. Lyman 386
Gray v. Blanchard 3
Gray v. Chicago, If. d St. P. R.
Co 4, 10
Gray v. Lynch 343
Great ed v. Created 297
Greaves v. Simpson 116
Green v. Bridges 25
Green v. Harvey 616, 635
Green v. Hewitt 32
Green v. Spicer 663
Green's Case 16
Greene v. O'Connor 4
Greenough v. Welles 338
Greenwood v. Yerdon 246
Gretton v. Howard 136
Grey's Settlements, In re 650
Grimshaw's Trusts, In re 232
Grimwood V. Moss 16
XXll
TABLE OF CASES
Page
Gross V. Bheeler 143
Grosvenor v. Boxccn 307, 314
Guernsey v. La^( ar G90
Gulliver V. Taux 616
Gulliver v. Wickett 292
Gnmall v. ^Vood 417
Gutman v. Buckler 343
Gwilliam, v. Rowel 337
Uudcox V. Cody 264
Hadley, In re 303
Badlcjj V. Ifadleii 343
Haffar, Adni'r, v. Buek 25
H agger v. Payne 25!)
Haisht, In re 719
Hall V. Bliss 400
Ball V. La France Fire Engine
Co 45, 94
Hall V. Nute 67
Hall V. Priest 246
Hall V. Robinson 635
Hall V. Terry 204
Hall V. Thayer 136
Hamel v. Minneapolis St. P. & S.
.v. M. Ry 4
Hamilton v. Wentworth 116
Hamlet, In re 244
Hammond v. Port Royal & A. R.
Co 3
Hamilton v. Rather 143
Hancock, In re 548
Hanna v. Haices 45, 115
Hannaford v. H annaford 256
Hanson v. Graham 219
Hardin v. Forsythe 2
Harding v. Glyn 344
Hargreaves, In re 453
Harman v. Dickenson 197
Harrin-gton v. Harte 364
Harriets Trust, In re 356
Han-is v. Davis 297
Harris v. Shaw 3
Harris v. Smith 250
Harrison v. Foreman 279
Harrison v. Harrison 198, 427
Hart's Trusts, In re 218
Hartshorne v. Watson 11. 16
Harvard College v. Batch 75, 390
Hm-vey v. Ballard 113
Harwood v. Shoe 704
Hassam v. Hazen 399
Howard v. Peavey 80, 94
Hawden v. Hawdcn 115
Hawke v. Euyart 723
Hawkins v. Kemp 334
Hawley v. Eafitz 4
Hatcthorn v. Ulrich 332
Hayes v. Oatley 363
Hays V. St. Paul Church 3
Hayicard, In re 237
Hay ward v. Spaulding 45, 65
Page
Heard v. Read 193, 196
Henderson v. Cross 609
Henderson x\ Hill 88
Herbert v. Selby 45, 534
Herbert v. Webster 502
Hcrrell v. Sizeland 2
Ilervcy v. McLaughlin 238
Hess V. Lakin 116
Hicks V. Pegues 86
Hide V. Parrat 171
Higinbotham v. Holme 647
Hill V. Barclay 25
Hill V. Chapman 258
Hill V. Chapman 97
Hill V. Hill 88, 94, 183
Hill V. Schwarz 328
Hillhouse v. Chester 86
Hincksman v. Smith 88
Hind V. Poole 343
Hindson v. Wood 196
Hinrichsen v. Jlinrichsen 94
Hoare v. Parker 172
Hoath V. Hoath 218
Hoi ford. In re 276
Holland, In re 647
Holland v. Alsop 198
Holland v. Wood 264
Hollander v. Central Metal Co 492
Hollis' Hospital, In re 475
Hollister v. Shaio 390
Holloway v. Holloway 190
Holmes, In re 650
Holmes v. Coghill 359, 364
Holmes v. Godson 612
Holmes v. Gordon 617
Holmes v. Penny 692
Holmes V. Prescott 52, 57, 78
Hooper v. Cummings 3, 24
Hopkins v. Grimshaw 588
Hopkins v. Phelps 533
Home V. Lyeth 143
Horner v. Chicago, M. & St. P. R.
Co 4
Horner v. Swan 312
Horton v. New York Cent. & H. R.
Co 25
Hoskins' Trusts, In re 363
Houell V. Barnes 335
Houghton, In re 238
Houghton v. Brawn 238
House V. Jackson 94
Houston & T. C. R. Co. v. Ennis-
Calvert Co 4
Howe V. Hodge 95
Howe V. Morse 506
Iloyt v. Ret Cham 4
Hubbard v. Raw son 633
Hubbird v. Goin 260
Hudson, In re 257
Hudson V. Hudson 257
Hudsons, In re 205
TABLE OF CASES
zxni
Page
Hughes V. Ellis 296
Hughes V. Ellis 297
Hnjrhes v. Saver 24S
Hughes V. Turner 385
Hulburt V. Emerson 250
Hull V. Palmer 690
Humane Soeiettf r. MrMurtrie . . . 288
Humphrey v. Campbell 359
Hunter V. Galliers 636
Hum/ V. Morgan 198
Hurst V. Hurst 291, 647
Hurto V. Grant 24
Hutchings, In re 650
Hutchinson v. Maxwell 694
Ide V. Ide 252. 626. 634
Incorporated Village of Ashland
r. Grciner 4
Inderuwk v. Tatchell 203
Ingham v. Ingham 237
Innes v. Sayer 371
Innes v. Sayer 375
Iredell v. Iredell 265
Irish V. Antioch College 41
Irvine v. Neiclin 45, 52
Jackson v. Allen 24
Jackson v. Bull 626
Jackson v. Hohhouse 651
Jackson v. Jaekson 369
Jackson v. Noble 282
Jackson v. Xohle 286, 288
Jackson v. RoMns 622
Jackson v. Fon Zedlitz 694
Jackson v. Wahlron 87
Jarvis v. Wyatt 45
Jeanneret v. Polack 651
Jee V. Audley 413
Jeffers i'. Lampson 87. 94
Jeffreys v. Conner 241
Jenkins v. Bonsai 86, 87
Jenkins' Trusts, In re 297, 621
Jenncy v. A ndreics 363
Jesson V. Wright 118
Jesson V. Wright 124
Johnson v. Askey 196
Johnson v. Battelle 75
Johnson v. Jacob 45
Johnson y. Touchet 375
Jones, In re 621
Jones V. Carter Kj
Jones V. Clifton 359
Jones V. Morgan 113
Jones V. Picketts 88
Jones V. Rces 143
Jones V. Tucker 382
Jones V. Westcomb 292
Jones V. Westcomb 292
Jones V, Winwood 303
Jordan v. Adams 124
Joslin V. Hammond 237
Jourolmon v. Massengill 690
Page
Jiill V. Jacobs 78, 299
Kean's Lessee v. Hoffecker 86
Keep's Will. In re 198
Kellett V. Shcpard 55, 192
Kellcy V. Mvins 626, 635
Kemp V. Kemp 332
Kendall v. Gleason 193
Kcnnard v. Kennard 67
Kennedy v. Kingston 347
Kepler v. Larson 130
Kepler v. Reeves 116
Kessner v. Phillips 656
Kevern v. Williams 269
Kew V. Trainor 14
Keyser's Appeal 656
Kilpatrick v. Mayor 4
Kinch V. Ward 136
King v. BurchcU 600
King v. Norfolk d W. R. Co 4
King v. Shelton 702
Kin{jman v. Harmon 88
Kirkpatrick v. Kirkpatrick 75
Klingman v. Gilbert 444
Knight v. Broicne 647
Knight v. Pottgieser 32, 67
Knr}.r V. Barker 143
Kountz's Estate, In re 204, 232
Kron V. Kron 40, 41
Kuhn V. Webster 634
Lake V. Brown 41
Lakey v. Scott 86
Lambert v. Thicaites 347
LampeVs Case 87, 88, 149
Lane v. Del)enham 338
Lane v. Goudge 222
Lanesborough v. Fox 564
Lantsbery r. Collier 577
Large' s Case 606
Lassells v. Lord Cornwallis 362
Latimer v. Latimer 34
Latimer v. Waddell 603
Laicrcnce v. Laurence 506
Lawrence v. Pitt 86
Laurence's Estate, In re 574
Lawton v. Corlies 193
Leake v. Robinson 232, 234, 519
Lechmere & Lloyd, In re 58
Lechmere & Lloyd, In re 58, 60
Lee V. Lee 192
Lee V. Simpson 399
Leggett v. Dorcmus 303
Lemaeks v. Glover 45
Le Maitre v. Bannister 608
Leng v. Hodges 415
Leonard v. Haicorth 506
Leonard v. Sussex 113
Lester r. Garland 647
Letchworth r. Vaughan 4
Letcin v. Killey 237
Lewis V. Claiborne 246
xxiv
TABLE OF CASES
Page
Lewis V. Lewellyn 391
Lewis V. Palmer 407
Liddi/ V. Kennedy H
Ughihurne r. GUI 609
Li'lley v. Fifty Assoeiatcs 25
Littlefield v. Mott 40
Little Rod: Granite Co. v. Shall. . 25
Lloyd V. Carew 408
Lloyd V. Tweedy 621
Locke V. Lam b 232
Lockyer v. Savage 636
Locton V. Locton 337, 338
Loddington v. Kinie 49
Lofton V. Murchison 96
Tvoudon & S. W. R. Co. v. Gomm. . 461
Long V. Blackall 416
Long V. Moore 4
Ix)nghead d. Hopkins v. Phelps. . 533
Lord V. Bunn 666
Lord V. Comstocli 143
Lord Bindon v. Earl of Suf-
folk 237, 238
Lord Stratheden, In re 594
Lord Townshend v. Windham ....
362, 364
Los Angeles University v.
Swarth 3
Lovat V. Lord Ranelagh 25
Low V. Burron 412
Loice V. Land 198
Lonman, In re 297
Luddy, In re 237
Lunt V. Lunt • 702
Luxf ord V. Cbeeke 67
I/yle V. Richards 45
I/yons V. Bradley 55G
McBee, Ex parte 13G
McCall V. Lee 178
McCampbell v. Mason. . .41, 45, 81, 95
McCartney v. Hunt 2
McConnell v. Stewart 67
McCreary v. Coggcshall 55
McVue V. Barrett 24
McEhcee v. Wheeler 45
McFull V. Kirkpatrick 305
McGaughey's Adni'r v. Henry.... 356
McGinnis v. Fernandes 2
McGlynn v. Moore 24
Machen v. Machen 143
MacKenzie v. Trustees of Presby-
tery of Jersey City 581
Mackinnon v. Sewell 292
Macleay, In re 599
MoQuesten v. Morgan 12
Mactier v. Osborn 25
Maden v. Taylor 257
Madiison v. Larmon. .. .67, 88, 95, 444
Maher v. Maher 204
Mainwaring v. Beovor 271
Manchester v. Durfee 136
Page
Mandelbaum v. McDoncll 606, 656
Mandeville's Case 41
Ma mi V. I'honifpson 270
Manning's Case 145
Marten, In re 356
Martin, In re 227
Martin v. Margliam 595
Marvin v. Led with 32
Maryland Mut. Ben. Soc. v. Cleiv-
dinen 390
Mary Portington's Case 11, 600
Mason, v. Bloomington Lihrary
Ass'n 506
Mason v. Pate's Ex'r 143
Mason v. Wheeler 390
Mattheivs v. Temple 99
Maundrell v. Maundrell 37
May V. Boston 3
May V. Joynes 621
Mead v. Ballard 3
Meadows v. Parry 292
Measure v. Gee 115, 136
Mebane v. Mebane 656
Meeker v. Breintnall 390
Methodist Church v. Young 10
Mellicbamp v. MellicLiamp 99
Melson v. Cooper 626
MerkeVs Appeal 175
Merrifield v. Coblei^h 24
Merrill v. Ti^mmer 25
Mcrvin, In re 232
Metzen v. Schopp 250
Middleton v. Messenger 261
Mifflin's Appeal 566
Mildmay's Case 35, 599, 600, 601
Miles V. Harford 535
Miles V. Jarvis 58
Milhollen's Adm'r v. Rice 356
Miller v. Emans 87
Miller V. McAllister 102
Miller v. Riddle 29
IVIills, In re 391
Mills V. Mills 399
Mills V. Seattle, etc., R. Co 3
Mills V. Seward 136
Miner d v. Delaware Co 3
Minard v. Delaivare Ry 4
Minnig v. Batdorff 67
Minot V. Tappan 193
Mittel V. Karl'. 88
Mogg V. Mogg 101
Monteflore v. Browne 334
Many penny v. Bering 297
]Moore, In re 706
Mowe, In re 363, 422, 429
Moore v. Ffolliot 349
Moore v. Littel 94
Moore v. Parker 113
Moore v. Rake 86
Moore v. Reddel 143
Moore v. Sanders 617
TABLE OF CASES
XXV
Page
Moore V. Ullcoats Min. Co 11
Moores v. Hare 94
Hoot Case 55
Moran's Will, In re 94
Morchouae v. Cotheal 250
Moreton v. Lees 301
Morgan v. Gronow 5«ifi
Moryan v. Milnmn 371
Morgan v. Morgan 20.*!;
Morris, In re 220
Morrison v. Kelly 41
Morse v. Martin 3G8
Mortimer, In re 300
Mortloclc's Trust, In re 617
Morton v. Bahh 41
Mosley's Trusts, In re. 532
Moss V. Chappell 4
Mott V. Ackerman 338
Mott V. Danville Seminary 29
Moyston v. Bacon 407
Mudge v. Hamtnill 45
Muldrow's Heirs v. Fox's Heirs.. 335
Munson v. Berdan 384
Murkvn v. Phillipson 205
Murray v. Jones 292
Mussell V. Morgan 45
Mussett V. Bingle 506
Nannock v. Horton 390
'Napier v. Napier 391
Neary's Estate, In re 237
Nesbitt V. Berridge 88
Newhall v. Wheeler 634
Nichol V. Levy 686
Nicliols V. Eaton 678
Nichols V. Guthrie 88
Nichols V. Hooper 246
INioholson v. Settle 245
NicoTl V. Scott 32
Nicolls V. Sheffield 562
Nightingale v. Phillips 115
Nodine v. Greenfield SO
Norfolk (Duke) Case 408
Norfolk V. Hawke 604
Norfolk's Case (Duke of) 153
Norman v. Kynaston 284
North V. Graham 29, 87
Northern Trust Co. v. Wheaton. . 94
Nowell V. Roake 387
Noicell V. Roake 390
O'Brien v. Barkley 704
O'Brien v. Battle 343
O'Callaghan v. Sivan 616
Odell V. Odell 596
O'Hare v. JohnMon 264
Oliver v. Powell 86
O'Mahoney v. Burdett 235. 291
O'Melia v. Mullarky 32, 67. 88
Oppenheim v. Ilenrj^ 268. 695
O'Grady v. Wilmot 362
Page
Orr V. Yates 84
Ortmayer v. Elcock 88
Osgood V. Bliss 399
Osgood V. Franklin 335
Overton v. Lea 599
Oicen V. Gibbons 43
Pacific Bank v. Windram 690
Packham v. Gregory 222
Palmer v. Locke 316
Palmer's Trusts, In re 198
Papillon V. Voice 113, 115
Papst V. Hamilton 3
Parish's Heirs v. Ferris 250
Parker, In re 230
Parker v. Bolton 115
Parker v. Cobe 702
Parker v. Ross 67, 80
Parker v. Scars 843
Parkin, In re 328
Parsons v. Miller 3
Paschall v. Passmore 3
Patterson v. Lawrence 359, 364
Payne v. Rosser 86
Pearce v. Forwell 265
Pearee v. Loman 207
Peard v. Morton 237
Pearson, In re 64Y
Pearson v. Dolman 232
Pedder v. Hunt 116
Peer v. Hcnnion 135
Pells V. Brown 38, 245
Pellet reau v. Jackson 87
Pcmbction v. Barnes 10
Pennant's Case 15
Pennoek v. Lyons 14
Pennsylvania Co. v. Baucrle 343
Pennsylvania Co. v. Price 506
People V. Byrd 96
People V. Peoria 238
Peoria v. Darst 41. 81
J'epper's Will 375
Perceval v. Perceval 55, 57
Perrin v. Blake 117
Perry v. Mcrritt 609
Peter v. Beverly 335
Phayer v. Kennedy 88
Phene's Trusts, In re 345
Philbrick's Settlement, In re.... 363
Phipps V. Ennismoi-e 647
Pickard v. Booth 241
Pick en v. Matthews 530
Pickicorth, In re 284
Pierce v. Brooks 102
Piercy v. Roberts 648
Pilkington v. Spratt 193
Pingrey v. Rulon 94
Pinkham v. Blair 196
Pirbright v. Salwey 506
I'itt V. Pelham 337
J'itzel V. Schneider 78, 532
Planner v. Scudamore 76
XXVI
TABLE OF CASES
Page
Planner v. Scudamore 45
Piatt V. Routh 363, 364
Plunket V. Ilolmes 55
Polk V. Faris 143
Pollock V. Booth 468
Porter, In re 606
Porter v. Fox 530
Portington's Case H, 600
Portland v. Teruilliger 3
Post V. Weil 3
Potter V. Couch 603, 606
Powell, In re 276
Powell V. Boggis 606
Powell V. Brandon 143
Powell V. Howells 256
Powell's Trusts. In re 572
Pounall V. Graham 422, 429
Preshyterian Church v. Venahle.. 29
Pressgrove v. Comfort 143
Price V. Hall 78
Price V. Ball 57
Priee V. Worwood 16
Priestley v. Holgate 703
Proctor V. Bishop of Bath and
Wells 534
Proctor V. Toics 2
Provost of Beverley's Case 110
Prowse V. Abingdon 207
Pulitzer v. Livingston 507
Pushman v. FilUter 009
Putnam v. Fisher 343
Putnam v. Story 338
Rabheth v. Squire 257
Rabbins, In re 257
Radcliffe, In re 305
Railroad v. Hood 4
Railsback v. Love joy 75, 88
Ramsdell v. Ramsdell 407
Rand v. Butler 196
Randolph v. Wright 634
Ransdell v. Boston 718
Rawley v. Holland 107
Raulinson v. Wass 196
Rawson v. Raivson 193
Rawson v. School District 4
Rede V. Farr 11
Redfern v. Middleton's Ex'rs .... 45
Reeve v. Long 47
Reichenbach v. Washington, etc.,
R. Co 3
Reid V. Gordon 305
Reid V. J. F. Wiessner Breicing
Co 14
Reid V. Reid 237, 343
Reid V. Shergold 307
Reid V. Voorhees 204
Reith V. Seymour 635
Requa v. Graham 692
Reynolds v. Pitt 25
Rhodes v. Whitehead 52, 57, 78
Rice V. Boston & W. R. Corp 7
Page
Richards v. Bergaveumy 116
Ricketts v. Loft us 332
Rickner v. Kessler 32
Rid dick v. Cohoon 626
Ridge's Trusts, In re 257
Ridley, In re 497
Ring V. Hard wick 557
Kingrose v. Bramham 269
Roach V. Wadham 301
Roake v. Denii 390
Robertson v. Gaines 335
Robertson v. Garrett 264
Robertson v. Guenther 88
Robeson v. Cochran 81
Robinson v. Allison 335, 336
Robinson v. Le Grande d Co 135
Robinson v. Wood 289
Rochf ord v. Hackman 642
Rochfort V. Fitz Maurize 115
Roddy V. Fitzgerald 124
Rodin V. Smith 204
Roe V. Tranmer 34
Roe d. Hunter v. Galliers 636
Roe ex dem. Sheers v. .Jeff ery .... 253
Rogers v. Eagle Fire Ins. Co 34
Rogers v. Mnitch 270
Rogers v. Randall 183
Rogers v. Rogers 238, 356
Rogers' Estate, In re 94
Rolfe V. Harris 25
Roome V. Phillvps 69
Rosher, In re 599
Ross V. Ross 607
Ross V. Ross 609, 635
Roundtree v. Roundtree 88
Rous V. Jackson 574
Row's Estate, In re 198
Royal V. Anltman d Taylor Co.. . 24
Ruddell V. Wren 84, 96
Russell, In re 143, 238
Russell V. Russell 232
Ryan v. Mahan • 359
St. John V. Chew 246
St. Paul's Church v. Attorney
General 596
Salisbury v. Petty 238
Salter v. Bradshaw 88
Sanders v. Pope 25
Sanford v. Lackland 695
Sard, In re 651
Satter field v. Mayes 264
Saunders v. Edivards 115
Saunders v. Vautier 214, 695
Sayer v. Sayer 371
School V. Whitney 581
Scotney v. Lomer 225
Scott V. Bargeman 256
Scott V. Harioood 97
Scott V. Roach 45
Scovill V. McMahon 24
TABLE OF CASES
XXVll
Page
Sears v. Russell 193
Seaver v. Fitzgerald 173
Security Co. v. Pratt 407
Serjreson v. Sealey 308
Sewall V. Wilmer 399
Seymour v. Boxoles 90
ShackcUon v. Sebree 34
Shannon v. Bradstreet 309
Sharvnyton v. Strutten 34
Sharman v. Jackson 45
Shaw V. Ford 018
Shaw V. Robinson 110
Shee V. Hale 040
Sheers v. Jeffery 253
Shelley's Case 115, 110. 123, 124,
135, 130, 143
Shelton v. Homer 335
Shepherd v. Ingram 97
Shepherd v. Ingram 257
Shrimpton v. Shrimpton 204
Siceloff V. Redman's Adm'r 143
Siddons v. Cockrell 94
Siegwald v. Siegicald 40
Siemers v. Monns 090
Simonds v. Simonds 05
Singleton, Ex parte 173
Singleton v. Gilbert 97
Sinnett v. Herbert 589
Sir Edward Clere's Case. .30, 301, 379
Slade V. Patten 502
Sloeum, V. Hagaman 299
Smaw V. Young 94
Smell V. Dee 204
Smith, In re 343
Smith V. Ashton 305
Smith V. Butcher 143
Smith V. Camelford 72, 75
Smith V. Colnian 237
Smith V. Curtis 393
Smith V. Death 311
Smith V. Floyd 350
Smith V. Kimbell 41, 241, 250
Smith V. McCormiclc 143
Smith V. Pendell 87
Smith V. Plummer 311
Smith V. Snow 034
Smith V. West 94
Smith V. Winsor 193
Smither v. Willock 284
Sneed v. Sneed 307
Snowdon v. Dales 004
Sohiei- V. Trinity Church 3
Southampton v. Hertford 590
Southard v. Central R. Co 10
Southern v. Wollaston 445
Southwell & Wade's Case 26
Spencer v. Spencer 332
Spencer, In re 050, 051
Spencer v. Wilson 227
Spengler v. Kulin 88
Springer v. Savage 32
Page
Standen v. Standen 379
Stanley v. Colt 3
Stansbury v. Hubncr 001
St archer Bros. v. Duty 475
Starr v. Willoughby 80
State V. Savin 175
Stead V. Piatt 2.34
Stephen v. Cunningham 244
Stevenson v. Glover 009
Steivart v. Stewart 40, 41
Stiles V. Ctnnmings 200
StiUrell v. S. L. d II. R. Co 3
Stockton V. Weber 70()
Stokes V. Van Wyck 190
Stoller V. Doyle 40
Stone V. Forbes 399
Stoner v. Curwen 115
Stores V. P>enbow 549
Storrs Agricultural School v. Whit-
ney 581
Storrs V. Benbow 270
Strain v. Sweeny 41
Strange v. Barnard 009
Stratheden (Tx)rd), In re 594
Stretton v. Fitzgerald 297
Striker v. Mott 88
Stringer's Estate, In re 297
Stuart V. Babington 577
Stump V. Findlay 45
Hturgess v. Pearson 284
Sty an, In re 57
Style's Case 117
Summers v. Snt\ith 40, 240
Sunday Luke Min. Co. v. Wake-
field 25
Supervisors Warren Co. v. Patter-
son 3
Surman v. Surman 035
tiutton's Hospital Case 34
Swain, In re 500
Sykes's Trusts, In re 050
Synge v. Synge 647
Taber, In re 651
Taft V. Taft 75
Taint er v. Clark 338
J'dUman v. Wood 115
Tanner v. Dorvell 72, 75, 256
Tarbuck v. Tarbuck 2V)4
Tarver v. Haines 335
Taylor v. Cedar Rapids d St. P.
R. Co 3
Taylor v. Cleary 135
Taylor v. Lam bert 208
Taylor v. Stainton 237
Taylor v. Taylor 88
Teaguc's Settlement, In re 500
Teal V. Richardson 143
Tcape's Trust, In re 391
Teed v. Morton 204
Temple v. Scott 88, 95
xxviii
TABLE OF CASES
Page
Tenant v. Broiv-ne 338
Thorp's Estate. In re 198
Thellusson v. Woodford 418
Tlioinas v. Howell 704
Thomasson v. Wilson 2
Thompson, In re 572
Thompson v. Adams 80, 95
Thompson i\ Becker 88
Thompson v. Sanford 87
Thompson's Estate, In re , . 635
Thomson's Ex'rs v. Norris 314
Thorington v. Thorington 307, 314
Thornton v. Natcliez 4
Thornton v. Thornton 391
Thurston, In re 356
Thurston v. Th urston 45
Tillinsfhast v. Bradford 676
TinlcJer v. Forhcs 4
Tippetts d iSi eichould" s Contract.. 650
Toilet V. Toilet 366
Tollett V. Armstrong 651
Tolman v. Portbunj 16
To7nlinson, In re 364
Townshend v. Wmdham 362, 364
Treasure, In re 363
Trcdennick v. Tredennick 569
Treharne v. Layton 242
Tritton, In re 173
Trotter v. Oswald 252
Troughton v. Tronghton 362
Trustees of Hollis' Hospital, In re 475
Trustees of Union College v. New
York 4
Tucker v. Adams 45, 143
Tugman v. Hopkins 364
WurnJmll v. Hayes 399
Turner v. Hause 2
Turner v. Moor 237
Turney, In re 230
Tyler, In re 582
Tyler v. Theilig 196
Tyrrell's Estate, In re 475
Vnderhill v. Saratoga & W. R. Co. 3
Union College v. New York 4
Uiiion Pac. R. Co. v. Cook 705
Upington v. Corrigan 10
Vanatta v. Carr 407
Tandcrplank v. King 257, 446
Van Grutten v. Foxwell 113, 136
Yan Hagan, In re 356
Van Home v. Campbell 626
Varley v. Coppard 15
Vestal V. Garrett 32
Vinson v. Vitison 34
Vize V. Stoney 225
Waddell v. Rattew 45
Wafer v. Mocato 25
Wainman v. Field 556
Page
Wait, In re 390
Waite V. Littleicood 198
Wake V. Yarah 198
Wakefield v. Wakefield 80
Wales' Adtn'r v. Bowdish's Ex'r. . 359
Walker v. Mackie 385
Walker v. Mackie 385
Walker v. Shore 260
Wall V. Goodenough 2
Wallace v. Foxwell 661
Walpole V. Comoay 72, 75
Walsh V. Wallinger 349
Warden v. Richards 335
Wardwell v. McDoioell 335
Ware v. Conn 605
Ware v. Rowland 193
Warner v. Connecticut Mut. Life
Ins. Co 399
Warwick v. Gerrard 35
Waters v. Waters 237
Watkins v. Williams 609
Watson V. Dodd 88
Watson V. Hayes 208
Watson V. Watson 237
Watson V. Young 548
Watts V. Clardy 143
Webb V. Hearing 66
Wehh V. Honnor 384, 385, 387
Weekes' Settlement, In re. , 350
Wehrhane v. Safe Deposit Co 115
Weinreich v. Weinreich 3
Welch V. Brimmer 196
Welch V. Episcopal Theological
School 702
Weld V. Bradbury 257
Weld V. Bradhury 99
Welsh V. Woodbury 634
Wenmoth's Estate, In re • 274
Wescott V. Meeker 143
Wescott's Case 55
West V. Berney 308
West V. Fitz 41
Whall V. Converse 193
Wharton v. Mastermati 695
Wharton v. Masterman 596
Wheable v. Withers 237
Whitaker v. Whitaker 95
Whitby V. Mitchell 456
Whitby V. Mitchell 460
White V. Collins 116
White V. Hicks 384
White V. McPhceters 88
White V. Mass. Inst, of Tech 359
White V. Summers 61
White V. Taylor 335
White V. Warner 25
White's Trusts, In re 346
Whitehead v. Bennett 560
Wicker v. Ray 115
Wigan V. Jones 302
Wiggin V. Perkins 67
Wight V. Thayer 136
TABLE OF CASES
XXIX
Page
WilcocJcg' Settlement, In re 609
Wihoxon V. Reese 338
Wild's Case 90
Wild's Case 90
Wilkes V. Holmes 30S
Wilkes V. Lion 562
Wilkinson v. Duuian 569
Wilks V. Burns 331
Will<ird V. Ware 399
Williams, In re 396
Williams, In re 230
Williams v. Asli 600
Williiims V. Elliott 630
Willi-ams v. Est en 87, 88
Williams v. Hcrrick 500
Williiims V. Lomas 363
Willi.ams v. Teale 446
Willing V. Baine 203
Willis V. Hiscox 110
Willis V. Martin 70
Willis V. Martin 72, 75
}\ills V. Coivper d Parker 338
Wilmer's Trusts, In re 417
Wilson V. Cockrill I.s3
Wilson V. Dugitid 347
Wilson V. Jones & Tapp 25
Wilso7i V. Knox 230
Wilson V. Pigr/ott 332
Wilson V. Wilson 252, 502, 555
Winsor v. Mills 500
Winter v. Dibble 143
Wintle, In re 230
Page
Wolfe V. nines 335
WoUaston v. King 509
Wood, In re 050
Wood V. Burnham 115
Wood V. Morton 2
Wood V. Robertson 80
Woodall V. Briicn 475
Woodall V. Clifton 408
Woodbridge v, Jones 404
Woodruff V. Water Power Co 4
Woodruff V. Woodruff 3
Wooldridge's Ileirs v. Watkins. . . 335
Wooster i\ Cooler 393
Worthing Corp. v. Heather 595
Worthing Coriioration v. Heath-
er 490
Wrey, In re 225
Wright v. Pearson 113, 136
Wright v. Stephens 238
Wright v. Wilken 3
Wrightson, In re 60
Wrightson v. Macaulay 196
Wi/man v. Broun 34
Wyndham v. Wyndham 261
Wynne v. Haickins 608
Yalden, In re 609
Yates V. Compton 336
Young v. Turner 244
Young v. Waterpark 332
Young v. Young 88
Younghusband v, Gisborne 669
t
B
CASES ON PROPERTY
FUTURE INTERESTS
PART I
CLASSIFICATION OF FUTURE INTERESTS
CHAPTER I
RIGHTS OF ENTRY FOR CONDITION BROKEN
SECTION I.— VALIDITY AND CONSTRUCTION
LIT. § 325. Estates which men have in lands or tenements upon f
condition are of two sorts, viz., either they have estate upon condition ' '"^" •
i n dee d, or upon condition in law, &c. L^pon condition in deed is, as if ru. I
a man by deed indented enfeoffs another in fee simple, reserving to him
and his heirs yearly a certain rent payable at one feast or divers feasts
per annum, on condition that if the rent be behind, &c., that it shall
be lawful for the feoffor and his heirs into the same lands or tenements
to enter, &c. And if it happen the rent to be behind by a week after
any day of payment of it, or by a month after any day of payment of it,
or by half a year, &c., that then it shall be lawful to the feoffor and
his heirs to enter, &c. In these cases if the rent be not paid at such
time, or before such time limited and specified within the condition
comprised in the indenture, then may the feoffor or his heirs enter into
such lands or tenements, and them in his former estate to have and hold,
and the feoffee quite to oust thereof. And it is called an estate upon
condition, because that the state of the feoffee is defeasible, if the con-
dition be not performed, &c.
4 Kalks Prop. — 1
2 CLASSIFICATION OF FUTURE INTERESTS (Part 1
LIT. § 326. In the same manner it is if lands be given in tail, or let
for term of life or of years, upon condition, &c.^
1 The same ruling occurs A\liere a term for years is assigned subject to a
condition subsequent and right of re-entrj' for condition broken, so that
no reversion remains in the assignor. Doe d. Freeman v. Batexnan, 2 B. &
AM:TG5.
A fortiori, where there is a reversion in the ci'eator of a particular es-
tate, the interest created may be made subject to forfeiture in favor of
the reversioner for the breach of a condition subsequent.
Note ox Conditions in Law.^LjY. § S7iS. Estates which men have upon
condition in law, are such estates which have a condition by the law to them
annexed, albeit that it be not specified in writing. As if a man grant by his
deed to another the office of parkership of a park, to have and occupy the same
office for term of his life, the estate which he hath in the office is upon con-
dition in law, to wit. that the parker shall well and lawfully keep the park,
and shall do that which to such office belongeth to do, or otherwise it shall
be lawful to the grantor and his heirs to oust him, and to grant it to another
if he will, &c. And such condition as is intended by the law to be annexed
to anything, is as strong, as if the condition were put in writing.
Co. Lit. 233 h. As to conditions in law, you shall understand thej' be of
two natures, that is to say, by the common law, and by Statute. And those
by the common law are of two natures, that is to say, the one is founded up-
on skill and confidence, the other without skill or confidence: upon skill and
confidence, as here the office of parkership, and other offices in the next sec-
tion mentioned, and the like.
Touching conditions in law without skill, &c., some be by the common law
and some by the statute. By the common law as to every estate of tenant
by the curtesy, tenant in tail after possibility of issue extinct, tenant in dow-
er, tenant for life, tenant for years, tenant by statute merchant or staple,
tenant by elegit, guardian, &c., there is a condition in law secretly annexed to
their estates, that if they alien in fee, &c., that he in the reversion or re-
mainder may enter, et sic de similibus, or if they claim a greater estate in
court of record, and the like.
In Case of Leaseholds — Implied Condition that a Tenant shall not
Repudiate the Tenancy and CLAi>r to Hold against the Landlord. — It is
clear that if a tenant not only disclaims to hold under his landlord, but ac-
knowledges another as such and pays rent to him, the former may, without
any formality, elect to forfeit the tenancy and sue for possession in a forcible
detainer suit against the tenant and the new landlord whom he has acknowl-
edged. Ballance v. Fortier, 3 Gilni. (111.) 291 ; Fortier v. Ballance, 5 Gilm.
(111.) 41; McCartney v. Hunt, 16 111. 76; Cox v. Cunningham, 77 111. 545;
Doty v. Burdick, 8.3 111. 473; Wall v. Goodenough, 16 111. 415 (serable). It
seems, also, that the giving up of possession by a tenant to a stranger who
takes on assignment or sublease from the tenant, but claims to hold under a
paramount title is a sufficient ground for the immediate forfeiture of the
original lease. Upon such forfeiture the landlord may at once maintain
forcible detainer against the stranger. Hardin v. Forsythe, 99 111. 312 ;
Thomasson v. Wilson, 146 111. 384, 34 N. E. 432. Even a mere oral dis-
claimer by the tenant, coupled with the claim of title in himself, is, in this
state, a sulficient ground of forfeiture. Fusselman v. Worthington, 14 111.
135; McGinnis v. Fernandes, 126 111. 228. 19 N. E. 44; Brown v. Keller, 32
111. 151, 83 Am. Dec, 258 ; Herrell v. Sizeland, 81 111. 457 ; Wood v. Morton,
11 111. 547. Tlie attempt by a tenant to transfer more than he has operates
as an assignment of his interest. Turner v. Hause, 199 111. 4(54, 65 N. E. 445.
Quaere: Does such a conveyance by itself furnish a ground of forfeiture?
It has been said that any conveyance by a tenant at sufferance will forfeit
the tenancy. Proctor v. Tows, 115 111. 138, 150, 3 N. E. 569. The owner,
however, is always entitled to possession as against a tenant at sufferance.
For the form and effect of statutes making every breach of a covenant in
a lease a ground of forfeiture, see Kales, Future Interests, §§ 24, 25.
Ch. 1^ RIGHTS OF ENTRY FOR CONDITION BROKEV 3
LIT. § 328. Also, divers words (amongst others) there be, which by
virtue of themselves make estates upon condition ; one is the word sub
conditione: as if A. infeoff B. of certain land, to have and to hold to
the said B. and his heirs, upon condition (sub conditione), that the said
B. and his heirs do pay or cause to be paid to the aforesaid A. and his
heirs yearly such a rent, &c. In this case without any more saying the
feoffee hath an estate upon condition.
WoT^ r
LIT. § 329. Also, if the words were such, Provided always, that the
aforesaid B. do pay or cause to be paid to the aforesaid A. such a rent,
&c., or these. So that the said B. do pay or cause to be paid to the said
A. such a rent, &c., in these cases without more saying, the feoffee hath
but an estate upon condition; so as if he doth not perform the condi-
tion, the feoffor and his heirs may enter, &c.^
LIT. § 330. Also, there be other words in a deed which cause the
tenements to be conditional. As if upon such feoft'ment a rent be re-
served to the feoffor. Sec, and afterward this word is put into the deed,
2 Accord: Gray v. Blanchard, 8 Pick. (Mass.) 284 (1820); Hays v. St. Paul
Church, 196 111. 633, 63 N. E. 1040; Supervisors Warren Co. v. Pattersou,
56 III. 111. 120 ; Harris v, Shaw, 13 111. 456 ; Blanchard v. Detroit. Lansing
& Lake Michigan E. Co., 31 Mich. 43, 18 Am. Rep. 142; Hammond v. Port
Royal and Augusta Railway Co., 15 S. C. 10; Taylor v. Cedar Rapids and
St. Paul R. R. Co., 25 Iowa. 371 ; May v. Boston. 158 Mass. 21, 32 N. E. 902 ;
Papst V. Hamilton. 133 Cal. 631. 66 Pae. 10; Adams v. Valentine (C. C.) 33
Fed. 1; Reicheubach v. Washington, etc., Ry. Co., 10 Wa.sh. 357, 38 Pac.
1126; Mills v. Seattle, etc., Ry. Co., 10 Wash. 520, 39 Pac. 246; Brown v.
Chicago & X. W. Ry. Co. (Iowa) 82 N. W. 1003; Underhill v. Saratoga and
Washington R. R. Co., 20 Barb. (N. Y.) 455; Mead v. Ballard, 74 U. S. (7
Wall.) 2U0, 19 L. Ed. 190; Hooper v. Cummings, 45 Me. 359; Chapman v.
Pingree, 67 Me. 198; Weinreich v. Weinreich, 18 Mo. App. 364; Parsons v.
Miller, 15 Wend. (N. Y.) 561 ; Littleton, §§ 328-331.
Contra: Elyton Land Co. v. South and North Alabama R. R. Co.. 100 Ala.
396, 14 South. 207 ; Druecker v. McLaughlin, 235 111. 367, 85 X. E. 647.
Compare, however, Post v. Weil, 115 X. Y. 361, 22 X. E. 145, 5 L. R. A. 422 ;
12 Am. St. Rep. 809 (18S9) ; Avery v. Xew York Central, etc., R. R. Co., 106
N. Y. 142, 12 N. E. 619 ; Stilwell v. S. L. & H. Ry. Co., 39 Mo. App. 221 ; Ay-
ling V. Kramer, 133 Mass. 12.
If the words of condition required the grantor instead of the grantee to
do something, they have been held to create only a covenant. Paschall v.
Passniore. 15 Pa. 295, 307-309; Woodriiff v. Woodruff, 44 X. J. Eq. 349, 16
Atl. 4, 1 L. R. A. 380. So, if the word "condition" is used in a will, the con-
text frequently shows that it was used as a word designating the trusts of a
fund or the charging of a gift with the payment of legacies. Stanlev v.
Colt, 5 Wall. 119, IS L. Ed. 502 ; Wright v. Wilken, 2 B. & S. 232 (110 Eng.
Com. Law Reports) ; Atty. Gen. v. CoriKiration of South Moulton, 14 Beav.
357; Atty. Gen. v. Wax Chandlers Co., 42 L. J. Ch. 425; Sohier v. Trinity
Church, 109 Mass. 1. The cases of unclassified special contexts where the
word ''condition" has been construed to create a covenant are legion. Eck-
hart V. Irons. 128 111. 568. 20 X. E. 687 ; Portland v. Terwilliger. 16 Or. 465,
19 Pac. 90; Minard v. Delaware Co. (C. C.) 1.39 Fed. 60; Los Angeles Uni-
\ersitv v. Swarth, 107 Fed. 798, 46 C. C. A. 647, 54 L. R. A. 262.
4 CLASSIFICATION OF FUTURE INTERESTS (Part 1
That if it happen the aforesaid rent to be behind in part or in all, that
then it shall be lawful for the feoffor and his heirs to enter, &c., this is
a deed upon condition.^
LIT. § 331. But there is a diversity between this word si contingat,
&c., and the words next afo'fesaid, &c. For these words, si contingat,
&c., are nought worth to such a condition, unless it hath these words
following, That it shall be lawful for the feoffor and his heirs to enter,
&c.* But in the cases aforesaid, it is not necessary by the law to put
such a clause, scilicet, that the feoffor and his heirs may enter, &c.,
because they may do this by force of the words aforesaid, for that they
contain in themselves a condition, scilicet, that the feoffor and his heirs
may enter, &c. Yet it is commonly used in all such cases aforesaid to
put the clauses in the deeds, scilicet, if the rent be behind, &c., that it
shall be lawful to the feoffor and his heirs to enter, &c. And this is
well done, for this intent, to declare and express to the common people,
who are not learned in the law, of the manner and condition of the
feoffment, &c. As if a man seised of land letteth the same land to
another by deed indetifed for term of years, rendering to him a certain
3 Where the conveyance is merely for certain express purposes, or upon a
motive expressed, or upon a certain consideration, coupled with a re-entry
clause, the estate is upon a condition subsequent. Atty. Gen. v. Merrimack
Manufacturing Co., SO Mass. (14 Gray) 5SG ; Woodruff v. Water Power Com-
pany. 10 N. J. Eq. 4S9 ; Hamel v. Minneapolis, St. P. & S. S. M. Ry., 97 Minn.
334, 107 N. W. 139.
A fortiori, where words of condition and a re-entry clause are both used,
the estate conveyed is held subject to a condition subsequent. Grav v. C,
M. & St. P. Rv. Co., 189 111. 400, 59 N. E. 950; Trustees of Union College t.
Citv of New York, 65 App. Dlv. 553, 73 N. Y. Supp. 51; Moss v. Chappell,
126 Cia. 190, 54 S. E. 96S, 11 L. R. A. (N. S.) 398; Minard v. Delaware Ry.
(C. C.) 139 Fed. 60; Brown v. Tilley, 25 R. I. 579, 57 Atl. 380; Austin v.
Cambridge Port Parish, 21 Pick. (Mass.) 215; Houston & T. C. R. Co. v.
Ennis-Calvert Co., 23 Tex. Civ. App. 441, 56 S. W. 367 ; Hoyt v. Ketcham, 54
Conn. 60, 5 Atl. 606.
1/ 4 Similarly, if there is no re-entry clause, the estate is not subject to a
condition subsequent where the conveyance is merely declared to be for cer-
tain express purposes or upon a motive expressed (Tinkler v. Forbes, 136 111.
ly^A- 221, 2.39, 26 N. E. 503; Thornton v. City of Natchez, 88 Miss. 1, 41 South.
498; Thornton v. City of Natchez, 129 Fed. 84, 63 C. C. A. 526; Barker v.
Barrows, 138 Mass. 578 ; Long v. Moore, 19 Tex. Civ. App. 363. 48 S. W. 43 ;
Faith V. Bowles, 86 Md. 13, 37 Atl. 711, 63 Am. St. Rep. 489 ; Field v. Prov-
idence, 17 R. I. 803, 24 Atl. 143 ; Horner v. C, M. & St. P. Ry. Co., 38 Wis.
165, 175; Rawsou v. School District, 7 Allen [Mass.] 125, 83 Am. Dec. 670.
See also Greene v. O'Connor, 18 R. I. 56, 25 Atl. 692, 19 L. R. A. 262; Avery
V. U. S., 104 Fed. 711, 44 C. C. A. 161 ; Kilpatrick v. Mayor, 81 Md. 179. 31
Atl. 805, 27 L. R. A. 643, 48 Am. St. Rep. 509 ; Collins v. Brackett, 34 Minn,
339, 25 N. W. 708) ; or "upon a certain consideration" (Letchworth v. Vaughiui,
77 Ark. 305, 90 S. W. 1001. See, however, Close v. Railroad, 64 Iowa, 150,
19 N. W. 886; Railroad v. Hood, 66 Ind. 580); or "upon the express agree-
ment" (Ilawley v. Kafitz, 148 Cal. 393, S3 Pac. 248, 3 L. R. A. [N. S.] 741, 113
Am. St. Rep. 282) ; or '"provided, however, the grantee shall do thus and so"
(King V. Norfolk & Western Ry. Co., 99 Va. 625, 39 S. E. 701; Cassidy v.
Mason, 171 Mass. 507, .50 N. E. 1027; Incorporated Village of Ashland v.
Greiner, 58 Ohio St, 67, 50 N. E. 99).
%' <^,
Ch. 1) RIGHTS OF ENTRY FOR CONDITION BROKEN 5
rent, it is used to be put into the deed, that if the rent be behind at the
day of payment, or by the space of a week or a month, &c., that then it
shall be lawful to the lessor to distrain, &c., yet the lessor may distrain
of common right for the rent behind, &c., though such words were not
put into the deed, &c.
SHEP. TOUCH. 120. The nature of an express condition annexed /
to an estate in general, is this : that it cannot be made by nor reserved
to a stranger; but itjnust be made bj and reserve^ to^ !Tilm"tHat"3oth
make the estate. And it cannot be granted over to another, except it
be~lo~and with the land or thing unto which it is annexed and incident.
An^^scTlt is not grantable in all cases; for the estates of both the
parties are so suspended by the condition, that neither of them alone
can well make any estate or charge of or upon the land ; for the party
that doth depart with the estate, and hath nothing but a possibility to
have the "thing again upon the performance or breach of the condition,
cannot grant or charge the thing at all. And if he that hath the estate,
grant or charge it, it will be subject to theToridrtion still; for the con-
dftion doth always attend and wait upon the estate or thing whereunto
it is annexed : so that although the same do pass through the hands - >t,^
of an hundred men, yet is it subject to the condition still; and albeit ^^i^w, ^C, ^ ^^'-s^J
some of them be persons privileged in divers cases, as the king, in- iv. cw^duZ*
fants, and women covert, yet they are also bound by the condition.
And a man that comes to the thing by wrong, as a disseisor of land,
whereof there is an estate upon condition in being, shall hold the sanie
subject to the condition also. """
•3',
SECTION 2.— WHO MAY TAKE ADVANTAGE OF THE
BREACH OF CONDITION
LIT. § 347: No entry nor re-entry (which is all one) may be re- ^ ,
served or given to any person, but only to the feoffor, or to the donor, --"*^'^*'-) f-
or to the lessor, or to their heirs : and such re-entry cannot be given ^" '^ - '■
to any other person. For if a man letteth land to another for term of
life by indenture, rendering to the lessor and to his heirs a certain
rent, and for default of payment a re-entry, &c., if afterward the les- '
sor by a deed granteth the reversion of the land to another in fee, and
the tenant for term of life attorn, &c., if the rent be after behind, the - -
grantee of a reversion may distrain for the rent, because that the rent
is incident to the reversion ; but he may not enter into the land, and
oust the tenant, as the lessor might have done, or his heirs, if the re-
version had been continued in them, &c. And in this case the entry
is taken away forever; for the grantee of the reversion cannot enter.
6 CLASSIFICATION OF FUTURE INTERESTS (Part 1
causa qua supra. And the lessor nor his heirs cannot enter ; for if
the lessor might enter, then he ought to be in his former state, &c.,
and this may not be, because he hath aliened from him the reversion.
U.
r
CO. LIT. 215 a: Another diversity is between conditions in deed,
whereof sufificient hath been said before, and conditions in law. As if
a man make a lease for life, there is a condition in law annexed unto
it, that if the lessee doth make a greater estate, &c., that then the les-
sor may enter. Of this and the like conditions in law, which do give
an entry to the lessor, the lessor himself and his Heirs shall not only
take benefit of it, but also his assignee and the lord by escheat, every
one for the condition in law broken in their own time. Another di-
versity there is between the judgment of the common law, whereof
Littleton wrote, and the law at this day by force of the Statute of
*»*-^*-' 32 H. 8, c. 34. For by the common law no grantee or assignee of the
.. w reversion could (as hath been said) take advantage of a re-entry by
^ force of any condition. For at the common law, if a man had made
a lease for life reserving a rent, &c., and, if the rent be behind, a re-
entry, and the lessor grant the reversion over, the grantee should take
no benefit of the condition, for the cause before rehearsed. But now
by the said Statute of 32 H. 8, the grantee may take advantage thereof,
and upon demand of the rent, and non-payment, he may re-enter. By
which Act it is provided, that as well every person which shall have any
grant of the king of any reversion, &c., of any lands, &c., which per-
tained to monasteries, &c., as also all other persons being grantees or
assignees, &c., to or by any other person or persons, and their heirs,
executors, successors, and assignees shall have like advantage against
the lessees, &c., by entry for non-payment of tlie rent, or for doing of
waste or other forfeiture, &c., as the said lessors or grantors themselves
ought or might have had. Upon this Act divers resolutions and judg-
ments have been given, which are necessary to be known.
\. That the said Statute is general, viz., that the grantee of the re-
version of every common person, as well as of the king, shall take ad-
vantage of conditions.
2. That the Statute doth extend to grants made by the successors of
the king, albeit the king be only named in the Act.
3. That where the Statute speaketh of lessees, that the same doth
not extend to gifts in tail.
4. That where the Statute speaks of grantees and assignees of the re-
version, that an assignee of part of tlie state of the reversion may take
advantage of the condition. As if lessee for life be, &c., and the re-
version is granted for life, &c. So if lessee for years, &c., be, and the
reversion is granted for years, the grantee for years shall take benefit
of the condition in respect of this word (executors) in the Act.
Ch. 1) RIGnTS OF ENTRY FOR CONDITION BROKEN 7
5. That a grantee of part of the reversion shall not take advantage
of the condition ;3as if the lease be of three acres, reserving a rent upon
condition, and the reversion is granted of two acres, the rent shall be
apportioned by the act of the parties, but the condition is destroyed,
f o rlh atjt is gntire and against common right.
6. "That in^hc king's case, the condition in that case is not destroyed,
but remains still in the idng.
7. By act in law a condition may be apportioned in the case of a
comm^^personT as if a lease for years be made of two acres, one^f
th6TTaiEifre'or~bb rough English, the other at the conirnoii law, and the
lessor having issue two sons, dieth, each of them shall enter for the
condition broken, andlTkew'ise a conditTori sliall be apportioned by the
act and wrong of the lessee, as hath been said in the chapter of Rents.
LIT. § 348 : Also, if lord and tenant be, and the tenant make a lease
for term of life, rendering to the lessor and his heirs such an annual
rent, and for default of payment a re-entry, &c., if after the lessor
dieth without heir during the life of the tenant for life, whereby the re-
version Cometh to the lord by way of escheat, and after tlie rent of
the tenant for life is behind, the lord may distrain the tenant for the
rent behind; but he may not enter into" tbe land by force of the con-
dition, &c., because thatne is not heir to the lessor, &c.
RICE v. BOSTON & W. R. CORP.
(Supreme Judicial Court of Massachusetts, 1S66. 12 Allen, 141.)
Writ of entry to recover a parcel of land in Brighton,
At the trial in the Superior Court, before Vose, J., it appeared that
on the 12th day of May, 1834, the demandant's father conveyed the de-
manded premises to the tenants by a deed of warranty, which stated
that the conveyance was made upon the express condition that the cor^
poration should forever maintain and keep in good repair a pass^way
over the same, and also certain fences ; the premises being land over
which the railroad of the tenants passes. The demandant's father then
in June, 1842, conveyed to the demandant a large tract of land, the de-
scription of which included the demanded premises, by a deed of war-
ranty; and died intestate, before any breach of condition. The de-
mandant offeriH" evidence oFa breach' of condition after hts father's
death. No entry for breach of condition was made before bringing
this action. The judge excluded the offered evidence, and instructed
the jury that the demandant was not entitled to recover; and a ver-
dict was accordingly returned for the tenants. The demandant alleged
exceptions.
8 CLASSIFICATION OF FUTURE INTERESTS (Part 1
BiGELOW, C. J. It is one of the established rules of the common law
that the right or possibility of reverter which belongs to a grantor of
an estate on condition subsequent cannot be legally conveyed by deed
to^ third person before entry for a breach. This rule is stated in Co.
Lit. 214 a, in these words: "Nothing in action, entry, or re-entry can
be granted over;" and the reason given is "for avoiding of mainte-
nance, suppressing of rights, and stirring up of suits," which would
happen if men were permitted "to grant before they be in possession."
This ancient doctrine had its origin in the early Statutes against main-
tenance and champerty in Englau'd, the last of which, 32 Henr}^ A^III,
c. 9, expressly prohibited the granting or taking any such right or in-
terest under penalty, both on the grantor and the buyer or taker, of
forfeiting the whole value of the land or interest granted, or as Coke
expresses it, "the grantor and grantee (albeit the grant be merely void)
are within the danger of the Statute." Co. Lit. 369 a. The principle
that a mere right of entry into land is not the subject of a valid grant
has been fully recognized and adopted in this country as a settled rule
of the law of real property, both by text-writers and courts of justice.
2 Cruise Dig. (Greenl. Ed.) tit. xiii, c. 1, § 15; 1 Washburn on Real
Prop. 453; 2 lb. 599; 1 Smith's Lead. Cas. (5th Ed.) 113; Nicoll v.
New York & Erie Railroad, 12 N. Y. 133; Williams v. Jackson, 5
Johns. (N. Y.) 498 ; Hooper v. Cummings, 45 ^le. 359 ; Guild v. Rich-
ards, 16 Gray, 309.
The effect of a grant of a right or possibility of reverter of an es-
tate on condition is thus stated in 1 Shep. Touchstone, 157, 158: A
condition "may be discharged by matter ex post facto ; as in the ex-
amples following. Ifone make a feoffment in fee of land upon con-
dition, and after, and before the condition broken, he doth make an
absolute feoffment, or levy a fine of all or part of the land, to the
feoffee, or any other; by this the condition is gone and discharged for-
ever." So in 5 Vin, Ab. Condition (I, d 11), the rule is said to be,
"when condition is once annexed to a particular estate, and after by
other deed the reversion is granted by the maker of the condition, now
the condition is gone." See also 1 Washburn on Real Prop. 453 ;
Hooper v. Cummings, 45 Me. 359. The original maker of the condi-
tion cannot enforce it after he has parted with his right of reverter,
nor can his alienee take advantage of a breach, because the right was
not assignable. In the light of these principles and authorities, it would
seem to be very clear that the original grantor of the demanded prem-
ises destroyed or discharged the condition annexed to his grant to the
defendants by aliening the estate in his lifetime and before any breach
of the condition had taken place.
The only doubt which has existed in our minds on this point arises
from the fact that the son and heir of the original grantor of the prem-
ises is the demandant in this action. But on consideration we are satis-
fied, not only that the son took nothing by the deed, but also that the
Ch. 1) RIGHTS OF ENTRY FOR CONDITION' BROKEN 9
possibility of reverter was extinguished, so that the original grantor
haH^no right of entry for breach after his deed to his son, and the lat-
ter can make no valid claim to the demanded premises either as grantee
or as heir for a breach of the condition attached to the original grant.
A condition in a grant of land can be reserved only to the grantor and
his heirs. But the latter can take only by virtue of the privity which
exists between ancestor and heir. This privity is essential to the right
of the heir to enter. But .if the original grantor aliens the right or
possibility in his lifetime before breach, the privity between him and
his heirs as to the possibility of reverter is broken. No one can claim
as heir until the decease of the grantor, because nemo est hseres vi-
ventis ; and upon his death his heir has no right of entry', because he
cannot inherit that which his ancestor had aliened in his lifetime. The
right of entry is gone forever. Perkins, §§ 830-833 ; Lit. § 347.
It may be suggested, however, that if the deed is void and conveys
no title to the grantee, the right of entry still remains in the grantor
and is transmissible to his heir. This argument is inconsistent with
the authorities already cited, which sanction the doctrine that aliena-
tion by a grantor of an estate on condition before breach extinguishes
the condition ; it also loses sight of the principle on which the doctrine
rests. The policy of the law is to discourage maintenance and cham-
perty. Neither party to a conveyance which violates the rule of law
can allege his own unlawful act for the purpose of securing an ad-
vantage to himself. The grantor of a right of entry cannot be heard
to say that his deed was void, and that the right of entry still remains
in him, because this would be to allow him to set up his own turpitude
in engaging in a champertous transaction as the foundation of his claim.
His deed is therefore effectual to estop him from setting up its in-
vahdity as the ground of claiming a right of entry which he had un-
lawfully conveyed. Nor can the grantee avail himself of the grant of
the right of entry for a like reason. He cannot be permitted to set up
a title which rests upon a conveyance which he has taken in contraven-
tion of the rules of law. Both parties are therefore cut off from claim-
ing any benefit of the condition. The grantor cannot aver the invalid-
ity of his own deed, norjcan the grantee rely on its validity. Both be-
ing partrclpalors Tri~an unlawful transaction, neither can avail himself
of it to establish a title in a court of law. It is always competent for
a party in a writ of entry to allege that a deed, under which an adverse
title is claimed, although duly executed, passed no title to the grantee,
either because the grantor was disseised at the time of its execution,
or because the deed for some other reason did not take effect. Stearns
on Real Actions, 226.
We know of no statute which has changed the rules of the common
law in this commonwealth in relation to the alienation of a right of en-
try for breach of a condition in a deed. By these rules, without con-
sidering the other grounds of defence insisted upon at the trial, it is ap-
10 CLASSIFICATION OF FUTURE INTERESTS (Part 1
parent that the demandant cannot recover the demanded premises : not
as heir, because he did not inherit that which his father had conveyed
in his lifetime; nor as purchaser, because his deed was void.
Exceptions overruled.^
SECTION 3.— MODE OF PERFECTING A FORFEITURE
CO. LIT. 214 b: Hereupon is to be collected divers diversities.
First, between a condition that requireth a re-entry, and a limitation
that ipso facto detennincth the estate without any entry. Of tTiisfiTSt
soimcTstranger, as Littleton saith, shall take any advantage, as hath
been said. But of limitations it is otherwise. As if a man make a
lease quousque, that is, until I. S. come from Rome, the lessor grant
the reversion over to a stranger, I. S. comes from Rome, the grantee
shall take advantage of it and enter, because the estate by the express
limitation was determined.
So it is if a man make a lease to a woman quamdiu casta vixerit, or
if a man make a lease for life to a widow, si tamdiu in pura viduitate
viveret. So it is if a man make a lease for a 100 years if the lessee
live so long, the lessor grants over the reversion, the lessee dies, the
grantee may enter, causa qua stipra.^
5 Rights of entry upon a fee for condition broken cannot be devised.
Southard v. Central R. R. Co., 26 N. J. Law, 1.3; rpiugton v. Corrisan, 151
N. Y. 143, 45 N. p]. 359, 37 L. R. A. 794; Methodist Church v. Young. 130
N. C. 8, 40 S. E. 691. Contra: Austin v. Canibridgeport I'arish, 21 Pick.
(Mass.) 215. See, also, Gray v. C, M. & St. P. Ry. Co., 189 111. 400, 59 N. E.
950.
Under the Wills Act of 1 Vict. c. 26, § 3, which makes devisable "all rights
of entry for conditions broken, and other rights of entry," a right of entry
for condition broken is devisable even before a breach has occurred and
passes under a residuary devise , all real estate. Pemberton v. Barnes, L. R.
[1899] 1 Cli. 544. Where the act provided that the right of entry was devisa-
ble and transmissible by deed "although the contingencies upon which such
right, estate, or interest are to vest may not have happened," it was regai'd-
€d as clear that the right of entry was devisable before a breach. South-
ard v. Central R. R. Co., 26 N. J. Law, 13.
On the descent of rights of entry, see post, p. 86, note 31, on "Descent of
Contingent Remainders."
c "Apt words of limitation are quamdiu, dummodo, dum, quousque, durante,
&c., V. 14 E. 2, Grant 92, a rent granted oiit of the manor of Dale, quamdiu
the grantor shall dwell there. Vide 7 E. 4, 16, quamdiu fuer' amicabiles, 27
n. 8, 29 b; 3 E. 3, 15 a; and 3 Ass. p. 9. A man leases land dummodo the
lessee shall pay twenty pounds, 37 H. 6, 27. A lease is made to a woman
dum sola fuerit, E. 4, 29 b. A man made a feoffment in fee until, s.
quous(iue the feofl'or had paid him certain money, 21 Ass. p. 18. Vide 13 El.
Dy, 290, ace' PI. Com. 414; 35 Ass. p. 14. A lease for years, if the lessee
shall so long live, 14 H. 8, 13. A lease of lands till he be promoted to a
benefice, &c.. Lit. chap. Condit. 90, during the coverture. All these, and many
others, are words of limitation, by force of which, the estate is determined
without entry or claim: words of condition are sub conditione, ita quod, si
contingat, proviso, &c. Vide Lit. c. Condit. 74 and 75; 3 H. 6, 7 a, b; 27 H.
8. 15, Dy., 28 H. 8, 13 ; 4 M. Dy. 139 ; 15 El. Dy. 318 ; 32 H. 8, Dy. 47. But
Ch. 1) RIGHTS OF ENTRY FOR CONDITION BROKEN 11
2. Another diversity is bet\v een a condition annexed to a freehold,
an d a condi tion annexed to a lease for years.
For if a man make a gift in tail orlTTease for life upon condition,
that if the donee or lessee goeth not to Rome before such a day the
gift or lease shall cease or be void, the grantee of the reversion shall
never take advantage of this condition, because the estate cannot cease
before an entry ; but if the lease had been but for years, there the
grantee should have taken advantage of the like condition, bcause the
lease for years ipso facto by the breach of the condition w^ithout any
entry was void ; for a lease for years may begin without ceremony,
and so may end without ceremony ; but an estate of freehold cannot
b egin nor end without ceremony. And of a void thing a stranger
may take benefit, but not of a voidable estate by entry.
LEAKE, PROPERTY IN LAND (2d Ed.) p. 170: "A lease for
years may begin without ceremony, and so may end without cere-
mony," being at common law a mere matter of contract. Therefore
a condition to defeat it does not require an actual entry, unless ex-
pressly stipulated. '^ According to the older cases, a condition that in
a certain event a lease should cease or be void "was construed as a
c onditional li mitation, and the t£rm tr eated a s ^so_tacto_voi(i ; but
the l ater cases show that in these circumstances the condition is
construed to render the lease voidable at the option of the lessor, who
must give notice, or do some other acf"sIiowTng Kis TiSHTtion' toavoTH
it.^ Tf the view expressed in the earlier cases had prevailed, it would
Have permitted the lessee to put ap end to the term by his own default.
And where a right of re-entry is expressed to be given upon an ante-
cedent notice, the election of the lessor to resume possession is finally
exercised by notice given, and it is unnecessary to make an actual
entry. ^
these words ad affectum, ea intentione, ad solvendum, or other the like, do
not make a condition in feoffments or grants, unless it be in the king's case,
or in a last will, as it was resolved Pasc. IS El. by all the justices of the
common pleas." Mary Portiugtou's Case, 10 Co. 35 a, 41 b.
7 Doe V. Baker. 8 Taunt. 241 ; Co. Lit. 214b. See Liddy v. Kennedy, L.
R. 5 H. L. 134, 151, 154.
8 Rede V. Farr, 6 M. & S. 121 ; Hartshorue v. Watson, 4 Bing. N. C. ITS ;
Moore v. UUooats Mining Co., [190S] 1 Ch. 575; notes to Duppa v. Mayo, 1
Wms. Saund. 442.
9 Liddy v. Kennedy, L. R. 5 H. L. 134.
Note on the Demand for Re.nt Required as a Condition Precedent to
Forfeiture for the Non-Payment of Rent. — Walker, C J., in Chadwick v.
Parker, 44 111. 32C: Where the cause of forfeiture was default in tlie pay-
ment of rent, the common-law mode of forfeiture seems to have reiinired ''a
demand of the precise amount of rent due, neither more nor less; that it be
made upon precisely the day when due and payable by the terms of the
lease or if a further day was specified within which it might be paid to save
the forfeiture, then upon the last day of that time. It was reipiired to be
made at a convenient liour before simset, upon the land, at the most con-
12 CLASSIFICATION OF FUTURE INTERESTS (Part 1
SECTION 4.— RELIEF AGAINST FORFEITURE
I. Licenser
DUMPOR'S CASE.
(Court of Queen's Bench, 1603. 4 Coke, 119b.)
In trespass between Dumpor and Symms, upon the general issue,
the jurors gave a special verdict to this effect: the president and
scholars of the College of Corpus Christi in Oxford, made a lease for
years in anno 10 Eliz. of the land now in question, to one Bolde,
proviso that the lessee or his assigns should not alien the premises to
anyl^erson or persons, witjiout^the special license of the lessors. And
afterwards the lessors by their deed anno 13 Eliz. lijcensed the lessee
to alien or demise the land, or any part of it, to any person or per-
sons quibuscunque. And afterwards, anno 15 Eliz. the lessee assigned
the term to one Tubbe, \^'ho by his last will devised it to his son, and
by the same will made his son executor, and died. The son entered
generally, and the testator was not indebted to any person, and after-
wards the son died intestate, and the ordinary committed administra-
tion to one who assigned the term to the defendant. The president
and scholars, by warrant of attorney, entered for the condition broken,
and made a lease to the plaintiff for twenty-one years, v/ho entered
upon the defendant, who re-entered, upon which re-entry this action
of trespass was brought : and that upon the lease made to Bolde,
the yearly rent of 33s. and 4d. was reserved, and upon the lease to
the plaintiff, the yearly rent of 22s. was only reserved. And the
jurors prayed upon all this matter the advice and discretion of the
court, and upon this verdict judgment was given against the plain-
tiff. And in this case divers points were debated and resolved : First,
That the alienation by license to Tubbe, had determined the condi-
tion, so that no alienation which he might afterwards make" could
break the proviso or give cause of entry to the lessors, for the lessors
could not dispense with an alienation for one tiine, and that the same
estate should remain subject to the proviso after. And although the
proviso be, that the lessee or his assigns shall not alien, yet when the
lessors license the lessee to alien, they shall never defeat by force
spicuous place; as, if it were a dwelling-bouse, at tbe frout door, unless
some otber place was named' in tbe lease, wbeu it was necessary to make it
at tbat place. It was required tbat a demand sboiild be made in fact, sbould
be pleaded and proved, to be availing. Tlie tenant, bowever, bad tbe entire
day witbin wbicb to make payment." Pages 330-331. See, also, 2 Taylor,
Landlord and Tenant (Otb Ed.) §§ 493, 494 ; McQuesten v. Morgan, 34 N. H.
400.
For statutory modes of forfeiture of leases, see Kales, Future Interests, g§
32-40a.
Ch. 1) RIGHTS OF ENTRY FOR CONDITION BROKEN 13
of the said proviso, the term which is absolutely aliened by their li-
cense, inasmuch as the assignee has the same term which was assigned
by their assent: so if the lessors dispense with one alienation, they
thereby dispense with all alienations after; for inasmuch as by force
of the lessor's license, and of the lessee's assignment, the estate and
interest of Tubbe was absolute, it is not possible that his assignee,
who has his estate and interest, shall be subject to the first condi-
tion: and as the dispensation of one alienation is the dispensation of
all others, so it is as to the persons, for if the lessors dispense with
one, all the others are at liberty. And therefore it was adjudged, Trin.
28 Eliz. Rot. 256 in Com' Banco, inter Leeds and Crompton, that
where the Lord Stafiford made a lease to three, upon condition that
they or any of them should not alien without the assent of the lessor,
and afterwards one aliened by his assent, and afterwards the other
two without license, and it was adjudged that in this case the condition
being determined as to one person (by the license of the lessor)
was determined in all. And Popham, Chief Justice, denied the
case in 16 Eliz. Eh^er, 334. That if a man leases land upon condition
that he shall not alien the land or any part of it, without the assent of
the lessor, and afterwards he aliens part with the assent of the les-
sor, that he cannot alien the residue without the assent of the lessor:
and conceived, that is not law, for he said the condition could not be
divided or apportioned by the act of the parties ; and in the same
case, as to parcel which was aliened by the assent of the lessor, the
condition is determined; for although the lessee aliens any part of
the residue, the lessor shall not enter into the part aliened by license,
and therefore the condition being determined in part, is determined
in all. And, therefore, the Chief Justice said, he thought the said
case was falsely printed, for he held clearly that it was not law. Nota,
reader, Paschas 14 Eliz. Rot. 1015 in Com' Banco, that where the
lease was made by deed indented for twenty-one years of three man-
ors, A. B. C. rendering rent, for A. £6, for B. £S, for C. £10, to be
paid in a place out of the land, with a condition of re-entry into
all the three manors, for default of payment of the said rents, or any
of them, and afterwards the lessor by deed indented and enrolled,
bargained and sold the reversion of one house and forty acres of
land, parcel of the manor of A., to one and his heirs, and after-
wards, by another deed indented and enrolled, bargained and sold
all the residue to another and his heirs ; and if the second bargainee
should enter for the condition broken or not, was the question: and
it was adjudged, that he should not enter for the condition broken,
because the condition being entire, could not be apportioned by
the act of the parties, but by the severance of part of the reversion,
it is destroyed in all. But it was agreed, that a condition may be
apportioned in two cases. 1. By act in law. 2. By act and wrong
of the lessee. By act in law, as if a man seised of two acres, the
14 CLASSIFICATION OF FUTURE INTERESTS (Part 1
one in fee, and the other in borough English, has issue two sons,
and leases both acres for life or years rendering rent with condi-
tion ; the lessor dies, in this case by this descent, which is in act in
the law, the reversion, rent, and condition are divided. 2. By act
and wrong of the lessee, as if the lessee makes a feoffment of part,
or commits waste in part, and the lessor enters for the forfeiture,
or recovers the place wasted, there, tlie rent and condition shall be
apportioned, for none shall take advantage of his own w^ong, and
the lessor shall not be prejudiced by the wrong of the lessee: and
the Lord Dyer, then Chief Justice of the Common Pleas, in the same
case, said, that he who enters for a condition broken, ought to be
in of the same estate which he had at the time of the condition created,
and that he cannot have, when he has departed with the reversion
of part: and with that reason agrees Lit. 80 b. And vide 4 & 5
Ph. & ]\Iar. Dyer, 152, where a proviso in an indenture of lease was,
that the lessee, his executors or assigns, should not alien to any person
without license of the lessor, but only to one of the sons of the
lessee: the lessee died, his executor assigned it over to one of his
sons, it is held by Stamford and Catlyn, that the son might alien to
whom he pleased, without hcense, for the condition, as to the son,
was determined, which agrees with the resolution of the principal
point in the case at bar. 2. It was resolved, that the Statutes of 13
EHz. cap. 10 and 18 EHz. cap. 11, concerning leases made by deans
and chapters, colleges, and other ecclesiastical persons, are general
laws whereof the court ought to take knowledge, although they are
not found by the jurors; and so it was resolved between Claypole
and Carter in a writ of error in the King's Bench. ^^
10 In Brummell v. Macpherson, 14 Yes. 173, the rule in Dumpor's Case was
applied Miere the license given was to__a_ssign the lease to a particular as^
sioliiiff. Lord Eldon .said: '"Though Duuipor's Case always struck me as
extraordinary, it is the law of the land at this date."
In I'ennoclv v. Lyons, 118 Mass. 92, the rule of Duiupor's Case was applied,
though, as is said in 5 Gray's Cases on Prop. (1st Ed.) p. 27, note 1, the pa-
pers in the case show that the condition was against assignment by the
lessee, and not against assignment by the lessee and his assigns.
A mere waiver, however, of the breach of a condition arising by reason of
one subletting is not equivalent to a license so as to make available the ap-
plication of the rule in Dumpor's Case. Doe d. Boscawen v. Bliss, 4 Taunt.
735.
In Doe V. Pritchard, 5 B. & Adol. 765, at 781, Patterson, J., apiiears to re-
gard the rule of Dumpor's Case as inapplicable where a license is given to
underlet as distinguished from assigning.
Where the landlord and the assignee mutually agree at the time of the
assignme nt, and in consideration of the landlord's consent to the asstgrrment,-
t hat the c ondition against any^urther assignment without permission shall not
be alsrogated, the condition "has'been held to be still operative and Tii»bn a
further assignment without permission a cause of forfeiture arises. Kew v.
Trainor, 150 111. 150, 37 N. E. 223 (1894).
For a criticism of the rule in Dumpor's Case, see 7 Am. Law Rev. 610.
For a criticism of the extension of the rule to a covenant in Eeid v. J. F.
Wiessner Brew. Co., 88 Md. 234, 40 Atl. 877, see 12 Ilarv. Law Rev. 272,
23 & 24 Vict. c. 38, § 6: "Where any actual Waiver of the Benefit of any
Ch. 1) EIGHTS OF ENTRY FOR CONDITION BROKEN 15
II. Waiver
PENNANT'S CASE.
(Court of Queen's Bench, 1596. 3 Coke, 64a.)
In an ejectione firman, between Harvey, plaintiff, and Oswald, de-
fendant, on a demise made 37 EHz. by John Pennant to the plaintiff,
of certain land in Ardeley, in the county of Essex, for three years,
from the feast of All Saints, ann. Z7 . The defendant pleaded, that
the said John Pennant was seised of the said land in fee, and anno
35, demised it to the defendant for ten years, yielding the yearly
rentjjf .£33 10s. at the feast of St. Michael, and tfiTe Annunciation of
our Lady; and that he was possessed, till Pennant ousted him, and
demised to the plaintiff, and he re-entered, &c. The plaintiff' replied,
and confessed the said lease, but further said, that the said lease was
on condition, that if the defendant, his executors_ or adjriimstjrator's,
at~ahy time witHout the assent of the said John JPennant, his heirs
orassigns, did grant, alien, or assign the said land or any part thereof,"
that then it should be lawful for tlie said Pennant and his heirs to
re-enter: and that the clcfcnd.int, anno 35, grcintcd to one Taylor
parcel of the said land lor six years, without the assent of Pennant,,
for*which he re-entered, and made the lease to the plaintiff, prout,
&c.
The defendant, by way of r ejoinde r, said, that before the re-entry
Pennant accepted the rent due at the feast of the Annunciation of our
Lady^after the assignment^ J3y_jhe. hands of the defendant Walter
Oswald. To whicli the plaintiff, by way of su rrejoinder , said that
Pennant before the receipt of the rent had no_notice of the said demise
t o Taylo r, on which plea the defendant did d emur in law : and Trin.
39 Eliz. it was adjudged for the plaintiff. And in this case these
p oint s wer e resolved :
1st. That the condition be in^ c ollateral, the breach of it might be so
secretly contrived, as to be impossible for the lessor to come to the
knowledge of it, and tlierefore notice i n this case is material and issu-
able, for otherwise the lessee would taTce advantage of his own fraud,
for he might make the grant or demise so secretly, and so near the
Covenant or Condition in any Lease on the Part of any Lessor, or his Heirs,
Executors, Administrators, or Assigns, shall be proved to have taken place
after the passing of this Act in any one particular Instance, such actual
Waiver shall not be assumed or deemed to extend to any Instance or any
Breach of Covenant or Condition other than that to which such Waiver shall
specially relate, nor to be a general Waiver of the Breach of any such Cov-
enant or Condition, unless an Intention to that Effect shall appear."
Note on what Amounts to an Assignment in Breach of a Condition not
TO Assign: (1) As to assignments by an administrator or an executor: Wil-
liams' Executors (9th Ed.) 809-811. (2) As to effect of dissolution of a part-
nership or assignment by one partner to the other, Varley v. Copi>ard, L. R.
7 C. P. 505 ; Corporation of Bristol v. Westcott, L. R, 12 Ch. D. 461.
IG CLASSIFICATION OF FUTURE INTERESTS (Part 1
day on which the rent is to be paid, as to be impossible for the les-
sor to have notice of it : but if a man makes a lease for years ren-
dering rent, on condition that if the rent be behind, that it shall be
lawful for him to re-enter; in that case, if the lessor demands the
rent, and it is not paid, and afterwards he accepts the rent, (before the
re-entry made) at a day after, he hath dispensed with the condition,^ ^
for there the condition being annexed to the rent, and he having made
a demand for the rent, he ^vell knew that the condition was broke :
but although in such a case he accepts the rent (due at the day for
which"TRe"demand was made) yet he may re-enter,^^ for as well before
araTter his re-entry, he may have an action of debt for the rent, on
the contract between the lessor and lessee,^ ^ and that was the first
difference betw^een a collateral condition and a con dition annexed t o
ren"t: Vide 45 Ass. 5.
""Tlie second difference was, that in case of a condition annexed to
rent, if the lessor distrains for the same rent for which the demand
was made, he hath thereby also affirmed the lease, for his distress for
the rent received; for after the lease determined he cannot distrain
for the rent. 14 Ass. 11. Accord.
The tliird was, that as well in case of a condition annexed to rent,
as in case of a condition annexed to any collateral act, _if_the^ conclu-
sion of tlie condition be, that then the lease for years shall be void ;
there, no acceptance of rent due at any day after the breach of the
condition w^ill make the void lease good. And so a diff'erence between
a lease which is ipso facto void w^ithout any re-entry, and a lease
which is voidable by re-entry ; for a lease which is ipso facto void
by the breach of the condition cannot be made good by any accept-
ance afterwards. Plow. Com. in Browning and Beston's Case, 133.
The fourtli was, as the affirmation of a voidable lease by parol for
money (oT other consideration) will not avail the lessee ; so the accept-
ance of a rent, which is not in esse, nor due to him who accepts it,
will not bind him ; as if land be given to husband and wife, and to the
heirs oT the body of the husband, the husband makes a lease for forty
years and dies, the issue in tail accepts the rent in the life of the wife,
and afterward the wife dies ; yet the issue shall avoid tlie lease ; for
at the time of the acceptance no rent was in esse, or due to him. Vide
32 H. 8, Br. Acceptance.
11 Accord: Goodright v. Davids, Cowp. ^.3 (1778). So a right of entry for
breach of condition is waived by the lessor bringing an action for rent ac-_
cruiug subsequent to the^i^eacli with knowledge of its existence. Dendy v.
Xit-TIoir; 4 C. B. N. S. 376.
But there can be no waiver by receipt of rent nr liy distres s of a cause of
forfeitui-e whore the forfeiture has been perfi'< tid lu'Tore the rent w as re-
ceived or the distress levied. .Tones v. Carter, l.^i M. & W. 71S; ToTnian v. Purt-
bury, L. K. 6 Q. B. 245; L. R. 7 Q. B. 344; Grimwood v. Moss, L. R. 7 C. P.
360.
12 Accord: Green's Case, Cro. Eliz. 3 (15S2) ; Price v. Worwood, 4 H. &
N. 512.
13 Hartshorne v. Watson, 4 Bing. N. C. 178.
Ch. 1) RIGHTS OF ENTRY FOR CONDITION BROKEN 17
The fifth was between a lease for Hfe and a lease for years, for in
the case of a lease for life, if the conclusion of a condition annexed to
the rent (or otTier collateral' act) be, that then the lease' shall be void,
there (because an estate of freehold created by livery, cannot be de-
temmed^before entry) in such case acceptance of rent due at a day
after shall bar the lessor of his re-entry, for this voidable lease may
well be affirmed by acceptance of rent : and therefore, if a man makes
a lease for years, on condition that if the lessee do not go to Rome,
or any other collateral condition, with conclusion that the lease shall
be void, in that case, if the lessor grants over the reversion, and
afterwards the condition is broke, the grantee shall take benefit
thereof; for the lease is void, and not voidable by re-entry; and
therefore the grantee who is a stranger, may take benefit thereof;
bj.it if the lease be made for life with such condition, there the gran-
tee shall never take benefit of it, for the estate for life doth not deter-
mine before entry, and entry or re-entry in no case (by the common
law) can be given to a stranger, 11 H. 7, 17 a, Br. Cond. 245; 10 E.
3, 52, per Stone ; 21 H. 7, 12 a. So if a parson, vicar, or prebend,
makes a lease for years, rendering rent, and dies, the successor ac-
cepts the rent, it is nothing worth, for the lease was void by his death,
otherwise is it of a lease for life: but if a bishop, abbot, prior or
such like, makes a lease for years and dies, if the successor accepts
the rent, he shall never avoid the lease, for the lease was only void-
able, 11 E. 3, Abbot, 9; 8 H. 5, 19; 37 H. 6b; 24 H. 8, Br. Leases,
19; F. N. B. 50 C.
But note, reader, I conceive that in the case of a lease for life, if the
lessor accepts the same rent which was demanded, he hath affirmed
t he lea se,^for_he cannot_receiye ijt as due on any contract, as in the case
of'a Tease for years, but he ought to receive it as his rent, and then
he^oTlr'affirm the lease to continue ; f Qr_vvhen he accepted the rent,
he could not have an action of debt for it, but his remedy then was
by assize, if he had seisin, or by distress, ^^nd therefore I conceive
in such case,^tlie acceptance of the rent shall bar him oniTs^re-entryT"
ancTit appears by Littleton, cap. Conditions, fol. 79 a, that in such case,
if the lessor brings an assize for the rent, he relinquishes, and waives
the benefit of his re-entry, although it be for the rent due at the same
day ; but if he re-enters first, then he mav have an action of debt for
the rent behind, 17 E. 3, IZ; 18 E. 3, 10; 30 E. 3, 7; 38 E. 3, 10.
And afterwards Mich. 39 and 40 Eliz. in the Common Pleas, which
plea began Hil. 38 Eliz. Rot. 1302, in trespass between March and
Curtis, for land in Essex, the like judgment was given by Anderson,
Chief Justice, there, Walmsley, Justice, and the whole court, where a
lease for years was made, rendering rent, and with condition that if
the lessee should assign his term, that the lessor might re-enter, and
the lessee assigned his term, that although tlie lessor had accepted
4 Kales Fbop. — 2
18 CLASSIFICATION OF FUTURE INTERESTS (Part 1
the rent by the hands of the lessee, yet, forasmuch as the lessor had
not notice of the assignment, the acceptance of the rent did not con-
clude him of his entry; so this point hath been adjudged by both
courts. See for the said differences (which lie obscurely in our books)
45 Ass. 5, the Case of Waste, 22 H. 6, 57; 6 H. 7, 3 b; F. N. B. 120,
122; Plow. Com. Browning and Beston's Case, 133, 545; 14 Ass. 11;
40 E. 3, Entry Congeable, 41 ; 11 H. 7, 17: 10 E. 3. 52; 21 H. 7, 12;
21 H. 6, 24; '39 H. 6, 27; 26 H. 8.
And in these two cases many good cases and differences were taken,
when acceptance of rent (or other things) shall bar him who accepts
it of the arrearages of the rent, of re-entry, of action, or of execu-
tion, and the reason of the old books briefly reported, and in an ob-
scure manner, well explained. If he who hath a rent-service or a
rent-charge, accept the rent due at the last day, and thereof makes
an acquittance, all the arrearages due before are thereby discharged :
and so was it adjudged between Hopkins and Morton in the Common
Pleas, Hil. Rot. 950, vide 10 Eliz. Dyer, 271, but there the case is left
at large; and therewith agrees 11 H. 4, 24, and 1 H. 5, 7 b. But note,
it appears by the said record of 10 El. that the bar to the avowry
ought to be in such case, with conclusion of judgment, if against this
deed of acquittance he ought to mal^e avowry ; so that it appears that
the acquittance is tlie cause of the bar of estoppel in such case. For it
appears by 8 Ass. pi. ult. ; 9 E. 3, 9; 29 E. 3, 34, that if a man makes
a lease for life rendering rent, or if there be lord and tenant by fealty
and rent, and the rent is behind for two years; and afterwards the
lessor, or the lord, disseises the ter-tenant, and afterwards the tenant
recovers against him in assize, and the rent, which incurred during
the disseisin is recouped in damages, yet the lord or lessor shall recover
in the assize, the arrearages before the disseisin; and the bar of the
latter years is no bar of the arrearages before. Vide 39 H. 6; Bar.
79, where the principal case of annuity may be good law, either be-
cause there the defendant pleaded the acquittance for the last day,
and demanded judgment of action, where he ought to have relied upon
the acquittance. Or because, in the case of annuity, he is not bound
to pay the annuity without acquittance ; but in the case of rent-service,
or rent-charge, he who receives it is not compellable to make an ac-
quittance, but the making thereof is his voluntary act, to which the law
doth not compel him.
If there be lord and tenant, and the rent is behind, and the tenant
makes a feoffment in fee, if the lord accepts the rent or service of the
feoffee, he shall lose the arrearages in the time of the feoffor, although
he makes no acquittance; for after such acceptance he shall not avow
on the feoffor at all, nor on the feoffee, but for the services which in-
curred in his time, as appears in 4 E. 3, 22 ; 7 E. 3, 8 ; 7 E. 4, 27 ;
29 H. 8, Br. Avowry, 111. But in such case, if the feoffor dies, al-
though the lord accepts the rent or service by the hand of the feoft'ee.
Ch. 1) RIGHTS OF ENTRY FOR CONDITION BROKEN 19
he shall not lose the arrearages, for now the lord cannot avow on
other, but only on the feoffee : and that, to which the law compels a
man, shall not prejudice him.
So, and for the same reason, if there be lord, mesne, and tenant,
and the rent due by the mesne is behind, and afterwards the tenant
doth forejudge the mesne, and the lord receives the services of the
mesne, which now issue immediately out of the tenancy, yet he shall not
be barred of the arrearages which issue out of the mesnalty: so, if
the rent be behind, and the tenant dies, the acceptance of the services
by the hands of the heir shall not bar him of the arrearages ; for in
these cases, although the person be altered, yet the lord doth accept
the rent and services of him who only ought to do them ; and all this
appears in 4 E. 3, 22; 7 E. 3, 4; 7 E. 4, 27; 29 H. 8, Avowry Br.
111. But acceptance of rent or services by the hands of the feoffee
shall not bar the lord of the relief before due, for relief is no
service, but a fruit and approvement of serv^ices ; for if it were part
of the services, then an action of debt would not lie for it so long as
the rent continues, but it is as a blossom of fruit fallen from the tree ;
and for relief, it is not necessary to avow on any person certain ; and
the book in 4 E. 3, 22, is to be intended, that the father made a feoff-
ment in fee by collusion and died : and there it is held, that if the lord
had accepted the services by the hands of the feoffee in the life of
the father, he should lose his relief.
But note, reader, relief was not taken within the equity of tlie
Statute of Marlebridge, as it is adjudged in 17 [27] E. 3, 63 ; but now
it is remedied by the Statute of 32 and 34 H. 8 of Wills. But in the
case before, the lord (before acceptance of the rent or service by the
hands of the feoffee) might have avowed on the feoffee for all the ar-
rearages incurred, as wt;ll in the time of the feoffor, as in the time of
the feoft'ee, as it is in 7 H. 4, 14; 19 E. 2, Avowry, 222. And by
what hath been said it appears, that the acceptance of homage or
any other service of the heir, shall not bar the lord of relief. Vid.
temp. E. 1, Relief, 13; 15 E. 3 lb. 5; 16 E. 3 lb. 10; 3 E. 2 Avow.
]^C)Q 14 * * *
1* Balance of case omitted.
20 CLASSIFICATION OF FUTURE INTERESTS (Part 1
DAVENPORT v. THE QUEEN.
(Privy Council, 1877. 3 App. Cas. 115.)
Appeal ^^ from an order of the Supreme Court of Queensland, dis-
charging a rule to set aside a verdict found for her Majesty, and to en-
ter a nonsuit or a verdict for Davenport, or for a new trial in an ac-
tion of ejectment brought in the name of her Majesty, on the fiat of
her Attorney-General for Queensland, to recover land in the Darling
Downs District in Queensland.
In 1868 her Majesty leased a tract of land to one Meyer for a term
of eight years, from September 23, 1867. The rent was to be paid
annually in advance, and on payment of the last year's rent the les-
see was entitled to a deed of the land in fee. Meyer transferred the
lease to Davenport, the appellant, in June, 1869, and Davenport to
D'Abedyll in 1870. Davenport was in possession as tenant to D'Abedyll
when this suit was brought.
]\Ieyer failed to cultivate or improve the demised premises within a
year from the date of the lease. The first question which arose was
whether this failure, under the provisions of the lease, made the lease
either voidable at the option of the Crown, or absolutely void, and if
so, which. The Privy Council was of opinion that the lease was void-
able at the option of the Crown. This part of the case is omitted.
Sir Montague; E. Smith. * * * The principal facts are undis-
puted. The rent payable on the 1st of January, 1869, was duly paid
into the colonial treasury, but there being no evidence that the Crown
was then made aware of the non-improvement, nothing turns upon this
payment. However, on the 1st of February in that year the surveyor
of the Darling Downs district, who had been directed by the Surveyor-
General to examine the allotments which had been leased, made a re-
port in which he stated that no cultivation or improvement had been
made, among others, in the allotment in question. A copy of this re-
port was sent in the month of June following by the Surveyor-General
to Mr. Taylor, the Minister for Lands of the colony. Mr. Taylor,
who was examined at the trial, deposed that having made himself ac-
quainted with the report, he laid it before his colleagues in the ministry,
and that the result of their deliberations was a determination not to
proceed for the forfeiture of the allotments, but to allow the future
rents to be paid. Mr. Taylor says he thereupon told the Surveyor-Gen-
eral to take no action on this report, adding, "we could not afford it."
Accordingly, Air. D'Abedyll paid the subsequent yearly rents in ad-
vance as they became due, viz., on the 1st of January in the years 1870,
1871, and 1872; and on the 31st of May, 1873, he paid in advance the
whole of the remaining rent accruing under the lease. He paid at the
same time the fees chargeable on the issue of deeds of grant.
IS Only part of tlie case is given, and tlie following short statement is sub-
stituted for that in the report.
Ch. 1) RIGHTS OF ENTRY FOR CONDITION BROKEN 21
It is not denied that the Minister for Lands was made acquainted
with these payments, nor that they were paid "as rent ;" and it cannot
be doubted that the minister knew they were so paid.
Two receipts given by the local land agent were produced, in which
the payments are described as "rents."
On the 23d of December, 1869, a notice headed "Payment of Rents
under the Leasing Act, 1866," was published in the Gazette. After
giving notice to lessees living at a distance from Brisbane that the local
land agents had been instructed to receive "the rents," it contains the
following note :
"The accompanying schedule contains all selections made under the
Leasing Act of 1866, excepting those which have been forfeited for
non-payment of rent. Rents which may be received upon such of these
selections as may have been forfeited by operation of law, will be
deemed to have been received conditionally, and without prejudice to
the rigHTof the Government to deal witli the same according to the pro-
visions contained in the Act in that behalf."
The schedule contained the name of the appellant (who was then
the assignee of the lease), the allotment No. 196, and the amount due
was described as "third year's rent, i40."
Similar notices were published in the Gazette on the 18th of Novem-
ber, 1870, and the 31st of October, 1871.
After the rent for the whole term of eight years had been fully paid,
and before the term of the lease had expired, and without an offer to
refund any part of the money, this ejectment was commenced.
The writ bears date the 16th of September, 1874, and alleges the ti-
tle of the Crown to have accrued on the 3rd of May, 1869, treating
the lessee and his transferees as trespassers from that date.
Upon the trial of the action, in which the above facts were admitted
or proved, the judge directed the verdict to be entered for the Crown;
one question only, which will be hereafter adverted to, having been left
to the jury. The principal points were reserved for the consideration
of the court, which, by the judgment under appeal, sustained the ver-
dict. * * *
If then the Crown could treat the lease as voidable, the further ques-
tion to be considered is, Efas it elected so to treat it and waived the for-
feiture ?
On this part of the case their Lordships have felt no difficulty. The
evidence of waiver seems to them to be clear and overwhelming. Not
only was the rent for three successive years accepted in advance, but
in 1873 the whole of the remaining rent accruing under the lease was
paid up in full. And these rents were received by the officers of the
Government, as appears by the evidence before set out, not only with
full knowledge of the breach of the condition, but in consequence of
the decision of the ministers of the Crown in the colony, come to after
mature deliberation, that the Government of the colony wanted the
money, and could not afford to insist upon the forfeiture.
22 CLASSIFICATION OF FUTURE INTERESTS (Part 1
It was sought to obviate the effect of these receipts by referring to
the passage contained in the "notification of rents due," set out above.
This notification appeared in the Gazette in three successive years, the
last year being as far as appears 1871. After that year the publication
was apparently abandoned. It is therefore very doubtful whether this
notification can in any way affect the acceptance in the year 1873 of
all the rent then remaining due.
But, supposing this notice is to be regarded as pointing to all future
rents, their Lordships think it would not prevent the acceptance of
these rents from operating as a waiver. The notification itself de-
scribes the payments as "rent," and their Lordships have no difficulty,
upon the evidence before adverted to, in coming to the conclusion of
fact, that the money was not only paid, but received as "rent."
A question of this kind received great consideration in the House of
Lords in Croft v. Lumley, 6 H. L. C. 672. In that case the facts were
much more favorable to the contention that there was no waiver than
in the present. Thejenant tendered and paid the rent due on the lease
after the landlord had declared that he would not receive ifa's rent un-
der an existing lease, but merely as compensation for the occupation of
thelan^. The opinion of all the judges, except Mr. Justice Crompton,
was that the receipt of the money under these circumstances operated
as a waiver.' Tn the present case the rent, as already stated, was re-
ceived as rent, with, at most, a protest that it was received conditionally,
and without prejudice to the right to deal with the land as forfeited.
Lord Wensleydale, who was disposed to agree with Mr. Justice Cromp-
ton in his conclusion of fact in the particular case, appeared to have no
doubt that when money is in fact received as rent, the waiver is com-
plete. A very learned judge, Mr. Justice Williams, gave his opinion
in the following terms : "It was established as early as Pennant's Case,
3 Rep. 64 a, that if a lessor, after notice of a forfeiture of the lease,
accepts rent which accrues after, this is an act which amounts to an
affifmance of the lease and a dispensation of the forfeiture. In the
present case the facts, I think, amount to this : that the lessor accepted
the rent, but accompanied the receipt with a protest that he did not ac-
cept it as rent, and did not intend to waive any forfeiture. But I am
of opinion the protest was altogether inoperative, as he had no right
at all to take the money unless he took it as rent ; he cannot, I think,
be allowed to say that he wrongfully took it on some other account, and
if he took it as rent, the legal consequences of such an act must follow,
however much he may repudiate them."
Without finding it necessary to invoke this opinion to its full extent
in the present case, it is enough for their Lordships to say that where
money is paid and received as rent under a lease, a mere protest that
it is accepted conditionally and without prejudice to the right to insist
upon a prior forfeiture, cannot countervail the fact of such receipt.
The finding of the jury that there was no waiver appears from the
notes of the learned judge who tried the cause to have been founded
Ch. 1) RIGHTS OF ENTRY FOR CONDITION BROKET"! 23
on his direction, "that the intention of the party receiving the rent, and
not of the party paying- it, must be looked at in considering the ques-
tion of waiver, and that unless the jury were of opinion that the rents
were received after the 23d of May, 1869, unconditionally and unre-
servedly, they should find no waiver." In their Lordships' view of
the law which has just been stated, this direction is erroneous. They
do not, however, deem it necessary to send down the case for a new
trial, because the question of waiver really depends on undisputed facts,
from which the proper legal inference to be drawn is, in their opinion,
clear. Even if the evidence of the receipt of the money as rent had
been less convincing than they have found it to be, they would have
hesitated to come to the conclusion that the ministers of the Crown
took this money wrongfully, and without any color of right, as they
would have done if it had not been accepted as rent.
Upon a review of the whole case, therefore, they are of opinion tliat
the verdict ought to be entered for the defendant.
In the result, their Lordships will humbly advise her Majesty to re-
verse the judgment of the Supreme Court, discharging the rule nisi of
the 11th of December, 1874, and, instead thereof, to direct that such
rule be made absolute to set aside the verdict found for the plaintiflF,
and to enter the verdict for the defendant, with costs.
The defendant (appellant) will also have the costs of this appeal.
DOE d. AMBLER v. WOODBRIDGE.
(Court of King's Bench, 1829. 9 Barn. & C. 376.)
Ejectment for a house in the city of London. Plea, Not guilty. At
the trial before Lord Tenterden, C. J., at the London sittings after
Hilary Term, it appeared that the lessor of the plaintiff was owner of
the house in question, which the defendant occupied under a lease, con-
taining a covenant that the tenant should not alter, convert, or use the
rooms thereof then used as bed-rooms, or either of them, into or for
any other use or purpose than bed or sitting rooms, for the occupa-
tion of himself, his executors, &:c., or his or their family, without the
license of the lessor in writing ; and the lease contained a clause of for-
feiture for breach of any covenant. The defendant had let part of
the house to a lodger, who occupied up to the time of the trial the
rooms specified in the covenant above set out ; but the lessor had, after
he knfew of such occupation, received rent under the lease : and the
only question was. Whether by so doing he had waived the forfeiture?
L ord Tenter den, C. J., thought there was a^ continuing breach as long
as the rooms were occupied contrary to the covenant, and directed the
jury to find for the plaintiff, but gave the defendant leave to move to
enter a nonsuit.
Denman now moved accordingly, and contended, that the receipt of
rent by the landlord was a waiver of the forfeiture. In Doe v. Allen,
24 CLASSIFICATION OF FUTURE INTERESTS (Part 1
3 Taunt. 78, ejectment was brought for a forfeiture incurred by carry-
ing on a trade prohibited by the lease. The defendant could not prove
any payment of rent after the business was commenced, but it appears
to have been admitted by the court that such proof would have been an
answer to the action. In Doe v. Banks, 4 B. & A. 401, the payment
of rent was held not to be a waiver, because the breach of covenant,
which consisted in ceasing to work a coal-mine for a certain period,
was not complete at the tinie of the payment.
Per Curiam. The c onversioi i of a house into a shop, is a breach
complete at once, and the forfeiture thereby incurred is waived by a
subsequent acceptance of rent. But this covenant is, that the rooms
shall not be used^ r certain purposes. There was, therefore, a new
breach of covenant every day during the time that they were so used,
of which the landlord might take advantage ; and the verdict, which
proceeded on the particular words of this covenant, was right.
Rule refused. ^^
16 Accord: Farwell v. Easton. 63 Mo. 446; Gluck v. Elkan. 36 Minn. SO,
30 N. W. 446 (keei> a stairway jopen); Bleecker v. Smith, 13 Weud. (N. Y.)
530 (to plant ajQple trees and I'eplace those destroyed); Jackson v. Allen, 3
Cow. (X~TT~220 (give unobstructed enjoyment of a way) ; Doe v. Gladwin,
6 Ad. & E. (N. S.) 9oo (51 Eng. Com. Law Rep.) ("insure and continue in-
sured") ; Doe V. Peck, 1 B. & Ad. 42S ("insure and keei) insured"). -- — ^■'
TiTBonniwell v. Madison, 107 Iowa, 85, 89, 77 N. W. 530, the Court said,
by Deemer, C. J.: "Moreover, while it is a general rule that no demand for
I)erformance [of covenant to maintain a fence] is necessary, yet where, as in
this case, there is an evident waiver of performance by defendant's immedi-
ate grantor, it seems to us that demand is necessary, before the right of
re-entr\' exists. See Merrifield v. Cobleigh, 4 Cush. (Mass.) 178 ; Bradstreet
V. Clark, 21 Pick. (Mass.) 389; Donnelly v. Eastes, 94 Wis. 390, 69 N. W.
157; Cory v. Corv, 86 Ind. 567; Royal v. Aultman & Taylor Co., 116 Ind.
424, 19 N. E. 202, 2 L. R. A. 526; Hurto v. Grant [90 Iowa, 414, 57 N. W.
899] supra."
In Crocker v. Old South Society, 106 Slass. 489, in Boston, the condition of
forfeiture of a pew, if the owner left the meeting house without first offering
the pew for a certain price, was held to be a continuing covenant, so that a
waiver of a breach occurring at one time did not pi'eveut the condition being
subsequently broken and a forfeiture enforcod.
In McGlynn v. Moore, 25 Cal. 384, a covenant to build within a given time
on the (Ietfllged"T?reihises was held not jo be a continuinLr covciumt. ~
On the Extinguishment of the Right of Entry for ConuYtion Broken
BY Limitation. — See Glb.son v. Doeg. 2 Hurl. & U. 615 (1857) ; Hooper v. Cum-
mings, 45 Me. 359; Scovill v. McMahon. 62 Conn. 378, 26 Atl. 479, 21 L. R.
A. 58, 36 Am. St. Rep. 350. See also McCue v. Barrett, 99 Minn. 352, 109
N. W. 594.
Note on Relief from Forfeitube in E quity. — Act 4 Geo. II, c. 28, § 2,
provided that a ianaiora in pla(^e 6T BiSllilllg' an-^entry for forfeiture for non-
payment of rent might serve a declaration in ejectment and that six months
after execution executed in the ejectment by the landlord against the tenant,
the tenant should be barred and foreclosed from all relief or remedy in eq-
uity against the forfeiture. Section 3 provided the terms upon which relief
in equity from the forfeiture for non-payment of rent would be given within
the six months. Section 4 provided for the termination of the ejectment suit
by the tender of rent or its payment into court and that if relief were given
to the tenant in e<iuity, said tenant should enjoy the demised premises ac-
cording to the lease without any new lease being made to said tenant.
For a similar statute in New York, see the provisions of the Code of Civil
Ch. 1) RIGHTS OF ENTRY FOR CONDITION BROKEN 25
Procedure, §§ 1504-1509, quoted Horton v. New York Cent. & H. R. Ck)., 12
Abb. N. C. (N. y.) 31-33.
It seeuis to have been assumed that the act of 4 Geo. II, supra, merely
regulated the manner in which equity was to exercise jurisdiction and was
not in the least necessary to confer that jurisdiction: Ilill v. Barclay. 18
Ves. 56, GO, per I^rd Chancellor Eldon ; Sanders v. Pope, 12 Ves. 282, 2S9,
per Lord Chancellor Erskiue. A similar view was taken of the New York
statute referred to supra. Horton v. N. Y. Cent., etc., R. R. Co., 12 Abb. N.
C. (N. Y.) 30, 40.
In various states of the United States, where no statute is in force, the ju-
risdiction of equity to relieve against forfeiture for non-payment of rent has
"been asserted. Abrams v. Watson, 59 Ala. 524 ; Little Rock Granite Co. v.
Shall, 59 Ark. 405, 27 S. W. 562 ; Wilson v. Jones & Tapp, 64 Ky. (1 Bush)
173; Lilley v. Fiftv Associates, 101 Mass. 432; Sunday Lake Mining Co. v.
Wakefield, 72 Wis. 204, 39 N. W. 136 ; Merrill v. Trimmer, 2 Pa. Co. Ct. Rep.
49. The same rule has been followed where the forfeiture was for non-pay-
ment of taxes and assessments. Giles v. Austin, 62 N. Y. 486.
In Sanders v. Pope, 12 Ves. 282, it was held that equity would relieve
against a forfeiture for the breach of a condition in not laying out a specific
sum in repairs, but this was doubted by Lord Eldon in Hill v. Barclay, 16
Ves. 401, and 18 A'es. 56, where it was held that equity would not relieve
against a forfeiture occurring because of the breach of a condition to keep
premises in repair.
In Hagar, Adm'r, v. Buck, 44 Vt. 285, 8 Am. Rep. 368, however, equity did
relieve against a forfeiture for the breach of a condition to keep the demised
premises in repair, where the breach had l)een waived up to a time immedi-
ately prior to the re-entry and the tenant had an option to purchase the fee
for $500 and tendered the sum and the rent due.
Equity will not in general relieve against a forfeiture founded upon the
breach: of a covenant not to assign or sublet. Wafer v. Mocato, 9 Modern,
llSTTTavies V. 3Toretou, 2 Cas. in Chancery, 127; Lovat v. Lord Ranelagh,
3 Ves. & B. 24, 31; or to insure: Rolfe v. Harris. 2 Price, 206; Reynolds
V. Pitt, 19 Ves. 134; White v. Warner, 2 Meriv. 459; Green v. Bridges, 4
Sim. 96. \Miere, however, the failure to insure was due to accident or mis-
take, and no actual damage had occurred to the lessor, relief was given in
equity. Mactier v. Osborn, 146 Mass. 399, 15 N. E. 641, 4 Am. St. Rep. 323.
26 CLASSIFICATION OF FUTURE IXTERESTg (Part 1
CHAPTER II
ESCHEAT AND POSSIBILITIES OF REVERTER
CO. LIT. 13b : And it is to be well observed that our author saith, if
he h ath no heir, &c., th e land shall escheat. In which words is impliea
a diversity (as to the~e"scheat) betweeiT f ee simple absolut e, which a
natural body hath, and fee simple absolute, which a bod\" poTTHc'iT r
inc orporate hath For if land holden of I. S. be given to an abbot and
his successors, in this case if the abbot and all the convent die, so that
the body politic is dissolved, the donor shall have against this land, and
not the lord by escheat.^ And so i f land be given in fee simple to a
de an and chapte r , or to a mayor and commonalty, and to their suc-
cessors, and after t:rirVM2ndy_j-in1ii-ir nr incorpo rate is disso lved, th e
don or sh all have agam the land, and not the lord by escheat. And
the^reason and the cause of this diversity is, for that in the case of
a body politic or incorporate the fee simple is vested in their politic
or incorporate capacity created by the policy of man, and therefore
the law doth annex the condition in law to every such gift and grant,
th at if such body politic or incorporate be dissolved, that the donor~or
g rantor shall re-enter, tor that the cause ol the gitt oTgrant'T aileth ;
b ut no s uch condition is annexed to the estate in fee simpTe~vesfed
in _any man in his natural capacity, but in case where the donor or
feoffor reserveth to hi m a tenure, and then the l aw doth imply a con-
diti on m law Dy way ot escheat. ^ Iso (as hath been said) no writ of
escheat lieth but in the three cases aforesaid, and not where a body
politic or incorporate is dissolved.
GR^, RULE AGAINST PERPETUITIES (2d Ed.) § 48: In
early times conveyances to corporations were generally gifts to ec-
clesiastical corporations, and gifts to ecclesiastical corporations were
usually in frankalmoign. U ^pn the dissolution of a corporation, land
held by it i n franka lm oign escheate d to the donor, f o r the donor w as
th e lord . Hence, one may suspect, arose the notion that on the dis-
1 Vid. tamen ilich. 20 Jac. C. B, Johnson and Morris, that it shall escheat.
Hal. MSS., which also cites 21 E. 4, 1, and 21 H. 7, 9. See further on this
subject, Godb. 211, and Mo. 283, which are with Lord Coke. But the case of
Johnson and >«orway, in Win. 37 [1022], which seems to be the same as that
cited by Lord Hale, is against the donor, though it is not mentioned in Winch
that the judges finally decided the point. See also contra Lord Coke, the
case of Southwell and Wade, in 1 Ro. Abr. 816 A, pi. 1, and s. c. in Poph. 91.
— IJaif/rave's Note ad loc.
Ch. 2) ESCHEAT AND POSSIBILITIES OF REVERTER 27
solution of any corporation all its land came back to the donor, the
fact being that what made this true in case of land held in frankal-
moign did not apply to land held on other tenures by corporations.
GRAY, RULE AGAINST PERPETUITIES (2d Ed.) § 50: But
t he notions w hich^Lori d TnWp impn<;pH upon h is hr^^^^i'^^" ''^i''^ Tint al -
ways long survive h is retirement. In Joh ns on v. Norway^ (1622)
arose thel^recise question whether, on the disso lution of ? rnrpnra-
tion^its land wenTl;o the dono r or~es c heated to the lord. Hobart, C.
J., said : "The great doubt^oF the case will be upon the barre of the
defendant, whether by the death of the abbot and the monks, the
land escheat to the lords of whom that was holden, or whether that
shall go to the donors, and to the founders, and he thought tliat the
land shall escheat, to which Winch seemed to agree." The report adds
that the Judges said they would advise of the case, and gave order to
argue it again; but Lo rd Hale's ]MSS.^ say that i t was held that the
la nd escheated . This is th e only English case in which the question
has been decided.
GRAY, RULE AGAINST PERPETUITIES (2d Ed.) § 13: (3)
Possibilities of Reverter . — Some est ates were term inab le by specia,l
or collateral limitations ; for instance, an estate to A. till B. return ed
from Rome ; or an estate to A . an d his heirs until they ceased to be
tenants~ot tlieHNIanor of Dale. On the happen ing of the contmgency,
the lebfifof was in ot his old estate without entry! The estate was not
rut sliort, as it wouldjT^yg , been hy entry tor breach of condition, bii t
expired by the terms of its original limitati on. After a life estate of
this kind a remainder~couldbe limited. After such a fee it has com-
monly been supposed that there could be no remainder ; but there was
a so-called possi bility of reverter to the feo ffor and his heirs which
w as not alienableT ~~ ~
§ 14. An estate in "f ee simple conditional," so called, was by
far the most common of these estates with special limitati ons. This
was an esLate to the d onee and tiie heirs of his bod_v (either 'all the
heirs of his body or some special class of them), with a provision that
on the failure of such heirs the land should revert to the donor and
his heirs. Sometimes this provision was expressed ; but, even though
not expressed, yet on a gift in frankmarriage, or simply to A. and the
heirs of his body, it was tacitly implied. If the donee of such an
pst ate had issue bnrn, then he ronlrl nlipnntp thp IqnH sn nd tn pncs a
f ee simple . If he never had issue born, or if he alienated before issue
bom, or if his issue, tliough born, had all died before there had been
2 Winch, 37. « Cited Co. Lit 13 b, Harg. note.
28 CLASSIFICATION OF FUTURE INTERESTS (Part 1
any alienation of the estate, then, on his death, or the subsequent fail-
ure of his issue, the land reverted to the donor and his heirs. This
4Axr^ possib ility of reverter was^^alienable ; but it could be released to the
ten" anr" of_j he fee simpl e_bonditionar There could be no remainder
after a fee simple conditional.
§ 18. In 1285, by St. Westm. II, 13 Edw. I, c. 1, De Donis Con-
di tionalibus, estates in fee simple conditional w ere turned into estate s
tail, the donor's possibility of reverter became a reversi on,"lind a re~
mam der could be created after the fee tai l as after a life estate. Tn-
terests were thus secured to future generations of a family, and, fail-
ing these, to the remainderman or donor, which could not be destroyed
by the tenant for the time being of the estate.
§ 19. By the gradual operation of (1) the doctrine of Co llater al
\yarranty; (2) the allowance, by the courts, of Common Recoveries as
a"Tneahs of barring estates tail ; and (3) the Statlites of Fines, 4 Hen.
VII, c. 24, and 32 Hen. VIII, c. 36, estates tail became alienable, and
the reversions and remainders after them destructible. The alienation
of estates tail is at present regulated in England by St. 3 & 4 Wm.
IV, c. 74, by which fines and recoveries were abolislied and simpler"
modes of assurance substituted. Wherever in any of the United
States estates tail have been preserved, simpler forms of conveyance
ha ye also generallv taken the place of fines and recoveri es.
§ 20. At com mon^Jj uv a tenant in fee could eithe r. (1) with the
consent of the lord, substitute another in his own place to hold the
fee of the lord ; or (2) by- subinfeudation, grant the land to be held of
himself. But the former mode could be employed only when the
feoffee was to hold the same fee that the feoffor had held ; and, there-
fore, when tlie feoffor conveyed a part only of his land the feoffee
had to hold of him ; and so, when the feoffor conveyed a life estate,
or a fee with a special limitation (e. g. to A. and his heirs, tenants of
the Manor of Dale), or (after the Statute De Donis) an estate tail, the
feoffee held directly of him. All reversions and possibilities of re-
verter were therefore always in the hands of the persons of whom
land was held; for though a reversion could be alienated, it carried
with it the lordship of the particular estate; and a possibility of re-
verter could not be alienated. Land in frankalmoigiialsocouT3!~not
be held of any one but the grantor.
§ 21. T he St. Wes ttn III, 18 Edw. I, c. 1 (1289)Jaio wn as th e
Statute Q uia Kniptor esTerrafiim, e nacts" thaton~an convevances~1n
fe e the tenaiTt"shall not hold of the grantor, but of ihe _£r^^^'^v''^ Inrr]^
THis put an end to subinfeudation. The Statute does not affect gifts
in tail or for life. We have here to consider its effects on the future
interests allowed by the common law.
§ 31. (3). Possibilities of Reverter. — These rights, as their name
implies, were reversionary rights ; but a reversionary right implies
tenure, and the Statute Quia Emptores put an end to tenure between.
Ch. 2) ESCHEAT AND POSSIBILITIES OF REVERTER 29
t he feoffor of an estate in fee simpl e and the feoffee. Therefore, since_
t lTe Statute, there can be no possibiHty of reverter j-emaining in the_
feoffor_u pon the conveyance of a fee ; or, in other words, since the
Statu te, th ere can be no fee with a special or colj ateraLlirnitntion ;,
and tlie attempted imposition of such a limitation is invalid. The
di stinction b etween a right of entry for condition broke n and a pos-
sibility of reverter is this • after the statute, a feoffor, by the fcottmen t,
su bstituted the feoffee for himself as his lord's tenant . By entry fo r
breach of condition, he avoided the substitution , and placed himself
in the same position to the lord which he had formerly occupied. The
right to enter was not a reversi onary right coming into effect on th e
te Tmination ot an estate, bu t was the right to substitute t he estate o f
the grantor tor the estate of th e grantee . A possi bility of reverter, on
the other n ana, did not wor k the substitution of on e estate for ah-^
oth erTTJut was e ssen ti?ilTy'a reversiona ryinterest, — a returning ot the
land to the lord of whom it was held, because the tenant's estate had
determined.
§ 32. In accord ance with the doctrine of the foregoing section, no
possibility ot reverter after a determinable fee has been sustained in
E ngland siiiLd L lltr"Statut e Quia Emptores.'* A fee simj)le subject to
a conditional limitation, that is, to a shifting use or executory devise,
is sometimes called a determinable fee ; but this is not technically
exact. A determinable fee is one subject to a special limitation; that
is, a limitation wli ich"~marks the original bounds ot t he estate, an"^
after which, m case of a fee, no other estate can be gra nted^ A con di-~
tional limitation, as the term is cominonly used, cuts off the first estate
an d introduces anothe r. An estate to A. and his heirs, tenants of tlie
Manor of Dale, is an assurance of a determinable fee. An estate to A.
and his heirs, but if he dies unmarried, then to B. and his heirs, is a
fee simple subject to a conditional limitation. Determinable fees were
good at rnmmnn law, but we re done away witlT by the Statute Quia
E mptores . ,CQ nditional ^li mitations were not good at common law ;
th ey were first introduced by the Statutes of Uses and ot Wills. "
4 But see Mott v. Danville Seminary et al., 129 111. 403, 21 N. E. 927 (1889) ;
Presbyterian Church v. Venable, 159 111. 215, 42 N. E. 836, 50 Am. St. Rep.
159 (1890) ; Miller v. Riddle, 227 111. 53, 81 N. E. 48, 118 Am. St. Rep. 2(>1
(1907) ; North v. Graham. 235 111. 178, 85 N. E. 267, 18 L. R. A. (N. S.) 624,
126 Am. St. Rep. 189 (1908).
5 See, also, Gray, Rule against Perpetuities (2d and 3d Eds.) §§ 774-788.
30
CLASSIFICATION OF FUTURE INTERESTS
(Part 1
/L
CHAPTER III
REVERSIONS. VESTED REMAINDERS AND EXECUTORY
INTERESTS
2 POLLOCK & MAITLAND, HISTORY OF ENGLISH LAW,
21, 22: Two technical terms are becoming prominent, namely, "re-
vert" and "remain." For a long time past the word " reverti" alternat-
ing with "redire" has been in use both in England and on the mainland
to describe what will happen when a lease of land expires : The lan d
w ill "come back" to the lessor . We find this phrase in those "three iTIe
leases" which Bishop Oswald of Worcester granted in King Edgar's
day. But occasionally in yet remote times men would endeavour to
provide that when one person's enjoyment of the land had come to an
end, the land should not "come back" to the donor or lessor, but should
"remain," that is, stay out for, some third person. T he verb ''reman -
e re" was a natural rontrast to the verb "reverti" or "redire": the land
is to stay out instead of coming bac k. Both terms were in common use
in~the England ot the thirteenth century, and though we may occasion-
ally see the one where we should expect the other, they are in general
used with precision. Land can only "revert" to the donor or those who
represent him as his heirs or assigns ; if after the expiration of one es-
tate the land is not to come back to the donor, but to stay out for the
benefit of another, then it "remains" to that other. Gradually the
terms "reversion" and "remainder," which appear already in Edward
I's day, are coined and become technical ; at a yet later date we have
"reversioner" and "remainderman."
When creating a life estate it was usual for the donor to expressly
say that on the tenant's death the land was to revert to him. But
there was no need to say this ; if he said nothing the land went back
to the donor who had all along been its lord. But the donor when mak-
ing the gift was free to say that on the death of the life tenant the
land should remain to some third person for life or in fee. As a mat-
ter of fact this does not seem to have been very common; but in all
probability the law would have permitted the creation of any number
of successive life estates, each of course being given to some person
living at the time of the gift.
WILLIAMS ON REAL PROPERTY (21st Ed.) 332, 333: If a
tenant in fee simple should grant to another person a lease for a term
of years, or for life, or even if he should grant an estate tail, it is evi-
dent that he will not thereby dispose of all his interest ; for in each case,
his grantee has a less estate than himself. Accordingly, on the expira-
Ch. 3) REVERSIONS AND EXECUTORY INTERESTS 31
tion of the term of years, or on the decease of the tenant for life, or on
the decease of the donee in tail without having barred his estate tail
and without issue, the remaining interest of the tenant in fee will re-
vert to himself or his heirs, and he or his heir will again become tenant
in fee simple in possession. T he smaller estate which he has so grante d
is called , during its continuance, the parti cular estate, being only a part,
or particula, of the estate in fee. And durmg the continuance of suclf
particular estate , the mteresT"or"the tenlint irTTee simple, which still
reirialns uncHsposed of — that is, his present estate, in virtue of which he
is to have again the possession at some future time — is called his re-
version. ■
If at the same time with the grant of the particular estate, he should
also dispose of this remaining interest or reversion, or any part thereof,
to some other person, it then changes its name, and is termed, not a
reversion but a remainder. Thus, if a grant be made by A., a tenant
in fee simple, to B. for life, and after his decease to C. and his heirs,
the whole fee simple of A. will be disposed of, and C.'s interest will be
termed a remainder, expectant on the decease of B. A remainder,
therefore, always has its origin in express grant: a reversion merely
arises incidentally, in consequence of the grant of the particular estate.
It is created simply by the law, whilst a remainder springs from the
act of the parties.
ID. 342: A remainder chieflv differs from a reversion in t his, — that
bet ^en the _qwner of t he particular estate and the owner oT the re-
maiiider (called the rema inderm an) no tenure exists. They both derive"
their estates trom the same source, the grariFoi the owner in fee sim-
ple ; and one of them has no more right to be lord than the other. But
as all estates must be holden of some person, — in the case of a grant
of a particular estate with a remainder in fee simple, — the particular
tenant and the remainderman both hold their estates of the same chief
lord as their grantor held before. It consequently follows, that no rent
service is incident to a remainder, as it usually is to a reversion; for
rent service is an incident of tenure, and in this case no tenure exists.
T he other point of diffp rpnrp hpt^'"^^r' a t-p-t^pT-ginn p ^nr] q r^t7''nindpr \Yf^
have already notice d, namely, that a reversion arises necessarily from
th e grant ot the particular estate being simply that part of the P'^tgt p
of the grantor wdiich remains undisposed of. but a remainder is alw ays
itself created by an express grant.
GRAY, RULE AGAINST PERPETUITIES (2d Ed.) § 113: Re-
versions. — All reversions are vested interests. From their nature they
are always ready to take effect in possession whenever and however the
preceding estates determine.
32 CLASSIFICATION OF FUTURE INTERESTS (Part 1
FEARNE'S CONTINGENT REMAINDERS, Vol. 1, p. 216: Tlie
present raparitynfJ^^"'" ?" effect in possession, if the possession were to
became" vacantrancT not the certainty that the possession will become"
vac ant before the estate limited in remainder determines, universall y
distmguishes a vested remainder from one that is contmgent.
WILLIAIMS ON REAL PROPERTY (21st Ed.) 345: But, if anjr
es tate, be it ever s o small, i s always read y^^om_jts commencement to
its end ^to come mto possession the moment the prior~estates^ be they
what they may, ha ppen to determine, — •i t'is then a vested r ema inder, and
recognised m law~ a s^an estate grantable by deed Itjvv oiiTd~b e~an estate ~
in possessi on". were~it not th atlo ther estates have aTprior claim ; and
their pri ority alone postpones, o r perha ps may entirely prevent posses2_
sion being taken by the remainc[erman7~ The gift is im mediate ; but the
enj oyment must necessarilv depend on the determination of the estates
of those who have a prior right to the possession.
GRAY, RULE AGAINST PERPETUITIES (2d Ed.) § 101 : _A
re mainder is vested in A., when, throughout its continuance, A., or A.
an d his heirs, have the right to the immediate possession, wlienever and
however the preceding estates may determine.^
LEAKE ON PROPERTY IN LAND (2d Ed.) 230, 231 : If a grant
be made to A. for life, and after the lapse of a day after his deatE t o BT
tor lite "oFTnTeeTthe limita tion t o 13. is not a Femaiiider, becauseltdoes
noTgommencejn pojsession _immecliately on the determinatioiTof the"
particular estatei _it i s a limitation of a" freeho l d estate to commence in
fut uro, which in a^mmq n law conveyance is void, and the reversion
of A.'s estate remains in the grantor .
1 See definition of vested remainders adopted by Mr. Justice Cartwriglit in
his opinion in Brown v. Brown, 247 111. 528, 93 N. E. 357, and that announced
by Mr. Justice Baker in ^Etna Life Ins. Co. v. Hoppin, 214 Fed. 928, 131 C.
C. A. 224, post, p. 136; also the distinction between vested and 'contingent
remainders as announced by Mr. Justice Dunn in Carter v. Carter, 234 111.
507, 511, 85 N. E. 292.
Theplain est case of a vested r emainder is where the^ l imitations are to
A- lor liTeT^ wlth remainder to B ^and hisnieTfs. Brown v. Brown, 247 HIT
52SnJ3nST~Er357 ; Deadman v. Tantis, 230 111. T43, 82 N. E. 592, 120 Am. St.
Rep. 291 ; Marvin v. Ledwith, 111 111. 144 ; Knight v. Pottgieser, 176 111. 368,
52 N. E. 934; Green v. Hewitt, 97 111. 113, 37 Am. Rep. 102; Clark v. Shawen,
190 111. 47, 60 N. E. 116 : Rickner v. Kessler, 138 111. 636, 28 N. E. 973. See
also Vestal v. Garrett, 197 111. 398, 64 N. E. 345; Nicoll v. Scott. 99 111. 529,
548 ; Sprinsjer v. Savage, 143 111. 301, 32 N. R 520 ; O'Melia v. Mullarky, 124
111. 506, 509, 17 N. E. 36 ; Barclay v. Piatt, 170 111. 384, 48 N. E. 912.— Ed.
Ch. 3) REVERSIONS AND EXECUTORY INTERESTS 33
Also a limitation whi ch ij to tak e eff ect in defeasance of a prece ding -<L-av
est ate,^ without waitin g forthe regu lar determination of that estate^a c-
co rdirfg to the te rms of its limita tion, is not a remainder ; and su ch a
li mitation is void at"^ ommonlawr^But the preceding particular eslate
may be made determinaEfe by a^conditional limitation, and the estate
limited to take effect in possession immediately upon its determination,
whether that happen under the conditional limitation or by the expira-
tion of the full term of limitation, is a remainder.
The particular estate and the remainder must be created at the same
tinie HSy one conve ya nce or instrument ; for if the particular estate be
first created, leaving the reversion in the grantor, any subsequent dis-
position can be effected only by grant or assignment of the reversion;
w'hich is not thereby changed into a remainder, but still retains its
character of a reversion, to which the tenure of the particular estate is
incident.
ID. p. 33: A feoffment rniglTiJie_made:ivitk_aiL express apprapLda-
tion of the seism to a series of estates in t he form of p articular_es-
tate and remamders, and" the livery to tlTelmmediate tenant was then
eft'ectual to tr ansf er~tlTe~^eisin to^rtm IJetia lT'oT ^ll jtlie tenants irij::e-
mainder','according to the estates limited. But future estates could
only be limited'nmie'^Torm'^ remainders, and any limitations operat-
ing to shift the seisin otherwise than as remainders expectant upon the
determination of the preceding estate were void at common law. Thus,
upon a feoffment, with livery of seisin, to A. for life or in tail, and
upon the determination of his estate to B., the future limitation takes
effect as a remainder immediately expectant upon A.'s estate. (Co.
Lit. 143 a ; Williams, Seisin, 67, 169.) But upon a feoffment to A. in
fee or for life, and after one year to B. in fee; or to A. in fee, and up-
on his marriage to B. in fee; or to A. in fee or for life, and upon B.
paying A. a sum of money to B. in fee, — the limitations shifting the
seisin from A. to B. at the times and in the events specified, as they
could not take eft'ect as remainders, were wholly void at common law.
(Co. Lit. 378, et seq. ; Fearne, Cont. Rem. 307.) Such limitations be-
came possible in dealing with uses and in dispositions by will, as will
appear hereafter.
The cxige nciesof tenure required that th f^ gpisin nr immprlintp fr^f-
ho lcT should never be~in abeyance but that tjiere_sho uld at all times be
a tenant invested w'ith the seisin read y, ^njhe one hand, to meet th e
clai ms oI"the lord for the duties and services of the tenure, and, on
the other hand, to meet ad verse claims to the seisin, and to preserve it
for tFe success ors in thelltl e^ (Butler's note (1), Co. Lit. 342b.)
Tins rule had important effects upon the creation of freehold es-
tates; for it followed as an immediate consequence of the rule, as also
from the nature of the essential act of con\eyance by livery of seisin,
4 Kales Prop. — 3
>/kj^x^
34 CLASSIFICATION OF FUTURE INTERESTS (Part 1
that a grant of the freehold could not be made to commence at a future
time, leaving the tenancy vacant during the interval. (Buckler's Case,
2 Co. 55a; Co. Lit. 217a.)
As a consequence of the same rule if a feoffment were made to A.
for life and after his death and one day after to B. for life or in fee,
the limitation to B. was void, because it would leave the freehold with-
out a tenant or in abeyance for a day after the death of A. (Fearne,
Cont. Rem. 307.)
GRAY, RULE AGAINST PERPETUITIES (2d Ed.): § 136.
Si^'inyin^- u>cs seem to lia\e lieen first recognized in Anon. (Bro. Ab.
Feoff, al Uses, 340, pi. 50) ( 1538 ), where a covenant to stand seised to
the use of B. on the performance of an act by B. was held to raise
the use on the happening of the contingency. (See Gilb. Uses (Sugd.
Ed.) 164, note. So Wood's Case, in the Court of Wards (1560), cited
1 Co. 99a; and see Mutton's Case, Dyer, 274b; 2 Leon. 223; Dal. 91 ;
Moore, 96, 376; 1 And. 42 (1573); Woodliff v. Drury, Cro. El. 439;
sub nom. Woodlet v. Drury, 2 Roll. Ab. 791, pi. 1 ('l595); Mills v.
Parsons, Moore, 547 (1595); Blackbourn v. Lassels, Cro. El. 800
(1600) ; Wood v. Reignold, Cro. El. 764, 854 (1601) ; Lewis, Perp.
57, 58.) 2
2 Accord: Eoe v. Traumer, 2 AYils. 75 (release to uses); Eogers v. Eagle
Fire Ins. Co., 9 Wend. (N. Y.) 611 (bargain and sale) ; Wynian v. Brown, 50
'Sle. 139, 151-159 ; Vinson v. Vinson, 4 111. App. 138, 140. See. also, Shackel-
ton V. Sebree, 86 111. 616 ; Latimer v. Latimer, 174 111. 418, 429, 430, 51 N. E.
5iS.— Ed.
"Is A Bar gain and Sale to a Person Not in Esse GoodV — It is clear
thaFk''h*^"OTHff'Tfi' "possession or reinauKlfc'r, nWy U6 I'UlsiM U3- bargain and
sale to one man, on a consideration paid li.v another. (Sharington v. Strotten.
Plowd. 298, 307. 2 Roll. Ab. 784, pi. 6, 7, 2 Inst. 672. Bucldey v. Simonds,
Winch. 59, 61. Case of Sutton's Hospital, 10 Co. 23, 34a.) In Gilbert on Uses
K (Sugd. Ed.) .398, it is said: 'If a man bargains and sells lands to one for lite,
^ (/t^ " then to his first son in tail, who is not yet born, it seems this is a good con-
tingent remainder, rising out of the estate of the bargainor; but 'tis said by
Newdigate (2 Sid. 158) that liy bargain and sale only, no contingent use can
be supported, it seems he means by the estate of the bargainee; but, qut^re,
whether it may not, ut ante, but It seems a feotfment or fine is the surest
way, and so to put it out of the power of the owner of the land to destroy
the future uses. Qu;ere, wliether the consideration given li y the pa rty in uses
w i 11 create a use tcT fl h e not i r u ^kse. ' To Ihls i iiissaue I he r^difor. Mr. gui^l i?Trr
has appenaed a note: 'It s eems clear that a contingent use to a person not
in esse cannot be ra isecTT^y a bargain and sale; bec iiuse of course rue m-
tend(Hl CcsLul que use caniiot pay a considei-ivFTon. aTiTl a cons ideration paid
by tlTe leiitiiiL I'ot' lire wouldn nt. it is (• (uicciveil . extend to tiie unburir~son7~
In t ill - same booU (i)Uge tn) (iiTbert says tliat a mTiu cannot in a l)argain and"
sale reserve to himself a power of making leases, because 'no uses will rise
without consideration, therefore not to the lessees ; for where the p(>rsons
are altogether uncertain, and the terms unknown, there can be no considera-
tion.' To this the editor adds in a note: 'But although a general power of
leasing cannot be reserved, yet a power may be reserved in a bargain and
sale to grant a lease to a person from or on behalf of whom a valuable con-
sideration moved at the e.xeeution of the deed.''~ (See also Sugd. Pow. [8th
Ed.] 1.38, 139.) In Sanders on Uses (2 Sand. Uses [5th Ed.] 62) it is said tliat
'if there be a bargain and sale for the life of the bargainee, with a power
Ch. 3) REVERSIONS AND EXECUTORY INTERESTS 35
§ 137. In Anon. (Bro. Ab. Feoff, al Uses, 339, pi. 30) (1152), there
was a feoffment to the use of W. and his heirs until A. paid a sum of
money, and then to A. and his heirs. It was assumed by all that this
was a good shiftinguse. (See Brent v. Gill^ert, Dal. Ill (1574) ; Brent's
Case, 2 Ceon. 14; Dyer, 340 a (1575); Manning v. Andrews, 1 Leon.
256 (1576); Bracebridge's Case, 1 Leon. 264; sub nom. Harwell v.
Lucas, Moore, 99 (1578); Stonley v. Bracebridge, 1 Leon. 5 (1583);
Smith y. Warren, Cpo. El. 688 (1599); Anon. Moore, 608; Anon. 13
Co. 48 (1609) ; s. c., semble, Jenk. 328; Sympson v. Sothern, Cro. Jac.
376; 2 Bulst. 272; sub nom. Simpson's Case, Godb. 264; sub nom.
Simpson v. Southwood, 1 Roll. R. 109, 137, 253 (1615); Allen's Case,
Ley, 55 (1617) ; Lewis, Perp. 58-60.) ^
§ 142. No difference on the score o f destructib ility was at first felt
to exist betwieprcmainders limited by way of use and conditional linii -
ta tions. In Brent v. Gilbert, Dal. Ill (1574), there was a feoft'ment
to" the use of A. and of such woman as should be his wife at his death,
for their lives, with remainders over. A. levied a fine, married B., and
died. The feoffees entered. It was held by the Court of Queen's
Bench that the entry of the feoffees revived the shifting use to B. The
same result would have followed had B. had a remainder limited by
way of use. In Brent's Case, 2 Leon. 14; Dyer, 340a (1575), the facts
were the same, except that it appeared that A., before levying the fine,
made a feoffment in which the feoffees joined. In the Common Pleas,
Dyer, C. J., Manwood, and Monson, JJ. (Harper, J., dissenting), held
that if the entry of the feoffees was necessary to revive the use, they
were debarred from entry ; and Dyer, C. J., and ]\Ianwood, J., thought
such entry was necessary. There is no indication that the opinions of
the judges would have been altered if B. had had a remainder instead
of a shifting use. Indeed it is said that B. "shall take by way of re-
mainder." (2 Leon. 16. See Dillon v. Fraine, Pop. 70, Id; 1 Sugd.
Pow. r7th Ed.] 13-15 ; and cf. Hoe v. Garrell (1591), cited in Pells v.
Brown, 2 Roll. R. 216, 220; Palm. 131, 136.)
for him to make leases, a lease made under that power cannot operate as an
appointment of the use to the lessee.' ^
" The statciiicnt of these eminent lawyers appears to have little support el- />~i*->^
ther in prnKijile or authority. As a cnnsidcration iiaid tiy one iH Tson can ^J
ra isH a use, and ^\\^\\ U luUire us^, toano tlier, tPere s^■en]s no IVHli^oii ull^-jt
shiUllil mil I'llli^e a Use lo a person not in e^i^^'G. — If the uesl ui k\\w iisse llll(!' to
prr?" or proillise tlie'Tonsiut'ratKm, rTiat w<*ni(l'lK' a reason for ri'ijuiriiii: him
to iDe in esse; but as the consideration can he paid or promised by a stran-
ger, tlie reason fails. A man may covenant to stand seised to the use of
r elatives not in esse, e. !!r'. m mfi hse of ti\^ (L'ovenanror's unliorn cliUdren. ^
(!:?ee Bolls v Winton. Xoy. Vl'l\ Mildmay's Case. 1 Co. 175, 170b, 177a -^War-
wlclc v. Gerrard. '1 Vern. 7; '1 Hayes. Conv. |.')tli Ed.l 89 et se<i. ; ,Sut,'d. I'ow.
[8th Ed.l 13.S. i:!9. But cf. Bradford v. (irillin. 40 So. Car. 408, 471, § 39Sa,
IK)st : 4 Kent. Com. 49(!.) A^d \\ w onhl >;eeni that if a use can l>e raised t_o
an unljoin person by a ( ^ o^•(:Mulllt to stand seised, it can lu^ ra-Laea-tii snch \tv x-
s on Dy a harpiin ana sale." (iray. Rule a'-^^unst Perpetuities (lid Ed.) g§ Gl7<S.
? Accord: Bryan v. Spires, I> Brewst. (,1'a.) 5S0. — £d.
36 CLASSIFICATION OF FUTURE INTERESTS (Part 1
SIR EDWARD CLERK'S CASE.
(Court of Queen's Bench, 1599. 6 Coke, 17b.)
In an assize by Parker against Sir Edward Clere, Knight, of lands
in the county of Norfolk, the case in effect was such. Clement Har -
wood seised of three acres of land, each of equal value, held in capite,
made a feo ffnient in fee of two of them tothe usej of his wife for h_e r
life7 tor hefjointure , and af terwards made a teottment by deed of tlie
thi rd acre, to the use of such person and persons, an d of such estate •
ahd'estates a s he should limit and appoint by his last will in writing,^
and at terwards by his last will in writing he devised the said third
acre to one in fee (under whom the plaintiff claimed ). And wheth-
er'this devise was good for all th e said third acre," or not, oT tor"
t^ vo" parts ot it, or void tor tlie whole, was the ques tion. And in
those cases four points were resolved by Popham, Chief Justice,
and Baron Clark, Justices of Assize of the said county, upon con-
ference had with the other Justices : U If a man seised of lands in fee,
makes a feoft'ment to the use of such person and persons, and of such
estate and estates as he shall appoint by his will, that by operation of
law the use doth vest in the feoffor, and he is seised of a qualified fee,
that is to say, till declaration and Hmitation be made according to his
power. Vide Lit. fol. 109 a. \V hen a m gn makes a fenft'ment to the
us e of h is last will, he has the use in the mean time , ^s I f in such case
^ th e'feoffor by his wilUimj ts estates according to his power reserved to
^ '«<'-»<j». hi m on the feoffment, there the estates shall take eft'ect by for c e of the
^^ f f^ t. ^ ' fe offment, and the use is directed by the wil l ; so that in such case the
, - will is but declaratory: b ut if in such case the feoft'or by his will in
i^-*''^^^ writing devises the land itself, as owner of the land, without any refer-
ence to his authority, there it shall pass by the w^ill, for the testator hacP
an estate devisable in him, and power also to limit an use, and he had
election to pursue which of them he would ; and when he jievi sed the
' _ la nd itself without any reference to his authority or power, he declared
U. Pfvw^ c^nA^^^f^ his int ent, to devise an estate as owner of the land. b"y his wa ll , and not "
f\ ^-^^.^^ ^ f- /jT^^vu**" t oTTmit ari use according to his authority; and in such case the land
if c^ r^^j-y^^^ , being held in capite, the devise is good for tw^o parts, a nd void for the
th ird pa f t. For as the owner of the land He cannot dispose of more ;
and in such case the devise cannot take effect by the will for two parts,
and by the feoffment for the third part: for he made his devise as
owner, and not according to his authority, and his devise shall be of as
much validity as the will of every other owner having any land held
in capite. 3. If a man makes a feoffment in fee of lands held in capite,
1 ^ to the use o^ his last wi ll, although he devises the land with ref erence
"TT*^ ^ <H^^tyC to~ttre feoffment, yet the will is void for a third part: for a fe o ffmeT\t
i\ Vr^ >c^*/^ to thengse of hi s will, and to _th e use ot h im and his heirs is all one . %
Irf the case at bar, when Clement Harwood had conveyed two parts to
^he use of his wife by'^ct"S3cecuted, he could not as owner~df tlie land
r
Ch. 3) REVERSIONS AND EXECUTORY INTERESTS 37
devise any part of the residue by his will, so that he had no power to
de\'Tse any part thereof as owner of the land and be cause he had not
el ected as m the case put before, either to lirniFTt'according ^ toETs
povrer, or to devise it as owner of the land (for in the case at bai%~Eav^
in^, ag mvner ot the land^onveyed two parts to the use of his wife ut
s upra) he could not make any devise (thereof) therefore the devise
o ught of necessity to enure as a limitation of an use, or otherwise the"
devise shall be utterlv void; and judgment was given accordingly for
the plaintiff for the whole land so devised. And afterwards on the
said judgment Sir Edward Clere brought a writ of error in the King's
Bench, sed non praevaluit, but the judgment was affirmed.*
GRAY, RULE AGAINST PERPETUITIES (2d Ed.) § 144: The
fi rst indic ati on of the idea t ha t a conditionaMimitation of a freehold
interest was'^indestr uctible appears in Smith v. Warren , Cro. El. 6^8
(1599): Irrthat case" a fine was levied to the use of the conusee and his
heirs on condition that he would pay an annuity to the conusor, and on
default of payment the land should be to the use of the conuser for
his life, and one year over. The conusee made a feoffment in fee ; the
annuity was not paid, and the conusor entered on the feoffee's lessee.
The Court of Common Pleas held that the feoffment had not destroyed
the use to the conuser, "for it is a charge or burden upon the land,
which goes along with the land, in whosesoever hands it comes. And
being limited to the conusor himself, Glanville [J.] conceived it to be a
condition unto him ; but if it had been to a stranger, to have arisen up-
on such a condition, the nonperformance thereof had been a springing
[or, as we should now say, 'shifting'] use unto him; for now it is mere-
ly a tie and charge upon the land, which is not destroyed by the feoff-
ment ; and although it be a future use, it may be well raised upon non-
performance of the condition; as it was adjudged in Bracebridge's
Case." [This is not Bracebridge v. Cook, Plowd. 416, as stated in the
margin, but Bracebridge's Case, 1 Leon. 264.] The springing jis e hprf^
was preser\-ed under circ umstances in which, according to Chudleigh 's
Case, a remamder limited by way of use would have been destroyed.
The fact that the use arose as a penalty tor breach of a condition in fa-
vor of the grantor seems to have had some influence — it is hard to say
precisely what — on the decision.
4 See Lord Eldon's remarks in Maundrell v. Maundrell, 10 Ves. 246. 254 et
seq. (1804), 263 et seq. (1S05), accord., disapproving Goodill v. Brigliam, l B.
& P. 192 (1798).
38 CLASSIFICATION OF FUTURE INTERESTS (Part 1
PELLS V. BROWN.
(Court of King's Bench, 1620. Cro. Jac. 500.)
Replevin for the taking of three cows at Rowdham. The defendant
justifies for damage fesant as in his freehold. The plaintiff traverseth
the freehold ; and, thereupon being at issue, a special verdict was found,
in which the case appeared to be, That one William Brown, father to
the defendant, being seised of this land in fee, having issue the defend-
ant, his son and heir, and Thomas Brown his second son, and Richard
Brown, a third son, by his will in writing devised this land to "Thomas
h is son and his heirs foreve r, paying to his brother Richard twenty
pounds at the age of twenty-one years ; and if Thomas died without is-
s ue, living \A^illiam his brother, that then William his brother sho iin
have those lands to him, and his heirs and assigns foreyer, paymg the
saicl sum as Thomas should nave~pOTdr" 'T nomas enters, aiTd suffers a
co mmon recovery, with a single voucher, to the use of h imselt and his"
heirs ; and afterwards d evises it to the wife of Ldward Pells , the plain-'
iv^ and her heirs ; and d ies witho ut issue, living the said William
Brown, who entered upon Edward Pells, and took the distress.
This case was twice argued at the bar, and afterward at the bench ;
and the matter was divided into three points.
First, whether Thomas had an estate in fee, or in fee-tail only?
Secondly, Admitting he had a fee, whether this limitation of the fee
to William be good to limit a fee upon a fee ?
Thirdly, If Thomas hath a fee, and William only a possibility to have
a fee. Whether this recovery shall bar William, or that it be such an
estate as cannot be extirpated by recovery or otherwise ?
As to the first, all the justices resolved, that it is not an estate-tail
in Thomas, but an estate in fee ; for it is devised to him and his heirs
forever ; and also paying to Richard twenty pounds ; both which clauses
show that he intended a fee to him. And the clause, "If he died wit h-
o ut issue." is not absolute and indefinite, whensoever he died withou t
is sue, but i t is with a contingency, "If he died without issue, living
William ; " tor he might survive William, or have issue alive at the
time of his death, living William ; in which cases William should never
have it, but is only to have it if Thomas died without issue, living
William. Vide 19 Hen. 6, pi. 74. 12 Edw. 3, pi. 8. 7 Co. 41, Beris-
ford's Case. 10 Co. 50, Lampet's Case. And therefore it is not like
to the cases cited on the other part, 5 Hen. 5, pi. 6, 37. Ass. pi. 15 &
16, and Dyer, 330, Clactey's Case ; for it is an exposition of his intent
what issue should have it, viz. of his body ; and whensoever he died
without issue, the land should remain, &c. But here it is a conditional
limitation to another, if such a thing happen ; and therefore they all re-
lied upon the book, Dyer, 124, and Dyer, 354, which are all one with
this case.
Ch. 3) REVERSIONS AND EXECUTORY INTERESTS 39
Secondly, They all agreed that this is a j^ood limitation of the f ee to
W illiam by way of that con tingency^jiot_by_,way_Q f immed iate remain-
der; for they all agreed it cannot be by remainder; as, if_one deviseth
land to one and his heirs, and if he die without heir, that it shall remai n
t o'another, it is void and re pugnant to the estate ; for one fee carinot b e
in jremainder after anothe r ; for the law doth not expect the determina-
tion of a fee by his dying without heirs, and therefore cannot appoint
a remainder to begin upon determination thereof, as 19 Hen. 8, pi. 8,
and 29 Hen. 8, Dyer, 33. B ut bv way of contingency, and by way o f
e xecutory devise to another , to deternnne the one estate and limit it To
another, upon an act to be performed, or in failure of performance
thereof &c., for the one may be and hath always been allowed: as de-
vise of his land to his executors to sell, if his heir fail of payment of
.such a sum at such a day, this is an executory devise. So the case cited
in B oraston's Case , 3 Co. 20, of Wellock and Hammond, where a de-
vise was to the eldest so n and heirs^pay ing such a sum to the voung er
s ons, otherwise that the land shoiiTd be to him an d his heirs, is a .gQod
executory_devise. And a precedent was shown, Trinity Term, 38 EHz.
RoTir867, Fulmerston v. Steward, where upon special verdict it was
adjudged, that whereas Sir Richard Fulmerston devised to Sir Edward
Cleere and Frances his wife, daughter and heir of the said Sir Richard
Fulmerston, certain lands in Elden, in the county of Norfolk, to them
and the heirs of Sir Edward Cleere, upon condition they should assure
lands in such places to his executors and their heirs, to perform his
will ; and if he failed, then he devised the said lands in Elden to his ex-
ecutors and their heirs; it was adjudged to be a good limitation and no
condition; for if it should be a condition, it should be destroyed by the
descent to the heir ; but it is a limitation, and as an executory devise to
his executors, who for non-performance of the said acts entered and
sold; and adjudged good. So here, &c., for it is a good executory de-
vise upon this limitation. And Doderidge said, the opinion 29 Hen. 8,
Dyer 33, was that such a limitation in fee upon an estate in fee cannot
be, and it had been oftentimes adjudged contrary thereto. _
To the third point, DodEridoe held, that this recovery should bar /9-A^>j> '^^^--^-yLf
William ; for he had b ut a possibili ty to have a fee ^nd (|uasi a contin-
ge nt estate, which is destroyed b y this recovery beforcit came in esse ;
for" otherwise it w ould be a niTschicvous kind of perp etuity, which
couTcl not by any means be dc sti oyed ^.\nd although it was objected,
thaFlPrecoVt'ry shiill not bar but where a recovery in value extends
thereto, as appears by Capel's Case, 1 Co. 62 a, where a rent-charge
granted by him in remainder was bound, yet he held, that this recovery
destroying the immediate estate, all contingencies and dependencies
thereupon are bound, and a recovery shall bind every one who cannot
falsify it; and here he who hath this possibility cannot falsify it, there-
fore he shall be bound thereby. But all th e other Justices were herein
a gainst h im , that iliis recovery shall not bind : tor he who sullered the
recover}^ had a fee, and William Brown had but a possibility if he sur-
40 CLASSIFICATION OF FUTURE INTERESTS (Part 1
vived Thomas ; and Thomas dying without issue in his Hf e, no reco very
in value shall exten d thereto^ mless he had been party 15y wayof
vouclie e,"and then it should ; forby entering into the warranty he gave
all his possibility; therefore they agreed to the case which Damport at
the bar cited to be adjudged, 34 Eliz., where a mortgagee suffers a re-
L U. jLJ" i«.«^ V. cover}'-, it shall not bind the mortgagor; but_i i he had been party by
/ua/v<r <r 'T-c«,«orT,-, way_ of voucher, it had been otherwise.^ And here is not any estate de-
H^ i^^. L^ ,6-1^' pending upon the estate of Thomas Bray, but a collateral and mere pos-
sjbi Hty, which sha ll not be touched by a recovery. And if such recov-
ery should be allowed, then if a man sliduld^evise, that his heir should
make such a payment to his younger sons or to his executors, otherwise
the land should be to them ; if the heir by reco ver y might avoi d it, it
would be very mischievoiis^_and _ might frustrate_all devis esj_and there
is no such mischief t liat^t_ should maintain perpetu ities^for it Jsjuit injT
particular case, and~upon a mere contingency, which jj eradventure nev -
e r may happen, and may b e a voided bvToining him in th e recovery wh o
hath such a contmgency : and, on the other part, it would be far m ore,
an3~a greater mischief, thaFaTTexecutory devises should by such means
be '^destroye cE '
Houghton, Justice, in his argument put this case: if a man give or
devise lands to one and his heirs as long as J. S. hath issue of his
body, he shall not by recovery bind him who made this gift, without
making him a party by way of vouchee ; for a recovery against tenant
in fee-simple never shall bind a collateral interest, title, or possibility,
as a condition or covenant, or the like ; wherefore they all (except Dod-
eridge) held that this recovery was no bar.
Then Do dj^ridge took exc ep tion to the v erdict,, t hat the lands were
not found to~^e hold en in soccag e ; for otherwise it might be in-
tencled to~be holden in knight's service ; and so it shall be intended ; and
then the devise is void for a third part : and so it was resolved 24 Eliz.
Dyer, that it ought to be shown that the land was holden in soccage,
otherwise the devise was not good for the entire. But all the Justices
held it not to be material (as this case is) ; for the issue is, whether it
were the freehold of William Brown, who is found to be heir tO' the
devisor. Then alth ough it were admitted tha Qhe land was held "by "
ki-u i^ht's servirPj yet ^p hath the entire ( viz. two parts by the devise,
and a third part by descent) : wherefore the tenure is not material, as
th is case is ; a ndjtjwas adjudged tor the deiendanf T""
6 Accord (where conveyance inter vivos) : Stoller v. Doyle, 257 111. 309, 100
N. E. 959 (1913).
But see Littlofield v. Mott, 14 R. I. 288 ; also Kron v. Kron, 195 111. 181, 62
N. E. S09 (the decision of which may bo supported on the ground that the
gift over was to take effect upon the first taker's intestacy) ; also Stewart
V. Stewart, 186 111. 60, 57 N. E. 885 (which may he supported on the ground
that the gift over was to take effect upon an attempted alienation by will
by the first taker).
« In tjie ^ following cases the court said that "a f ee c annot be lim ited after
S a feenj^ doed": Siegwald v. Sieg\\'ald, 37 111. 43074^5^; Summefs~vr^mttli7—
12TTTTr6557l>50, 21 N. E. 191 ; Glover v. Condell, 163 111. 566, 592, 45 N. B.
Ch. 4) CONTINGENT REMAINDERS 41
CHAPTER IV
CONTINGENT REMAINDERS
SECTION 1.— VALIDITY
WILLIAMS ON REAL PROPERTY (2Lst Ed.) 356-358*: The
simplicity of the common law allowed o f the creation of no other es -
tates than particular estates, to llowed by the vested remainders, whic h
hav e already occupied our attention. A conti n gent remainder — a re-
ma inder not vested, and \vhich never mip hf ^-o^t — w:^^ In^ ig regarde d
as illegal. Down t o the reign of Henrv VI not one instance is to be oA-v^-.A- /H/~o
found or' a contingent remainder being h eld valid. ^ The early author-
ities on the contrary are ratner opposed to such a conclusion.^ And,
173. 35 L. R. A. 360; Strain v. Sweeuy, 163 111. 603, 005, 45 N. E. 201;
Stewart v. Stewart, 1S6 111. 60, 57 N. E. 885; Kron v. Kron, 195 111. 181, 62
N. E. 809.
In the following cases the court said that by deed a fee cannot be limited
qnlTTee'hy wtiy of reitiainaer, or that there can be no I'emiTtTKtgr ^gTTer a
ves£ecliemainUer in lee: Peoria v. Darst, lUl 111. 609, 616, 619; McCaHp-
bellv: Mason, UjTTyC^OO, 509, 38 N. E. 672; Smith v. Ivimbell, 153 111. 368,
372, 38 N. E. 1029.
Jr. Morton v. Babb, 251 111. 488, 96 N. E. 279, where the limitations were
by deed to A. and his heirs, provided that, in case A. should die leaving no
issue, then the premises should revert unto the grantor and his heirs, the
court held that the grantor had a possibility of reverter after a determinable
fee.
A power created by d eed to appoint a new trustee i s valid. Morrison v.
Ke Hy, 22. i l l. 010, <4 Am. Dec. 1 69; Lake v. Brown, 116 111. 83 , 4 N. E. 773 :
Craft V. I., D. & W. Ry. Co., 166 111. 580, 46 N. R 1132; West v. Fitz, 109
111. 425, 442 (semble). I t would seem, al so, fbat rlnnsips i n depds p rnviflinir
f or the shitting of the legal tit le in fee from one trustee to a successor in
tr ust wirliout any aribOlntment were also valid . Equitable Trust Co. v.
Fisher, 106 111. 189 (semble) ; Irish v. Antioch College, 126 111. 474, 18 N. E.
768, 9 Am. St. Rep. 638.
* The notes are those of Williams. — Ed.
1 The reader should be informed that this assertion is grounded only on
t he author's researches. The general opinion appears to be in lavor ot the
an tinuit : ^ of contingent remainders, b ioe Third Report of Real Property uom-
mfssioners, p. 'za; i i^teph. <_om. (.srn Ed.) 615, n. (c). And an atteuipt to cre-
ate a contingent remainder appears in an undated deed in Mad. Form. Angl.
No. 535, p. 305. See, too. Bract, fo. 13a ; Fleta, fo. 179 ; Brittou (Ed. Nichols)
i, 231 and n. (k), and Introd. Ix-lxiii.
2 Y. B. 11 Hen. IV, 74, pi. 14, in which case a remainder to the right heirs
of a man who was dead before the remainder was limited was ht'ld to vest
by purchase in the person who was heir. But it was said by Ilankey, J.,
that if a gift were made to one for his life, with remainder to tlie right
heirs of a man who was living, the remainder would be void, because the fee
ought to pass immediately to him to whom it was limited. Note, also, that
in Mandeville's Case, Co. Litt. 26b, which is an ancient case of the heir of
the body taking by purchase, the ancestor was dead at the time of the gift.
The cases of rents are not apposite, as a diversity was long taken between
42 CLASSIFICATION OF FUTURE INTERESTS (Part 1
at a later period, the authority of Littleton is express, ^ that every
remainder, which beginneth by a deed, must be in him to whom it is
limited, before livery of seisin is made to him who is to have the im-
mediate freehold. It appears, however, to have been adjudged, in
th e reign of Henry \ 1, that it land 5 ti given 10 a man fOl liib life,
with remainder to the right heirs of another who is living, and who
afterwards dies, and tlie n the tenant tor lite dies, the heif of ttre
stf gTT^^ shall hav e thi s land ; and j ^t it was said that, at the time o f
the sfrant, the remainder was in a manner void.'* This decision ulti-
mately prevailed. And the same case is accordingly put by Perkins,
who lays it down, that if land be leased to A. for life, the remainder
to the right heirs of J. S., who is alive at the time of the lease, this
remainder is good, because there is one named in the lease (namely,
A. the lessee for life), who may take immediately in the beginning of
the lease.^ This appears to have been the first instance in which a
contingent remainder was allowed. In this case J. S. takes no estate
at all ; A. has a life interest ; and, so long as J. S. is living, the remain-
der in fee does not vest in any person under the gift ; for the maxim is
nemo est haeres viventis, and J. S. being alive, there is no such person
living as his heir. Here, accordingly, is a future estate which will
have no existence until the decease of J. S. ; if, however, J. S. should
die in the lifetime of A., and if he should leave an heir, such heir will
then acquire a vested remainder in fee simple, expectant on A.'s life
interest. But, until these contingencies happen or fail, the limitation
to the right heirs of J. S. confers no present estate on any one, but
merely gives rise to the prospect of a future estate, and creates an
interest of that kind which is known as a contingent remainder.'^
a grant of a rent and a conveyance of the freehold. The decision in H. 7
Hen. IV, 6b, pi. 2, cited in Archer's Case, 1 Rep. 66b, was on a case of a rent
charge. The authority of P. 11 Rich. II, Fitz. Abr. tit. Detinue, 46, which is
cited in Archer's Case, 1 Rep. 67a, and in Chudleighs Case, 1 Rep. 135b, as
well as in the margin of Co. Litt. 37Sa, is merely a statement by the judge
of the opinion of the counsel against whom the decision was made. It runs
as follows:
"Cherton to Rykhil — You think (vous quides) tliat inasmuch as A. S. was
living at the time of the remainder being limited, that if he was dead at the
time of the remainder falling in, and had a right heir at the time of the
remainder falling in, that the remainder would be good enough? Rykhil —
Yes, sir. — And afterwards in Trinity Term, judgment was given in favour
of ^Yad [the opposite counsel]: quod nota bene."
It is curious th at so much pains should have been taken b y modern
lawyers to e.'cpTanr tlie reasons whvji re niinnder tp the h jnr s ot a pefs oir-who
take5~rn''TTor'gyt7rfe^of freeTYoTd~sIibunriiu.LluiyA; be eirheldTo be a coiftlh gent
reiirrrrnTler C^.v T-V>al-iie, "C T^.'^?^^; sq.), wlien the construction adopted (subs e-
quenliy cnlN d tlic nulc in s^lnnTpy^iPngp) was flpoirlef l on before c ontingent
remainders xycrc alluwiMj^.
nCitt. § 721. 8ee, also, M. 27 Hen. VIII, 24a, pi. 2.
4 Year Book, 9 Hen. VI, 24a ; H. 32 Hen. VI, Fitz. Abr. tit. Feoffments and
Faits, 1)9.
5 Perk. § .52.
G 3 Rep. 20a, in Boraston's Case. Tl ie gift to the heirs of J. S^_has been
determined to be sulhcient to confer ah estate' in fee simple on the person
Ch. 4) CONTINGENT REMAINDERS 43
FEARNE'S CONTINGENT REMAINDERS, Vol. 1, pp. 3, 4:
A contingent remainder is a remainder limited so as to depend on an
event or condition, which may never happen or be ijerformed, or which
may not happen or be periormed t ill after the determmation of the
precedin g estat e ; for if the preceding estate (unless it be a mere trust
estate) determine before such event or condition happens, the remainder
will never take effect ; as will appear, when I come to treat of the
time when a contingent remainder is to vest.
ID., p. 9, Butler's Note (g) : All contingent remainders appear to
be so far redu ci ble under one head,TlTat they depend for their vesting on
the happening of an event, which, by possibilitv. may not happen dur-
ing jhe continuance of the preceding estate, or at the instant of its
determination. '
LEAKE ON PROPERTY IN LAND (2d Ed.) 233 : Bu t a renn ain-
d er ma y be li mited to a person not yet as certained, or to a certain per-
so n uijon a cotTclition precedent which may liorliirpT Jen luitil trfter-the
det ermination ofthe particular estate ^ and whilst such uncertainty
l asts, as to the person or the interest, it is describe d as a contingent
remainder.
ARCHER'S CASE.
(Court ot Queeu's Bench, 1599. 1 Coke, CGb.)
Between Baldwin and Smith, in the Common Pleas, which began
Trin. 39 Eliz. rot. 1676, in a replevin, upon a special verdict, the case
was such : F rancis Arche r was seised of land in fee, and held it in
socage, and by his will in writing devised the land to Robert Archer the
f ather, for his li feraTid aft erwards to the next heir male of Robert ,
and to the heirs male of the body of such next heir male ; K'fibprf harl
f ssue John, Francis died . Robert enfeoffed Kent with warranty upon
whom John entered, and Kent re-entered, and afterwards Robert died,
&c. At first, it was agreed by Anderson, WalmsklKy et totam cur',
that Robert had but an estate for life, because Robert h ad ^p pvprpgg
estate for life devised to him, and the r emainder is limited to the next
who may be his heir, without any additional limitation to the heh's of such
lieir! '!» .larni. Wills (4tli Ed.) CI. (i2. If. however, the trift lu' uia(Te~aTrT'r
t ITe~31st of Deoeinb er, is:;."., oi- by the wi ll Of a testator wlio shall hav e dieiT
afte r that day, tiie lano win ueseend. on the decease of the heir "uTfest ate.
iKy TTo his heir, but to the next heir ol .1. >^.. in the same manner as if .1. S.
bal l been tirst entitled to the estate . Stal. •'! cV: 4 Will. 1\. c. lUi;. § 4. Jf the
hetl's taKiii^" as imrcliasers under sucli a .!-'ift he female, they take as joiut
t eulints, and not li?^ conaiveiiois. — uweu v. uiuuums, lyui', 1 CH. ii^ii.
44 CLASSIFICATION OP FUTURE INTERESTS (Part 1
heir male of Robert in the singular number ; and the right heir male of
iTobert c annot enter for the forfeiture in the life of Robert, for he
c annot be heir as long as Robert lives . Secondly, that the remainder
to the right heir male of Robert is good, although he cannot have a
rf ght heir clurmg nis iit ej_but it i s sufficient that the remainder vest s
eo instanti t hat the particular estate determine s. And so it is agreed
in / Hen. 4, b h, and Cranmer's Case, 14 Eliz. Dyer 309 a. Thirdly
(which was the principal point of the case), it was agreed per totam
cur', that by the feofl-ment of the tenant for life, the remainder was
d estroyed ; for every contingent remainder ought to vest, either durmg
the particular estate, or at least eo instanti that it determines; for if
t he particular estate hf^ pnAaA^ nr d^t^r minprl ip fact, or in law, befor e
th e contingency falls, the remainder is void. And in this case, inas-
much as by the feoffment of Robert, his estate for life was determined
by a condition in law annexed to i t, and cannot be revived afterwards
by any possibility; tor this reason the contingent remainder is destroy-
ed, against the opinion ot Gascoigne m / Hen. 4, 'Z6 b. Eut it the ten-"
ant for life had been disseised, and died, yet the remainder is good, for
there the particular estate doth remain in right, and might have been
revested, as it is said in 32 Hen. 6. But it is otherwise in the case at the
bar, for by his feoffment no right of the particular estate doth remain.
And it was said it was so agreed by Popham, Chief Justice, and divers
justices in the argument of the case between Dillon and Freine [Chud-
leigh's Case, 1 Coke 120a, ante, p. 82,] and denied by none. See 11
R. 2, tit. Detinue, 46. And note the judgment of the book, and the rea-
son thereof, which case there adjudged is a stronger case than the case
at the bar. But note, reader, that after the feoffment, the estate for li fe
t o some purpose had continuance; for all leases, charges, &c.. made by
the tenant for life shall stand during his lite, but the estate is suppose d
to continue as to those only who claim by the tenant for life before the
f orteiture • but as to Ml Othel'iJ who d o not claim by the tenant for life
hi mself, the particular estate is determined : and by th e better opinion,
the warranty shal l bind the remainder, alth ough th e warranty was cre-
ate d bet ore the remainder attached or vested, and although the remain-
der was in the consideration of the law, and he who shall be bound by
it, never could have avoided it by entry, or otherwise; yet forasmuch
as the remainder did commence, and had its being by force of the de-
vise, which was before the warranty; for this reason it shall bind the
remainder; but the same was not unanimously agreed: and as the
feoffment of the tenant for life shall destroy the remainder, which was
in consideration of law, so, et a fortiori, the warranty of his ancestor
(by whom he is intended to be advanced) shall bind him. And in many
cases one shall be bound, and barred of his right by a warranty, who
could never have defeated it by any means, as in 44 Edw. 3, 30, and 44
Ass. p. 35. Lessee for life is disseised, to whom a collateral ancestor
of the lessor releaseth, and dieth, he shall be barred. Vide 3 Hen. 7, 9
Ch. 4) CONTINGENT REMAINDERS 45
a, and 33 Hen. 8, Br. Guarantee, 84, a feme covert, who cannot enter
nor avoid the warranty, shall be barred. So if tenant for life, the re-
mainder to the right heirs of J. S., had been disseised, and the disseisor
had levied a fine at the common law, the right heir of J. S. shall be
bound, and yet he could not enter nor make claim. B ut the point ad-
judged was, that by the feoffment of th e tenant for life, th e reiiiainder
was destroyed.'
■^ See, also, the following Americnn cases, where the life estate was pre -
ma turely term inated b.v a tortious feofFment inade or common recovery suf -
fef edby the TiTo tCTlMii r. and wliore In consefpiotiw tile contingent remaiiid er
wa r destr oyed: — WaTTTToll \. Kalluw, b Itawlo (i'a) i*:jl; ^tump v. FindlayT 2
RawIeTnrri^S, 10 Am. Dec. U32 ; Lyle v. Kichards, 9 Serg. & R. (Pa.) 322 ;
Abbott V. Jenkins, 10 Serg. & R. (Pa.) 296 ; Redfern v. INIiddletou's Ex'rs, Rice
(S. C.) 459 ; Faber v. Police, 10 S. C. 376 ; McElwee v. Wheeler, 10 S. C. 392.
In Bennett v. Morris, 5 Rawle (Pa.) 9, a remainder similar to that in
Archer's Case was held contingent and destructible. As to the character of
remainders to the heirs of a living person and the destructibility of such re-
mainders, see the following: Williams, Real Prop. (17th Ed.) 411, notes (d) and
(8); Digby, Hist, of the Law of Real Prop. (4th P:d.) 264-269 (translating case
from Year Books antedating 156S) ; Fearue, Contingent Remainders, 9; Chal-
lis, Real Prop. (2d Ed.) 120; Boraston's Case, 3 Co. 19b; Irvine v. Newlin,
63 Miss. 192. See. also, Bailey v. Morris, 4 Ves. Jr. 788; Frogmortou v.
Wharrey, 2 Wm. Black. Rep. 72S ; Mudge v. Hammill, 21 R. I. 283, 43 Atl.
544, 79 Am. St. Rep. 802; Hanna v. Hawes, 45 Iowa, 437, 440; Thurston v.
Thurston, 6 R. I. 296, 300; Jarvis v. Wyatt, 11 N. C. 227; Lemacks v.
Glover, 1 Rich. Eq. (S. C.) 141; Tucker v. Adams, 14 Ga. 548; Sharman v.
Jackson, 30 Ga. 224; Johnson v. Jacob, 74 Ky. (11 Bush) 646; Hall v. La
France Fire Engine Co., 158 N. Y. 570, 53 N. E. 513; ^IcCampbell v. Mason,
151 111. 500, 38 N. E. 672 ; JFAna Life Ins. Co. v. Hoppin, 249 111. 406. 94 N.
E. 669 ; .aitna Life Ins. Co. v. Hoppin, 214 Fed. 928, 131 C. C. A. 224, post,
p. 136.
Gray's Rule against Perpetuities (3d Ed.) § 921: "And this doctrine has
been repeatedly laid down and followed, as by Lord Northington in Car- C>w^>t*-J £i-y
wardine v. Carwardine, 1 Eden, 27, 34, where he says: 'It is a certain prin- ru.^ y
ciple of law, that whe rever such a construction can be put upon a limitation . ^■*'^»-*-w» ^-v
a s that it may take'~etl:cct py way or remainder, it sbp11 npvpv tnke ulac oiig ruUG^ fCi^ c^
a springing use t)^ ^-^^5"^^^o''y deyjse ;' by Lord Mansfield in Goodtifle"^ ^ ■ ^^ ^ *!
Biilington, Dougl. Too, 708; by ix)rd Kenyon in Doe d. Mussell v. JSIorgan, 3 '^■*'"^-»-t ^ ^ J
T. R. 763, 765, where he says: 'If ever there existed a rule respecting ex- / w' ^ ^'
ecutory devises which has uniformly prevailed without any exception to the ^^*2llZ—X. ^^"-^ ^Y^*^
contrai'y, it is that which was laid down by Lord Hale;' by Lord Ellen-
borough, in Doe d. Scott v. Roach, 5 M. & S. 482, 491, 492, where he says: ■
'As circumstances stood when the will was made the limitation to Mary
Dennett's children must have been construed a contingent remainder, not be-
cause the testatrix meant it to operate in that particular mode, that is, by
contingent remainder, nor because her intention would be most effectually
carried into effect by treating it as a contingent remainder, but because it is
a rule of law that no limitation shall operate by way of executory devise,
which, at the time of the testator's death, was capable of operating by way
of contingent remainder ;' by the Court of Common Pleas in Doe d. Planner
V. Scudamore, 2 B. & P. 289, 296, 297, 298 ; and by the Court of King's Bench
in Doe d. Herbert v. Selby, 2 B. & C. 926, 930. And Lord St. Leonards in
Cole V. Sewell, 4 D. <& War. 1, 27, says: ' Now, if t here be one rule of law
m ore sacred than another, it is this, that no UWirf lliaH Mtlilll I H4 ( ' li i im t i i ii ' il \ \\
bp~ f,ii t\\(MMit()rv or sldllili g use, wiucii can by jinssiliilitv fiilfn ■^"""••f by \^in y
o l,rein:iiu(lcr-7 — STC Pi'.tiuii. (T R. ..M-.,'jn: MbillTTExec. Int. 71, 72; Tbeob.
Wills (7th Ed.) 649; Wms. Real Prop. (22d Ed.) 386; 21 Law Quart. Rev.
129. See also Burleigh v. Clough, 52 N. H. 267, 273, 13 Am. Rep. 23; Hay-
ward V. Spaulding, 75 N. H. 92, 71 Atl. 219."
46 CLASSIFICATION OF FUTURE INTERESTS (Part 1
JOSHUA WILLIAMS, ON THE ORIGIN OF THE PRESENT
MODE OF FAMILY SETTLEMENTS OF LANDED PROPER-
TY, 1 Juridical Society's Papers, 45, 53 : C hudleigh's case was argued
/,'«.-yiJX, ^' i n th r ih t h 3-f ii ii f lln i ri ;^ n n f Qu rr n Elir a K rth (1 Rep. 121a); and in
the 39t h and 40th years of that reign the doctr ine there laid down was
conhrmed by the decision of Archer's case (1 Rep, bbb), ni which a teir^
i-Ti,
'""^'^ • a nF tor lite w^as held to have des inov ed by his feoffment a c ontingent
remainder to the next heir male of aperson then l iving! However;
notwithstanding these decisions, limitations to the use ot~"unborn first
and other sons successively in tail appear to have continued, of which
an example may be seen in a settlement dated the 20th March, 3 Jac.
1 (Harleian Charter, 83 H. 20), w'here limitations occur to the use of
the first male child begotten of the bodies of the husband and wife in
tail, with remainder to the use of the second, and so on down to the
fifth, followed by similar limitations to the use of the first female child
in tail, with remainder to the others down to the sixth. It was evident,
however, that, whilst these contingent remainders to unborn children
were liable to be destroyed by the feoffment of the tenant for life, there
was very little certainty in a settlement thus made, and a plan was ac-
cordingly devised for giying the free hold to trustees during the lite of
th e^atner upon trust to preserve the contingent remainders to his chil -
dren. It is said by counsel in the argument of the case of Garth v.
Sir John Hind Cotton (1 Ves. Sen. 524), that this plan was i nvented by
L ord Keeper Bridgman ; and Lord Hardwicke, in his judgment in the
/^♦f^cxxce^ same case, A. D. 1750, states, that the invention of trustees to preserve
contingent remainders was then about 100 years since ; and he subse-
quently states, that the limitation to trustees to preserve contingent re-
mainders took its rise from the determination of two great cases,
Chudleigh's case and Archer's case, though it was several years after
those resolutions before that light was struck out, and it was not
brought into practice amongst conveyancers till the time of the Usurpa-
tion; when probably the p roviding against forfeitures for what wa s
then c alled treason, and delinquency w.ns an additional motive tn it.
(1 Dicl<ens, 191.) There can be little doubt that these statements are
corre ct, and that Sir Orlando Bridgman, afterwards Lorrl Kee])er \y[T (^
may be called th e father of m oder n conveyancing, was in fact the in-
ventor ot tne method so long m use for preserving contin ^ ip-ent remai n-
(iers by means of a limitation to trustees for that purpose.
Ch. 4) CONTINGENT REMAINDERS 47
VAIZEY, LAW OF SETTLEMENTS, 1161, 1162: Immediately
after the limitation of the particular estate, upon the determination of
which the contingent remainder was expectant, and before the limita-
tion of that remainder, a limitation was inserted, of which the follow-
ing is an example :
And f rom and after the determination of the said estate so lim-
~ .
it ed to the said [ tenant for life] as aforesaid by forfeiture or oth-
erw ise in the htctime of tlie said [tenant for life]. To the use"of
the said [ten ant for life]. Upon trust to preserve the contingent
u s cs and es tates hereinafter limited from bemg deteated or de -
stFoyed, and tor that purpose to make entries and bring actions
as occasion shall require, but nevertheless to permit and suffer the
said [tenant for life] and liis assigns to receive the rents, issues
and profits of the same premises for his and their own use during
the term of his natural life. * * *
By a variation in its form it might be adapted to preserve remainders
dependent on contingencies which might not happen during the contin-
uance of the preceding estate for life. The ordinary use of the limita-
tion, however, was that for wdiich in the above-cited form it was adapt-
ed — the preservation of remainders which could only fail by means of
the destruction as distinguished from the natural determination of the
preceding estate.
REEVE V. LONG.
(King's Bench and House of Lords, 1695. 3 Lev. 408.)
Error of a judgment in ejectment in C. B. affirmed in B. R. where
on a special verdict in ejectment the case was this. John Long being
seised in fee devised the lands in question to Henry- Long , the eldest
son of his brother Richard, f or life ; the r emainder to his first son
in tail, remainder to all his o ther sons in the same manner , remainde r
t o Richard the lessor cf the plaintiff" for Ijie, remainder to his first
and all his other sons m tailj with divers remainders over, and dies.
Henry enters and was seise d, but before he has any son born dies,
leaving his wife great Avith child. Richard the lessor enters as in his
remainder; and six montlis atter the defendant, son of Henry, is born,
and his guardian enters foi him upon the lessor, who thereupon brings
ejectment, and the cause being t ried before Turton, Daron of the Ex-
chequer, this whole matter was found specially; and upon argume nt
m C. B. judgment w as by the whole court given for the plaintiff" for
two causes! 1. I'or t hat this being a contingent remainder to tne hrst
son of Henry, and he nor being 1)orn at the time the j^articular estate
de termined, it became voTcT Z. itie next in remainder being the
lessor, and he having entered before the birth of the first son of
Henry, he was in by purchase, and shall not be evicted by an heir born
48 CLASSIFICATION OF FUTURE INTERESTS (Part 1
afterwards, 5 E, 4, 6; 9 11. 7, 5, &c., whereupon the defendant brought
er ror in B. R., where the iudgment was affirmed by the whole court;
\vlTereupon he brings error in Parliament where the judgme nt was
re versed by almost all tlie Lords in Parliament, because it being a wil l
tlipy rnn<;trnpH ]t according to the intent and equity and meaning o f
t he part ies, which they said could never be to disinherit the heir of
the name and family of the devisor, nor would they do it on such a
nicety. But all the judges were much dissatisfied with this judgmen t
o f the Lord s, nor did they change their opinions thereupon, but very
m uch blame d Baron Turton fo r permitting it to be tound speciaJJ v
where the law was so clear and certam.
Levinz for the plaintiff in the ejectment.*
8 10 & 11 Wm. Ill, c. 16 (1699)— An act to enable posthumous children to
take estates as if born in their father's lifetime. Whereas it often hai>l>ens,
that by marriage and other settlements, estates are limited in remainder to the
use of the sons and daughters, the issue of such marriage, with remainders
over, without limiting an estate to trustees to presei've the contingent I'e-
mainders limited to such sons and daughters, by which means such sons and
daughters, if they happen to be born after the decease of their father, are
in danger to be defeated of their remainder by the next in remainder after
them, and left unprovided for by such settlements, contrary to the intent of
the parties that made those settlements: be it enacted by the King's most
excellent Majesty, by and with the advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament assembled, and by
the authority of the same, That W-here any estate already is or shall here-
after, by any marri age or other settlement, be limited in remainder to . or to
t he use of theT irstor otherson or sons of the body of any person lawfully
begotten, with any remainder"~or remainders over to, or to the use of any
other person or persons, or in remainder to, or to the use of a daughter or
daughters lawfully begotten, with any remainder or remainders, to any other
person or pers ons, that any sen or sons, or daugnter or daugtiters ot su cfi
peTSon o r persons lawf\ ill;^^J)ei ^tten or to be begotten, tnat sli a ll be born at ter
t he d ecease ot nis, her oi' their father, shall and may, by vn-tue ot sucn set-
tfeme liL, Luk e .such es tate so 'llmltgd" to the first and other sons, or to the
daughter or daughters, in the same manner, as if born in the lifetime of his,
he r or their father , although the;-e shall happen no estate to be limited to
trustees, after tne decease of the father, to preserve the contingent remainder
to such afterborn son or sons, daughter or daughters, until he, she or they
come in esse, or are born, to take the same; any law or usage to the contrary
in any wise notwithstanding.
II. Provided also. That nothing in this Act shall extend or be construed to
extend to divest any estate in remainder, that by virtue of any marriage or
other settlement, is already come to the possession of any person or persons,
or to whom any right is accrued, though not in actual possession, by reason
or means of any afterborn son or sons, or daughter or daughters not happen-
ing to be born in the lifetime of his, her or their father.
"It is singular that this Statute does not expressly mentio n limitations or
d evises n <r,<]<^ hy wills. i nerp is n rrnmnnn irmr ns fim nngo n\ ifoovo V-
Lo ng arose upon a will, the Lords considered the Inw to be settled by the i r
de Termination in tbat case; and were unwilling to mak e any e xpress rnentio n
of limTtations or devises ma de in wiUs, le st it should appear to call in que s-
ti on the authority or prOprK^tytrfttrg trileternunatiun."— -i?»^Zcr'a Note to (Jo.
LifTYUEa. ■
Ch. 4) CONTINGENT REMAINDERS 49
IVcr.^ A 1 T^e) <^r I c>^ '' Cor, cu rr tr,*~ ^o '\ *•' A^-^r^ ci C^
LODDINGTON v. KIME.
(Court of King's Bench, 1695. 1 Salk. 224.)
In replevin a special verdict was found, viz., That Sir Michael Armin
being seised in fee, devised a rent-charge, and then d evises the land to
A. for life "without impeachment of wast e ; and i n case he have any
i ssue male, then to such issue male and his heirs forever ; and if he'
di e without issue male, then to B. and his heirs foreve r." A. entered
and suffered a common recoverv', and died without issue. *~"
^__^_ M ' . —
1st question was, W'hether A. was tenant in tail by this devise? Pow-
ELL held the express esta te for life not d estro yed by the implication that
a rose on the latter_ word s followio o Tso that A. was only tenant f or
life, and the r atherTbecause these words, viz., impeachment of waste,
an dTor lite, must in that case be rejected , quod Trebv, C. J., conces-
sit. 23Ty! The CouRThe ld. that is^ue was to be taken here as nome n
s ingulare , because the inheritance was annexed and limited to the word
issue ; so that the inheritance was in the issue, and not in A. the father.
3dly. That this li niitation to the issue was not an executory devise, be - /• v •
ing after a freehold, but a contingent remainder, so that a posthumou s <c-^ ^'/ ■j
son could never take. 4thly! That the remainder limited to th e issue *^
ot A. was a confmgent r emainder in fee, and that the remainder to B .
was a tee also. But those tees are not like one fee mounted on anothe r ,
nor contrary to one anothe r, but two concurrent c ontingencies, of
wh ich either is to start according as it happen^ : so that these are re-
mainde rs contemporary and not expectant oneafter anothe r. ,5thTy.
The Court held that t he remainder in fee to B. was not vested, be - ^
c ause th e precedent limi tation to the issue of A. was a contingent fee : ^-*-<-rr ' '^ *^^ <^^/vO
and they took this ditterence, viz., Where the mesne estates limited
are for life or in tail, the last remainder may, if it be to a per.son
in esse, vest ; but no remainder li mit ed after a limitation in fee, ca n
b e vested . 6thly. That t he recovery suffere d bv A. had barred the
estate limited to his issue, that being contingent, and likewise the re -
m ainder limited to B. and his heirs, because that was contingent, not
vested, and now never could vest ; and that A. had gained a tortious
fee, \vliich wou ld be good against B. and his heirs, and likewise again st
alF persons but the right heirs of the devisor. _
Nota. — In the report of this case in 3 Lev. 431, it'is said, that tlie
Court were agreed to give judgment for the avowant upon the point,
that A. only took an estate for life, when Powell, J., started the other
point, whether the devise over to B. was only a contingent remain-
der, or an executory devise : Upon which it was afterwards twice
argued; but that, before any judgment given, the parties agreed and
divided the estate.
4 Kales Prop. — 1
_V^ 7 - '-— . J
50 CLASSIFICATION OF FUTURE INTERESTS (Part 1
FESTING V. ALLEN.
(Court of Exchequer, 1S43. 12 Mees. & W. 279.)
RoLFE, B.® This case, sent for the opinion of this court by his
Honor, Vice-Chancellor Wigram, was very fully argued in last Easter
and Trinit}- Terms. The authorities cited were very numerous, and it
was rather from a desire to look into them more attentively than it
was possible to do at the time of the argument, than from our enter-
taining much doubt in the case, that we took time before delivering
our judgment.
The question for our opinion arises on the will of Roger Belk,
which, so far as it is material to state it, is as follows: "I give and
devise unto George Allen, Thomas Youle, and John Gillatt, all and
every my messuages, lands, tenements, and hereditaments, both free-
hold and copyhold, and all my other messuages, lands, tenements,
hereditaments, and real estate whatsoever and wheresoever, to have
r>v and to hold the same unto the said George Allen, Thomas Youle, and
U^ihOoh^-^»^ t» John Gillatt, their heirs and assigns, to the uses, upbfi'ahd for fhe
i&^ ■ ffj" tmstsT intents, and purposes, and with, undei, and subject to the pow-
'^""^ cTa, provisions, and declarations hereinafter expressed and contained
of and concerning the same; ^** viz., to the use of my said dear wife
an d her assigns, for and d uring the term of her natural hte, it she
shall so long continue my widow and unmarried, without impeachment
of waste; and f rom and after her decease or second marriage, which
shall first happen, t o the use of my said granddaughter, iMartha Han-
n ah Johnson, and her assigns, for and during the term of her natur al
liTe, and from and after her d ecease to the use of all and ev ery the child
or childreiT ot her, tne said Martha Hannah Tohnson. who shall at- ~
ta rn the age ot twenty-o ne years, if more than one, equally to be divid-
ed amongst them, share and snare alike, to hold as tenants in com-
mon, and not as joint tenants, and to their several and respective heirs
and assigns forever, and if but one such child, then to the use of such
' one child, his or her heirs and assigns forever; and for want of an y
s uch issu e, then it is my will and mind , and I do hereby direct, that
my said trustees, and the survivor of tTiem, and the heirs and assigns
of such survivor, do and shall stand seised and possessed thereof, in
trust, a s_to on e equal half part or share thereo f, to permit an d suffer
A nn Joiin sonT^the wite ot my grandson ThomasTvoger ijelk Johnson,
or any otlier wife whom he may happen to marry, to receive and take
th e rents, issues, and profits thereof, for and during the t6rffl~ of her
n atural lite, t'or the maintenance and education ot all and every the
c iiiTd or cn ndr Lii of iii) ' said g r ands t Tn Tholius Rugei Delk Jul m-
9 Only the opinion is here Riven.
1 " The rule of destrnctibility of contingent remainders could not be in-
vokt'd \v n(M-(' th e interests were enultableT Astley v. Micklethwait, 15 Ch,
biv. ,j\) (lSf>{)). — ■
Ch. 4) CONTINGENT REMAINDERS 51
son [and from and after her decease, to the use of all and every the
c hi ld and children'^! nTy "said gr an dson,~Thomas K jj^^cr^Eelk JoFnso n^
lawfully begotten, who shall attain the age of twenty-one yearsT^
more than one, equally to be divided amongst them, share and share
alike, to hold as tenants in common, and not as joint tenants, and to
their several and respective heirs and assigns forever; and if but one
such child, then to the use of such one child, his or her heirs and as-
signs forever. A nd as to the other equal half part or sha re_thereof.
to stand seised and possessed thereof to th e use of the said Sarah
Rhodes, for and during the term of her natural life, and from and
after her decease, to the use of all and every the chiId~ or"childrerTror
th e said Sarah Rhodes, lawfully begotten, who shall attain the age
of twenty-one years, if more than one, to be equally divided amongst
chem, share and share alike, to hold as tenants in common and not
as joint tenants, and to their several respective heirs and assigns
forever."
Martha Hannah Jo hnso n survived the t estator's wddow, and after
his death, namely, m the year 1825, married Maurice Green Fest ing.
She di ed in 1833, leaving three infant children; and the main q uestion
is , whether those children took on her death any interest in the devised
e states .
W'e think that they did not. It was contende d on their behalf that
they took vested e states in fee immediately on the death of t heir moth-
er~ subject only to be devested in the e\ent of their dying under twent y -
one, and the case, it was said, must be treated as coming within the prm-
ciple of the decision of the House of Lords in Phipps v. Ackers, 3 CI.
& Fin. 703, and the cases there referred to. To this, howeve r, we
c annot acced e. -In all those cases there was an absolute gift to some
ascertamed person or persons, and the courts held, that words accom-
panying the gift, though apparently importing a contingency or con-
tingencies, did in reality only indicate certain circumstances on the
happening or not happening of which the estate previously devised
should be devested, and pass from the first devisee into some other
channel. The clear distinction in the present case is, that here there is
n o pit t'^ nny "^"^ •"•^'■"' '"''""^= ""^ nnnvpr tlip nrlmlp r>f tliP rPr jin-^i'tP H p-
s cription. The gift is not to the children of Mrs. Festing. but to the
ch ildren who sh all attain twenty-one, and no one who has not attaine d
his age of twen ty-one years is an object of the testat or's bounty,
any niore than a person who is not a child nf Afr^. I^Vsfirip^ Lven it
there were no authority establishing this to be a substantial and not
an imaginary distinction, still we should not feel inclined to extend the
doctrine of Doe v. Moore, 14 East, 601, and Phipps v. Ackers to cases
not precisely similar. But, in fact, the distinction to which we have
adverted in a great measure forms the ground of the decision in the
case of Duffield v. Duffield, 3 Bligh, N. S. 20, in the House of Lords,
and Russell v. Buchanan, 2 C. & M. 561, in this court; and on this
52 CLASSIFICATION OP FUTURE INTERESTS (Part 1
short ground our opinion is founded. We think that Mrs. Festing was
tena nt for hfe, with contingent remainders in fee to suc h ot her ch iP
d fgn as should attain twenty-one ; and as no child had attained
tw enty-one when the ])articular estate determined hv her dea th, the
re mamder was necessarily defeated . It is equally clear that all the
ot her limitations were d efea ted by the same event, namely the dcatH
o f ]\Irs. Festing leaving;- several infant children, but no child w ho had
th en attained the a^e of twenty-one year s. For the limitations to take
effect at her decease were all of them contingent remainders in fee, one
or other of which was to take effect according to the events pointed out.
If Mrs. Festing had left at her decease a child who had then attained
the age of twenty-one years, her child or children would have taken
absolutely, to the exclusion of all the other contingent remainder-men.
If on the other hand, there had at her decease been a failure of her
child or children who should attain twenty-one, then the alternative
limitations would have taken effect; but this did not happen, for
though she left no child of the age of twenty-one years, and there-
fore capable ot "takmg under tne devise in favor ot her children,
yet neither is it possible to say that ther e was" at her decease a failure
o f her issue who s hould attain the age oft wenty-one years 7jor_sKe
left three children,~all or any ot whom mTgh t and still m ay attain the
prescribed age ; so that the contingency on~ wHich alone~the alternative
limitationsw ere to take effect had not Happened when__ th£ particiilar
esta te deternimed, and those a lternative limitatio ns, all of which were
cont ingent remainders, were therefore "defeated^ On^liese
short grounds, we thinlc it clear, that neither the infant children of
Mrs. Festing, nor the parties who were to take the estate in case of
her leaving no child who should attain twenty-one, take any interest
whatever, but that on her death the whole estate and interest vested in
the heir-at-law.
We shall certify our opinion to Vice-Chancellor Wigram accord-
ingly/^
11 Accord: Bull v, Pritchard, 5 Hare, 567 (1S47) ; Holmes v. Prescott, .3.3 L.
J. Ch. 2G4 (1864) ; Rhodes v. Whitehead, 2 Dr. & Sm. 532 (1S65) ; Cunliffe v.
P.raiicker, 3 Ch. Div. 393 (1876); Irvine v. Newlin, 63 ISIiss. 192. Coutra:
Browne v. Browne, 3 Sm. & G. 568 (1857).
Ch. 4) CONTINGENT REMAINDERS 53
EGERTON V. MASSEY.
(Court of Common Pleas, 1857. 3 C. B. [N. S.] 338.)
CocKBURN, C. J.^^ I am of opinion that the defendants are entitled
to the judgment of the court. The action is brought to try the right
to property devised by the will of one Elizabeth Cdover, who died
seised in fee-simple. The devi se was to the testatrix's niece Eunice
Highfield, for life , with r emaincler to her children in such shares as sh e
should appoint, with remainder, in default of issue of Eunice, to her
n ephew, Peter Highfield, in fee . And the will contained a residuary
clause, whereby the testatrix gave and bequeathed a ll the residue and
remainder of her estate and effects, wdiatsoever and" wheresoever, not
thereinbefore disposed of, unto her said niece Eunice Highfield, her
heirs an d assigns forever . It appears that, after the death of the
testatrix, iiu nice Highfield by lease and release of the 1st and 2d of
October, 1832, c onveyed the premises in question to one Peter Jacksq n.
in fee; and the question is, whether that is a valid conveyance, or
whether the testatrix's nephew Peter Highfield, — Eunice Highfiel d,
the tenant for life, having d ied without issu e, — became entitled to
the estate. That question turns upon w hether b}'- the conveyance to
Jackson the life-est ate of Eunice Highfield became merged in the re\e r- '
sToh, so that, by the failure of the particular estate upon which t he
co ntingent remamder of Peter PJighfield depended, the rontin p; -ent "re-
m ainder was destroyed . 1 am of opinion that that is the true state of
things. The testatrix first creates a life estate in Eunice Highfield, and ^\__^^^^^^ c^^^^/x-ty^ "
then gives a c ontingent remainder to Peter Highfield, leaving the ^^"'<r.^__tu^ r 7^ ru^'K^
v ersion in fee undisposed of, except for the residuar}" clau se. It is -^ ^ ^
clear that the fee thus undisposed of must have remained somewhere, i
and that it was not the mere shadowy interest which Mr. Shapter by
his very ingenious argument sought to persuade us. The fee, then,
being somewhere, what would become of it? If it had remained
undisposed of, it would have gone to the heir-at-law of the testatrix.
But we find that t lie testatr ix by the residuary clause professes to dis-
p ose of it ; for she tliereby gives all the residue and remainder of her
estate not before disposed of, to her niece, in fee. If, therefore, the
fee did not pass — as, I think, it did not — by tlie creation of the con-
tingent estate, then it would appear to follow that i t must be include d
i n the residuary devis e, the words of which are large enough to em-
brace it; and, that being so, the ettect ot the conveyance ot i'661 was ,
to~~pass not only the life estate, but al so the reversion, and, by tlie ^^ i^iZo- '^ Aetx^^
merger ot the particular esi aie, on which the contingent remainde r
depe nded, in tne reversion, to destroy the contingent remainde r. The
only difficulty suggested upon this was, whether an estate of this kind
must not be made the subject of a specific devise. No authority, how-
12 The opinions only are here given.
54 CLASSIFICATION OF FUTURE INTERESTS (Part 1
ever, was cited for that proposition: and, prima facie, and upon the
reason of the thing, if a testator leaves the fee undisposed of by the
earher part of his will, and by a residuary clause professes to deal
with "all the residue and remainder of his estate and effects what-
soever and wheresoever, not thereinbefore disposed of," it follows as of
course that the fee passes by that. It was said, that, although this
would be so as to personalty, a different rule prevails as to realty ; but
no authority was cited in confinnation of that view : and we have the
authority of two very eminent conveyancers, — ^Ir. Preston and Mr.
Hayes, — who seem to take it for granted that all estates previously un-
disposed of by the will pass by the residuary clause. I am therefore of
opinion, that, there being this e state of fee in the testatrix , which, unless
disposed of, would ^i^rv^ljia-'^'^'^d t*^ ^""^^ ]'ifi''-^^'-^^''^'i and she having dis~
posed of it by the residuary clause in terms capable of passing it, ami
the estate tor lite and the reversion in fee being thus united in Eunic e
Highfield, and s he having conveyed the whole of her interest t o
P eter Jackson, the particular estate became merged in the fee, and
the contingent remainder in favor ot l^eter Highfield was consequent -
l y destroyed , l^or these reasons i think there must be judgment for
the defendants.
Williams, J. I am entirely of the same opinion. The learned coun-
sel who argued for the plaintiffs rested his case upon the position Ihat
the residuary clause m the will could not operate as a devise of the
reversion in fee, because it would be a violation ot the ruIe~of law
tli at a tee cannot be limited on a fe e^ The obvious m eaning ot that is,"
that, where an estate is so devised that the fee, whether absolute o r
deter rninable. is vested in the first taker, the subsequent dispositions
c a nn ot be good by wav of remainder, but must operate by way of exe c -
utory _ devis e. And that is reasonable, because, the fee having been
given and passed by the first devise, there is nothing further for the
subsequent limitations to operate upon. But that rule is wholly inap-'
plicable to a case like this, where all is in contingency, and the fee
is outstanding. If the fee be outstanding, where is it? It is clea r that
the notion of the fee being in abeyance cannot now^ be sustained :
see~Turetoy v. Rogers, Z Wms. bau'nd. 380, 2 LFv. 39, 3 Kebie, 1 1 ;
Plunkett V. Holmes, 1 Lev. 11, 1 Sid. 47, T. Raym. 28; Carter v.
Barnardiston, 1 P. Wms. 511; but the fee descends to the heir-at-
law, to let in the contingency if it happen s, i think it is clear, that, if
!J#-u) ^ '^-^A^*<K/\j th e will had con t ained no residuary clause, the fee w ould have de-
<^Cu<.» i,<t-4-< 'C sce nded to the heir-at^ law. The question, then, resolves itself intoTHI?,
/u«^,^' i<- iC*t' whether the residuary clause passes this reversion in fee, which but
"^^ for such residuary clause would teve'descended to the heir-at-law.
Some'lDassages have bcenTited "from the works of two very eminent
conveyancers, which treat it as quite plain that such an estate would
pass by a residuary clause. The estate for life did not merge in the
fee so long as both remained in the deviscg : Jjut they both became
Ch. 4) CONTINGENT REMAINDERS 55
united by the conveyance t o Peter Jackson. I therefore think the de-
fendant is entitled to our judgment.
The rest of the court concurring.
Judgment for the defendants. ^^
MOOT CASE.
X . devised Blackacre to A. (a bachelor) for lif e, and then_to A.'s
children in fee ; "but if A. dies without leaving anv children who sliall
att am twenty-one, then to B. in fee." A. was X.'s only heir at law .
lie , married after X.'s death and died intestate, leaving him surviving
on e child, M., who was A.'s only heir at law! M. died intestate betore
reaching the age of twenty-one, leaving X. his only heir at law. In
ej ectment, IJ. claims against N. ~
Kalks (amicus curiae), li. is entitled to recover. In all the cases of
contingent remainders which have been held destructible we have had
presented a situation where the future interest after a freehold was
limited upon an event which might happen before or at the time of
13 See Perceval v, Perceval, L. R. 9 Eq. 386 (1870), where It was held that,
where ccmtuigeiit remainders were destroyed by the failure of the remainder-
inan to reach a certain age before the termiuatiou of the life estate, the re-
siduary devise vested the fee in the residuarj- devisee.
In the following American cases, the contingent remainder was destroyed by
the termination l)y nTei'.Uor of lllc life estate before the conting ent remainder
w as rean\ lii lak e elTec't in lios ^^sjuir. Craig v. Warner, 5 ^fftr ckey (H j
D. C.) 4G0. GO Am. Rep. 381 (reversion conveyed to life tenant) ; Bennett
V. Morris, 5 Rawle (Pa.) 8; Bond v. Moore, 236 111. 576, 86 N. E. 386,
19 L. R. A. (X. S.) .540; Belding v. Parsons, 258 111. 422, 101 N. E. 570
(life estate and reversion conveyed to a third party) ; Barr v. Gardner, 259
ill. 256, 102 X. E. 287 (reversion conveyed to life tenant in one parcel and
life tenant conveyed to reversioner in another). Frazer v. Board of Super-
visors, 74 111. 282, must be distinguished on the ground that the contingent
remainder there involved was treated by the Statute on Entails.
. W here the life tenant took a life estate under a will and at once upon the
dea th" ot the testator hecanie invested with the reversion Tir~Tee ijy descent
pe iiding tlie tak ing eliect i >t" the contingent reniaiiitler. there was no inerL^ 'r
of t he lite esta r e and tlie reversjiin: rmnKet v. Ilohiies. 1 Lev. 11 (semble) ;
ChaFIis, Ke:ll Proj)." {2d Ed.) 12(1 : Fearne, C. R., 341 et so*] ; 3 Preston on
Conveyancing (3d Ed.) 51, 38s. 491. See, also, Kellett v. Shepard, 139 111.
433, 2.S N. E. 751, 34 N. E. 254. I n such cases the merger occurred only
w hen the o ne who was both life tenant an cT ie\ei lienor conveyed t o^STTPtrU
p a'j'l^ Lio Lk the liL'tJ ealate and the le^ei'StunT l^gerton v. -Mas.sey, 3 C. B. J^.
S. 338, supfii; — BwilH'LL V. ^t(>F ris, supra; Bond v. Moore, supra ; Beldr
Ing V. Parsons, supra ; 3 Preston on Conveyancing (3d Ed.) 489.
But see Dennett v. Dennett, 40 N. H. 498, and McCreary v. Coggeshall, 74
S. C. 42, 53 S. E. 978, 7 L. R. A. (N. S.) 433, 7 Ann. Cas. 693.
^^^lere an iindivided liart of the reversion is conveyed to the life tenant
a merger occurs, and the contingent remainder is destroyed to the extent of
the interest held in reversion and ctmwyed to the life tenant. Oump v.
Norwood. 7 Taunt. 362; Fearne, C. R., 310; Craig v. Warner, 5 Mackey (16
D. C.) 460, 60 Am. Rep. 381. See, also, 3 Preston on Conveyancing, 89;
Westcott's Case, 3 Co. 2, 60.
An executory devise does not mcrprp jp t^^, fap nUQn ^ which it is limited ,
though they l>elong to the same Person. Goodtitle vr"\N nite, lo East, 174
56 CLASSIFICATION OF FUTURE INTERESTS (Part 1
the termination of the particular estate, or afterwards. In the former
case the future interest took effect as a common-law remainder, with-
out any gap between the termination of the particular estate limited
and the contingent interest expressly limited. If the event happened
after the termination of the particular estate, and the future interest
still took effect, it would do so after a gap and by a process of cutting
short the reversion in fee which would have vested in possession be-
tween the time the life estate terminated and the time the future inter-
est expressly limited was ready to take effect in possession.
In thecase at bar the future interest in B., when cre ated, is limited
upon an even t which may happen at the ve ry time when A.'s life es-
tatelermiiiates by A.'s death, or it may happen after that time. In the
former cajg B.'s interest will take effect as a common-law remainde'r
witliout any gap between the lite estate expressly limired and the m-
tere st~e^^essly Imiited to B. Under these circumstances there can be
no cutting short by B. of any estate which has come into possession.
On the other hand, B.'s interes t might, if it took eft'ect as limited, do
so after A.'s life estate had termmafed and after a tuture mterest in
fee had vested in possessi on in the children of A. In thatcase B.'s
interest, it it took ettect, would do so as a shift ing executory intere st
cut ting short a previous estate in fee expres sly limited.
It is argued on behalf of N. that the tuture interest in B. in the case
at bar is as clearly destructible, if it must take effect as a shifting in-
terest after a fee expressly limited, as is the contingent remainder when
it must, by the termination of the particular estate before the contin-
gency happens, take eft'ect, if at all, as a springing future interest cut-
ting short a reversion in fee by operation of law and vested in posses-
sion. It is argued that when X. died A. had no child, and B.'s interest
was,' therefore, at that time capable of taking effect as a common-law
remainder vesting in possession at A.'s death. It is insisted that the
rule of the common law, as deduced from the cases of the destructibil-
ity of contingent remainders, is that if the future interest can possibly
take effect as such a common law remainder it must do so, and if after-
wards, as events turn out, it cannot do so, but must take effect as an
executory interest which would have been invalid under the feudal
land law, then it must fail entirely. It is claimed that a future interest
which, as it is created, can take effect as a remainder, must do so in
that way or fail entirely and that it logically makes no difference
whether the future interest fails to take eft'ect as a remainder because
the event upon which it is limited happens after the tennination of a
life estate with no other estate expressly created intervening, but only
a reversion in fee, so that the future interest would, if valid, be obliged
to take eft'ect as a springing executory interest, or because another fee
expressly limited does intervene, so that the future interest would have
to take effect as a shifting executory interest.
The weakness with these logical deductions is that they are based
upon an illogical premise. The adherence to the rule of destructibil-
Ch. 4) CONTINGENT REMAINDERS 57
it y after springing and shifting^ inj^erests were allowed and made in-
des tructible was^ Iogi(^rerror ._The rule that aTIuture inlerest.wHch
can take effect as a common law remaindef~must do^ so or fail entire ly
a'nd can never take effecr as a springi ng~e3cecutory devise or usej ^jio
more than a circumlocution announcing the rule of dest ructibility Tt
is, thereforeVequally a logical error. We may guess that the rule of
destructibility would never have obtained if the question had come up
after the validity of springing and shifting interests and their inde-
structibility had become established and the rule against perpetuities
promulgated. A rule of destruc tibility which is founded more upon a
pre j udice in favor ot feudal~rures than upon logic is norin a goo3 ~
posi tion at this day to msist upon its extension, accordingj othe strict-
est logic, to a case not actually covere d and determined Ijy authority.
FoT this reason the doctrme o± destructibility is held to b^ inapplicable
in the case at bar.^*
ut-u^i ^ ?^/- X-J^
8 & 9 VICT, c. 106, § 8 (1845) : That a co ntingent remai nder, ex-
is ting^'ar'any~timF"aTteF~nie~3TsF"of December, 1844, shall be, and, if
created before the passing of this act, shall be deemed to have been,
c apable of taking effect, notwithstanding the determination, by forfei-
tu re, sur render, or merger, of any preceding e state of freehold in the
same nianneT, in all resptctsT as it such determination had not hap-
penedT'"''
i4 But see Gray, Rule against Perpetuities (3d Ed.) § 338, note 3, and Chal-
lis V. Doe, 18 Q. B. 231, 7 H. L. C. 531, post, p. 536.
15 "In a note to tlie passage just cited [3 Dav. Conv. (3d Ed.) 267] refer-
ence is made to a suggestion that tlie provision in 8 & 9 Vict. c. 106, § 8, pro-
tecting contingent remainders from failure by the forfeiture of the preceding t<^ /«-<x C*^
estate of freehold, is not confined to forfeiture in consequence of any of the
ordinary causes of forfeiture, but also protects the contingent remainders in
the event of the life estate determining under a provision in the instrument
creating the limitations, such as a shifting clause. Tliis view is, it is said,
favoured by the circumstance that otherwise the word 'forfeiture' would be
without meaning, since the liability of a life estate to forfeiture by tlie act
of the tenant for life has ceased altogether with the abolition by the same U^ ^^uZ tfyo irV^
act of the tortious oi>eration of a feoffment. Id. 268, note (u). The writer, ' '
indeed, afterwards adduces a reason against the conclusion to which he ad- '"^-C ^f-LJ^-r^ iv-»^
verts, and seems inclined to approve. But the reason he advances in its fa- ^^ , » __
vour seems to he grounded on a misapprehension. Forfeiture by the act of *'*'^/*-^ **^
a tenant for life did not cease to be possible with the enactment depriving (v*v»*.u»i ' Lr^ LiJC'
feoffments of their tortious operation. A life estate was formerly liable to f^^/#»-*^
forfeiture not only by means of a conveyance executed by the tenant and op- '^ "■^-4-t^.wv-i^ .
erating by wrong, but also for various other acts by him. 2 Blk. Com. 267, '
268. Though not all of these were still operative at the time of the passing
of the act of 1845, yet f orfeiture for treason and felony conti nued until 1870,
and then from its abolition forfeitur e tor oUtlaAVfy'was'excented . 33 & 34
Vict. c. 23, § 1.
"T he act of 1845 did not afford any support to such continge nt remainder s
as were de peiTdrrrtr'O'nT m e v e n t -wlitrh iTiighf Tfor happen until a lter the
natural tcrnnnalion ot the proaHiing estate nf frochold. i''esting v. Allen, 12
M."Sc W. 2'«y; Ke ytyan, Johns. 3S7 : Holmes v. I'rescott, 10 .Jur. (N. S.) 507 ;
33 L. J. Ch. 264; Rhodes v. AVhitehead, 2 Dr. & Sm. 532; Perceval v.
Perceval, L. R. 9 Eq. 386; Price v. Hall, L. R. 5 Eq. 399; Brackenbury v.
58 CLASSIFICATION OF FUTURE INTERESTS (Part 1
In re LECHMERE and LLOYD.
(Chancery Division, 1881. IS Ch. Div. 524.)
Adjourned Summons.
Elizabeth Williams, widow, being seised of a farm called Pistill, in
the county of Radnor, by her will, made in 1846, shortly before her
death, devised the same as follows :
"I give and devise the said farm, lands, and hereditaments, unto and
to the use of my granddaughter, El i zabeth Eckley, and her assigns
du ring her lif e, without impeacliment^f waste ; and from and aft er he r
d ecease I give and devise the same to such children of the said Eliza-
beth Eckley living: at her death, and such i^^sue then living of her cliil-
f^pe.-^t" ■ dre n then de ceased, as either before or after her decease shall, being a
<v-^->.. r / '' "*^^ male or mal es, attam the age of twenty-one years, or. beingf a female or
Cf oJc^dy^^ females, attain that age or marry, in fee simple, to take, if more than
Ctt ■ ' X- 1 *^(fw ^^^^> ^^ tenants in common, according to the stocks, and not according
T^ ' to the number of individuals ; and if there shall be no such children or
). .. t ^^rt vv-^ issue," t"hen over.
Elizabeth Eckley married Thomas Lechmere, and d ied in 1879, leav-
ing seven children, of whom five had attained t wenty-on e at the time of
her death, and two, a son and a daughter, were infants, the daughter
being also a spinster.
There was no issue of any deceased child.
The five adult children having enter ed into a contra ct for the s ale^ of
the ?arm,'the question arose, upon an ohjecfion by the purchasers,
whether these five children could make a good title to the entirety of
the property; and whether all the seven children did not take vested
interests in remainder as tenants in common, subject, as to the shares
of the two infant children, to be divested in case of their dying under
age.
Gibbons, 2 Ch. D. 417 (but see In re Lechmere and Lloyd, 18 Ch. D. 524;
Miles V. Jarvis, 24 CTi. D. 633) ; Cunliffe v. Brancker, 3 Ch. D. 303 ; Astley
K. Micklethwait. 15 Ch. D. 59. Wherever, therefore, until after the passing
of the act next referred to, such remainders were limited, it was necessary
to limit estates to trustees to preserve them." Vaizey on Law of Settlements,
1163, 1164.
In some American states the contingent remainders act which exists is of
partial effect only, like the Statute of 8 «& 9 Vict, supra: Maine. Rev. St.
1871, c. 73. § 5; Massachusetts, Rev. Laws (1902) e. 134. § 8. The acts in
both these states antedate the English Contingent Remainders Act of 1845.
The Massachusetts act appears in R. S. 1836, c. 59, § 7; the Maine act in
R. S. 1841, c. 91, § 10.
In South Carolina (1 Rev. Stat. 1893, c. 66; Code of Laws 1902, vol. 1, §
2465) the act goes no farther than to provide that a contingent remainder
shall not be "defeated by feoffment with livery of seisin."
In Texas the statute goes no farther than to provide that the remainder
shall not be defeated by the alienation of the particular estate, either by deed
or will, or by the union of such particular estate with the inheritance by
purchase or descejit. Batts' Ann. Civ. St. 1897, § 626.
Ch. 4) CONTIXGENT REMAINDERS 59
The question was raised for the opinion of the court upon a sum-
mons taken out by the purchasers under the Vendor and Purchaser
Act, 1874.
Jessel, M. R. I am sorry there is a report of such a case as Brack-
enbury v. Gibbons, 2 Ch. D. 417, because I am not aware of any other
case in which the words we have here occur, and I cannot now say what
I otherwise should have said had there been no such reported case.
But, with all respect, I must say this, that the real point does not ap-
pear to have been taken by Vice-Chancellor Hall in Brackenbury v.
Gibbons, for he fails to point out that the devise in that case, so far as
it related to children who had not attained twenty-one when the par-
ticular estate determined, could really only take effect as an executory
devise and not as a remainder at all. He seems to have relied upon
Holmes v. Prescott, 10 Jur. N. S. 507; 12 W. R. 636, and Rhodes v.
Whitehead, 2 Dr. & Sm. 532 ; but those were different cases altogether,
for there the words "or after" the death, which were in Brackenbury v.
Gibbons, and which we have here, did not occur. The Vice-Chancellor
says that "Every gift which can take effect as a remainder absolutely
excludes its being treated as an executory devise." I agree, that is the
rule ; but I am at a loss to see how the devise in that case or this could
take eft'ect as a remainder. The rule is that a ^remamde r must be
capable o t taking ettec t when t he preceding estate determin es. Now
what is the gift here? it is thisl [His Lordship then read the clause
of the will above stated, and continued:] The rule being as stated by
Vice-Chancellor Hall, that every gift which can take eft'ect as a remain-
der absolutely excludes its being treated as an executory devise, how
is it possible to construe such a gift as this — "to such children of the
said Elizabeth Eckley living at her death as either before or after
her decease shall, being a male or males, attain the age of twenty-one
years, or, being a female or females, attain that age or marry, in fee
simple" — as a gift that can take effect as a remainder as to those chil-
dren who had not complied with the conditions of the will before the
death of the tenant for life? It is impossible. It ca nnot take eft'ect
as a remainder as regards those children who attain twent y-one o r
marr y after the death ot the tenant for life; for the cla ss to take under
the"gTf t to children who attained twcntv-one or married after the deat h
co flT^not Dossiblv be ascertained during the lifetime of the tenant fo r
lije. W here the gilt is to a class which can by no possibility be as-
cer tained at the determi nation of the preceding estate ot freehold, the
class can only take on the footing of its being an ex ecutory devise.
What ground is there tor cutting clown the devise and saying that only
those who had attained twenty-one or married at the death of the ten-
ant for life were to take?
If the devise be to A. for life, and after her death simply to a class
of children who shall attain twenty-one or marry, I agree that those
members of the class who have not attained twenty-one or married at
the death of the tenant for life, though they may do so afterwards, can-
60 CLASSIFICATION OF FUTURE INTERESTS (Part 1
not take, according to the rule in Festing v. Allen, 12 M. & W. 279; but
here_ u^e have two d istinct classes as the^ objec ts of the devise, the one
being children living~at th'e^eath of the tenant for life and attaining
twenty-one or marrying before the death, and the other being children
living at the death and attaining twenty-one or marrying after the
death. There are two children who were living at the death of the ten-
ant for life, but are at present under age : why should they not, upon
their fulfilling the conditions of the will, participate in the testatrix's
bounty equally with the other children who had fulfilled those condi-
tions in the lifetime of the tenant for life? But to enable the second
class to participate it is necessary to read the gift to them as an execu-
tory devise. The rule is that you construe every limitation, if you pos-
sibly can, as a remainder, rather than as an executory devise. It is
a harsh rule : why should I extend it ? Why should a gift which can-
not possibly take effect as a remainder not take effect as anexecutory
devise ? I see no good reason why it should not.
The result is, in my opinion, that t he d evise in this case could not
ta ke effect as a remainder in respect of those children who surv iv"ed tlie
ten ant for life but had not a ttairied twentv-one at her death, and must,^
therefore, m order to let in those children, be construed as an executory
de yise. Consequently t he five children w lio have attaine d twenty-olTe
t ake vested i nterests liable to open to let in the two infant c HIIdren on
th eir fulfilling the conditi ons of the wil l ; and I am therefore of opinion
that the five children who attained twenty-one in the lifetime of the
tenant for life cannot now make a good title to the entirety of the
property.^*
i« Accord: Dean v. Dean, [1891] 3 Ch. 150; In re Wrightson, [1904] 2 Ch.
(C. A.) 95. In Dean v. Dean, supra, Chitty, J., said:
"Apart from the clauses as to maintenance and advancement, tliis case is
not distinguishable from Brackenburj' v. Gibbons and In re Leehmere and
Lloyd, 18 Ch. D. 524. The decisions in those cases are conflicting. In the
former, Hall, V. C, had present to his mind two rules of law ; the first, as he
stated it, "that every gift which can take effect as a remainder absolutely ex-
cludes its being treated as an executory devise' ; and, secondly, that a contin-
gent remainder fails unless it is ready to take effect in possession immediately
on the determination of the particular freehold estate. He applied both rule.;.
In the latter case, the blaster of the Rolls (Sir G. Jessel) declined to apply
the first rule, and held that the limitation was a valid executory devise. The
distinction which he drew between a future limitation to all the children of
a tenant for life who shall attain twenty-one and a future limitation to all the
children of a tenant for life who either during his life or afterwards shall
attain twenty-one, seems at first sight subtle and over-refined. So far as the
testator's intention is concerned, the meaning of the limitations is the same ;
in both cases the testator intends that all the children who attain twenty-one,
whether before or after the death of the tenant for life, shall take ; and
it would seem strange to any one not acquainted with the niceties of the
law relating to real property in this country, that any different legal effect
should l>e given to a mere difference in words which mean the same thing.
But a difference in the mere form of words does in several cases make a dif-
ference in law. For instance, w^here there is a limitation of real estate to a
man for life, or until he shall attempt to aliene, and a limitation over on such
attempt, both limitations are valid and effectual; but, if intending the very
Ch. 4) CONTINGENT REMAINDERS 61
40 & 41 VICT. c. 33 (August 2, 1877): Every contin gent r emainder
created by any instrument executed after tHe passing of this act, or
by any will or codicil revived or republished by any will or codicil ex-
ecuted after tliat date, in tenements or hereditaments of any tenure,
wh ich wou l d have been valid as a springing or shifting use or execu -
tory devise or other limitation had it not had a sufficient estate to s up-
port it as a contin gent remainder, shall, in the event of the particula r
e state determining be fore the contingent remainder v ests, be capab le
of taking effect in all respects as it the contmgent remamder had orig-
ifially been created as a springing or shifting use or executory devise
or other executory limitationT"
BOND V. MOORE.
(Supreme Court of Illinois, 1908. 236 111. 576, 86 N. E. 386, 19 L. R. A.
[N. S.] 540.)
Petitions by W. A. Bond and others and by Lester Curtis against
Sally Palmer Curtis ]\Ioore and others, to register land titles. From
decrees dismissing the petitions, petitioners appeal, and the appeals
were consolidated. Reversed and remanded,
Horace K. Tenney and Albert M. Kales, for appellants. John S.
Huey, for appellees.
DuxN, J. Sarah Walker died testate in 1883, seised of the west
quarter of lot 2, in block 32, known as No. 205 Lake street, and of the
west quarter of lot 3, in block 16, known as No. 103 South Water
street, both in the original town of Chicago. The second clause of her
same thing, the testator limits the real estate to a man for his life, and then
adds a condition that he shall not aliene, and that if he does, the property
shall go over, the condition and gift over are void."
But compare White v. Summers, [1908] 2 Ch. 256.
17 "This statute appears to provide for most of the cases in which, subse-
quently to 1845, it was still necessary to limit estates to trustees for the
preservation of contingent remainders, including that — if, indeed, it was one
— which has been already mentioned, of a parent's estate being subject to
determine or shift in his lifetime, as, for instance, on his failing to assume
or discontinuing the use of a prescribed name and arms, or on his acquiring
another estate, and its being intended that the remainder to his children
should take effect, notwithstanding the determination of his estate.
"Yet even this statute appears to have left one case unprovided for, and
in which it may be still necessary to insert limitations to trustees to pre-
serve. If a remainder is limited to such children as shall attain a certain
age, and when the last precedent particular estate determines some only of
those children have attained that age the remainder will vest in them. Con-
sequently the Act will not operate, and the younger children will be excluded."
Vaizey's Law of Settlements, 1164, 1165.
See, also. 6 Bythewood's Conveyancing (4th Ed.) 400, 401.
In Washburn on Real Property (6th VA.) 1600. the following states are re-
feri'ed to in the note as having a complete contingent remainders act: Ala-
bama, Georgia, Indiana, Kentucky, Michigan. Minnesota, Montana, New York,
North Dakota, Virginia, West Virginia, and Wisconsin.
62 CLASSIFICATION OP FUTURE INTERESTS (Part 1
will, which was executed September 25, 1876, was as follows : "I give,
bequeath and devise all of my estate, real and personal, unto my son,
Lester Curtis, during his lifetime, and authorize him tcTTell or ex-
cTiange any or all of my real estate, and to invest the proceeds thereof
as in his judgment he may think best; but should he die without chil-
dreii, then the estate, or so much of it as may remain after his reason-
able expenses for living, etc., shall go to my nearest relatives, in such
proportions as the law in such cases does provide."
Lester Curtis was the only heir of the testatrix. He was unmarried
at the date of the will, but at the time of the death of the testatrix he
was married and had two children. Immediately after his mother's
death he entered into possession of the premises, and has ever since
continued in possession of them. In February, 1908, he conveyed them
to William A. Bond, by deeds reciting the second clause of the will of
Sarah Walker that undei* it Lester Curtis took a life estate, and that he
was also entitled, by descent, to a legal reversion of the fee pending the
event of his dying without children, and the taking effect in possession,
in that event, of the gift to the testatrix's nearest relatives, and that it
Avas the intention of the grantor to convey the life estate and the rever-
sion in fee, so that the life estate should merge in the fee and be ex-
tinguished and prematurely destroyed, and the grantee be vested at
once with a legal estate in fee in possession, and that any contingent
future interest in the nearest relatives should be destroyed. On Feb-
ruary 13, 1908, William A. Bond executed a declaration of trust in fa-
vor of Lester Curtis for the premises at No. 103 South Water street
in fee, and on February 24, 1908, together with his wife, by special
warranty deed conveyed the premises at No. 205 Lake street to Lester
Curtis.
On February 26, 1908, Bond, claiming the fee as trustee, filed his
application to have the title to the premises at No. 103 South Water
street registered under the Torrens act, and Curtis filed a separate ap-
plication for the registration of the title to the premises at No. 205
Lake street, 'i'he two daughters of Curtis were made parties defend-
ant, as were also various nieces and nephews of Sarah Walker, her
next of kin. Mary Isabel Curtis, one of the daughters, assented to the
petition, but the appellee Sally Palmer Curtis Moore, the other daugh-
ter, filed an answer, denying that Lester Curtis and Bond were the
owners of the fee, and alleging that she and her sister were the owners
of the fee in remainder, subject to the life estate. The answers of the
nieces and nephews alleged that, next to the daughters, they were the
nearest relatives of Sarah Walker, and in case of the death of the two
daughters without issue before the death of their father, such of the
nieces and nephews as should survive Lester Curtis would be entitled
to the fee. The causes were referred to an examiner, who found that
the petitioners were the owners of the fee and entitled to have their ti-
tles registered ; but upon objection the reports were disapproved, and
decrees were entered dismissing the applications, but without prejudice
Ch. 4) CONTINGENT REMAINDERS 63
to the rights of the petitioners in an estate less than the fee. The ap-
peals, prosecuted separately to this court, have been consolidated.
The principal question arising upon the construction of the second
clause of Sarah Walker's will is whether or not there was a devise,
by implication, of the remainder in fee to the children of Lester Curtis,
by reason of the gift over to the nearest relatives of Sarah Walker
should he die \vithout children. [The court held that there was no re-
mainder by imxjlica tion in the_children.]
The limitation of the estate to the nearest relatives of the testatrix
should Lester Curtis die without children is a contingent remainder.
Since Lester Curtis was himself the nearest relative of the testatrix at
the time of her death, the devise comes within the rule that, where
there is a gift to one for life, with remainder to the testator's next of
kin, and the life tenant is tlie sole next of kin at the death of the testa-
tor, the remainder will be considered as given to the persons answering
the description at the termination of the estate for life. Johnson v.
Askey, 190 111. 58, 60 N. E. 76. Both the event upon which the estate
in remainder is to come into possession, the death without children of
Lester Curtis, and the persons who may at that time be entitled, as the
nearest relatives of Sarah Walker, to take the estate, are uncertain,
and the remainder is therefore contingent. Until its vesting, or the de-
termination of the impossibility of its vesting, tlie reversion in fee de-
scended to Lester Curtis as the heir. Peterson v. Jackson, 196 111. 40,
63rN. E. 645; Harrison v. Weatherby, 180 111. 418, 54 N. E. 237; Pink-
ney v. Weaver, 216 Hi. 185, 74 X. E. 714.
It is contended by appellants that, by the conveyance to William A.
Bond of the life estate devised to Lester Curtis, and of the remainder
in fee inherited by him, the life estate became merged in the fee, and tlie
contingent remainder to the nearest relatives was destroyed. The ef-
fect of a conveyance of his estate, by a life tenant, to the remainder-
man is to cause the destruction of the particular estate, which becomes
merged in the fee. Field v. Peeples, 180 111. 376, 54 N. E. 304; 2
BTackstone's Com. 177; 4 Kent's Com. 100. Every remainder requires
a particular estate to support it, and a contingent remainder must vest
daring the continuance of the particular estate, or eo instanti that it de-
termines. 2 Blackstone's Com. 168. If the particular estate comes to
an end before the event upon the happening of which the contingent re-
mainder is to take effect occurs, the remainder is defeated; and this
is so whether the preceding estate reaches its natural termination or is
brought to a premature end by merger, forfeiture, or otherwise. "Un-
less a contingent remainder becomes vested on or before the deter-
mination of the preceding vested estate, it can never come into posses-
sion ; it has perished. It makes no difference whether the preceding
estates have ended by reaching the limit originally imposed upon them,
or whether they have been cut short by merger, forfeiture, or other-
wise. Gray on Perpetuities, § 10."' Madison v. Larmon, 170 111. 65,
64 CLASSIFICATION OF FUTURE INTERESTS (Part 1
48 N. E. 556, 62 Am. St. Rep. 356. "Contingent remainders may be
defeated by destroying or determining the particular estate upon which
they depend before the contingency happens whereby they become vest-
ed. Therefore, where there is tenant for Hfe, with divers remainders in
contingency, he may, not only by his death, but by alienation, surrender,
or other methods, destroy and determine his own life estate before any
of those remainders vest, the consequence of which is that he utterly
defeats them all." 2 Blackstone's Com. 171. So a tenant for life, with
subsequent contingent remainders, might make a tortious conveyance
by deed of feoffment with livery of seisin, and thus forfeit his life es-
tate for the express purpose of destroying the contingent remainders,
and upon reconveyance of the tortious title would hold it free from the
contingent remainders. It was to prevent contingent remainders from
being defeated by such premature determination or destruction of the
preceding estate that the device was invented of interposing trustees to
preserve contingent remainders having a legal estate to support the re-
mainders until the happening of the contingency. When the estate for
life and the next vested estate in remainder or reversion meet in the
same person, notwithstanding intervening contingent remainders, the
particular estate will merge in tlie reversion or remainder, and the con-
tingent remainders will be destroyed. A qualification of this rule ex-
ists where the creation of the particular estate and the remainder or re-
version occur at the same time and by the same instrument. Fearne on
Contingent Remainders, §§ 316-324; 3 Preston on Conveyancing (3d
Ed.) 399; 2 Washburn on Real Property (6th Ed.) 553, pars. 1597,
1598; WilHams on Real Property, 233.
In Egerton v. IVl^ssey, 3 C. B. (N. S.) 338, the devise was to Eunice
Highfield for life, remainder, in default of issue of Eunice, to Peter
Highfield in fee, residuary devise to Eunice in fee. After the death of
the testatrix, Eunice, by lease and release, conveyed to Peter Jackson in
fee, and after her death without issue the question of title arose between
those claiming under Peter Jackson and those claiming under Peter
Highfield. It was held that under the residuary devise the reversion in
fee went to Eunice Highfield ; that the life estate did not merge in it
so long as both remained in the devisee, but that upon her conveyance
of both estates to Peter Jackson the Hfe estate merged in the fee, and
that the contingent remainder of Peter Highfield was destroyed. The
same question arose in Bennett v. Morris, 5 Rawle (Pa.) 9, and a simi-
lar question in Craig v, Warner, 5 Mackey (D. C.) 460, 60 Am. Rep.
381, and were similarly decided. In Faber v. Police, 10 S. C. Z76, and
McElwee v. Wheeler, 10 S. C. 392, the devise was for life, with contin-
gent remainders over, the life tenant being the sole heir of the testator.
The devisees made deeds of feoffment with livery of seisin, and their
grantees reconveyed to the grantors. It was held that, the common law
not having been modified in South Carolina at the time, the effect of
Ch. 4) CONTINGENT REMAINDERS 65
the deeds was to destroy the h'fe estates and perfect the absolute title
in the life tenants. Redfern v. Middleton, Rice (S. C.) 459.
The case of Frazer v. Supervisors of Peoria County, 74 111. 282, is
cited as sustaining the proposition that the court will not permit a con-
tingent remainder to be destroyed contrary to the will of a testator or
grantor. A deed was made to an unmarried woman and the heirs of
her body. She reconvcyed before having issue, and it was held that the
contingent remainder to her children was not thereby destroyed. The
question there discussed was the effect of section 6 of the statute of con-
veyances, which modifies estates tail so as to give the first taker a life
estate, with the remainder in fee simple absolute to the next. The doc-
trine of merger, which has just been considered, did not apply to es-
tates tail under the statute de donis, which were an exception to the
rule. Such estates were protected and preserved from merger by the
operation and construction given to the statute de donis for the express
purpose of preventing the particular tenant from thus barring and de-
stroying the estate tail. 2 Blackstone's Com. 177, 178. It was held m
Frazer v. Supervisors of Peoria County that tlie General Assembly did
not intend to restore the common law as it stood before the adoption
of the statute de donis, and leave the donee with power to alien the es-
tate and repurchase, and thus cut off both the remainder and reversion,
but did intend that the person who should first take from the tenant in
tail should take a fee simple absolute, without any power in the donee
to dock the remainder, or any reversion in the donor except on failure
of issue. The case deals with an estate tail only under our statute, and
is a case of statutory construction only, having nothing to do with the
general question of the destruction of contingent remainders.
Our conclusion is that the language of the will does not warrant the
implication of a devise of the remainder to the children of Lester Cur-
tis ; that the reversion descended to Lester Curtis, as heir at law ; that
by his deed to William A. Bond the life estate merged in the reversion,
and the contingent remainder to the nearest relatives of the testatrix
was destroyed; and that the appellants hold the title to the premises
involved in the respective causes in fee simple.
The decrees are reversed, and the causes remanded for further pro-
ceedings in accordance with this opinion.^ ^
Reversed and remanded.
18 The three judges dissenting did so only as to the point that there was
no remainder in tlie cliildren by implication.
But see Simonds v. Siniouds. 199 Mass. 552. 85 N. E. 860, 19 I* R. A- (N. S.)
686 (1908) : Ilayward v. Spaulding, 75 N. U. 92, 71 Atl. 21SLa908) ; Gray, Rule
against rerpetuities (3d Ed.) § 918 et seq.
4 Kales Prop. — 5
66
CLASSIFICATION OF FUTURE INTERESTS
(Part 1
PROPOSED LEGISLATION.
No remainder or other interest sliall be defeated by the determina-
tion of the precedent estate or interest prior to the happening of the
event or contingency on which the remainder or expectant interest is
limited to take effect.^®
SECTION 2.— CONSTRUCTION,
WEBB V. HEARING.
(Court of King's Bench, 1617. Cro. Jac. 415.)
Ejectment for a messuage in London. Upon a special verdict the
case was, that William Say was seised in fee of this messuage holden in
socage, having Margaret his wife, Francis his son, and three daugh-
ters, Agnes, Alice, and Elizabeth, and deviseth the said messuage in
this manner: "I bequeath to Francis my son my houses in London,
after the death of m} n\'ite; "and if my th ree_da ughters, or either of^
them,~do overhve theiFmotlier, and Francislheir brother and his heirs,''
then they to enjoy the same houses ior term ot tneir lives ; and the
same houses th en I give to _jny sister^sons , Roger Wittenbury_and
Joh n Wittenbur y, and they to pay yearly to the Bachelors' Company^
Merchant Taylors'i6. 10.y. And if they or their successors deny the
payment of the said sum, then it shall be lawful to the wardens of the
said company to enter and discharge them forever." It was found,
that the devisor died; the son and two of the sisters died without is-
sue; the wife jNIargaret survived them, entered and died; Elizabeth,
the third sister, survived, entered, and died, having issue the defendant ;
John Wittenbury died ; Roger entered, and died ; Henry Pierson the
lessor, his cousin and heir, entered, and made that lease ; the defendant,
as cousin and heir of Francis the son, ousts him, &c.
The principal question was, Wheth er Fr ancis the son had a fee or a
fee jail by this will, in regard the limitation is. "If his sisters s ur yive_
hi m and his heirs" ?
The Court resolved, he liaiLb ut a fee-tail : for "heirs," JnJMs place,
is intended "heirs of his body ;" for the limitation being to his sister^
it"Tsnec essarilv _to_be intended^ that it 'was if h e3l^^uld_die without is^
sue of his b ody ; for they are his heirs collate ral. And therefore there
is a difference where a devise is to one and his heirs, and if he die with-
out heirs, that it shall remain, it is void, as 19 Hen. 8, pi. 9; yet when a
19 Adapted from section 1 of a proposed act concerning limitations of inter-
ests in property, drafted by Professor Ernst Freuud. See, also, 1 111. Law
Rev. 378.
Ch.4)
CONTINGENT REMAINDERS
67
devise is to one and his heirs, and if he die without heir, it shall be to
his next brother, there is an apparent intention what heirs he intended ;
and the intention being collected by the will, the law shall adjudge ac-
cordingly. A'ide 18 Eliz. ; Dyer, 333, Chapman's Case; 6 Co. 16,
Wild's Case.
The second point, whether John Wittenbury and Roger Wittenbury
had a fee by this deviseT Aiid itwa s resoTve J't heyliad ; becaiise tTicy
had paid a consideration for it, viz., an annual sum ; and the words,
"if tkey or their successors deny the payment," show the intent, that
it should go to their heirs. Vide 4 Edw. 6, "Estate," Br. 78 ; 6 Co. 16.
A third point, the estate being limited, "And if my three daughter s
or either of t hem, do overlive their mother and brother and h is heirs ,
then tliey to have it, and, after them John Wittenburv and Roger Wit-
te nbury', &c." Whether this be a contingent estate, and if so, whether
it were performed, two ot the daughters dying in tHe^litet imeTbf tHeir
brother. And it was resolved that this was no limitation contingent, -"
buf shows when it shall commence, which is well enough performed :
wherefore it was adjudged for tlie plaintiff. — I was of counsel with the
plaintiff.
LUXFORD V. CHEEKE.
(Court of Common Pleas, 1683. 3 Lev. 125.)
Ejectment upon the demise of Benjamin Cutter and ]\Iary his wife;
and upon Xot guilty it was found by special verdict, that John Church
was seised in fee, and by his wife Isabel had issue four sons : Humph-
ry the first, Robert the second, Anthony the third, John the fourth;
and by his will the 6th of March, 1583, devised all tojiis wife fo rjier^
life, if she do not xmrry, but if she do marry, that Humphry present ly
afterni er~deceg?b euLei, hav e, hold, and enjoy all the land to him an d
th e heirs males ot his body; remainder to Robert, and the heirs males
oThis body; the remainder to Anthony, and the heirs males of his
body; remainder to John, and the heirs males of his body; with divers
20 A fortiori, where the limitations are to A. for life, remainder to B. for
life, B.'s remainder for life is vested. Gray, Rule against Perp. (2d Ed.) §
102 ; Madison v. Laruion, 170 111. U5, 48 N. E. 55G, G2 Am. St. Kep. 350.
Hall V. Nute, 38 N. H. 422, contra, no\A- seems to be overruled. Keunard
V. Kenuard, 63 N. H. 303 ; Wi^gin v. Perkins, 64 N. H. 36, 5 Atl. 904 ; Parker
V. Koss, 69 X. H. 213, 45 Atl. 576.
The introduction of a remainder after a life estate with the words "afte r
th<r 'deatli of tne life Tenant" do not maice tne remaina er contingent. Doe v.
Considine'. 73 U. S. 4.58. 475, 18 U Ed. SdU; M Uniiij V. Ktitdura", fr Pa . 503;
Doe V. Provoost, 4 Johns. (N. Y.) 61. 4 Am. Dec. 249; Cheney v. Teese, 108
111. 473; O'Melia v. Mullarky, 124 111. 506, 17 N. E. 36; Ducker v. Burnham,
146 111 9, 34 N. E. 5.58, 37 Am. St. Rep. 135; McCounell v. Stewart. 169 111.
374, 48 N. E. 201 : Knight v. I'ottgieser, 176 111. 368, 52 N. E. 934 ; Bowler v.
Bowler, 176 111. 541, 52 N. E. 437.
See, also, Bates v. Gillett, 132 111. 287, 24 N. E. 611.
68 CLASSIFICATION OP FUTURE INTERESTS (Part 1
remainders over: that Isabel the wife did not marry; and they derive
title from Humphry to his grandson, and from him to the wife (the
lessor) filiam imicam suam ; and that the title of the defendant was as
heir male of the body of Robert the second son. And after argument
it was resolved, that the verdict is imperfect as to the plaintiff, for the
grandson of Humphry, though he hath no other daughter, may never-
theless have a son, according to Gymlett and Sand's Case, Cro. Cha.
391. Whereupon by consent the verdict was mended, and made filiam
unicam et haeredem suam. And then the question was, whether any es-
tate tail be created by this will. For Isabel the wife never married,
and if no entail was created, then the feme-lessor hath a good title as
heir general. But upon argument the court resolved, that the land was
entailed by this will ; for by tlie whole scope of tlie will it appears plain -
ly, the dev isor intended an entail with several remainders over: and
rather than this intent sha ll be defeated, the words shall be read an d
taken thus: scil. if she marry, Humphry to enter p resently; if slTe do~~
not marry, then Humphry shall have, hold, and enjoy them to hmT"
and ^he heirs males ot hisb ody, with remainder ov er. VVEereupon
j uclgment was given for the defendant.
CHALLIS, LAW OF REAL PROPERTY (2d Ed.) 133 : "The
question w hether the trustees took a vested estate was obviously, be-
fore 8 & 9 Vict, c. 106, a question of the utmost prartirnl importance,
becaus e, if they had taken a contingent estate, their estate would h ave
bee n not liing_but_o ne more contin gent_ remainder. which would hav e
been equally liable to des truction with the rest. This question has led
to some dm'erence ot opniion. But it was for all practical purposes
set at rest for ever by the decision of the House of L Q£d5_in_tlie_case
of Smith d. I)o rmer v. Packhurst or Parkhurst ^ commonly cited as
Dormer v. Parlchurst, or Dormer v. Fortescue, 3 Atk. 135, 6 Bro. P.
C. 351, Willes, 327, 18 Vin. Abr. 413, pi. 8, in which case the estate
was decided to be a veste d remainder. Fearne approved of this deci-
sion ; Butler expresses no dissatisfaction with it ; but Mr. Josiah Sm jth
plainly intimates his opinion, that it was di rectly opp osed to the princi-
ple s'ofj JieJaw:. and that it can be lustifie djonly by, t he pressi ng necessi-
ty not to ov erturn all the settlements thenjn existence. (Smith on Ex-
ecutory Interests, p. 116 et seq.)"
Ch. 4) CONTINGENT REMAINDERS .69
EDWARDS V. HAMMOND.
(Court of Common Pleas, 1683. 3 Lev. 132.)
Ejectment upon Not guilty, and special verdict, the case was : A
c opyholder of land, borough English, surrendered to the use of himsel_f
f or life, and after to the use of his eldest son and h is heirs, if he live
to the age of 21 years ; provided, and upon condition, that if he die be -
fo re zHythat then it shall remain to the surrenderer and his heirs. The
surrenderer died, t he^ youngest son ent ered ; and t he eldest "^n being :
1 7 brought a n ejectj iiientj and the sole question was, whether th e devise
to _the el^st son "T>c upon condition precedent, or i f the condition tje
subsequent ; scil. that the estate in fee shall vest immediately upon the
death of the father, to be divested if he die before 21. For the defend-
ant it was argued, that the condition was precedent, and that the estate
should descend to the youngest son in the mean time, or at least shall be
in contingency and in abeyance till the first son shall attain to one and
twenty; and so the eldest son has no title now, being no more than 17.
On the other side it was argued, and so agree d by the Court, that
th ough by the first w ords this may se em to be a cond ition pr ecederit T
y et, taking all the words togeth er, this^ was not a condition p recedent,
but a present devise to the eldest son, subject to and defeasible bv thi s
condition subsequent, scil. his not attaining the age of 21 ; and they re-
sembled this to" die case of Spiiiig"ahd CsesaF, reported by Jones, j.,
and abridged by Roll. 1, Abr. 415, nu. 12. A fine to the use of B. and
his heirs if C. pays him not 20.?. upon Septemb. 10, and if C. does pay,
to the use of B. for life, remainder to C. and his heirs, where the word
si does not create a condition precedent, but the estate in fee vests pres-
ently in C. to be divested by payment afterwards ; so here. Accord-
ingly this case was adjudged in Mich. Term next foUowing.^^
21 Followed in the case of freehold land in Broomfield v. Crowder, 1 B. &
P. N. R. 313 (1S05), and in Roome v. Philliiis, 24 N. Y. 463. Cf. Boraston's
Case, 3 Co. 19a (1587). And see Hawkins on Wills, 237-242.
Lt^ake, Digest of the Law of Property in Land, p. 367: "Accordingly a
devise to A. if or when he shall attain a given age, followed by a devise over
in case he die under that age, is construed as giving an inunediately vested
estate, subject to be divested by the executory devise over taking effect, and
not as an executory devise upon his attaining that age, which would be the
necessary construction if it stood alone without the devise over."
(^ J
70 CLASSIFICATION OP FUTURE INTERESTS (Part 1
DOE d. WILLIS V. MARTIN.
(Court of KiniJc's Bench, 1700. 4 Terra R. HO.)
This was an ejectmenffor some premises in the Isle of \Vie;ht on the
joint and several demises of Richard Legg Willis, James Willis, Bethia
Ann Willis, and Alary Willis. And on the trial at the Summer Assizes
at Winchester, 1789, before Buller, J., a special verdict was found,
stating in substance as follows :
That Bethia Legg, being seised in fee of the premises in question,
on her intended marriage with Richard Willis, by deeds of lease and
release, dated the 14th and 15th of Februar}^, 1757, between Richard
Willis of the first part, Bethia Legg of the second part, and Peter
Bracebridge and Robert Willis of the third part, conveyed to Brace-
bridge and Robert Willis and their heirs to the use of herself in fee till
marriage, and afterwards, to her sole and separate use for life, without
impeachment of waste, and not to be subject to the control or debts of
her husband; remainder to tlie use of Richard Willis for life, without
impeachment of waste ; remainder to the use of all and every the child
or children or such of them of Richard Willis and Bethia for sucli^es-
tates and interest, &c., and in such parts, shares, and proportions as
Richard Willis and Bethia should by deed appoint, and for want of
such appointment, then to the use of the child or children of Richard
Willis and Bethia in such parts, shares, and proportions, and for such
estates and interest, as the survivor of them should by deed or will
appoint, and for want of such appointment, then to the use of all and
every the child or children, equally, share and share alike, to hold the
same, if more than one, as tenants in common, and not as joint-ten-
ants, and if but one child, then to such only child, his or her heirs or
assigns forever; and in default of such issue, then to the use of the
survivor of Richard Willis and Bethia in fee. [The deed contained a
proviso for the revocation of the uses, the statement of which is omit-
ted.— Ed.]
The verdict then set forth that on the 3d March, 1757, the marriage
between Richard Willis and Bethia Legg took effect ; and that they had
several children ; (to wit) Richard Legg Willis, their eldest son and
heir, James Willis, Bethia Ann Willis, and Mary Willis, the lessors of
the plaintiff; and also one Thomas Willis, since deceased. [Facts as
to an alleged revocation under the above-mentioned proviso were stated
in the verdict, but are here omitted. — Ed.]
The verdict then stated that in Hilai-y Term 9 Geo. III. [1769] a fine
sur conusance de droit come ceo, &c., was levied of the premises in"
question by Richard Willis and Bethia his wife to Joseph Martin. That
on the 21st of December, 1775, Joseph Martin by will devised to the
defendants and their heirs upon certain trusts therein mentioned, and
Ch. 4) CONTINGENT REMAINDERS 71
died in March, 1776; on whose death the defendants entered, &c. In
1778 Bethia Willis died; and in 1780 the first-mentioned Richard \Vd-
lis also died, without making any appointment by virtue of the power
contained in the release of February, 1757. On Richard Willis's death
Richard Legg Willis was beyond the seas, and did not return till the
latter end of the year 1785; James Willis was then an infant, of the
age of 19 years; Bethia A. Willis was of the age of 18 years; and
Mary Willis is still an infant. Thomas Willis, having survived Richard
Willis and Bethia, died in 1782, being then an infant; after w^hose
death and within five years next after, Richard Legg Willis returned to
this country, and James Willis and Bethia A. Willis attained their re-
spective ages of 21 years, and before the time when, &c., they the said
Richard hegg Willis, J. Willis, B. A. Willis, and ]\L Willis, in due form
of law entered, &c., in order to avoid the fine ; and thereupon became
seised, &c., and being so seised, caused an action to be commenced for
trying the title, &c., within one year next after such entry, which action
is now prosecuting with effect, according to the form of the Statute,
&c. And after such entry, and while they were seised, they demised to
the plaintifT, &c., w^io entered, and was possessed thereof until the
defendants entered and ejected him, Szc. But whether, &c.
This verdict was argued three several times; first by Jekyll for the
plaintiff, and Gibbs for the defendants, in Hilary Term, 1790; a second
time by Watson, Serjt., for the plaintiff, and by Lawrence, Serjt., for
the defendants, in Easter Term last; and on this day by Morris for the
plaintiff, and Wilson on behalf of the defendants.
Lord Kenyon, C. J.-- The principal question in this case is.
Whether t he remainders to the children of Robert and Bethia Willis
were vested or contingent ?af the latter, it cannot be disputed_^but that
the destruclion of the particular estate on which they depended, before
thev btcanie vested, would destroy them. One argument which has r
been used is, that the estate limited to the trustees was an use executed ^ ^ •'
in iJiem, for that otherwise the estate limited to the wife for her sole
and separate use would not be secured to her, but would be under the
husband's control. But in answer to that it is sufficient to observe,
that it is limited to the trustees, without saying "to and to the use of
the_trustees." If none of the limitations of the settlement could possi-
sTbly tal-:e effect without this construction, I should be inclined so to
decide it ; as was done some years ago in a case in the House of Lords.
But that is not the case here ; for this estate was limited to Bethia
Willis and to her heirs until the marriage should be solemnized ; it was
therefore intended that the legal estate should not be taken out of her
unless the marriage took effect. Besides the Court of Chancery would
2 2 The opinion of Asliluirst, J., in concurrence, is omitted, as also those
parts of the other opinions which deal with the question of the revocation of
the uses of the settlement. It was held by all the judges that there was no
revocation.
ic
lXJLf ^ *<M ■■■«.»
72 CLASSIFICATION OF FUTURE INTERESTS (Part 1
consider the husband, if it vested in him, a trustee for the wife, so
that she might have all the benefit intended by the marriage settlement.
If the remainders to the children of R. and B. Willis were contingent,
tHe~objection made by the defendants, that the conveyance by Willis
and his wife and the fine, by destroying tlie particular estate before tRey
vested, also destroyed those remainders, must prevail ; for it is too
late, as the law now stands, to say that such is not the established doc-
trine of contingent remainders. This doctrine indeed involves in it
difficulties which have been frequently felt by wise and able lawyers,
who have wished to break through the rule ; but they have been deter-
red from the attempt by a consideration of the consequences that might
possibly ensue. There are two instances, it is true, where the law is
otherwise : in equitable estates, where the contingent remainders are
not destroyed, because the estate is vested in trustees to preserve the
contingent remainders; and in copyholds, where the estate in the
lord of the manor will support all the remainders: but in the case ol
fi^eHhoM estates ol inheritance, the rule is so established that it is not
now to be shaken. On the first question in this case our judgmerit must
depend on the authorities cited ; the three leading of which are Lovie's
Case [10 Co. 78a], Walpole v. Lord Conway [Barnard. Ch. 153], and
Cunningham v. Moody [1 Ves. Sr. 174]. Of the first, inserted in
Rolle's Abridgment, which was published under the inspection of Sir
M. Hale, it is sufficient to say, that it was held in a case circumstanced
like the present, that the remainder was contingent. This was also
adopted in a great measure by Lord Hardwicke, in Walpole v. Loid
Conway.-^ But I am happy to find that, in the last of those cases,
Cunningham v. Moody, where the same point arose, and where Lord
Hardwicke had an opportunity of reconsidering this question more
fully and at a time of Hfe when his judgment was more mature, that
great judge determined differently. And I cannot find any substantial
distinction between that case and the present. There Lord Hardwicke
(after saying that the fee was not in abeyance) added, "nor does the
power of appointment make any alteration therein ; for the only effect
thereof is that the fee which was vested was thereby subject to be de-
vested if the whole were appointed." Now in this case the limitations
to the children were first subject to a power of appointment, but for
want of such appointment to the children in fee (I say in fee, as I
23 "With regard to the case of Walpole v. Conway, which was mentioned in
"Willis V. Martin as being contrary to another decision of Lord Hardwicke in
Cunningham v. Moody, and which was pressed ui)on us in Willis v. ^Martin,
a further account of it has been found among the papers of the late Sir T.
Sewell, from which it clearly ai'pears that Ix)rd Hardwicke ultimately gave
directions in it conformable to what he had done in Cunningham v. Moody.
I am therefore perfectly satistied with the decision of Willis v. Martin ; and
though a writ of error was brought to reverse our judgment in that case, it
was afterwards non-pross'd in the House of Lords." Per Lord Keuyon, C. J.,
in Doe d. Tanner v. Dorvell, 5 T. R. 518, 521 (1794).
See Smith v. Camelford, 2 Ves. Jr. COS, 703-707 (1795).
Ch. 4) CONTINGENT REMAINDERS 73
shall show in the course of my opinion). And whether the limitations
precede or follow the power of appointment, it makes no difference.
The object of the parties here was to make the whole estate subject to
the power and will of the parents, according to the situation and exi-
gencies of the family. I therefore say, in the words of Lord Hard-
wicke in Cunningham v. iVloody, that the fee was vested in the children,
subject ho\\c\ei" i'> lie (le\c-ieil In- the excciit'H.in ni tlie power of ap-
poiiTOTTeht. The opinion of Lord Hardwicke in the latter case is pe-
culiarly deserving of attention, because when it was discussed, the
former one of Walpole v. Lord Conway, where he had intimated a dif-
ferent opinion, was strongly pressed upon him, and because too he de-
cided the last case at a time when he had the assistance of some of the
most eminent lawyers who ever attended the bar of that court. I can-
not therefore forbear thinking that, on the authority of that case, we
ought to decide that the remainders to the children were vested, sub-
ject nevertheless to be devested by the parents executing the power of
appointment. No appointment has been made; and therefore at the
time when the acts stated in the verdict were done by the parents in
opposition to the interests of their children, Jhejimitations to the chil-
dren were not destroyed. This decision puts an end to this cause as"
far as respects all the children but one ; but it has been c ontended jhat
they only took estates for life, and that, one being since dead, the rever-
sion in fee of the parents immediately came into possession. And
that brings me to the next question, whether the children took estates
for life or in fee, which arises on these words : "and for want of such
appoinfment, then to the use of all and every the child or children,
equally, share and share alike^ t'o hbld~ the same, if more than one, as
tenants in common, and not as joint-tenants, and if but one child, thciT
t'l 7uc!i onl}' cTiild, h\< or her heirs or assigns f')rc\-er." And the ques-
tion is, w hether t he wprd.s, "his or her heirs" may not with_2ropfiety,
and ought not, considering the whole settlement and the manifest in-
tention of the parties, to act as words of limitation on all the preceding
words in the sentence; I cannot bring myself to doubt but that they
m;'.y. By putting the stops, or using the parenthesis, as pointed out
by the plaintiff's counsel, it becomes perfectly clear. And we know-
that no stops are ever inserted in Acts of Parliament, or in deeds ; but
the courts of law, in construing them, must read them with such stops
as will give effect to the whole : if then we use tlie points suggested by
the counsel, the clause will read thus, "to the use of all and every the
child or children, equally, share and share alike, his or her heirs or as-
signs forever." If this had been like the case of Hay v. Lord Coventry,
3 T. R. 83, we might have lamented that the parties had not inserted
words of inheritance to carry their probable intent into execution,
but we could not have supplied them. But in this case there are words
of_ inheritance; and I think we should defeat the^mamTesTTntehtion of
the parties, and the object of the settlement, which was to give tlie chil-
74 CLASSIFICATION OF FUTURE INTERESTS (Part 1
dren estates of inheritance, were we not to read this part of it in the
manner contended for by the plaintiff's counsel.
BuLLER, J. This case has been so fully discussed both on the bench
and at the bar, that I will content myself with stating the general
grounds of my opinion.
With respect to the first and principal question, the argument on the
part of the defendants, as far as authorities are concerned, rests on L.
Lovie's Case, and on that of Walpole v. Lord Conway. But what was
said by Lord Coke in the former case certainly did not apply to the
point before the court ; the question there arose on the will only ; and
nothing was said either in argument or by any other of the judges on
the construction of the deed. The same case is also reported in Moor.
772 ; where it appears that the remainder under the will was contin-
gent, because it could not arise unless the eldest son died without issue,
and there was also an alienation. Therefore I think it did not occur
to Lord Coke tliat a remainder, when once vested, could be afterwards
devested by the execution of the power. If there were no authority
against this case, I could not have made up my mind to agree to it ;
but his opinion has been since controverted in other cases. In 2 Lord
Raym. 1150, Mr. J. Powell, speaking of L. Lovie's Case, said, " Though
it was a doubt in L. Lovie's Case, whether a remainder could belimlF
ed after a contingent fee, yet it is none now. And,therefore if a fee-
sTmple be limited to such persons as A. shall appoint by his will, re-
mainder over, that is a good remainder vested till the appointment."
Now the instance there put is directly this case ; and if the limitations
to the children were vested on the birth of a son, nothing has since hap-
pened to devest them. The defendants' counsel have rather hinted at,
than insisted on, a difference between this case and that put by one of
the plaintiff's counsel, of a remainder to the first and other sons of A.
with a remainder to the first and other sons of B. his brother, where,
on the birth of B.'s son before A. had any son, the remainder would
vest in the former, subject to be devested on the birth of a son of A.:
but I see no distinction; for when a child of Robert and Bethia Willis
was born, the limitation was vested in him exactly in the same manner
as if the limitation had been to their first and other sons. If there had
been no power of appointment, the limitation to the children would
have vested on the birth of a child : that was the point decided in Lewis
Bowles's Case. Then suppose the limitation to the children had been
followed by a proviso containing a power of appointment, that would
not have varied the case : if so, what difference is there, either in rea-
son or in law, whether the power of appointment be inserted in one
part of the instrument or the other? The court must consider the
whole deed together in order to collect the intention of the parties. As
to the quantum of interest which the children took, that question also
seems equally clear. Suppose the limitation were to "all and evei"y the
children, and his or her heirs and assigns forever :" that would not be
Ch.4)
CONTINGENT REMAINDERS
75
grammatically written, but the intention of the parties bemg manifest,
the court must read it thus, his, her, or their heirs and assigns forever.
This question arises on a family settlement, which was made for the
benefit of all the children of the marriage ; and in order to give effect
to the intention of the parties, we may leave the intervening words in a
parenthesis, by which means the word "heirs" will have relation to
the words in the former part of the sentence.
Grosk, J. If my brother BullKR found the case so much exhausted
as to make it unnecessary for him to go fully into every part of it,
much less necessary is it for me to do so. The first considerable ques-
tion is, whether the remainder to the children, which was certainly con-
tingent in its creation, did or did not become vested in the children as
they came in esse. I confess I was at first forcibly struck with L.
Lovie's Case, and Walpole v. Lord Conway, as also with the common
definition of a contingent remainde r. Bu t I think that the rule laid
down in Cunningham v. Moody is the best and wisest construction :
and-fhTfe the rule is " that a remainder may vest, liable to be devested
by ttrr execution of a power of appointment." The ground of it is,
that the courts will never suffer the fee to be in abeyance but from ne-
cessity. And I am the more inclined to adopt this rule, as being the most
likely to give eft"ect to the intention of the parties ; which the contrary
doctrine would probably defeat. Therefore I think that on the birth
of the children the limitations to them became vested ; and as to the
quantum of estate which they took, I have not a particle of doubt. By
reading the words in the mode adopted by the court, all the difficulty is
removed.-*
2 4 The opinion^ of Kciiywn ' , 0. J., a^ ^ i ^ \ Asbllurst/i:lnd Grose, M., in concur-
rence, are omittetl, as Is also that part of'TBiiller, J.'Vopiuiou whiCh deals with,
the question of the revocation of the uses of the settlement. It was held by
all, the judges that there was no revocation.
jWfctlLJ Ui.gtH-d to-thor-tmuc of W ' Olpol ti -V. -COUVVH.V. tvhiih wan montionod i< i
"\Anllis V. Martin as beint: contrary to another decision of Lord Hardwicke iii
C Inniuijham v. Jloody, and which was pressed upon us in Willis v. Martin,
a further account of it has been found among: the papers of tlie late Sir l,
.Swell, from which it clearly appears that f^rd Hardwicke ultimately ^'av ^
d rcctions in it conformable to what he had done in Cunningham v. Muody
I am therefore perfectly satisfied with the decision of Willis v. ^Martin ; am
tl ougb a writ of error was brought to reverse our .iudgment in that case, i
whs afterwards non-pross'd in the House of Lords." E ai- T^rd h>nyon, fi
J.\ in Doe d. Tanner v. Dorvell, 5 T. R. 518, 521 (1794^
The dicta in Johnson v. Battelle, 125 Mass. 453, "iHl" (1878), and Taft v
Taft. 130 Mass. 401, 464, 405 (1S81). must be inadvertent.
See Harvard College v. Balch. 171 111. 275, 40 N. E. 54.3; Kirkpatrick v.
Kirkpatrick, 197 111. 144, 64 N. E. 267 ; Railsback v. Lovejoy, 116 111. 442 6
N. E. 504; Bergman v. Arnhold, 242 111. 218, 89 N. E. 1000. See Gray, Rule
against Perp. (2d Ed.) § 112.
^Uju i^u^trf > 1^
ru
^u^^^72.K.
76 CLASSIFICATION OF FUTURE INTERESTS (Part 1
DOE d. PLANNER v. SCUDAMORE.
(Common Bench, 1800. 2 Bos. & P. 2S9.)
This was an ejectment to recover possession of a messuage and
lands described in the declaration which came on to be tried at the
last assizes for Bedfordshire, when a verdict was found for the plain-
tiffs, subject to the opinion of the court, on a case in substance as
follows :
Thomas Lane on the 9th of March, 1792, by his will duly executed,
devised as follows : "I give and devise my messuage or tenement and
farm called Buckingham-hall with the lands and appurtenances there-
unto belonging and all other my real estate whatsoever situate lying
and being in the parishes of Higham Gobiais Pulloxhill and Barton
or elsewhere in the county of Bedford unto and to the use of my
brother George Lane of the city of Canterbury and his assigns for
and during the term of his natural life without impeachment of waste,
and from and immediately after his death then I give and devise the
same unto and to the use of my amiable friend Catherine Benger (niece
to Mrs. Mary Shiiidler of Burgate Street Canterbury and who at this
time lives with me and superintends the management of my family)
her heirs and assigns for ever in case she the said Catherine Benger
shall survive and outlive my said brother but not otherwise; and in
case the said Catherine Benger shall die in the life-time of my said
brother then and in such case I give and deyise my said messuage
farm lands and real estate in the said county of Bedford irnto and
to the use of my brother George Lane his heirs and assigns for_eyer."
In March, 1793, the said Thomas Lane died without having altered
or revoked his said will, leaving the said George Lane, his brother,
and heir at law, him surviving, who thereupon entered on the estate
so devised, being the premises in question. In Trinity term, 1793, the
same Geprge Lane levied a fine sur conuzance de droit come ceo, &c.,
with proclamations of the premises in question, and declared the use
of the said fine to himself in fee. On the 15th December, 1796, the
said George Lane, by his will duly executed, devised the said prem-
ises to Edward Scudamore the defendant in fee ; and in November,
1799, the said George Lane died in possession of the premises, with-
out having altered or revoked his said will. On the 29th May, 1798,
the said Catherine Benger made an actual entry upon the premises in
question, being within five years after the levying the said fine, and
for the purpose of avoiding the same. Catherine Benger afterwards
married John Planner, and on the 17th of January, 1800, before the
bringing of this ejectment, the said John and Catherine Planner, the
lessors of the plaintiff, made an actual entry on the said premises.
The question for the opinion of the court was. Whether the lessors
of the plaintiff were entitled to recover? If they were, the verdict
was to stand, but if not, a verdict to be entered for the defendant.
Ch. 4^) CONTINGENT REMAINDERS " 77
Heath, J. Two questions have been made in this case : first,
Whether the condition be precedent or subsequent? Secondly, Wheth-
er the devise to C. Benger be a contingent remainder or executory de-
vise? It has been truly said, that there are no technical words by
which a condition precedent is distinguishable from a condition sub-
sequent; but that each case is to receive its own peculiar construc-
tion according to the intent of the devisor. The question always is.
Whether the thing is to happen before or after the estate is to vest?
If before, the condition is precedent; if after, it is subsequent. In
this case it is clear that the event is to happen before the estate can
vest : forTlie^br other is to die before C. Benger can be entitled to the
estate, the words being "in case the said C. Benger shall survive and
outlive my said brother, and not otherwise." In all the cases which
have been cited to prove this a condition subsequent, the intent of
the testator, has been clear that the estate should vest immediately in
possession. Such was the case before Lord Talbot, and such \vas the
case of Edwards v. Hammond. This case therefore is distinguishable
from the cases cited, since in those cases the estate was not intended
to vest in possession immediately. As__to tlie second question, it has
been decided so long ago that it will not admit of discussion. The
case is not distinguishable from Plunket v. Holmes. Where a free-
hold is limited to the first taker and afterwards a fee~is given on a
condition, if it may take effect as a contingent remainder it shall do
so ; and it is not material that a fee might have descended to the first
taker independent of the will.
Rooke;, J. I am of opinion that this is a contingent remainder, and
I found that opinion on the case ot l^lunket vrTIolm'es. It Avas the
intent of the testator that G. Lane should take for life, and that after
his decease C. Benger should take an estate in fee if she survived him,
but if she did not survive him that G. Lane, who was the heir at law,
should take an estate in fee. Here therefore there was a particular
estate for life, which was sufficient to support the devise over as a
contingent remainder; and it is a settled rule of law that where the
court can construe a devise to be a contingent remainder J~tb_e.y_ will
never constrile it to be an executory devise.
Chamrrk, J. I am of the same opinion. The case is perfectly clear
both on reason and authorities.
Judgment for the defendant. ^■'^
^^ See Fincli v. Lane, L. R. 10 Eq. 501.
A fortiori, where the remainder is to children who "survive" the life ten-
ant, it is contingent and destructible. Abbott v. Jenkins, 10 Serg. & R. (Pa.)
296.
78 CLASSIFICATION OP FUTURE INTERESTS (Part 1
FESTING V. ALLEN.
(Court of Exchequer, 1843. 12 Mees. & W. 279.) 2 6
See ante, p. 50, for a report of this case.
PRICE V. HALL.
(Court of Chaucery, 1S6S. L. R. 5 Eq. 399.)
George Hall, by his will, dated the 28th of February, 1839, be-
queathed his personal estate to his wife absolutely for her own use,
benefit, and disposal, and all his real estate, for and during the term
of her natural life, chargeable wTtTTTlie payment of debts and ex-
penses, and il5 yearly and every year during his natural life unto his
grandson William Hall, and to his children equally after his death.
"And as to my said real estates, after the death of my wife I give,
devise, and bequeath the same equally to the child or children of my
said grandson AA'illiam Hall, if he leave any him surviving, luit in
case he leave no child or children him surviving, I give, devise, and
bequeath my said real estates, or the residue thereof, unto the chil-
dren or child of my cousin, Jonas Wilman, of Althorpe, the said
Jonas Wilman and his wife first taking the income thereof yearly and
every year during his life."
The testator died in March, 1843. Mary Hall, his widow, died in
June, 1855, leaving William Hall her surviving.
At the date of testator's death William Hall had no children living,
but five children had since been born to him, of whom three were
living at the death of the testator's widow, ]\Tary Hall, the tenant for
life, the other two having been born since her death.
The bill was filed by the children of William Hall for the purpose
of ascertaining the rights of all parties; and it was prayed that the
income of the infants' shares might be applied for their maintenance
and education, and the back rents accounted for by William Hall, who
was in possession.
At the hearing the Vice-Chancellor allowed the two children of
William Hall born after the death of Mar}^ Hall to be added to the
record as defendants.
Sir W. Pack Wood, V. C. The question is, whether the estate
vested in the children of William Hall, subject to be divested in the
event of William Hall dying without leaving any child or children liv-
ing at his death, or whether it is an interest in the children contingent
upon William Hall dying in the lifetime of the testator's widow, the
26 Accord: P.ull v. Pritchard, 6 Haro, .^»07 (1847); Holmes v. Prescott, 33
L. J. Ch. 2G4 (18tJ4); Rhodes v. Whitehead, 2 Dr. & Sm. .532 (1865). Contra:
Browne v. Browne, 3 Sm. & G. 5(58 (1S57). Cf. .juU v. Jacobs, 3 Ch. D. 70";,
713 (187G). See, also, Pitzel v. Schneider, 216 111. 87, 74 N. E. 779.
Ch. 4) CONTINGENT REMAINDERS 79
tenant for life, which contingency has not taken effect by reason of
the tenant for Hfe having pre-deceased WilHam Hall. It is clear that
in neither view could the children of Jonas Wilman take. The case
was very ably argued by Mr. Freeman, who relied upon that class of
c ases where it has Ijccn held that upon a gift to A. when or if he
shall live ta an. in lwcnl}--()nc, followed by a limitation over in case
he' ^e under th at age, the (le\ ise over is considered as indicating that
he is to take all that is net g-i\en over in the given event, and that in
such a'ca^c ihc iniviast \-c-t:- immcdialcl}-, though not absoluteTy and"
indefeasibly, until A. attains twenty-one. But there is another class
of cases', of which Festing v ^_Allen, 12 M. & W. 279 — which, although
it has been called in question (see Browne v. Browne, 3 Sm. & Giff.
568), has not been overruled — is an instance, viz., that il_X.ou attach
to a legatee a description so that the legatee cannot be ascertained but
for that dc-cription, which contains in itself a contingency; then un-
til the contingency happens you have no legatee to answer the whole
of tlu- lO'ini-ite description, and no one to whom the doctrine laid
down in Edwards v. Hammond, 3 Lev. 132, and that class of authori-
ties, can apply. In all the cases cited in favor of vesting, the gift was
to children on their attaining a particular age, and the only words of
contingency were that, if the particular age was not attained, the es-
tate was to go over, the effect of which was that, although the estate
vested immediately, it did not vest indefeasibly until the particular
age had been attained. But in this case the contingency which is in-
troduced does not fit in with the prior interest given. Doe d. Roake
v. Nowell, 1 M. & S. 327, affirmed in Dom. Proc. (5 Dow. 202), is al-
ways referred to by those who disapprove of Festing v. Allen. There
however, all the class was distinctly ascertained and indicated, and it
would be going far beyond the authority of that case, or even Browne
v. Browne, to hold in this case that the children took vested remain-
ders liable to be divested in the given event. It is not here a gift to
ascertained persons with a gift over, but there^Was a clear intention
on tH'e^paiT of fhe testator that the class should not be ascertained un-
til the death of William Hall, and that all those children who sur-
vived hifn (Wtlliam Hall), and those only, should take. Unfortunately
for the interests of the children, William Hall was not tenant for life,
and has survived the person named by the testator as tenant for life,
so that the particular estate to support the contingent remainder has
dropped before the event on which the contingency depends has ar-
rived. By treating it as a remainder vesting mimediately in the chil-
dren living at the death of the tenant for life, it might happen that
those children might all die in the lifetime of William Hall, and yet
be absolutely entitled, to the exclusion of after-born children who sur-
vived William Hall. That was the very class of events which was not
intended by this testator. He meant to give to any children of Wil-
liam Hall whom he might leave living at his death. That was the
80 CLASSIFICATION OF FUTURE INTERESTS (Pait 1
particular period pointed out for ascertaining the class, and if no chil-
dren of \A'illiam Hall were then living, then the property was to go
over to the W'ilman family. I mention, lest it should be thought that
I had overlooked it, the case of Doe d. Bills v. Hopkinson, 5 O. B.
223, which, at first sight, looks very like this case, but is not so in
reality. There the devise was to T. and W. for life in equal moieties,
and after their death the moiety of T. was given "to such child or
children as he shall happen to leave, lawful issue, at the time of his
decease, and to their, her, or his heirs and assigns forever, to take in
equal shares if more than one." The gift of W.'s moiety was in sim-
ilar terms, and in case either T. or W. died without lawful issue, the
moiety of him so dying was given to the survivor and to J. If both
T. and W. died, and neither of them left issue, the whole was given
to J. for life, and after his death to such children as he should leave
at the time of his death. In case all three, T., W., and J., should die
without lawful issue, or if they, or any of them, should leave law-
ful issue, and such issue should depart this life under twenty-one and
without lawful issue, then the property was given over. The court
there, looking to the whole will, held that the estate of each child
(of T.) in remainder vested at birth, liable only to open and let in
the interests of after-born children. It must be held in this case that
the limitations after the death of Mary Hall to the children of Wjl-^
liam~Hall were contingent hmitations, and that, as the contingency
has failed, WilHam Hall takes the" estate as heir-at-law of his father.
As, therefore, the plaintiffs are not entitled to any interest under the
testator's will, the bill must be dismissed, and, as costs are not asked
for, without costs. ^'^
27 In Parker v. Koss, 69 N. H. 213, 45 Atl. 576, there was, after a life es-
tate in the whole property, a devise of portions to "the children then living
of three dilfereut sisters." Then follows the gift over in these words: "If
there should not be any of the children of any of my deceased sisters living,
their portion shall be divided equally among the other legatees." The life
tenant renounced and the question was whether the remainders were vested
so they could be accelerated. It was held that they were.
If, after limiting a remainder to the children of the life tenant who sur-
vive the life tenant, there be added a gift over if the remainderman does not
survive the life tenant and dies leaving children, then to these children, the
remainder has been held to he contingent. Haward v. Peavey, l:.'8 111. 430,
21 X. E. 503, 15 Am. St. Kep. 120; Thompson v. Adams, 205 111. 552, 09 N.
E. 1 ; Starr v. AMlloughby, 21S 111. 485, 75 N. E. 1029, 2 L. R. A. (N. S.) 623 ;
Brechbeller v. Wilson, 228 111. 502, 81 N. E. 1094; Wakefield v. Wakefield,
256 111. 296, 100 N. E. 275, Ann. Cas. 1913E, 414.
In Wood V. Robertson, 113 lud. 323, 15 N. E. 457, the remainder after a
life estate was to "my children then living and the descendants of such as
may be dead, share and share alike." It was held that the children took
vested remainders. See, also, to the same effect, Farnam v. Farnam, 53
Conn. 201, 2 Atl. 325, 5 Atl. 682; Nodiue v. Greenfield, 7 Paige (N. Y.) 544,
34 Am. Dec. 303.
If, in the case of a remainder limited to the children of the life tenant who
survive the life tenant, there be added the single gift over, if any child does
not survive and dies without leaving children, the remainder has been field to
be contingent, in accordance with the language expressly introducing the
Ch. 4) CONTINGENT REMAINDERS 81
SECTION 3.— ALIENABILITY
GOLLADAY v. KNOCK.
(Supreme Court of Illinois, 1908. 235 111. 412, 85 N. E. 649, 126 Am. St. Rep.
224.) 2 8
Appeal from Circuit Court, Coles County; M. W. Thompson, Judge.
This is an appeal from the circuit court of Coles county in a parti-
tion proceeding in which the complainants claim an interest in the real
estate in question as grandchildren and heirs of Moses Golladay. The
real estate involved was owned in fee simple by George Golladay at the
time of his death, which occurred on the 13th of January, 1854. The
interests of the parties in the real estate depends upon the construction
to be given to the second clause of the will of George Golladay. That
clause is as follows : "After the payment of such debts I give, devise
and bequeath unto my wife, Na ncy Golladaj, all my personal property
and real estate" bemg in sections 9 and 10, in town 13, north, range
10, east, third P. M., in said county, and to her children after her
death ; and if the said Nancy Golladay doesliot~Rave~cIiildren that wTTl
irve~to inherit said real estate, that the said real estate, at the death
of Nancy Golladay and her children, fall to Moses Golladay and
his heirs, of said county." At the time of the death of the testator,
hfs^ widow, Nancy Golladay, had no children, but after the
death" of the testator his widow • married one Johnson and had
a daughter by him, who lived to be 23 years of age. This ^ughter
die3~ti^fore Tier mother. Moses Golladay died in 1855, leaving two
clTIIclren;3Villiam Golladay and Mary Knock. On May 15, 1900, Wil-
liarir^olladay executed a general warranty deed to TIenry H. Fuller
and Ross R. Fuller, purporting to convey the real estate described in
the bill. William Golladay died January 1, 1904, intestate. Complain-
ants are his children. Mary Knock, the only daughter of Moses Golla-
day, died intestate in the year 1890, leaving six children as her only
heirs. John Knock, Jr., one of the children of Mary Knock, on the
27th day of February, 1904, made a warranty deed conveying his in-
terest in the real estate involved to Henry H. Fuller. Nancy_Golladay
died in 1907. The court below found that Nancy Golladay took a life
estate in the real estate TrTquestion under the will of George Gdlladay,'
condition precedent of survivuisliip. Cbapiu v. Crow, 147 111. 219, 35 N. E.
536, 37 Am. St. Kep. 213 feift over to surviving remaindcrnian) ; McCanip-
bell V. Mason, 151 111. 500, 38 N. E. 672 (gift over to surviving reuiainder-
mau) ; City of Peoria v. Darst, 101 111. 609 (gift over to third party) ; Kobe-
son V. Cochran, 255 111. 355, 99 X. E. 649 (gift over to grantor).
28 Arguments of counsel omitted.
4 Kales Prop. — 6
S2 CLASSIFICATION OF FUTURE INTERESTS (Part 1
and that Moses Golladay and his heirs took a contingent remainder,
which upon the death of Nancy Golladay without leaving children
surviving her, became a fee in the persons who at that time answered
the description of "heirs of Moses Golladay"; ^^ that Henry H. Fuller
and Ross R. Fuller took nothing under their deed from William GoIIaT"
day, and said deed w as by the decree of the court canceled as a cloud
upon_the title. The court by its decree found that tlie complainants are
each entitled to a one-sixteenth interest in the premises in fee, and that
H. H. Fuller, Jack Knock, Catherine Knock, Minnie Knock, Anna
Knock, and Emma Knock are each seised of an undivided one-twelfth
interest in said estate, and that no other parties have any interest there-
in. All^gf tlie defendants other than H. H. and R. R. Fuller cla imed
as heirs of Cassie Johnson, the daughter of Nancy Johnson, formerly
Nancy Golladay. The court found that these parties had no interest in
the premises. Henry H. and Ross R. Fuller excepted to the decree,
and have perfected an appeal to this court. The errors relied on for
a reversal are that the court erred in finding that the second clause of
the will of George Golladay gave Moses Golladay a contingent remain-
der instead of a vested remainder, and that the court erred in rendering
a decree in favor of complainants, against the defendants.
ViCKERS, J. (after stating the facts as above). The principal ques-
tion in this case is whether the interest devised to ]\Ioses Golladay and
his heirs was a vested or 'a contingent remainder, A vested remainder
is a present interest which passes to a party to be enjoyed in future, so
that the estate is invariably fixed in a determinate person after a par-
ticular estate terminates. 2 Blackstone's Com. 168; Haward v. Peavey,
128 111. 430, 21 N. E. 503, 15 Am. St. Rep. 120. Fearne, in his work
on Remainders, on page 2, says : "An estate is vested when there is
an immediate fixed right of present or future enjoyment. An estate is
vested in possession when there exists a right of present enjoyment.
An estate is vested in interest when there is a present fixed right of
future enjoyment." A remainder is vested when a definite interest is
created in a certain person, and no further condition is imposed than
the determination of the precedent estate. It is not sufficient that there
is a person in being who has the present capacity to take the remainder
if the particular estate be presently determined. It must also appear
that there are no other contingencies which may intervene to defeat
the estate before the falling in of the particular estate. Smith v. West.
103 111. 332. In the case last above cited this court quoted with ap-
proval the language of Chancellor Walworth in Hawley v. James, 5
Paige (N. Y.) 466, as follows: "A remainder is vested in interest
where the person is in being and ascertained, who will, if he lives, have
2 !> Moses Gollaflay's remainder was clearly transmissible by descent or
devise upon his death before the contingency happened upon which it was to
vest. Jarman on Wills (Gth Ed., by Sweet, 1910) vol. 1, p. SO; vol. 2, p. 1353.
Ch. 4) CONTINGENT REMAINDERS 83
an absolute and immediate right to the possession of the land upon the
ceasing or failure of all the precedent estates, provided the estate limit-
ed to him by the remainder shall so long last ; in other words, where
the remainderman's right to an estate in possession cannot be defeated
by third persons or contingent events or by a failure of a condition
precedent, if he lives, and the estate limited to him by way of remain-
der continues till the precedent estates are determined, his remainder is
vested in interest." A contingent remainder is one limited to take effect
either to a dubious and uncertain person or upon a dubious and uncer-
tain event. This general definition has often been approved by this
court. While the difference between a vested and a contingent remain-
der is clear enough under the definitions as given by the authorities,
still it is not always an easy matter to determine whether a particular
instrument creates a vested or a contingent remainder. Thus it does
not necessarily follow in all cases that every estate in remainder which
is subject to a contingency or condition is a contingent remainder. The
contingency or condition may be either precedent or subsequent. If
the former, the estate is contingent ; if the latter, the remainder is vest-
ed, subject to be divested by the happening of the condition subsequent.
Haward v. Peavey, supra, and authorities there cited. To distinguish
between a contingent remainder and one that is vested, subject to be
divested by a condition subsequent, is often a matter of much difficul-
ty. So far as our investigation has gone, we have found no attempt
to formulate a rule on the subject, except the general rule that it is to
be determined in each case as a question of construction of the instru-
ment creating the interest.
In the case at bar both parties agree that, under the second clause of
the will of George Golladay, Nancy Golladay took a life estate. The
devise over to Moses Golladay and his heirs cannot be construed as
vesting a present interest in fee, subject to be divested upon the death
of the life tenant leaving children surviving her. The language of the
testator will not bear such construction. The clearly expressed inten-
tion of the testator was to give his wife a life estate in the premises,
with remainder in fee to such of her children as might be Hving at the
time of her death. Then, to meet the possibility that his wife might
die leaving no children surviving her, he made the devise over to Moses
Golladay and his heirs. Here the devise over depended on a dubious
and uncertain contingency ; that is, the death of the life tenant without
leaving children surviving her. The language of the testator that the
real estate is to fall to Moses Golladay and his heirs "at the death" of
the life tenant clearly indicates that the testator did not intend or con-
template a vesting of the devise over before the happening of that con-
tingency. In other words, the testator has fixed the time and the condi-
tion under which the estate may vest, and it is not the province of
courts to defeat the intention of the testator by a resort to artificial
,-iiV- of construction.
84 CLASSIFICATION OP FUTURE INTERESTS (Part 1
Appellants place much reliance upon the case of Boatman v. Boat-
man, 198 111. 414, 65 N. E. 81. That case arose under the following
facts : The testator devised a certain portion of his real estate to his
son, Emory Boatman, subject to the following condition : "The share
of the real estate that my son Emory gets under this will is only a life
estate. He is to have the use, rents and proceeds of said land, after
paying taxes and necessary repairs, so long as he may live. At his
death, if he leaves any child or children surviving him, then said land
is to go to such child or children, but if he dies leaving no child or chil-
dren ■surviving him then said lands to go to his brothers and sisters."
After the death of the testator, and during the life of Emory Boat-
man, Clara V. Worsham, a sister of Emory Boatman, conveyed, by
quitclaim deed, all of her interest in the real estate of her father, in-
cluding that upon which Emory Boatman held a life estate, to four of
her brothers, one of whom was Clarence E. Boatman. Clarence E.
Boatman died intestate February 14, 1899, leaving no children, but
leaving Ida M. Boatman, his widow. Emory Boatman died June 19,
1901, leaving no widow, child, or children, or descendants of a child or
children. Ida M. Boatman filed her bill for a partition, claiming that
her deceased husband was seised of a vested interest in the lands in
which Emory Boatman held a life estate, and that, by the death of her
husband without children, she, as his widow, became seised, under the
statute of descent, of one undivided half interest in the lands upon
which Emory Boatman held the life estate. This court afiirmed a
decree sustaining the contention of the widow of Clarence E. Boat-
man.^" In that case, on page 420 of 198 111., page 83 of 65 N. E. a defi-
nition of a vested remainder w^as given, as follows : "A vested remain-
der is an estate to take effect after another estate for years, life or in
tail, which is .so limited that, if that particular estate were to expire or
end in any way at the present time, some certain person who was in
esse and answered the description of the remainderman during the con-
tinuance of the particular estate would thereupon become entitled to
the immediate possession, irrespective of the concurrence of any collat-
eral contingency."
This definition is not erroneous when all of the language embraced
within it is properly considered. The definition, however, is very er-
roneous and misleading unless the modifying clause introduced by the
last eight words employed is constantly kept in mind. The subsequent
treatment of the question involved in that case shows that the court ap-
plied the definition given without considering that the death of the life
tenant leaving children surviving him was the "concurrence of a col-
lateral contingency," which, under the definition given, prevented the
interest of the brothers and sisters of Emory Boatman from being a
30 See, also, Burton v. Gagnon, 180 111. 345, 54 N. E. 279; Chapin v. Nott.
203 111. 341, 07 X. E. 8.33; KiuUlell v. Wren, 208 111. SOS, 70 N. E. 751; Orr
V. lutes. 209 111. 222, 70 N. E. 731; 8 III. Law Rev. 313-322.
Ch. 4) CONTINGENT REMAINDERS 85
vested remainder. There was in that case, as there is in the case at
bar, a collateral contingency to be taken into account ; that is, the death
of the life tenant without leaving surviving children before the remain-
der could become vested. This contingency is a dubious and uncertain
event. It could not be known until the death of the life tenant whether
this contingency would happen; hence the remainder was contingent in
the Boatman Case as it is in this. In this respect the Boatman Case is
out of harmony with our previous decisions, as well as the great weight
of authority outside of this state. See 24 Am. & Eng. Ency. of Law
(2d Ed.) p. 418. In so far as the Boatman Case seems to lay down the
rule that a devise to one with remainder in fee to his children who may
survive him, with a devise over to another in case the life tenant dies
leaving no children, creates a vested interest in remainder in the last
devisee, that case is overruled. The case of Chapin v. Xott, 203 111.
341, 67 N. E. 833, in so far as it is based on the Boatman Case on this
point, must be regarded as unsound. The remainder created by the
devise over in such case is contingent upon the death of the life tenant
without leaving children. That this is the proper construction of a
clause in a will or deed is recognized by many decisions of this court,
among which the following may be cited : City of Peoria v. Darst, lUl
111. 609; Smith v. West, supra; AlcCampbell v. Mason, 151 111. 500.
38 N. E. 672; Furnish v. Rogers, 154 111. 570, 39 N. E. 989. In the
case last above cited the clause in the will involved was as follows :
"I give and bequeath to my grand-niece, Jessie Starkweather, * ''' *
my house and two lots in Sycamore, - * * also thirty-two acres in
]\Iayfield, DeKalb county, 111., and $500, all of which is to go to her
children should she marry. If she should die childless, then it is to be
divided between her mother and the rest of my grand-nieces and neph-
ews who will appear and give evidence of such." It was held that un-
der the foregoing clause Jessie Starkweather took a life estate, and that
the remainder created by the devise over was contingent on her mar-
riage and the birth of children who survive the life tenant. In dis-
posing of that case this court, speaking by ]\Ir. Justice Phillips, on
page 571 of 154 111., page 990 of 39 N. E., said: "The language em-
ployed designates the children ^s those who talce the remainder, and the
estate does not vest in them, as an absolute fee-simple title to them and
their heirs forever, until the death of Jessie, as it is further provided
that, if she die childless, the estate is to be divided among her mother
and the rest of the testator's grandnieces and nephews, etc., whose es-
tate is contingent upon the death of Jessie without a surviving child or
children or the descendants of such child or children, in which case
the takers of the remainder are subsituted for surviving children. By
the first clause of the will Jessie Starkweather takes an estate for life
in the house, lots, and land and in the $500 therein bequeathed. The
remainder is a concurrent, contingent remainder with a double aspect,
to be determined immediately upon the death of Jessie, as at that mo-
86 CLASSIFICATION OF FUTURE INTERESTS (Part 1
ment it will vest in her child or children, or the descendants of such
child or children, that survive her, and, in default of such survival, the
remainder would vest in the mother of Jessie and the other grand-
nieces and nephews of the testator" — citing Dunwoodie v. Reed, 3 Serg.
& R. (Pa.) 435, and City of Peoria v. Darst, supra. The law as laid
down in the Rogers Case, and the others above cited in line with it,,
furnishes the correct rule of decision in the case at bar. The second
clause of the will of George Golladay gave his wife a life estate with a
contingent remainder with a double aspect, to be determined upon the
deatlTDf "the life tenant. ' "At the time of her death sKe'TeTt'no cfiitdren
surviving her. The devise over to the heirs of Moses Golladay there-
fore took effect as a fee-simple interest upon the falling in of the life es-
tate. The daughter of Nancy Golladay who died before her mother,
and such of the heirs of jMoses Golladay as predeceased the life tenant,
had no interest in the premises. William Golladay was a son of Aloses
Golladay. As already shown, he made a warranty deed purporting to
convey his interest in the premises to Henry H. Fuller and Ross R
Fuller several years before the death of the life tenant. Appellants
contend that this deed operated as a conveyance of the interesFof Wil-
liam Golladay, and that, if said deed was otherwise inoperative, it
should be given eft'ect, by way of estoppel, against the assertion of ti-
tle by the complainants, who are the children of William Golladay.
This contention cannot be sustained. William Golladay died before
the life tenant. No title ever vested in him. His children are not es-
topped by the covenants in this deed for the reason that they are not
asserting a title by descent from their father, but are claiming under the
will of George Golladay as heirs of Moses Golladay.^ ^ A contingent
remainder may be transferred by warranty deed, under our statute, so
31 This would seem to ,be a following of the common-law rule that the
descent of a remainder is traced from the first purchaser — that is to say, the
orij-'inal remainderman— in lieu of the person last seised, so that, upon the
life tenant's death, those persons were entitled who were then heirs of Moses
(Jolladay. the remainderman, as in the following cases: Barnitz v. Casey, 7
("ranch (U. S.) 456, 3 L. Ed. 40.3; Buck v. Lantz. 49 Md. 439; Garrison v.
Hill. 79 Md. 75, 28 Atl. 1062, 47 Am. St. Rep. 363; Jenkins v. Bonsai. 116
Md. 629, 82 Atl. 229 ; Payne v. Rosser, 53 Ga. 662 ; Lawrence v. I'itt, 46 N. C.
344.
It has been held, however, under American statutes of descent that the
common-law rule has been changed, and that descent is traced from the per-
son last entitled, so that on Moses Golladay's death his contingent remainder
passed by descent to his heirs, including William, and upon William's death
his interest passed by devise to his children, the complainants, as his heirs
at law, as in the following cases: Hicks v. Pegues, 4 Rich. Eq. (S. C.) 413;
Kean's Lessee v. Hoffecker, 2 Har. (Del.) 103, 113, 29 Am. Dec. 336. See,
also, the following cases, where the remainder or reversion descending was
vested and descent was traced from the person last entitled: Cook v. Ham-
mond. 4 Mason (U. S.) 407, 4S8. Fed. Cas. No. 3,150: Lakev v. Scott. l."» X.
Y. Wkly. Dig. 148; Moore v. Rake, 26 N. J. Law, 574, 582; Oliver v. Powell,
114 (Ja. 592. 600, 40 S. E. 826; Cote's Appeal, 79 Pa. 235; Hillhouse v.
Chester, 3 Day (Conn.) 166, 210, 3 Am. Dec. 265; Early v. Early, 134 N. C.
258, 46 S. E. .~)03. Tbis was the rule regularly applied where personal prop-
erty was involved. Hillhouse v. Chester, 3 Day (Conn.) 166, 210, 3 Am. Dec.
Ch. 4) CONTINGENT REMAINDERS 87
as to vest the title in the grantee.^- Kurd's Rev. St. 1905, c. 30, §
7; Wadhanis v. Gay, 73 111. 415; Walton v. Follansbee, 131 111. 147,
23 N. E. 332. But, w here the grantor of such an interest dies before
t he^ contin gency h appens upon which the estate is to yf 'i^i "'^tVii'ngr pa<t«;-
erti|_sudi-dee4r ThBRias v. Miller, 161 111. 60, 43 N. E. 848. Had
William Golladay survived the life tenant, appellants would have suc-
ceeded to his share in this estate. In that event his deed would have
been binding upon him and his heirs after his death. The c ^nvey-
ance by John Knock, Jr., to Henr}^ H. Fuller is valid under the au-
tKbritl^s^which huTIify~lhe~deecr oT William Golladay. John Knock,
Jr.,*5Trrvived the life tenant. The court below correctly held that H.
H. Fuller was entitled to the share of John Knock, Jr. This is the
only interest he has in this estate. The other appellant Ross R. Fuller,
who claims under the deed of William Golladay, has no interest what-
ever.
There is no error in the decree of the circuit court. The decree will
be affirmed.
Decree affirmed. ^^
Dunn, J., took no part in the decision of this case.
265; Thompson v. Sandford, 13 Ga. 238; Cote's Appeal, 79 Pa. 235. Contra:
Jenkins v. Bonsai, IIG Md. G29, 82 Atl. 229.
North V. Graham, 235 111. 178, 85 N. E. 267, 18 L, R. A, (N. S.) 624, 126 Am.
St. B.e\). 189, would seem to have settled the rule in Illinois in favor of trac-
ing the descent from the person last entitled as in the above class of cases.
If, then, the complainants took as heirs of William Golladay, why were
they not bound by the warranty of their ancestor? See 3 111. L. R. 373.
St: With regard to the effect of the warranty to pass the title, see 3 111. Law
Rev. 373.
In Blanchard v. Brooks, 12 Pick. (Mass.) -17, a deed, with general warranty
of "all his [the grantor's] right, title and interest in" the land conveyed, did
not pass the contingent remainder, and the warranty did not transfer the
title by estoppel when the remainder vested.
33 Note ox the Extinguishment of Fxtture Interests by Release. — Ex-
ecutory and contingent future interests may be released by the holder. Such
releases, where they operate merely to extinguish the future interest, are
valid for this purpose. Fearne, C. R. 421, u. (d), 423; 2 Preston on Convey-
ancing, 26S, 269, 392, 471, 473. Tims a contingent remainder after a life es-
tate can be released to the reversioner and thereby extinguished. 2 Washburn
on Real Property (6th Ed.) 528; Williams on Real Property (17th Int. Ed.)
422 ; Caraher v. Lloyd, 2 Com. (Australian) Rep. 480. So the holder of a
shifting executory interest cutting short a preceding fee simple can release
to the holder of the preceding fee and thereby extinguish the future inter-
est. Williams v. Esten, 179 111. 267, 53 N. E. 562; Smith v. Pendell, 19 Conn.
107, 48 Am. Dec. 146; Fortescue v. Satterthwaite, 1 Ired. (23 N. C.) 566;
Lampet's Case. 10 Coke, 48a, 48b; In re Coates Street, 2 Ashm. (Pa.) 12;
Jeffers v. Lampson, 10 Ohio St. 101 ; Miller v. Emans, 19 N. Y. 384 ; D'Wolf v.
Gardiner, 9 R. I. 145. But cf. Edwards v. Varick, 5 Denio (N. Y.) 664; Pel-
letreau v. Jackson, 11 Wend. (N. Y.) 110, and Jackson v. Waldrou, 13 Wend.
(X. Y.) 178, where the present holder in fee and the one having the executory
de^^se over united in a deed, and where it was held that the deed was in-
effective so far as the future interest was concerned.
The release, however, by the son of the executory devisee in the lifetime
of his parent, is entirely ineffective. Dart v. Dart, 7 Conn. 250.
Quiere: Whether the holder of the contingent future interest can, under
the guise of a release, transfer the future interest to a life tenant so as to
88 CLASSIFICATION OF FUTURE INTERESTS (Part 1
^TNA LIFE INS. CO. v. HOPPIN.
(U. S. Court of Appeals, Seventh Circuit, 1914. 214 Fed. 928, 131 C. C. A. 224.)
See post, p. 136, for a report of the case.^*
BLANCHARD v. BLANCHARD.
(Supreme Judicial Court of Massachusetts, 18G1. 1 Allen, 223.)
Petition for partition, in which the petitioner claimed two undi-
vided fifth parts of the estate described. At the trial in the Superior
Court the following facts were proved.
William Blanchard, the former owner of the premises, died in 1840,
leaving a widow and ten children ; and his will, after a devise to his
wife of all the income of all his real and personal property during
enlarge the interest of the life tenant by the addition to it of the future in-
terest. See cases put in Lampet's Case, 10 Coke. 51. and Striker v. Mott, 28
N. y. 82 ; Caraher v. Llnvd. 2 Com. (Australian) Rep. 4S0 ; Williams y. Esten,
179 Til. 267, 53 N. E. 562; Ortmayer v. Elcock, 225 111. 342. 80 N. E. .3.39.
Where several are tenants in common in fee, with a gift over to the others
in certain events, and they exchansje deeds by way of partition, it has been
held that each takes his portion discharged of the gift over. In re Coates
Street, 2 Ashm. (Pa.) 12. But the contrarv was held in Thompson t. Becker,
194 111. 119, 62 N. E. 558.
3 4 Accord (on the point of inalienability of the contingent remainder by
execution sale): Watson v. Dodd, 68 N. C. 528; Id., 72 N. C. 240; Taylor
v. Taylor, 118 Iowa, 407. 92 N. W. 71 ; Young v. Young, 89 Va. 675, 17 S. E,
470, 23 L. R. A. 642; Nichols v. Guthrie. 109 Tenn. 535, 73 S. W. 107; Hender-
son V. Hill, 77 Tenn. (9 Lea) 26; Roundtree v. Roundtree, 26 S. C. 450, 471,
2 S. E. 474 ; Mittel v. Karl. 133 111. 65, 24 N. E. 553, 8 L. R. A. 655 ; Temple
v. Scott. 143 111. 290, 32 N. E. 366 ; Phayer v. Kennedy, 169 111. 360, 48 N. E.
828 ; Madison v. Larmou, 170 111. 65. 48 X. E. 556, 62 Am. St. Rep. 356 ; Speng-
ler v. Kuhn. 212 111. 186, 72 N. E. 214; Robertson v. Guenther, 241 111. 511,
89 N. E. 689, 25 L. R. A. (N. S.) 887. Cf. White v. McPheeters, 75 Mo. 286,
292.
The rule of the principal case applies to guardian's sales. Furnish v.
Rogers, 1.54 111. 5(i9, 39 N. E. 9s9; Hill v. 1111. 2(>4 111. 219, 106 N. E. 262.
See, also, Kingman v. Harmon, 131 111. 171, 23 N. E. 430.
On the other hand, a A'ested remainder is freely alienable by all modes of
conveyance. O'Melia v. Mullarky, 124 111. 500, 17 N. E. 36; Boatman v.
Boatman, 198 111. 414, 65 N. E. 81 ; Ducker v. Burnham, 146 111. 9, 34 N. E.
5.58, 37 Am. St. Rep. 135; Railsbaok v. Lovejoy, 116 111. 442, 6 N. E. 504;
Brokaw v. Ogle, 170 111. 115, 48 N. E. 394,
Note on the Tp.eatjient in Equity of Conveyances of Reversions and
Otiieb Futuke Interests, Whether Vested or Contingent. — The English
Court of Chancery regularly set aside, if there was any inadetiuacy in the
consideration given, conveyances of reversions and vested remainders de-
pendent upon the falling in of a life estate, even when the conveyance was
made by a mature adult, who know exactly wJiat he was about, and there
was no fraud whatsoever. Gowland v. De Faria, 17 Ves. Jr. 20; Ilincksujan
V. Smith, 3 Russ. 434; Edwards v. Burt, 2 De G., M. v<c G. 55; Boothby v.
Boothby, 15 Beav. 212; Salter v. Bradshaw, 26 Beav. 161; Bromley v. Smith,
26 Beav. 644; Foster v. Roberts, 29 Beav. 467; Jones v. Picketts. 31 Beav.
130; Nesbitt v. Beriidge, 32 Beav. 282; 13 Yale Law Journal, 228.
i'or legislntion abolishing the rule of inalienability of contingent remainders
and other future interests, see 8 & 9 Vict. c. 106, §" 6 ; 1 111. Law Rev. 380.
Ch. 4) CONTINGENT REMAINDERS 89
her natural life, contained the following clause: "Thirdly, I give and
bequeath t ^my belo ved dau ghter Elizab eth Ford Blanchard, to my
daughter Mary Jane Blanchard, to my d a ughte r Anna Uaws on MoF -
risoi TlBlanchard , to my~ sonHenry ^BlanchariL and my _soii_Samuel
Orne^Blanchard, all the property both rea l and person al that may be
left aFThe de rrt h of m^ r-Avife ^__to_ be dTy Tded equally^ between the _last
five named children. And pro\'ided, furthermore, that i f_ any of the
lasl~five namecrctiTldren die before my wife, then the property to be
equally divi ded between tlTe~siTrvivor s^_ex cept they should le av e issue ,
i n that case t ogo to said issuejrovided the said issue be legitimate."
The testator's wi dow died inTSS/ . The share of the daughter Mary
Jane was conve}^ed to the petitioner by deed dated May 24, 1858.
The p etitioner. bY .jl££ d. dated _jiily_25, 18 42, conveyed to his moth er
all his right, title and in terest in and to the real and personal estate
of his late father.
Upon these facts, R ockw^ell, J., ruled that Henry Dlanchar djookjiQ
interest in the p remises, under his father's will , which he could_ con-
vey~in _the I iietime~Qf his another, and that his deed to his mother con-
veyed no interest therein, and that he was entitled to hold two fifths
of the premises ;~ and the jury found a verdict accordingly. The re-
spondents alleged exceptions.
Hoar, J. The will of William Blanchard devised to his wife Eliza-
beth all the income of all his real and personal property during her
natural life, and then devised as follows:
"Thirdly, I give and bequeath to my beloved daughter Elizabeth
Ford Blanchard, to my daughter Mary Jane Blanchard, to my daugh-
ter Anna Dawson Alorrison Blanchard, to my son Henry Blanchard,
and my son Samuel Ome Blanchard, all the property both real and
personal that may be left at the death of my wife, to be divided
equally between the five last named children. And provided, fur-
thermore, that if any of the last five named children die before my
wife, then the property to be equally divided between the survivors,
except they should leave issue, in that case to go to said issue, pro-
vided the said issue be legitimate." The testator had ten children, all of
whom survived the wife.
The principal question presented by the exceptions is, w hether
Henry Blanchard. during the life of his motlTc iytook a vested or con-
tin gent interes t in the real estate of his father, included within the
terms of the devise.
The language used is not wholly free from ambiguity ; and the case
certainly comes ve ry near the dividing line between vested and con-
tingent remainders. It does not seem probable that the testator, or
the person by whom the will was drawn, had any very distinct no-
tions or purposes upon the subject; and the expressions employed
are such, that, among the great multiplicity and variety of adjudged
cases, some may undoubtedly be found which would countenance
either construction.
90 CLASSIFICATION OF FUTURE INTERESTS (Part 1
The gift of the income of real est ate for life is a gift of a life es-
tnte in ^ tlie lan cl^ lUanchard v. li rooks, YZ I'lck. 66. The devise to
the children was therefore of a remainder, vested or contingent, or
an executory devise. It is a settled rule of law, that a gift shall not
be deemed_Joj3e_an^^xecutory^^e^^ of jtaking^ effect
a s^ a remai nd er ; and it is equally well settlecHTliar n o remainder will
be construed to be contingent which may, consistently with the inten-
tio'n. be deemed veste^ d! Blanchard v. Brooks, ubi supi-aT; 4 Kent,
Coin. (6th Ed.) 202T~Shattuck v. Stedman, 2 Pick. 468 ; Doe v. Per-
ryn, 3 T. R. 484 and 489, note. We must then consider whether there
is anything in the language of this devise which shows an intention to
postpone its vesting until the death of the mother.
The first clause of the devise to the children is certainly sufficient,
if it stood alone, to create a vested remainder in all the children. The
words descriptive of the property, "all the property both real and per-
sonal that may be left at the death of my wife" are used inartificially,
and in their ordinary sense would have no proper application to the
devise which the testator was making. As_J ie had only given to his
wife the inc ome of the est ate f or her life, a ll the pr operty would be
left at her dea^ tli^ But everi if we may suppose that it w^as in the tes-
tator s mind that some part of the principal of the personal estate
might be lost or consumed while his wife was enjoying the income of
it, undoubtedly all the real estate must be left at her death. The
words "that may be left" add noth ing, therefore, to the meaning, un-
l ess they may be reg arded as expressmg the idea of devismg a ll__the
estate rema ming^fter the wife's estate for l ife. It would then stand
as the ordinary case of a devise to the wife for life, remainder in fee
to the five children at her death, to be equally divided between them.
There would be by such a devise, according to all the authorities, a
vested remainder created in them as tenants in common. It would
vest at once in interest, though not in possession. There are iiojAinols
o f con tingen cy, such as, "if they sha l]_ be living at her death/' or "to
sijch ot them as shall be" liy ing^'Mhe usual and proper phrases to
constitute a condition precedent; but a direct gift of all the property
left after the life estate previously carved out. The diffict ilt y arise ^s
from the remaining sentence, which is a pro viso c ontai ning a limita -
tio n ove7~6TT he esta te tlTt3s devised to the~cTiildren respectively, j rpon
the contingency ot ^ itlier of_thein_dying_ befo re their mother, either
wiTh or without issue! Although this is i n the form ot a pro yiso^et
ther e afe~numerous cases'lfrwhiclTalimitation thus expressedhas been
held_to quality in _its inception the int ere st or "es tate before devise d ,
and_to jnake that conting ent which wo uld o therwTse~have been vest ed.
And there is no~cIouBtthat if the effect of this clause is to limit the
remainder to such of the children named as should survive their
mother, then it is a contingent remainder. And this is the construc-
tion urged on behalf of the petitioner.
But if, on the other hand, it can be regarded as a devise in fee to
Ch. 4) CONTINGENT REMAINDERS 91
th e five ch ildren, subj ect to be d ivested upo n a condition subsequent,^
with a limitation over on the hai)pcniny_ ^f that condition, then the
chiTcTren namecFtook a v ested rei nainderJU-fee ; the limitation over
would ha ve taken effect, if at all, only as an exe cutory devise; and,
as~tJ 2.e contingency nev^ h appened, the fee became absolute.
Four cases only were cited by the counsel for the petitioner in favor
of the former construction. Doe v. Scud amore, 2 Bos. & P. 289, was
the case of a devise to G. L., the testator? heir-at-law for life, and
from and after his death to C. B., her heirs and assigns forever, m^
case s he should survive and outl i ve the said G. L .^_but_J lQt otherwis e,
and inTase she should die in the lifetime of the said G. L., then to
G. L., his heirs and assigns forever ; and it was held that the devise
to C. B. was of a contingent remainder. There the words of the gift
made it expressly, and in the first instance, dependent u pon the_con-
tirigenc^.
In M oore v. Lyo ns, 2.5 Wend. (N. Y.) 119, a devise to one for life,
and from and aft er his deat h to three others or tO' tlie^ survivors or su r-
vi vor of them, their or his heirs and assigns ^ forever, was held, in the
Court of Appeals, to give a vested interes t to the remainder-men at
the death of the testat or, t he words of survivorship being construe d
to refer to the death of the testator, and not to the death of the ten-
ant for life. It had been conceded in the Supreme Court that, if the
survivors at the death of the tenant for life had been intended, the
remainder would have been contingent. Here, too, the survivorship
directly qualified the gift, and it was not easy to regard it as a sub-
secfuent condition to an estate previously given. But Chancellor Wal-
worth, in this case, was of opinion that the remainders would have
been vested, even if the words of survivorship had been taken to refer
to the death of the tenant for life ; and states the rule to be, that
" w^iere a remainder is so limited as to tak e effect in possession, if
ever, mimediat e lv upon the dete rmination of a particular es tate^ which
e st ate is to det f^'<"'"'in^ by ^^ f^ve nt that must unavoidably happen by
the efi^ux of time, the remainder vests in interest as so on as the re-
mainder-man is in ease-and ascertained ; prnvi ded. nnthinrnTiit hisj rwn
death before the determinat ion of the particular estate will prevent
such remainder from vesting in possessioril Yet, if the esfate~iFllm-
ited~over to another in the event of the death of tlie first remainder-
man before the determination of the particular estate, his vested es-
tate will be subject to be divested by that event, and the interest of
the substituted remainder-man, which was before either an executoi"}^
devise or a contingent remainder, will, if he is in esse and ascertained,
be immediately converted into a vested remainder."
In H ulburt v. Emerson, 16 Mass. 241, the devise was to the tes-
tator's son John, liis iieirs, executors, and assigns, subject to tlie pay-
ment of a legacy ; but in case John should leave no male issue , tlien^
o ne half to be ecjually amo ng his childr en, and t he other h alf equally
among all the surviving children of the testator. This was held to give
93 CLASSIFICATION OF FUTURE INTERESTS (Part 1
John an estate in tail male, with contingent remainders over; and
that tlie^n-yivi n^ childr e n were sucli_as should be iivmg wheneve r
John died without male issue. No reasons are given by the court for
the" latter opinion, nor autliorities cited to support it; and the heirs
of the children who survived the testator, but did not survive John,
were not parties to the suit.
The case of Qlney v. H ull, 21 Pick. 311, is the remaining case, and
perhaps the strongest in favor of the petitioner. The devise was to
the testator's wjfe so long as she remained his widow ; and sho uld she
marry or die, then to be equally divided a mong his su rviving sons,
\\- i lTi~eaCh son paying sixty dollars to his daughters, to be equally
divided among them, as soon as each son might come in possession,
of the land. This court decided that no estate vested in the sons un-
til the death of the widow ; and in the opinion great stress is laid upon
the provision that, "should the wife marr}^ or die, the land then should
be equally divided among the surviving sons," as indicating that the
survivorship had reference to the death or marriage of the widqw.
But the difference between that case an d the case at bar is this, that
in the former the devise fs made upon the contingency, while In the
latte r it is tirst made"!^"?!!^ devi sees by name, "and the contiiigeTiry
appears only in a subsequen t prov isiq ii, which may consist as well with
the previous ves ting ot the remainder.
'Knd we are all oT opinion that the case before us falls within an-
other class of cases, wdiich it more nearly resembles, and where the
devise has been held to create a vested interest, determinable upon
the happening of the contingency.
Such a case was Bromfield v. C rowder, 1 New Rep. 313, where the
testator devised to A. for life, and after her death to B. for Hfe, and
at the decease of A. and B., or the survivor, gave all his real estate to
C, if he should live to attain the age of twenty-one; but in case he
should die before that age, and D. should survive him, in that case to
D. if he should live to attain twenty-one, but not otherwise; but in
case both C. and D. should die before either of them should attain
twenty-one, then to E. in fee. It was held by all the judges of the
Common Pleas, that C. took a vested estate in fee simple, determina-
ble upon the contingency of his dying under the age of twenty-one
years, the intention of the testator being apparent to make a condi-
tion subsequent, and not a condition precedent, notwithstanding the use
of the word "if." And they rehed upon Edwards y. Ha mmond, 3
Lev. 132, which was the case of a copyholder who "^^surrendered ta
the use of himself for life, and after to the use of his eldest son and
his heirs, if he live to the age of twenty-one years; provided, and
upon condition, that if he die before twenty-one, that then it shall re-
main to the surrenderor and his heirs;" and it was held tliat, not-
withstanding the word "if" in the first clause, the whole showed an
intention to create a condition subsequent. Bromfield v. Crowder was
afterwards affirmed in the House of Lords.
Ch. 4) CONTINGENT REMAINDERS 93
In Doe V. Aloo re, 14 East, 601, a devise of real estate in fee to
J. M. Avhen he attains the age of twenty-one ; but in case he dies be-
fore twenty-one, then to his brother when he attains twenty-one ; with
like remainders over : was held to give to J. ]\I. an immediate vested
interest, and that the dying under twenty-one was a condition subse-
quent on which the estate was to be divested. Lord EHenborough
cited Mansfield v. Dugard, 1 Eq. Cas. Ab. 195 ; Edwards v. Ham-
mond ; Bromfield v. Crowder ; and Goodtitle v. Whitby, 1 Burr. 228 ;
and said that "these authorities were attempted to be distinguished,
on the ground that they were cases of a remainder and not of an im-
mediate devise ; but that forms no substantial ground of distinction :
the estate vests imm.ediately, whether any particular interest is caryed
out of it to take effect in possession in the mean time or not."
Smither v. Willock, 9 Ves. 233, was the case of a bequest of per-
sonal estate to the testator's wife for life, and from and after her
death to be divided between his brothers and sisters in equal shares ;
but, in the case of the death of any of them in the lifetime of the
wife, the shares of him or her so dying to be divided between all
and every his, her, or their children. Sir WilHam Grant decided that
the shares vested in the brothers and sisters, subject only to be di-
vested in the event of death in the life of the testator's widow, leav-
ing children.
But a case more nearly resembling the case at bar is Doe v. Xowell,
1 M. & S. 327. There was a devise to J. R. for life, and on his de-
cease to and among his children equally at the age of twenty-one, and
their heirs, as tenants in common ; but if only one child should live
to attain such age, to such child and his or her heirs, at his or her
age of twenty-one ; and in case J. R. should die without issue, or such
issue should die before twenty-one, then over. It was held that the
children of J. R. took vested remainders ; and Lord EHenborough said
that the case of Bromfield v. Crowder was very fully considered, and
was a conclusive authority.
In Ray v. Enslin, 2 Mass. 554, the devise was to the wife for life,
and after her decease to the testator's daughter and her heirs forever.
"But in case my daughter should happen to die before she come to
age, or have lawful heir of her body begotten," then one third to his
sister and two thirds to his wife, and their heirs forever. It was held
that the daughter took a vested estate in fee simple defeasible -upon a
contingency reasonably determinable. See also Richardson v. Noyes,
2 Mass. 56, 3 Am. Dec. 24.
These cases, with many others depending on a similar principle,
seem to us sufficient to show that tjie devise to Henry Blanchard was
of a v ested remainder, d efeasible on a conditi on subsequent, wliich hF
co uld 'convey by deed m tne litetime oi his motherT This would be
equally true whetlier nis remainder was in tee simple or in tail. Were
the other construction to prevail, it would follow that, if the tenant
for Hfe should have forfeited her estate by waste, the whole estate
94 CLASSIFICATION OF FUTURE INTERESTS (Part 1
would have gone to the heirs at law, which is obviously inconsistent
with the whole intention of the testator. At least such would have
been the effect of the forfeiture at common law, though in this Com-
monwealth such a consequence has been guarded against by Statute.
Rev. Sts. c. 59, § 7.
The decision of this question renders the other point, respecting the
deed of Henry Blanchard to his mother, of no importance.
Exceptions sustained.^^
3 5 Accord: Jeflfers v. Lampson, 10 Ohio St. 102; Pingrey v. Rulon, 246 111.
109. 92 X. E. 592.
If the limitations be to A. for life, remainder to the children of A. in fee,
but' if any die before A. leaving children, then to such children the share
which their parent would have taken, gives the child or childj-en of A. upon
birth a vested and alienable remainder. In re Rogers' Estate, 97 Md. 674, 55
Atl. 679 : Moores v. Hare, 144 Ind. 573. 43 N. E. 870 ; Callison v. Morris, 123
Iowa. 297, 98 N. W. 780; Smith v. West, 103 111. 332; Siddous v. Cockrell. 131
111. 6.53. 23 N. E. 586; Pingrey v. lUilon. 246 111. 109. 92 N. E. 592; Northern
Trust Co. V. Wheat on, 249 111. 606, 94 N. E. 980, 34 L. R. A. (N. S.) 1150;
Haward v. Peavey, 128 111. 430, 439. 21 N. E. 503, 15 Am. St. Rep. 120 (semble).
If the limitations be to A. for life, remainder to the children of A. in fee,
but if A. die without leading children, then over to B. and his heirs, the re-
mainder to the children is vested. Forsythe v. Lansing's Ex'rs, 109 Kv. 518,
59 S. W. 854 ; Ducker v. Eurnham, 146 111. 9, 34 N. E. 558, 37 Am. St. Rep.
135; Hinrichsen v. Hinrichsen. 172 111. 462, 50 N. E. 1.35. But see Hill v.
■Hill. 264 111. 219, 106 N. E. 262 (1914).
In New York, by the judicial construction of a statute defining vested and
contingent remainders (1 Rev. St. N. Y. pt. 2, c. 1. tit. 2, § 13), it has been
held that a remainder is alienable by a deed without covenants, when made
by the person or persons who would be entitled at the moment of conveyance,
if the life estate should be terminated at that moment by the death of the life
tenant, ^^r e v. Li ttel, 41 N. Y. 66 (1869) ; House v. Jackson, 50 N. Y. 161
(1872). Burihls is^ow conceded to be the result of the New York statute
and contrary to the rule of the common law. Smaw v. Young, 109 Ala. 528, 20
South. 370 (1895).
In Connelly v. O'Brien, 166 N. Y. 406, 60 N. E. 20. it was held, however,
that where the limitations were to the widow for life and "then to such of
my children as may then be alive, share and share alike," and where a child
of the testator had survived him and died before the widow leaving a child,
the plaintiff, the plaintiff was entitled on the death of the widow because it
had vested in her parent and she took bv descent from him.
But in Hall v. La France Fire Engine Co., 158 N. Y. 570, 53 N. E. 513,
where the limitations were to A. for life "and at her death to the heir or
heirs of her body her surviving." and where at the date of the deed creating
these limitations A. had a child, who, however, died before A., it was held
that the heir of A.'s deceased child had no interest in the land so limited.
The court called the remainder to the heir or heirs of the body of the life
tenant "a contingent remainder."
See, also, In re Moran's Will, 118 Wis. 177, 96 N. W. 367.
Clarke v. Fay, 205 Mass. 228, 91 N. E. 32S, 27 L. R. A. (N. S.) 4.>4 (1910),
was a suit in equity under Rev. Laws, c. 159, § 3, cl. 7, to reach and apply
to the payment of a debt due to the plaintiff from the principal defendant
the Interest of that defendant under the will of his grandfather. It appeared
that that will gave the residue of the testator's property to trustees, and, aft-
er providing for certain trusts, directed that all tbe residue of his estate
should \m divided into as many equal shares as there should be at the time
of his decease children of his then living or deceased leaving issue, and then,
after providing for the management of the trust and the payment of its ex-
penses, proceeded as follows: "To pay over the residue of the income of such
share to the child for whose benefit such share is held, * * * for and dur-
Ch. 4) CONTINGENT REMAINDERS 95
ing tbe term of such child's natural life and upon such child's death to con-
vey transfer and pay over the principal of the share so held for such child's
benefit to such child's lawful issue then living by representation ; but if such
child shall die without leavinjr lawful issue living at the time of such child's
death then upon such child's death to add the principal of tlie share held for
such child's benefit equally to the shares held for the benefit of my other
children then living, * * * provided however that the lawful issue then
living of any other child of mine who shall have theretofore deceased shall
take and have (and there shall bo paid and conveyed to such issue) — by right
of representation the same part of such principal which would have been
added to the share which would have been held for the benefit of such is-
sue's deceased parent if such issue's deceased parent was then living."
When the bill was filed the father of the principal defendant was living. De-
fendant had two unmarried sisters, who as well as he were born before the
death of the testator. He had had five aunts, who were living at the death
of the testator, one of whom had died, leaving issue, one of whom was a
childless widow, two of whom were married, each of them having a married
son without is.sue. and one of whom was married and had a minor unmar-
ried son. Held, that the interest of the principal defendant in his share of
the fund of which his father enjoyed the income, although his enjoyment of
it was contingent on his surviving his father, was assignable property, which
could be reached and applied under the statute, but that his interest in the
funds of which the incomes were enjoyed respectively by his aunts, and a
part of which would come to him if, after his father's death and during his
own lifetime, any of his aunts should die without leaving issue, was not prop-
erty, but a mere possibility of proiierty, which could not be reached under
the statute."
MiSCELI.AXEOUS LeGAI. CONSEQUENCES WHICH DEPEND UPON THE CHARACTEE
OF THE Remainder and are Often Said to be Determined According as the
Remainder is Vested or Contingent. — The union of the particular estate
and the contingent remainder in the same person will not cause the termina-
tion of the particular estate (Cumraings v. Hamilton, 220 III. 480. 77 N. E.
264), while the coming together of a particular e.state and the next immedi-
ate estate in remainder, which is vested and larger than the particular estate,
will terminate by merger the particular estate and cause the remainder at
once to vest in possession (Bond v. Moore. 236 III. 576, 86 N. E. .jSG. 19 L. R.
A. [X. S.] 540; Whitaker v. Wliitaker, 157 Mo. 342. 58 S. W. 5; Bovkin v.
Ancrum, 28 S. C. 486, G S. E. 305, 13 Am. St. Rep. 698). This rule of merger,
it is believed, is based upon the strictly feudal or common law distinction
between vested and contingent remainders.
The rule against iieriJetuities only requires that the future interest shall
vest within lives in being and twenty-one years after its creation. "Vest"
here does not mean vest in the sense of being non-contingent, nor does it
mean vest in possession. It means vest in the feudal or common law sense of
that term. Hence in applying the rule against perpetuities it may become of
vital importance to determine what interests are vested in that sense, so as
to determine whether the future interest does or does not violate the rule
against perpetuities. Madison v. Larmou. 170 111. 65. 48 X. E. 556, 62 Am.
St. Rep. 356 ; Howe v. Hodge, 152 III; 252, 38 X. E. 1083 ; Chapman v. Cheney,
191 111. 574, 61 X. E. 363.
Thejiei^on with a vested remainder^ must be made a party to a decree in
chancer y or h e will not be boundnby it. A contingent remainderman may ^e
b ound^b^- tt te decree~"by repTesehtation. McCampbell v. Mason, 151 III. 500,
38 X. E.^672 TTemple -TT-Scottr-i4» I-ttv-SQO, 32 X. E. 366; Thompson v. Adams.
205 III. 552, 69 X. E. 1. This may refer to the common law or feudal dis-
tinction.
If the remainder be subject to a condition precedent in form that the re-
mainderman to take must survive the life tenant, then if the remainderman
dies before the life tenant no interest passes from him, for he obtained noth-
ing. On the other hand, if the remainder be not subject to any such condi-
tion precedent of survivorship and if there is no divesting clause operating in
the events which happen, the remainderman will have an interest trans-
missible at his death. The question, which situation exists, is fundamentally
merely one of construction. What is the meaning of the language u.sed'/ Is
96 CLASSIFICATION OF FUTURE INTERESTS (Part 1
CHAPTER V
LIMITATIONS TO CLASSES
RULE IN WILD'S CASE.
Hawkins on Wills (2d Ed.) 243 : A devise of real e state to A. and
his childr en, A. having no children at the time ot the devise, ve sts jn
A. an estate tail ; ''children" being co nstrued as a word of limit ation.
(TrttrfrCase. b Rep. lob; see VVebtrvTByng, 2'K. & J. 669.)
The rule does not applv to bequests of personal estate. (Audsley
V. Horn, 1 Ue"^ K & j". 226!) ^
'TThe time of the devise appears to mean the date of the will," and
not the death ot the testator. (Butiar v. Bradtord7z Atk. 22l>; [Grieve
V. Grieve, L- R. 4X07180; Scale v. Barker, 2 B. & P. 485; Clifford
V. Koe, 5 A. C. at p. 47L])^
Co. Lit. 9^1 B. having divers sonnes and daughters, A. giveth la nds
to B. et liberis suis, et a lour heires, th e father and all his chi l3reh
t o take a tee simple joyntl}^ by torce of these w ords (their heires) ;
b ut if he had no childe at the time of the feoffment, tlie childe borne
afterwards shall not take.
there a condition precedent of survivorship or not? Nevertheless, if the re-
mainder is subject to a condition precedent in form of survivorship, it is,
according to the feudal or common law distinction, a contingent remainder.
On the other hand, if it is not subject to such condition precedent of sur-
vivor.ship it is vested and that whether it be subject to a gift over or not.
Hence the purely practical question of construction is continually dealt with
by the courts and judges on the basis of whether the remainder is vested or
contingent according to the feudal or common law distinction.
In such cases the courts, not being faced with any consequences of de-
structibility or inalienability, have not infrequently reached doubtful results.
Cuiumiugs v. Hamilton, 220 111. 480. 77 N. E. 264; People v. Byrd, 253 111.
22.3, 97 N. E. 293 ; Drury v. Drury, 271 111. 3P.n. Ill N. E. 140.
It is clear that partition cannot be had by a contingent remainderman, but
may be had by a non-contingent and indefeusibly vested remainderman. Rud-
dell v. Wren, 208 111. 508, 70 N. E. 751 ; Dee v. Dee, 212 111. 338, 354, 72 N.
E. 429. It may not l>e permitted to a remainderman having a vested re-
mainder according to the common law or feudal definition if that remainder
is uncertain ever to take effect, 1)ecause it is subject to a gift over on events
wliich may happen before it vests in possession. Goodrich v. Goodrich, 219
111. 426, 76 N. E. 575 ; Cummings v. Hamilton, 220 111. 480, 483, 77 N. E. 264
(as to 180 acres), semble; Seymour v. Bowles, 172 111. 521, 50 N. E. 122.
Hence the question of whether a renin inder may be partitioned does not de-
pend upon the aiiplication of the purely common law or feudal distinction be-
tween vested and contingent remainders. 1 111. Law Rev. 184.
1 The rule in Wild's Case was applied in Lofton v. Murchison, 80 Ga. 391,
7 S. E. 322. It was held to have tK^en abolished by implication by the stat-
ute which makes a devise to A. simpliciter prima facie the devise of a fee, in
Davis V. Ripley, 194 111. 399, 62 N. E. 852, and Boehm v. Baldwin, 221 111. 59,
77 N. E. 454,
Ch. 5) LIMITATIONS TO CLASSES 97
Sheppard's Touchstone, 436: I^ one devise his land to the children
of I. S., by this devise the ch ildren that TT^. hath at~tHe time of t he
devis e, or at the m ost the children j^lia t I. S. hath at the time ^f the
deatfi^of the testator, and notany^f them that shall be bor n after h is
death, shall take?
SHEPHERD v. INGRAM.
(High Court of Chancery, 1764. Ainb. 44S.)
Mr. Shepherd, of Exning in Cambridgeshire, by will gave all his
freehold, leasehold, and copyhold est ates, a nd also his personal estate,
to_t rustees . to hold to them, their executors, administrators, and as-
signs, i n trust to pay certain annuities an d legacies out of the rents
and profits of his personal estate ; and in~case of~want of sufficiency
of personal estate, then out of the rents and profits of his said real
estate. And as for and concerning aM the rest, r esidue , and remain-
der of his said real and personal estate, of what nature or kind so-
ever, after provision ma de f or payment of the said an nuities and lega-
ci es, he gave the same to such child or children as his daughter France? *
Gi bson, otherwise Frances Shepherd (who was his natural daugh-
ter, to whom he had given the greatest part of his estate), s hould have
of her body lawfully begotten, whether male or female, equally tq be
divi ded b etwe en t h em, share and share alike, taking upon them j he
n ame ot S hepherd Tbut having made no provision for the disposal of
the rest, residue, and remainder of the said real and personal estate,
in case his said daughter Frances Gibson, commonly called Frances
Shepherd, s hould die without i ssu e ot her body lawfully to be begot -
te n, then he gave the same, after payment of the said annuities and
legacies, unto Christopher Jeaft'erson and Joseph Fyke, equally to be
divided between them, share and share alike7 they taking the name
of Shepherd.
By a codicil, 26th September 1744, he revokes the bequest to Jeaf-
ferson, and declares, that he shall have no benefit from the residue
of his estate, and devises the same to Samuel Shepherd and the said
Joseph Pyke, equally to be divided between them, for their lives ; and
directed that the annuities which should fall in should go back to the
residuum of his real and personal estate, and be equally divided be-
tween Samuel Shepherd and Pyke, provided his said daughter should
die without leaving issue of her body lawfully begotten; but in case
his said daughter should leave at her death any child or children
2 Singleton t. Gilbert, 1 Cox, 68; s. c. 1 B. C. C. 542, note; Scott v. Har-
"wood, 5 Mad. 332 (jioes on the construction to be given the devise) , Cooli v.
Cook, 2 Vern 545 (the after-born children were included; ; Hill v Chapman,
3 Bro. C. C. 391. post, page 25i> (personal property) ; Faloon v. Simshauser,
130 111. G49. 22 N. E. 835 (conveyance by deed ; after-born child excluded).
4 Kales Pbop. — 7
98 CLASSIFICATION OF FUTURE INTERESTS (Part 1
then such annuities as should fall in should be divided among such
children, or go to such only child: and his will was, and he desired
that tlie said codicil should be, and be adjudged to be part and parcel
of his said last will and testament.
T he bill was brought bv Frances Gibs on, who was then u nder age,
and unmarrie d, to establish tlie will, and to have the opinion ofTTie
Court, and directions with respect to the trusts ; and u pon hearing o f
the cause, on 25th Tune 1750 , before Lord Hardwicke, the Uourt di-
rected, That if there should be any surplus of interest arising on any
of the funds, after payment by the said decree directed to be made
thereout, the same should be laid out in South Sea annuities, subscribed
in the name of the Accountant General, to the credit of the said cause,
on account of the personal estate, subject to the further order of the
Court; and declared, that the same ought to go according to the
bequest in the testator's will of the residue of his personal estate ; and
after directing, in case of a deficiency of the personal estate to answer
the legacies and annuities, that such deficiency should be made good
out of the rents and profits of the real estates, his Lordship ordered,
that such rents and profits should from time to time be paid into the
Bank, in the name of the Accountant General; and that the surplus
should be accumulated and laid up ; when the same should amount to
a competent sum, be placed "out^t interest_in the A rcountkTit^ G en-
eralVrrame, and subject to the contmgencyin t he testator's will ; and_
that the iiittiesL andTlividends that should arise therefrom should,
wHen thejT'amounr t u a Tompetent SUiiTp be place d o ut i TTTTke mal>~
ner^ And his Lordsmp declareH'That no part of the surplus rents
and profits of the testator's real estates was descended to, or belonged
to Elizabeth Rogers, the heir at law, but the same was subject to the
trusts and contingencies in the will ; and any person that might be
intitled thereto, according to such trusts and contingencies, was to
be at liberty to apply, as any of such trusts should arise, or contingen-
cies happen.
Af terwards Frances Gib son married Ingram, now Lord Ir-
win, o n 2d August, 1758, and~the re_are^three childre n of the marriag e,
all infants.
B ill by the _ plaintifl :s, being two of those children, the other being
made a defendant, to have an account of the profits of the residuum
of the real and personal estate, as constituted under the former de-
cree, from the birth of the eldest child ; and that so much as became
due, from the birth of the first child till the second was born, may
be declared to belong to the first ; and after the birth of the second,
till a third was born, to belong to the first and second child ; and that
so much as became due from the birth of the thir^i child, may be de-
clared to belong to all the three children.
For the plaintiffs it_was argued. That the r esidne wgs givep tn th e
children defeasible , in case they should all die before Lady Irwin the ir
mother? For the defendants, Shc"plicrd and j-'yke, it was argUed^Th at
Ch. 5) LIMITATIONS TO CLASSES 99
the children too k no interest in the residuum in the life-time of their
mother, hut that~the wholewa s continp^ent till h^r~death ; andi that the
interest and protits were Intended to accumulate in the mean time.
Lord Chancellor Xorthington was very clear of opinion, that
the dau ghters took a defeasible int erest_in_tbe residue; and put the
case^oTa legal devise of the residue^to the daughters, with a subse-
quent clause declaring, that if all the daughters should die in the life-
time of their mother, then the residue should go over, that would be
an absolute devise with a defeasible clause, and the daughters would
in that case be clearly intitled to the interest and profits till that con-
tingency happened. And d ecreed according to the p ray er of the bi ll,
with liberty to apply in the case of the bir th of any other child.^
PRESTON ON CONVEYANCING, vol. 3, p. 555 : "But under
the learning of uses and of executo ry devises, a gift to a cl ass^ of per-
so ns"lTTay give^aTtitTeT lirst^ to onelperson, and afterwards open and ad-
mi t of a participation by others. But at _the rnmmnn law, and under
the learningo f^ remainders, a gift to a class of persons will no t admit
to a participation anv whoare_ born after the determination "oF thej^ar-
ticular estate, thoug h such after- born_p ersons m ightjtake_utider a gift
operating W executory devise, oFsprmging or shifting use . (Mogg v.
MoigrTrrt:kar[my,-i^rDrT^T57Tl^T^ir^
"By this distinction different parts of the certificate in Mogg v.
Mogg are reconciled; the same words of description having, under
different circumstances, conferred a title on a different number of the
grandchildren of the testator." *
MELLICHAMP v. MELLICHAMP.
(Supreme Court of South Carolina, 1S88. 28 S. C. 125, 5 S. E. 333.) »
McIvLR, J. This action was instituted for the purpose of obtaining
partition of a certain tract of land described in the complaint, contain-
ing 3,771 acres, and the several questions raised by the appellants
grow out of the following facts: On the 15th of January, 1878, one
Jo hn Mpblev cm iyeved the tract of land described in the complaint _to^
the^ d efendant "Alarion P Mnble^ y nnd flip rhiH ren she already has
and may hereafter bear bv her husband," Edward P._ ]\Iobley7 Sr.
At the tirne~ol: the execution "of this deed, Mrs. Mobley had borne to
3Accortl : Whe re personal property was inyolyed: Weld y. Bradbury, 2
* See, also, Brackenbury y. Gibbons, 2 Ch. Div. 417 ; Archer y. Jacobs, 125
Iowa, 407, 482-484, 101 N. W. lO.j. See, also, Matthews v. Temple. Comber-
liach's Rep., 467 (1G9S) ; Fearne, C. R. 312, 314; 1 Jarman on Wills (5th
Amer. Ed.) star pp. 2G4, 875; Theobald on Wills (7th Ed.) 312.
5 Only part of the opinion of the court is given.
100 CLASSIFICATION OF FUTURE INTERESTS (Part 1
her said husband the following children, viz., Edward P., Jr., Moses
H., Kate, (who had intermarried with the plaintiff,) Alarion, Jones,
Hattie, and Nancy, — seven in number, — all of whom were then living.
After the said deed was executed, anothej chi ld — the defendant Berry
H. iMobley — was born to the said MariorT R. and Edward P. Mobley,
Sr., whose right to participate in the partition is disputed by some of
the parties.
[The circuit judge held that Berry H. Mobley, though born after
the execution of the deed from John IVIobley to Marion R. Mobley and
her children, was entitled to share in the partition.]
As to the question [namely, whether the after-born child, Berry H.
Mobley, took any interest under the deed from John Alobley to Marion
R. Mobley and her children] there can be no doubt that the intention
was to include after-born children, for the language is : "Unto the
said Marion R. Mobley and the children she already has and may here-
after bear by her husband, the said Edward P. Mobley, Sr.," and it is
d ifficult to conceive what language could _have ^been _employ e d more__ £X-
press ive of an intention to include after-born chil dren. It is true that
this question arises under a deed, and not under a will, where it is sup-
posed greater weight is given to the intention ; but as we understand
it, when a court is called upon to construe any paper, the first effort
should be to ascertain the intention of the parties from the language
which they have used. It is, however, likewise true that sometimes
the intention of the parties, although so clearly expressed as to leave
no doubt upon the subject, cannot be carried into effect, even in case
of a will, because such intention contravenes some settled rule of law,
and it is argued here tha t although the intention is plain to iiTclude
af ter-^rn child r en, the deed cannot be g iven such effect, Becau se iFvio-
lates the well-established rule of law that "a freehold estate~c^anno t be
li mite d to commence in futuro," and therefore, as Berry H. ]\Iobley
was iioTin existence when this deed was executed, and when the estate
granted passed out of the grantor, it could never afterwards have the
effect of vesting any estate in him. The cases cited to support this
view are : Stroman v. Rottenburg, 4 Desaus. 268 ; Myers v. Myers,
2 McCord, Eq. 214, 16 Am. Dec. 648; McMeekin v. Brummet, 2'Hill
Eq. 638; Holeman v. Fort, 3 Strob. Eq. 66, 51 Am. Dec. 665; and
Kitchens v. Craig, 1 Bailey, 119. Now, while in all of these cases the
after-born children were excluded, it was because the court held that
the terms of the instrument — deed or will — did not show an intention
to include the after-born children, and not because such children could
not take under the rules of law. On the contrary, it is plainly implied
in all of these cases, that if the language used had shown an intention to
include after-born children, such would have been the effect.
The case of Hall v. Thomas, 3 Strob. 101, is also cited in support of
the view contended for by appellant. That was a case in which a
mother, by a very informal deed of gift, transferred personal property
to her two children, "Martha and Avan; and also, if I should have any
Ch. 5) LIMITATIONS TO CLASSES 101
more children, they shall all my children be equal and share equal in
this my property, given and intended to be granted and given and con-
firmed, and by these presents do give, grant, and confirm unto my said
children," etc., "of all which premises I, the said Magdalen Ulmer, have
put the said, my children, in full and peaceable possession by virtue
hereof ;" and it was held that this paper, by its terms, vested the whole
legal estate in tlie children born at the date of the deed, to the exclusion
of those born afterwards, stress being laid upon the words last quoted,
as one not in esse could not be put in possession. It is true that
O'Neall, J., in delivering the opinion of the court, also lays down the
doctrine that "a deed is inter vivos, and is to take effect in prresenti.
Such a thing as a deed to a person unknown or not in esse cannot be ;
* * * such a thing as a direct and immediate gift of personalty to
person not in esse has not as yet been allowed, and I trust never will
be." But he adds, further on in the same opinion : "If this had been
a conveyance of land, the most that could have been made of it, be-
tween the parties, would have been that, at law, the legal estate was in
the grantees Martha and Avan, and in equity, that they might have
been regarded as trustees of a springing or shifting use, first, for them-
selves ; second, for themselves and the after-born children, as they re-
spectively come into being." If this be so, then, upon the same princi-
ple, the after-born child. Berry -H. Mobley, could be let in.
In considering the question arising under a devise to children, as to
the point of time at which the class is to be ascertained, or rather as to
the period within which the objects must be born, we find in 2 Jarm.
Wills, marg. p. 98, the following language : "We are now to consider
how the construction is affected by the words 'to be born,' or 'to be
begotten,' annexed to a devise 'or bequest to children ; with respect to
which the established rule is that, if the gift be immediate, so that it
would, but for the words in question, have been confined 'to children
(if any) existing at the testator's death, they will have the effect of ex-
tending it to all the children who shall ever come into existence ; since
in order to give to the words in question some operation, the gift is
necessarily made to comprehend the w-hole." ^ Now, while this lan-
guage is applied to a will, Ave do not see why it should not also be ap-
plied to a deed for the purpose of effecting the manifest intention of the
parties, and giving to the words used some operation and effect. In-
deed, we find that the principles upon which the above-stated rule
seems to rest have been applied to a deed in the case of Hewet v. Ire-
land, 1 P. Wms. 426, though the precise question here under consider-
ation did not arise in that case. Nearly 40 years ago it was said by one
of the chancellors of this state that "the difference between the rules
of construing deeds and wills has often been a subject of regret; and
it is evident that the current of decisions is gradually wearing it away ;
6 Accord: Mogg v. Mogg. 1 Mer. 654; Gooch v. Goocb, 1-i Beav. 5()r>; Ed-
dowes V. Eddowes, 30 Beav, 603; Cook v. Cook. 2 Vern. 545; Theobald on
Wills (7tli Ed.) 311 ; Leake on Property in Laud (2d Ed.) 267.
102 CLASSIFICATION OF FUTURE INTERESTS (Part 1
SO that, at no very distant day, it is probable they will become almost
identical." If, therefore, any mode can be devised by which the mani-
fest intention of the parties, as expressly declared in this deed, can be
carried into effect without violating an ancient rule of the common law,
deriving its origin from the feudal system, as Judge O'Neall seems to
think there can be, we think it should be adopted. It will be observed
that the deed here in question is not solely tojpersons not iii esse at the
tiiiieo f its execution, but there Were persons in ex istence then compe-
tent to tak e the est at e conveyed ; and we do not see why the estate thus
vested in them may~not, in order to effect the intention, open and let in
all of the class expressly mentioned in the deed as they severally came
into existence. It seems to us, therefore, that there was no error on
the part of the circuit judge in holding that Berry H. Mobley was enti-
tled to share in the partition of the land described in the complaint.'^
[Balance of opinion, relating to another point, omitted.]
7 Accord: Pierce v. Brooks, 52 Ga. 425.
Contra: Miller v. McAlister, 197 111. 72, 64 N. E. 254 (1902).
Ch. 6) FREEHOLD INTERESTS SUBJECT TO A TERM 103
CHAPTER VI
FREEHOLD INTERESTS SUBJECT TO A TERM
POLLOCK ON THE LAND LAWS, pp. 137, 138: Leaving ex-
ceptional cases aside, we pass on to consider the position of the tenant
who holds either for a term of years, or as tenant from year to year.
In the feudal plan of society there is no place for him ; and accordingly
the legal doctrine starts from the conception that the relation between
the landlord and the tenant is simply a personal contract. This concep-
tion is at the bottom of all the differences between freehold and lease-
hold tenure, and, though largely qualified in its eft'ects, must be borne
in mind in order to understand even the most modern form of the law.
The lessee's interest is now beyond question property, not the mere
right to the performance of a contract. Still, being in legal theory the
creature of contract, it has neither the dignities nor the burdens pe-
culiar to freehold tenures. It is not the su bject of feudal modes of
conveyance, nor of the feudal rules of inherit ance. No particular form
of words is^necessary for its creation ; and the custom of creating it by
deed has become a legal requirement (and that not in every case) only
by modern statutes. It could always be disposed of by will if the ten-
ant died before the expiration of the term ; and in case of such death
the law deals with it in the same way as cattle or money, and it goes to
the executor, as part of the "personal estate," to be administered by the
same rules as movable property. If undisposed of by will, the lease-
hold tenant's interest belongs on his death to the same persons, and in
the same proportions, as cash or railway shares which he has not dis-
posed of. There is no such thing as an heir of leaseholds. In one
word, which for the lawyer includes all that has been said, a leasehold
is not real but personal estate. From a strictly feudal point of view
there is not an estate at all, only a personal claim against the freeholder
to be allowed to occupy the land in accordance with the agreement.
But as early as the thirteenth century two points were settled, which
together constituted a true right of property in the tenant. If he was
ejected in breach of his landlord's agreement, he could recover not
merely compensation for being turned out, but the possession itself;
and this not only against the original landlord, but against a purchaser
from him. Already the purchaser could not say to the tenant whom he
found on the land, "I have made no contract with you, look for your
redress to the man with whom you did contract." The farmer's pos-
session was as secure while his estate lasted as the freeholder's. On
the foundation thus laid the modern law has been completed, partly by
judicial usage and partly by express legislation. Broadly speaking,
both the landlord's and the tenant's successors in title enjoy, while the
104 CLASSIFICATION OF FUTURE INTERESTS (Part 1
term of the tenancy lasts, the rights conferred at its creation upon the
landlord and tenant respectively, and are subject to the burdens im-
posed on them. Exceptions may still occur, too rare and technical to
be now further specified, which are just enough to show that the old
notion of a mere personal agreement, though decayed, is not dead.
CHALLIS' REAL PROPERTY (3d Ed.) 99 : The sejsin [of the im-
mediate freehold estate] is quite independent ^', and unaffecte d^ by, the
existence^f_ any term or te rms~oT~yeafs^ Therefore, so far as the seisin
is concerned, there can existno such thing as a remainder of freehold
expectant upon a term of years. The existence of a prior term of
years does not prevent the first vested estate of freehold from being
an estate of freehold in possession. (Litt. § 60: "If the termour in
this case entreth before any livery of seisin made to him, then is the
freehold and also the reversion in the lessor.") Words and phrases
which grammatically import futurity, such as "then," "when," "from
and after," and the like, when they refer to the determination of a
prior term of years, do not make the subsequently limited freehold
contingent, or postpone the vesting of it until the expiration of the
term ; but under such circumstances the freehold is vested immediately.
(Boraston's Case, 3 Rep. 19.) During the continuance of a prior term,
the first estate of freehold is properly described, not as being a remain-
der of freehold expectant upon the term of years, but as being the free-
hold in possession subject to the term. But since the possession of the
freeholder is in such a case subject to the rights of the termor, and
since these rights may, and in practice usually do, deprive the free-
holder of the immediate use and occupation of the lands during the
term, the result is, for many practical purposes, much the same as if
the freehold subsisted only as a veritable remainder. In this sense the
word remainder is often applied to estates of freehold limited after a
term of years. But when this language is used the reader must bear in
mind (1) that a pri or term of years does, not p re vent a subsequent vest-
ed estate of freehold from being an estate oftreehold in posselsion;
and (2) that a plMorn:enii6T3^ears~3oFs~n6f prevent asubsequent con-
tinge nF"estate~ or~ff^gho1d from being void in its inception, as beiiig an
attempt to create a freehold uTtuturo.
■EEAKE ON PROPERTY IN LAND (2d Ed.) 35 : If a lease were
made f or years with a contingent remainde r of fre ehold, the l imitation
in remaind er was"w]io ny voIHTBecalise itleft the seMTf in abeyan ce un-
t ij jhe happening of the~co ntihgency ; no r could livery ^be_a y^" f"'" ? P^^^'^
a n estate fj rwant ora~present ceftain" grant ee of~thefreehold . (Co.
Lit. 217a.) TEiis, "it is'a general rule, tTiaF'wherever an estate in con-
Ch. 6) FREEHOLD INTERESTS SUBJECT TO A TERM 105
tingent remainder amounts to a freehold, some vested estate of free-
hold must precede it." (Fearne, Cont. Rem. 281. See Loyd v. Brook-
ing, 1 Vent. 188.)
LIT. § 60. But if a man letteth lands or tenements by deed or with-
out deed for t erm of years, the remainder over to another for life, or
in tail, or irTT ee; in this case it_behoo veth, that thej^sorjijakethjjyery
of seisin to the lessee for years , otherwise nothing passeth to them in
the remainder, although that the lessee enter into the tenements. And
if the termor in this case entereth before any livery of seisin made to
him, then is the freehold and also the reversion in the lessor. But if
he maketh livery of seisin to the lessee, then is the freehold together
with the fee to them in the remainder, according to the form of the
grant and the will of the lessor.
Note on the Distinction between Freehold Interests Subject to Terms
AND Those Subject to a Particular Estate of Freehold so Far as the
Existence of Seisin is Concerned. — Freehold interests limited after terms
for years, if valid at all, are present interests and the seisin of the free-
holder is a present seisin. Challis' Real Property (.3d Ed.) 70, S9-90. The
freeholder's wife or husband has dower (Scribner on Dower [2d Ed.] 2.3.3) or
curtesy. The freeholder, even though not the original purchaser, constitutes
a new stock of descent. Bushby v. Dixon (1S24) 3 B. & C. 298 (4 Gray's Cas.
on Prop. 10). On the other hand, a remainderman has no seisin at all. After
mentioning that the reversioner has a sort of seisin because of the services
rendered him, the learned authors of Pollock and Maitland's History say (2
Pollock & Maitland, History of English Law, 89): "On the other hand, we
cannot find that any sort of kind of seisin was as yet attributed to the re-
mainderman. He \\as not seised of the laud in demesne, and he was not,
like the reversioner, seised of it in service, for no service was due him."
The absence of seisin in the remainderman seems always to have continued,
for Hargrave says (the italics are his): "But, in opposition to what may be
termed the expectant nature of the seisin of those in remainder or reversion
the tenant in possession is said to have the actual seisin of the lands." Co.
Lit. (Ilargrave's note) 217. It followed, from the fact that the remainder-
man had no seisin that he did not render feudal services. 2 Pollock & Mait-
land, History of English Law, 39. He could not bring a writ of right. Lit.
§ 4S1. In order to transfer a remainder the co-operation by attornment of the
tenant was necessary, so that the actual seisin of the freehold in possession
might be held for the grantee of the reiuainderman. Mystery of Seisin, by
F. W. Maitland, 2 L. Q. K. 481, 490-493. A remainderman, other than one
who was an original purchaser did not constitute a new stock of descent. 4
Kent, Com. 387. In this respect also the remainder was on the footing of a
mere right of entry by one disseised. The Mystery of Seisin, by F. W. Mait-
land, 2 L. Q. R. 481, 485. The consequences arising from the fact that the
remainderman had no seisin have come down to us in the rule that there
can be no dower or curtesy in a remainder. Co. Lit. 29a, .32a ; Scribner on
Dower (2d Ed.) 233, 321. In this respect the remainder was on the footing
of a mere right of entry by one disseised. Mystery of Seisin, 2 L. Q. R. 481,
485, et seq.— Ed.
106 CLASSIFICATION OF FUTURE INTERESTS (Part 1
ADAMS V. SAVAGE.
(Court of King's Bench, 1703. 2 Ld. Raym. 854.)
A scire facias A vas_sued _by theplaintiff as administr at or to J. S. up on
ad rninistration grpnteH tn~him hythe archdeacon ^QJ ^ Dorset, upon a
jiiHgment recovered b y the intest ate against S avage in this court . And
the issue alter pTeading was, whetTier~S avage was seise d of the lands ,
etc., in fee? Upon which the jury found a special verdict, that Savage
b eing seiTed in fe e, conveyed^ he lands by lease a nd release to trus tees
and their heirs, to the use oFhimself for ninety-nin ^year s^_^ he should
so Ions live^remain der to the trustees tor twenty^five vears . remainder
to tlie heirs male of his body^emainder to his own right heirs. And
the^question~wal7^ 7'Ba^^ during his life, not havmg heir sjiiale^ o f
his body, should have a use result to him_f or his life. an d_so be come
ten ant inTail m possessi on ; or if no us e could result, an d then there be-
ing nofreeholdto^up2gitjhe_c^^ f
the body of Savage ^the sai d remaind er would be void, and Savage
se ised in fee as be fore" And~this was argued by Mr. Eyre for the pTaih-
tiff, and by Mr. Serjeant Darnell for the defendant, Hilary term
last, and this term. And the court held, that no use could result to
Sav age during his life, and ther'etore tii ej-ernamder to theTiei rs male
wa s void, and Savage seis ed in fee. And their reasons were, because
the limitations to himself for ninety-nine years, and to th e trustees for
tw^enty^five ye ars, and t he heirs male, Aver e ne\ v uses and n ewestates.
As it a man Tdv' lease and release^ or by covenant to stand seised, limit
the use to himself for life, or in tail, these are new estates, and not par-
cel of the old estate, according to 7 Co. 13 b, Englefield's Case. And
where in such case upon a conveyance such uses are limited, as (sup-
posing the limitations to be good) would pass the whole estate, there no
use will result contrary to the express limitations of the party. But if
the limitations are void, the conveyance of necessity will fail. If a
man seised in fee convey his estate by lease and release to the use of
himself for life, remainder to trustees for their lives, remainder to the
heirs of his body; he hath an estate tail in him, but he is but tenant for
life in possession : otherwise if there had been no intermediate estate in
the tinastees for their lives. And in the former case, if a man makes
a feoffment, it is no discontinuance, but only divests the estate. And
for the same reason in this case, where the first limitation is only for
years, the remainder to the heirs of the body of the tenant for years is
a contingent remainder, and void. These are the reasons of the Chief
Justice Holt.
And Powell, Justice, said, that there was a difference, where the
limitation was upon a covenant to stand seised, and where upon a lease
and release. For where the limitations are to take effect out of the es-
Ch. 6) FREEHOLD INTERESTS SUBJECT TO A TERM 107
tate of the covenantor, there if the hmitations were such as could not
take effect immediately, or not till after the death of the covenantor, as
in the case of Pybus v. Midford, 2 Lev. 75, there the law may mould
the estate remaining in the covenantor into an estate for life; but that
cannot be where the limitations are to take effect out of the estate of
the trustees for want of a limitation, much less against an express limi-
tation. And therefore (by him) if there had been an express limitation
in the case of Pybus v. Midford, limited to the covenantor, the judg-
ment would have been otherwise. And for these reasons the whole
court ordered last Hilary term, that judgment should be entered for
the plaintiff, unless cause should be shown to the contrary the first day
of this term. And the first day of this term Darnell, Queen's Serjeant,
showed for cause, that the plaintiff could not have judgment, because it
appeared upon the scire facias that he was not intituled to it ; because
the administration was granted to him by the archdeacon of Dorset, and
therefore the grant of it was void ; for the judgment of this court, upon
which the scire facias is founded, is bona notabilia. 2. If it will not
make bona notabilia, yet this grant of administration will be void quoad
this judgment, because it lies out of the hmits of the jurisdiction of the
archdeacon of Dorset. Against which it was urged by Mr. Eyre for
the plaintiff that this court cannot take notice of the boundaries of
dioceses ; and it may be, that this court is within the archdeaconry of
Dorset, for that archdeaconry may be within the diocese of London;
and this court will not intend the contrary, since the contrary does not
appear to them. But per Holt, Chief Justice, this court will take no-
tice of the limits of ecclesiastical jurisdiction, which is part of the law
of the realm, under which we live; and consequently it will take no-
tice, that a judgment of the King 's Bench is not within theJuriidi^tiDn
of the a rchdeacon ot JJorseT And ior tmb iedsuintTewliole court
held, that^idgment ought to be given for the defendant.^
GORE V. GORE.
(Court of Cliancery, 1722. 2 P. Wms. 28.)
This case came on before Lord Chancellor Macclesfield, who di-
rected it to be referred to the judges of the King's Bench for their
opinion.
The testator William Gore had several sons, Thomas and Edward
Gore, ficc, and several daughters; and being seised in fee of divers
manors and lands, did, by his will dated 14th July, 1718, device these
lands, &c., to truste es for 500 years, and after the determination of
1 Rawley v. Hollanclr 22 Yin. Ab. ISO, pi. 11 (1712), accord. See Gray, Per-
petuities, §§ 58-60.
108 CLASSIFICATION OF FUTURE INTERESTS (Part 1
that term, to the first so n of his eldest son Thomas (who was tlien a
bachelor), tcTlJe begotten m tait~m^ale/"and siD to" evSry~0TtTCt--3en of
tlie l)ody of Thomas to be begotten in tail male successively.
Remainder to the testator's second son Edward for life, remainder
to his first, &c., son in tail male successively, with divers remainders
over.
The trust of the term of 500 years was, to pay the testator's debts
and legacies, which were considerable, and likewise to pay i50 per
annum annuity to the testator's eldest son for his life, with a power
for his said eldest son to distrain for the same, if in arrear, with a
power to the testator's younger son Edward to charge the premises
with il,000 apiece for his younger sons or daughters, payable at
twenty-one, and with a maintenance for them in the mean time, not
exceeding the interest of their portions; the trustees to raise such
portions, and maintenance out of the term for 500 years, and when
all the trusts of the term were performed, then the term to attend the
inheritance.
Also the testator declared, that the reason why he gave his eldest
son Thomas no more than i50 per annum was, because his said eldest
son had stood him in a great deal of money, and was to have £400 per
annum, in lands in Wiltshire, immediately after his [the testator's]
death.
In the February following, the testator died, leaving his el dest son
Thomas then a bachelor, who afterwar ds marr ied, and had a son.
The first question was, whether the devise tomFfiTSt'sorTof TTiornas
(the testator's eldest son) was good?
2dly, in whom the freehold of the premises did vest at the death of
the testator?
Whereupon all the four judges of the King's Benc h thaj^tlie n were ,
(viz.) Pratt, C. J.TT^owisTEyrE, and Fortescue Aland, Justices,
certified their opinions under their hands, "that the__deyise to the eld -
est^^onof Thomas Gore was void ; that it could not be good as a
re mairnletT^oFlvaht of'a freelTord~to"gnpporl it; aiid" that it could
nor_take_effectas an executory devise, because It was too "reniote
(viz j after 500 1^-ears.'" tjut l^ord Aiacclesrield expressed some dis-
saHsf action at this opinion of the judges, saying, that though the law
might be so, yet the term of 500 years being but a trust term, and to
be considered in equity as a security only for money, was not to be
so far regarded (at least in equity) as to make the devise over void.
After which the eldest son Thomas Gore and his brother Edward
came to an agreement, which was confirmed by the court.
Afterwards Thomas Gore had a son and died, and the^son^ofJPhomas
^ore bringing this matjt er ove^again ^in Chanc ery, Lord " Chancello r
King sent it^ second timeltolheTou?t of KingTT^ench, where Lord
HARDWICKg;2Cr^^GE, PROBjn^,_^lT3|X^f77usT^^^
opinion a gainst the opmTon ~ortheir predecessors, (viz.) "Thatlhiswas
Ch. 6) FREEHOLD INTERESTS SUBJECT TO A TERM 109
a good executory devise, and not too remote; for t hat it must in a ll
events, on e way or other, hap pen, upon the d eath of Tho mas j}ore,
whether he should have a son or notTand either upon the birth of the
son, or upon his death without issue male, the freehold must vest."
Lord Raymond also was of this last opinion.
The two certificates were in the words following:
"We have heard counsel on both sides on the question above speci-
fied, and having considered the same, are of opinion, that the devise
of the manors above mentioned to the first son of Thomas Gore is
voMTT^ecause he cannot take by way of remainder, for that thereTs
no freehold to supporflt ; nor can he take by way of executory de^
viseTbecause it is not to talce place within thaFcompass of time whith
the law allows ; an d we a re also of opinion that theTreehold of the
same manors, on the death oFlhe" devisor, vested~in1B^ward the'sec-
ond son. ~~ "
"John Pratt, Littleton Powis, R. Eyre, J. Fortescue Aland.
" 1722."
r 1-] "Upon hearing counsel on both sides, and consideration of this case,
we are of opinion, that tli e devise o f the manors of Barrow and
Sou thley to the first son of Thomas Gore is good by way of exec u -
to ry devis e, andJ:h at the freehold of the sai d,m.nnnr.s, on. the dealli of
the devisor, vested in his heir-a tJaw.
"PIardwicke, F. Page, E. Probyn, W. Lee.
"Jan. 26, 1733."
110 CLASSIFICATION OF FUTURE INTERESTS (Part 1
CHAPTER VII
RULE IN SHELLEY'S CASE
PROVOST OF BEVERLEY'S CASE.'
(Y. B 40 Edw. Ill, 9. [1366.])
Lands were given to one John de Sutton for his Hfe, the remainder,
after his decease, to John his son, and Eh'ne, the wife of John the son,
and the heirs of their bodies ; and in default of such issue, to the right
heirs of John the father. John the father died first; then, John and
EHne entered into possession. John the son then died, and afterwards
EHne his wife, without leaving any heir of her body. R., another son,
and heir at law of John de Sutton, the father, then entered. And it
was decided by all the Justices that he was liable to pay a relief to the
chief lord of the fee, on account of the descent of the lands to himself
from John the father. Thorpe, who seems to have been a judge, thus
explained the reason of the decision : ''You are in as heir to your fa-
ther, and your brother [father?] had the freehold before; at which
time, if John his son and EHne had died [without issue] in his lifetime,
he would have been tenant in fee simple." ^
WILLIAMS ON REAL PROPERTY (21st Ed.) 346-348: We
have seen that, according to feudal law, the grantee of an hereditary
fief was considered as being entitled during personal enjoyment only,
that is, for his life ; while his heir was regarded as having been endow-
ed with a substantial interest in the land. And these conceptions seem
to have been imported into English law along with the principle of ten-
ure. In early times after the Conquest therefore, if a grant of land
were made to a man and his heirs, his heir, on his death, became enti-
tled ; and it was not in the power of the ancestor to prevent the descent
of his estate accordingly. He could not sell it without the consent of
his lord ; much less could he then devise it by his will. The ownership
of an estate in fee simple was then but little more advantageous than
the possession of a life interest at the present day. The powers of
alienation belonging to such ownership, together with the liabilities to
which it is subject, have almost all been of slow and gradual growth, as
has already been pointed out in different parts of the preceding chap-
ters. A tenant in fee simple was, accordingly, a person who held to
1 As stated in Williams on Real Property (21st Ed.) pp. 350, 351.
2 The same rule is said to have been mentioned in Abel'si Case, 18 Edw. II,
577 (1324), which will be found translated in 7 M. & G. 941, note (e).
Ch. 7) RULE IN Shelley's case 111
him and his heirs ; that is, the land was given to him to hold for his
Hfe, and to his heirs, to hold after his decease. It cannot, therefore,
be wondered at, that a gift, expressly in tliese terms, "To A. for his
Hfe, and after his decease to his heirs," should have been anciently re-
garded as identical with a gift to A. and his heirs, that is, a gift in fee
simple. Nor, if such was the law formerly, can it be matter of surprise
that the same rule should have continued to prevail up to the present
time. Such indeed has been the case. Notwithstanding the vast power
of alienation now possessed by a tenant in fee simple, and the great lia-
bility of such an estate to involuntary alienation for the purpose of sat-
isfying the debts of the present tenant, the same rule still holds ; and a
grant to A. for his life, and after his decease to his heirs, will now con-
vey to him an estate in fee simple, with all its incidents ; and in the
same manner a grant to A. for his life, and after his decease to the
heirs of his body, will now convey to him an estate tail as effectually
as a grant to him and the heirs of his body. In these cases, therefore,
as well as in ordinary limitations to A. and his heirs, or to A. and the
heirs of his body, the words "heirs" and "heirs of his body" are said to
be words of limitation ; that is, words which limit or mark out the estate
to be taken by the grantee. At the present day, when the heir is per-
haps tlie last person likely to get the estate, those words of limitation
are regarded simply as formal means of conferring powers and privi-
leges on the grantee — as mere technicalities and nothing more. But, in
ancient times, these same words of limitation really meant what they
said, and gave the estate to the heirs, or the heirs of the body of the
grantee, after his decease, according to the letter of the gift. The cir-
cumstance, that a man's estate was to go to his heir, was the very thing
which, afterwards, enabled him to convey to another an estate in fee
simple. And the circumstance, that it was to go to the heir of his body,
was that which alone enabled him, in after times, to bar an estate tail
and dispose of the lands entailed by means of a common recovery.
GOODEVE. LAW OF REAL PROPERTY (4th Ed., by Ephin-
stone, Clark & Dickson) 239, 240 : We do not know by what reasoning
the rule [in Shelley's Case] was originally established; but the follow-
ing considerations will show that it woukl be impossible for any person
who understood the meaning of the words employed to deny the exist-
ence of the rule. Ever since tlie Conquest, English lawyers were ac-
quainted with the difference between a conveyance "to A." and a con-
veyance of land "to A. and his heirs." In the first case, A.'s interest de-
termined on his death ; in the second case, it passed on his death to his
heirs. Then the case arose of a conveyance "to A., with remainder to
his heirs." Now what is the meaning of "the heirs of A." ? (Evans v.
Evans (1892) 2 Ch. 173.) It means an indefinite succession of persons,
each of whom will succeed to the land of which A. dies seised (or ac-
112 CLASSIFICATION OF FUTURE INTERESTS (Part 1
cording to the present law of which A. was the purchaser, and dies
seised), unless some prior heir alienates it, or according to the old law,
becomes attainted. It is sometimes forgotten that although before the
Inheritance Act, 1833 (3 & 4 Will. IV, c. 106, 9 L. Q. R. 2), heirship
was traced from the person last seised, yet every blood relation of the
purchaser was necessarily one of his heirs, except where he was ex-
cluded by the rule as to the half-blood. It follows therefore that, un-
less both the purchaser and his father and mother were bastards, the
number of persons each of whom might be his heir was infinite ; and
as there can be only one heir at the same time, each of these persons
became the heir in succession one after the other. There was no man-
ner known to the common law in which these persons could take by
purchase. The only estates which could be held by more than one per-
son as purchaser were estates in joint tenancy and tenancy in common.
The estate of the heirs could not be in joint tenancy, for the estates of
joint tenants must, according to the common law, arise at the same
time and not in succession ; it could not be tenancy in common, because,
although the estates of tenants in common may arise at different times,
still persons cannot be tenants in common unless they are tenants at tlie
same time, Avhich is impossible in the case of heirs. If, therefore, it is
not possible for the heirs to take by purchase, the only possible manner
in which they can take is by descent; in other words, A. the ancestor
must take the fee simple.
CHALLIS' REAL PROPERTY (3d Ed.) p. 152 : In the limitations
now under consideration, there occurs always an estate of freehold
limited to a specified person, and a subsequent limitation, whether im-
mediate or remote, expressed to be made to the heirs, or to some class
of the heirs, of the same person. The prior estate and the subsequent
limitation must both arise under or by virtue of the same instrument.
Grammatically, the construction of the second limitation might be, to
give a remainder by purchase to the specified heirs. And since the
person whose heirs they are, or rather, are to be, is living at the date of
the limitation, such a remainder, if taken by the heirs as purchasers,
would be a contingent remainder of Fearne's fourth class, being a limi-
tation in remainder to a person not yet ascertained or not yet in being.
(Vide supra, p. 131.) But the law puts upon the limitation to the heirs
a different construction, not giving to them any estate at all by pur-
chase, but taking account of the mention of the heirs only for the pur-
pose of giving a corresponding estate to the specified ancestor. There-
fore, it is commonly said, that in limitations coming within the rule in
Shelley's Case, the word "heu's" is not a word of purchase but a word
of limitation.
ID., p. 166: The question as to the origin, or true grounds, of the
rule in Shelley's Case, has given rise to much speculation, into which it
is not desirable to enter at length. Considering that, at the time when
Ch. 7) RULE IN Shelley's case 113
the rule arose, tenure was the mainstay of our pohtical constitution,
and that the preservation of the fruits of tenure was notoriously a prin-
cipal aim of the law, and that settlements giving an estate for life to the
ancestor with a remamder to his heir, if they had been permitted to
take effect by way of remainder, would have enabled a family to enjoy
all the advantages of a descent, while evading the feudal burdens by
which a descent was accompanied : the opinion seems to be more than
plausible, that the true origin of the rule is to be found in the policy of
feudalism.3 (See 1 Prest. Est. 295-309.)
1 HAYES ON CONVEYANCING (5th Ed.) 542-546: The rule
assumes and founds itself upon two pre-existing circumstances, — a
freehold in the ancestor,* and a remainder to the heirs. The absence
of either of these ingredients repels the application of the rule; their
concurrence irresistibly invites it. When the rule supposes the second
limitation to be a remainder, it plainly excludes, — 1, the case of limita-
tions differing in quality, the one being legal and the other equitable ; ^
2, the case of limitations arising under distinct assurances ; " and, 3, the
case of an executory limitation, by way of devise or use ; ^ and, conse-
3 This is at all events the policy of the Statute of Marlebridge, 52 Hen.
Ill, c. 6, enacting that the lord should not lose his wardship by a feoffment
made in the tenant's lifetime to the tenant's heir, being within age; and
the language of the statute shows that this and other like devices for evading
feudal burdens were then well known. This enactment was not merely level-
ed at covinous feoffments, where the feoffor continued afterwards in receipt
of the profits, but extended to bona fide feoffments to the heir's use. (Bacon,
Uses, p. 2.5, ad init.) [See Van Grutten v. Foxwell, (1S97) A. C. 609, where the
origin of the rule was discussed. The true view seems to be that the rule
was an inevitable result of the doctrines of the ancient common law. At the
time when the rule was established, contingent remainders were not rec-
ognized as lawful limitations ; conset]uently it was impossible to give effect to
a limitation to the heirs of a person, unless they took by descent fwilliams, R.
P. [3d Ed.] 218, note) ; and even if such a limitation had been legal it would
have been Impossible to give literal effect to it, because this would have in-
volved giving the heirs estates in succession by purchase (see Goodeve, R. P.
[5th Ed.] p. 224). The only way of carrying out the intention of the settlor
was to give the ancestor an estate of inheritance. So far, therefore, from
having been invented in order to defeat the intention of settlors, the object of
tlie rule was benignant, namely to give effect to the Intention as far as pos-
sible.]
4 Although it be determinable, e. g. by marriage. Curtis v. Price, 12 Ves.
89 {ISOo).— Ed.
5 Harvey v. Ballard, 252 111. 57, 9G N. E. 558, accord. But where both es-
tates are equitable the rule applies. Wright v. Pearson, 1 Edw. 139; Jones
V. Morgan, 1 Bro. C. C. 20G, ovenniling Bagshaw v. Si)encer, 1 Ves. 142. — Ed.
G Moore v. Parker, 4 Mod. 316. — Ed.
7 Papillon V. Voice, 2 P. Wms. 471 (1728) ; Leonard v. Sussex, 2 Vern. 520
(1705); 1 Prest. Estates, 355. See 8 111. Law Rep. 153.
Where there is a direction to trustees to convey to A. for life, with a re-
mainder to the heirs of A., or a remainder to the heirs of A.'s body, it Is
regularly held that thei'e is an executory trust, and that a settlement will
4 Kales Peop. — 8
114 CLASSIFICATION OF FUTURE INTERESTS (Part 1
quently, upon principle, the case of a limitation arising under an ap-
pointment of the use ; but authority seems to have established an anom-
alous exception in regard to appointments. Again, as the second limi-
tation must be a remainder to the heirs, it follows, that, with limitations
to sons, children, or other objects, to take, either as individuals or as a
class, under what is termed a descriptio personae, as distinguished from
a limitation embracing the line of inheritable succession, the rule has
no concern whatever. In order to find whether the second limitation
is a remainder to the heirs or not, we must resort to the general rules
and principles of law. The rule being a maxim of legal policy, conver-
sant with things and not with words, applies whenever judicial exposi-
tion determines that heirs are described, though informally, under a
term correctly descriptive of other objects, but stands excluded when-
ever it determines that other objects are described, though informally,
under the term "heirs." Thus, even the word "children," aided by the
context, or the word "issue," uncontrolled by the context, may have all
the force of the word "heirs," and then the rule applies ; while the word
"heirs," restrained by the context, may have only the force of the word
"children," and then the rule is utterly irrelevant. These are prelimi-
nary questions, purely of construction, to be considered without any
reference to the rule, and to be solved by, ' exclusively, the ordinary
process of interpretation. This point, kept steadily in view, would have
prevented infinite confusion.
The operation of the rule is twofold : First, it denies to the remain-
der the efifect of a gift to the heirs ; secondly, it attributes to the re-
mainder the effect of a gift to the ancestor himself. It is, therefore,
clear that the rule not only defeats the intention, but substitutes a legal
intendment directly opposed to the obvious design of the limitation. A
rule which so operates cannot be a rule of construction. As a conse-
quence of transferring the benefit of the remainder from the heirs, who
are unascertained, to the ancestor, who is ascertained, the inheritance,
limited in contingency to tlae heirs, may become vested in the ancestor ;
and, as another consequence of the same process, the ancestor's estate
of freehold may merge in the inheritance. Thus — 1. If land be limited
to A. for life, remainder to his heirs or to the heirs of his body, the pri-
mary effect will be to give him an estate of freehold (liable, of course,
to merger), with, by force of the rule, a remainder immediate and vest-
ed, to himself in fee or in tail (just as if the limitations were to him for
life, remainder to him and his heirs, or to him and the heirs of his
body) ; and the final result, under the law of merger, will be, by the
absorption of the particular freehold in the vested inheritance, to give
him an estate in fee tail or an estate in fee simple in possession. But
— 2. If land be limited to A. for life, remainder, if A. shall survive B.,
to his (A.'s) heirs or to the heirs of his body, then, as the remainder is
contingent, because made to depend on A.'s surviving B., tlie ancestor
(A.) will take, under the rule, not a vested, but a contingent inherit-
ance ; (just as if the limitations were to him for life, remainder, if &c.,
Ch. 7) RULE IN Shelley's case 115
to him and his heirs, or to him and the heirs of his body) ; the rule
changing the object, but not the quahty of tlie remainder. Here, as
the inheritance cannot vest, the particular estate of freehold will not
merge, but A. will remain tenant for life, with an immediate contingent
remainder to himself in tail or in fee. This remainder, in the event of
his surviving B., will vest in him (A.) ; the estate of freehold will then
merge, and he will thus have, as in the previous example, a fee tail or
fee simple in possession. So — 3. If land be limited to A. for life, re-
mainder to B. for life or in tail, remainder to the heir or heirs of the
body of A., then, by reason of the interposition of the estate for life
or estate tail of B., the ancestor (A.) has, under the rule, not an im-
mediate but only a mediate inheritance (just as if the limitations were
to him for life, remainder to B. for life or in tail, remainder to him (A.)
and his heirs, or to him and the heirs of his body}, the rule changing
the object, but not the position, of the remainder. A., therefore, will
be tenant for life, with a mesne vested remainder to himself in tail or
in fee, in which remainder, if B.'s interposed estate should determine
'in A.'s lifetime, A.'s life estate will merge, and he will then have, as in
the first example, a fee tail or fee simple in possession.^
The obvious deduction from these examples is, that in no case does
the rule disturb the particular estate of freehold in the ancestor, which
estate is left to the uncontrolled operation of ordinary principles, merg-
ing, or not merging, according as the remainder, transferred by the
rule from the heirs to tlie ancestor, is absolute or conditional, proxi-
mate or remote. The estate of freehold is a circumstance without
which tlie rule is dormant ; but the rule, when called into action, ex-
erts its force on the remainder alone. Why that circumstance was
selected, we can only conjecture. It is affirmed, indeed, that a limita-
tion to A. for life, with remainder to his heirs, is in truth the same
thing as a limitation to A. and his heirs. In the simple case thus put,
the effect, under the rule, aided by the doctrine of merger, is the same,
but surely the import is not the same. And how unsatisfactory does
this reasoning appear, when it is recollected that the rule equally applies
be directed which will prevent the application of the rule in Shelley's Case.
Theobald ou Wills (Tth Ed.) 725, 726: Tapillon v. Voice, 2 P. Wms. 471;
Parker v. Bolton, 5 L. J. Ch. 98; Duncan v. Bluett, Jr. Rep. 4 Eq. 469;
Hawden v. llawden, 23 Beav. 551 ; Stoner v. Curwen, 5 Sim. 2f>4 ; Bastard v.
Proby, 2 Cox, 6; Rochfort v. Fitz Maurice, 2 D. & War. 1; Tallmau v. Wood,
26 Wend. (N. Y.) 9; Wood v. Burnham, 6 I'aige (N. Y.) 513; Hanna v. Hawcs.
45 Iowa, 437 ; Saunders v. Edwards, 55 X. C. 134 ; Berry v. Williamson, 11 B.
Mou. (Ky.) 245, 258, 261. But see Wicker v. Ray, US 111. 472, 8 N. E. 835.— id.
8 Douglas V. Congreve, 1 Beav. 59 ; Measure v. Gee, 5 Barn. «& Aid. 910 ;
Dennett v. Dennett, 43 N. H. 499; Carpenter v. Hubbard, 263 lU. 571, 580,
105 N. E. 688, accord.
In the same way, where the life estate is subject to a valid spendthrift
trust clause, the rule still operates upon the remainder ; the spendthrift trust
being effective to prevent any merger. Wehrhane v. Safe Deposit Co., 89 Md.
179, 42 Atl. 930; Carpenter v. Hubbard, 263 111. 571, 580, 105 N. E. 688. But
see Bucklin v. Creighton. 18 R. I. 325, 27 Atl. 221, and Nightingale v. Phil-
lir.s 29 R. T. 175. 72 Atl. 220. 226.
116 CLASSIFICATION OF FUTURE INTERESTS (Part 1
where the gift is to A. for hfe, remainder (interposed) to B. for hfe,
remainder to the heirs of A ; or to A. pur auter vie, remainder to the
heirs of A. ; or, to A. durante viduitate, remainder to the heirs of A. ;
or to A. in tail, remainder to the heirs of A. &c.,— cases which need
only be mentioned in order to destroy the theory that would form a
fee by the union of the two limitations. It is an error, and tlie fruit-
ful parent of errors, to affirm that the limitations unite or coalesce un-
der the rule, Avhich has discharged its office by simply substituting the
ancestor for the heirs in the second limitation.
\\'hen the ordinary rules of construction have ascertained the co-
existence of a freehold in the ancestor with a remainder to the heirs,
the simplest and surest method of applying the rule is to read the sec-
ond limitation as a limitation to the ancestor himself and his heirs.
This gives at once, and in every possible case, the true result. The ef-
fect, universally and constantly, will be the same as if the remainder
had been expressly and intentionally limited to the ancestor and his
heirs : — reading the words "and his heirs," not (according to the no-
tion referred to at the close of the preceding paragraph), as words of
limitation of the estate of freehold before expressly limited to him, but
as words of limitation of the estate in remainder attributed to him by
the rule.
ARCHER'S CASE.
(Court of Queen's Bench, 1599. 1 Coke, 6Gb.) »
See ante, p. 43, for a report of the case.
sAccord (on the point that the rule in Shelley's Case did not apply): Wil-
lis V. Hiscox, 4 Myl. & Cr. 197 ; Clerk v. Day, Moore. 593 ; Greaves v. Simp-
son, 12 W. R. 773,' 10 Jur. 609 ; Bayley v. Morris, 4 Ves. Jr. 788 ; Canedy v.
Haskins, 54 Mass. (13 Mete.) 389, 46 Am. Dec. 739; Hamilton v. Weutworth,
58 Me. 101.
But where the remainder created by will was to "the next lawful heir" of
the life tenant "all the freehold estate forever," the rule in Shelley's Case
applied. Fuller v. Chamier, L. R. 2 Eq. 682 (1866).
A fortiori, where the remainder is to the heir (in the singular) of the life
tenant and there are no superadded words of limitation or other\Aise. the rule
in Shellev's Case applies. Richards v. Bergavenny, 2 Vern. 324; Theobald
on Wills,' 7th Ed., 422.
But where the remainder is limited to the life tenant's heir (in the singu-
lar) "for life." the rule in Shelley's Case does not apply. White v. Collins,
Com. 2S9 ; Redder v. Hunt, 18 Q. B. D. 565.
The principal case is followed so far as it holds that the rule in Shelley's
Case applies where there are life estates to several with a remainder to the
lieirs of one onlv. Hess v. Lakin, 7 Ohio Dec. 300 ; Kepler v. Reeves, 7 Ohio
Dec. (Reprint) 34; Bullard v. Ooffe. 20 Rick. (Mass.) 252; Bails v. Davis, 241
111. 5'56, 89 N. E. 706, 29 L. R. A. (N. S.) 9.37 ; Fearne, C. R. 36, 63, 310. But
see Shaw v. Robinson, 42 S. C. 342, 347, 20 S. E. 161.
Note. — "When an estate is limited to a husband and wife, and the heirs
of their two bodies, the word 'heirs' is a word of limitation, because an estate
is given to both the persons, from whose bodies the heirs are to issue. But
when it is given to one only and the heirs of two (as to the wife and the
heirs of her and A. B.), there the word 'heirs' is a word of purchase. For
Ch. 7) RULE IN SHELLEi's CASH 117
PERRIN V. BLAKE.
(Court of King's Bench, 17G9. 1 W. Bl. 672.)
Action of trespass : special verdict.
William Williams, by his last will, after giving portions to his three
daughters, disposes of his "temporal estate in manner tollowing: It
is my intent and meaning, that none of my children should seU_or cUs-
pose of my estate f or lo nger term th an his U fej and, to that intent, I
give, devise, and bequeath, all the rest and residue of my estate to my
son J ohn William s, and any son my wife may be ensient of at my
death, for and' during the term of their natural ]ives_; the remainder to
my brother-in-law Isaac Gale and his heirs, for and during the natural
lives of my said sons, John Williams and the said infant; the re-
mainder_to ^the heirs ofjth e bodies of my said sons. John Willia ms and
the said infant lawfully begotten or to be begotten ; the remainder to
my daughters for and during the term of their natural lives, equally
to be divided between them ; the remainder to my said brother-in-law
Isaac Gale during die natural lives of my said daughters respectively;
the remainder to the heirs of the bodies of my said daughters equally
to be divided between them. And 1 do declare it to be my will and
pleasure, that the share or part of any of my said daughters, that shall
happen to die, shall immediately vest in the heirs of her body in manner
aforesaid." William Williams died 4th February, 1723, leaving issue
one son, named John Williams, and three daughters, Bonneta, Hannah,
and Anne, and his wife not ensient. John Williams suffered a recovery,
and declared the uses to himself and his heirs.
no estate tail can be made to one only, and the heirs of the body of that per-
son and another. This appears from Lit. § 352, according to the true reading
collected from the original editions. The common editions make the estate
Cypres, therein mentioned, to be to the widow and. 'les heirs de corps sa
baron de luy engendres,' which is not as near as might be to the original es-
tate intended if the husband had lived, viz. to the husband and wife and the
heirs of their two bodies. But the original edition by Lettou and Macklinia
in Littleton's life-time, and the Roan edition, which is the next (both which
my Brother Blackstone has), read it thus, 'les heirs de les corps de son baron
et luy engendres ;' which is quite consonant to the original estate. And this
estate to the widow for life, and the heirs of the body of her husband and
herself begotten, Littleton, in the same section, declares not to be an estate
tail. The same is held in Dyer, 99, — in Lane and Pannel, 1 Roll. Rep. 438.
and in Gossage and Taylor, Styles. 32.5 ; which, from a manuscript of Lord
Halo in possession of my Brother Bathurst, appears to have been first deter-
mined in Ilil. 1651 ; which accounts for some expressions of Chief Justice
Rolle in Style's Case, which was in T. Pasch. 1652. There it was expressly
held, that this was a contingent remainder to the heirs of both their bodies.
The only difference of these three cases from the present is, that there the
wife had an express estate for life, and here not. But upon legal principles
the cases are just alike. An estate 'to A. and the heirs of his Iwdy,' is the
same as an estate 'to A. for life, remainder to the heirs of his body.' We are
therefore all of opinion that this was a contingent remainder to the issue, and
not being capable of taking effect at the determination of the particular es-
tate, is therefore gone forever." Per Wilmot, C. J., in Frogmorton v. Whar-
rey, 2 W. Bl. 728, 731 (1770). See Fearne. C. R. 38 ; 2 Jarm. Wills (4th Ed.)
340-343.
118 CLASSIFICATION OF FUTURE INTERESTS (Part 1
N. B. This was a case from Jamacia, and in fact, instead of a re-
covery, the supposed estate tail of John Williams was endeavored to
be barred, by a lease and release enrolled, according to the local law of
that country. It came on before a committee of the Privy Council,
who directed a case to be stated for the opinion of the Court of King's
Bench, who refused to receive it in that shape. And therefore, a feign-
ed action was brought and the case above stated was by consent re-
served at the trial.
It was argued in this [Easter] and Trinity Terms ; the question be-
ing merely this. Whether John Williams took by this will an estate for
life or in tail. And in ]\Iichaelmas Term following it was adjudged by
Lord Mansfield, C. J., Aston and WillES, JJ., that he took only
an estate for life; Yates, J., contra, that he took an estate tail. But
I was not present when the judgment of the court was delivered.^'*
JESSON V. WRIGHT.
(House of Lords, 1S20. 2 Bligh, 1.)
Ejectment ^^ in the King's Bench for land in Stafit'ord. At the trial
in March, 1815, before Dallas, J. the jury found a special verdict in
substance as follows: In 1773 Ezekiel Persehouse died and devised to
"William, one of the sons of my sister Ann WVight, before marriage,
all that messuage," &c., being the land in question, "to hold the same
premises unto the said Wjlliam, son of my said sister Ann Wright,
for and during the term of his natural life, he keeping all the said
dwelling-houses and buildings in tenantable repair; and from and
after his decease I give and devise all the said dwelling-houses," &c.,
' 'unto the heirs of the bo dv of the said William, son of my said si s-
ter 'XmTWright^ lawfully issuing ^ in such shares and j)roportions as
he the said William shall'' byHeed or will "give, direct, limTt'br ap-
poiTITTand for^want of such gift, direction, limitation or appointment,
^r "^ ■ - — ■ _^
10 This case did not come before tlie court on a special verdict, but upon a
demurrer to the replication in a feigned action of trespass. See 1 Doug. 343
note. The opinions of the judges are given in 1 Harg. Coll. Jur. 283, 20(3.
A writ of error was brought upon this judgment in the Exchequer Chamber,
and was there argued several times, for the last time in May, 1771. On Jan-
uary 29, 1772, the judges delivered their opinions. Parker, C. B., Adams, B.,
Gould, J., Perrott, B., Blackstone and Nares, .7J., were for reversal. De Grey,
C. J., and Smyth, B., were for afhrmance. Mr. Justice Blackstone's opinion
will be found in Harg. Law Tracts, 4S7.
A writ of error was brought to carry the case to the House of Ix)rds, where
it was kept pending for several years, but in 1777 it was compromised, with-
out a hearing.
For the controversy to which this case gave rise, see Fearne, C. R. 155-
173; Fearne's Letter to Lord Mansfield appended to the First Volume of the
Fourth Edition of the Treatise on Contingent Kemainders; 3 Campbell, Chief
Justices (3d Ed.) 305-312.
11 The statement of the case Is abbrevinted from thnt in the report.
Cli. 7) RULE IN Shelley's case 119
then to the heirs of the body of the said William, son of my said sis-_
ter, Ann W nght7ta%vfTrtly issumg, share and~slTare alike, as tenants in
conYmon, and'if hlit' o ne child, the "whole to such only child, and for
want ot "such issue," then over.
William Wright married Mary Jones, by whom he had issue, his
eldest son Edward, and several other children. In 1800 he, his wife
and his son Edward, suffered a r ecovery . The lessors of the plaintiff
were the heirs of Ezekiel Persehouse, and the younger children of
William Wright.
The Court of King's Bench gave judgment for the plaintiff, and
the defendants brought a writ of error in the House of Lords. The
principal error assigned was, that the court below, by their judgmen t,
had decided that "Wi lliam Wright took only a life-estate under the
wiil of 7&:c., with remain der to His childrenfor life ; andl:hat~the re -
c overy suffered by W illiamTWngEt, Slary his wife, and Edward
\\ right, was a fortei ture ^ of their estate. Whereas the plaintiffs in
error contended, that the testator Intended to embrace all the issue of
William Wright, which intention could only be effected by giving W^il-
liam Wright an estate tail, for which purpose tlie words of the will
are fully sufficient."
ThjB Law Chancellor [Lord Eldon]. The question to be de-
cided in this case is expressed in the words to be found in the errors as-
signed, the principal of which is, that the court, by their judgment,
have decided "that the said William W^right took only a life estate un-
der the said will of the said E. Persehouse, with remainder to his chil-
dren for life; and that the recover}^ suffered by the said William
Wright, and Mary his wife, and Edward Wright, was a forfeiture of
their estate. Whereas, the said R. Jesson, J. Hately, W. Whitehouse,
J. Watton, E. Dangerfield the elder, and T. Dangei-field, allege for
error, that the testator intended to embrace all the issue of the said
William Wright, which intention can only be eft'ected by giving to the
said \\'illiam WVight an estate tail, and the words of the will are fully
sufficient for that purpose." I will not trouble the House by going
through all the cases in which the rule has been established ; that where t>
there is a p articular nnd a general intept j the particular is to be sacri-
ficed to the general intent. The opinion which I have formed concurs
with most, though not with every one, of those cases. A great many
certainly, and almost all of them coincide and concur in the establish-
ment of that rule. Whether it was wise originally to adopt such a
rule might be a matter of discussion ; but it has been acted upon so
long that it would be to remove the landmarks of the law, if we should
dispute the propriety of applying it to all cases to which it is applica-
ble. There is, indeed, no reason why judges should have been anxious
to set up a general intent to cut down the particular, when the end
of such decision is to give power to the person having the first estate,
according to the general and paramount intent to destroy the interest
both under the general and the particular intent. However, it is de-
120 CLASSIFICATION OF FUTURE INTERESTS (Part 1
finitively settled as a rule of law that where there is a particular, and
a general or paramount intent, the latter shall prevail, and courts are
bound to give effect to the paramount intent.
This is a short will. The decision in the court below has proceeded
upon the notion, that no such paramount intent is to be found in this
will. Here, I must remark, how important it is, that, in preparing
cases to be laid before the House, great care should be taken not to
insert in them more than the words of the record. In page 3 of the
printed case delivered on behalf of the plaintiffs in error, are to be
found the words "appointee in tail general of the lands, &c., therein-
after granted and released of the second part." These words are not
to be found in the record. I mention the fact, because, if this is to be
quoted as an authority in similar cases, it may mislead those who read
and have to decide upon it, if not noticed. According to the words
of the will, it is absurd to suppose that the testator could have such
intention as the rules of law compel us to ascribe to his will. "I give
and devise unto William, one of the sons of my sister Ann Wright
before marriage, all that messuage, &c., to hold the said premises unto
the said W^illiam, son of my said sister Ann Wright, for and during
the term of his natural life, he keeping all the said dwelling-houses
and buildings in tenantable repair." If we stop here it is clear that
the testator intended to give to William an interest for life only. The
next words are, "and from and after his decease, I give and devise all
the said dwelling-houses, &c., unto the heirs of the body of the said
\\'illiam, son of my said sister Ann Wright, lawfully issuing." If we
stop there, notwithstanding he had before given an estate expressly
to William for his natural life only, it is clear that, by the effect of
these following words, he would be tenant in tail ; and, in order to
cut down this estate tail, it is absolutely necessary that a particular in-
tent should be found to control and alter it as clear as the general
intent here expressed. The words "heirs of the body" will indeed
yield, to a clear particular intent, that the estate should be only for
life, and that may be from the effect of superadded words, or any ex-
pressions showing the particular intent of the testator ; but that must
be clearly intelligible, and unequivocal. The will then proceeds, ^lio.
su ch sh ares and proportions as he, the said William, shall by deed,
&c., appoTnfT' This part of the will makes it necessary again to ad-
vert to the extraneous words inserted in the case of the plaintiffs in
error, and to caution those who prepare them. "Heirs of the body"
mean one person at any given time ; but they comprehend all the pos-
terity of the donee in succession : William, therefore, could not strict-
ly and technically appoint to heirs of the body. This is the power,
and then come the words of limitation over in default of execution of
the power; "an d for want of s uch gift, direct ion, limitation, or ap -
pointment, then to~ihe heirs of tlieljody of the said W Hli am, son of"n iy
said sist er Ann W right, lawf ully issumg, share_ and share alike as
tenants in'common." '■ "
Ch. 7) RULE IN shellf.y's case 121
It has been p owerfully arg ued (and no case was ever better argued
at this bar) that the appointment could not be to all the heirs of the
bo d>" in su ccession forever, and, therefore, that it must mean a per-
son, or class of persons, to take by purchase ; that the descendants in
all time to come could not be tenants in common ; that "heirs of the
body," in this part of the will, must mean the same class of persons
as the "heirs of the body," among whom he had before given the
power to appoint ; and, inasmuch as you here find a child described
as an heir of the body, you are therefore to conclude, that heirs of
the body mean nothing but children. Against such a construction
many difficulties have been raised on the other side, as, for instance,
how the children should take, in certain events, as where some of the
children should be born and die before others come into being. How
is this limitation, in default of appointment in such case, to be con-
strued and applied? The defendants in error contend, upon the con-
struction of the words in the power, and the limitation in default of
appointment, that the words "heirs of the body" mean some particu-
lar class of persons within the general description of heirs of the
body; and it was further strongly insisted that it must be children,
because, in the concluding clause, of the limitation in default of ap-
pointment, the whole estate is given to one child, if there should be
only one. Their construction is, that the testator gives the estate to
^^'ill^am foj life, an d to the child ren as tenants in jconi mon fo r life._
How they ^ould so take, in many of the cases put on the other side,
it is difficult to settle. Children are included undoubtedly in heirs of
the body; and if there had been but one child, he would have been
heir of the body and his issue would have been heirs of the body ; but,
because children ar» included in the words heirs of the body, it does
not follow that heirs of the body must mean only children, where you
can find upon the will a more general intent comprehending more ob-
jects. Then the words, "for want of such issue," which follow, it is
said, mean for want of children ; because the word such is referential,
and the word child occurs in the limitation immediately preceding.
On the other hand, it is argued, that heirs of the body being the gen-
eral description of those who are to take, and the words "share and
share alike as tenants in common," being words upon which it is dif-
ficult to put any reai,onable construction, children would be merely ob-
jects included in the description, and so would an only child. The
limitation "if but o.ie child, then to such only child," being, as they
say, the description of an individual who would be comprehended in
the terms heirs of the body; for "want of such issue." they conclude,
must mean for want of heirs of the body. H the words children and
child are so to be considered as merely within the meaning of the
words heirs of the body, which words comprehend them and other
objects of the testator's bounty, (and I do not see what right I have
to restrict the meaning of the word "issue''), there is an end of the
question. I do not go through the cases. That of Doe v. Goff [11
122 CLASSIFICATIOX OF FUTURE INTERESTS (Part 1
East, 668] is difficult to reconcile with this case — I do not say im-
possible ; but that case is as difficult to be reconciled with other cases.
Upon the whole, I think it is clear that the testator intended that all
th'"e issue ofAAHTTam sTioufd faij before tFe "estate sFould go over ac-
cordingjto the final limitation. I__am_sorry that such a decisron is
necessa ry : becaus e^whe n we th us enforce a paran iouht mtentTon^ we
enable th^_£i: ^ taker to de stroy both^the general and particular intent.
But it is more important to maintain the rules of law than to provide"
against the hardships of particular cases.
Lord RedesdalE. There is such a variety of combination ni
words, that it has the effect of puzzling those who are to decide upon
the construction of wills. It is therefore necessary to establish rules,
and important to uphold them, that those who have to advise may be
able to give opinio.is on titles with safety. From the variety and
nicety of distinction in the cases, it is difficult, for a professional ad-
viser, to say what is the estate of a person claiming under a will. It
cannot at this day be argued, that, because the testator uses in one
part of his will words having a clear meaning in law, and in another
part other words inconsistent with the former, that the first words are
to be cancelled or overthrown. In Colson v. Colson [2 Atk. 246] it is
clear that the testator did not mean to give an estate tail to the parent.
If he meant anything by the interposition of trustees to support con-
tingent remainders, it was clearly his intent to give the parent an es-
tate for life only. It is dangerous, where words have a fixed legal
effect, to suffer them to be controlled without some clear expression,
or necessary implication. lQ __this case, h js^Rx ^nec^ , t hpt the testator
di d not mean ^_u,s£j±i£-:v\x)rds _l^ heirs of th e body." in ihgir ordinary
legal sens e, because there are other inconsistent words ; but it only
follows that hejwas ignorant o f ~the ettect "~oF~tHe^ one or of the other.
All the cases'Hit Doe v. Goff decide that the latter words, unless they
contain a clear expression, or a necessary implication of some intent,
contrary to the legal import of the former, are to be rejected. That
the general intent should overrule the particular, is not the most ac-
curate expression of the principle of decision. The rule is, that tech-
nical words shall have their legal effect, unless, from subsequent in-
consistent words, it is very clear that the testator meant othenvise.
In many cases, in all, I believe, except Doe v. Goff, it has been held
that the words "tenants in common" do not overrule the legal sense of
words of settled meaning. In other cases, a similar power of appoint-
ment has been held not to overrule the meaning and effect of similar
words. It has been argued, that heirs of the body cannot take as ten-
ants in common; but it does not follow that the testator did not in-
tend that heirs of the body should take, because they cannot take in
the mode prescribed. This only follows, that, having given to heirs
of the body, he could not modify that gift in the two different ways
which he desired, and the words of modification are to be rejected.
Those who decide upon such cases ought not to rely on petty distinc-
Ch. 7) RULE IN Shelley's case 123
tions, which only mislead parties, but look to the words used in the
will. The words, "for want of such issue," are far from being suffi-
cient to overTTTfe-tfre'wof^ "Heirs of th"e~T)odv/^ They have alm ost
constantly been construed to mean an indefinite failure of issue, and,
of 'themjelygg; have rfrequenTly^eeri held to give an estate tail. In
this case the words, "sucH~issue^^annot be construed children, except
by referring to the words "heirs of the body," and in referring to
those words they show another intent. The defendants in error in-
terpret "heirs of the body" to mean children only, and then they say
the limitation over is in default of children ; but I see no ground to
restrict the words "heirs of the body" to mean children in this will.
I think it is necessary, before I conclude, to advert to the case of Doe
V. Goff. It seems to be at variance with preceding cases. In several
cases cited in the argument, it had been clearly established, that a de-
vise to A. for life, with a subsequent limitation to the heirs of his
body, created an estate in tail, and that subsequent words, such as
those contained in this will, had no operation to prevent the devisee
taking an estate tail. In Doe v. Goff there were no subsequent words,
except the provision in case such issue should die under twenty-one,
introducing the gift over. This seems to me so far from amounting
to a declaration that he did not mean heirs of the body, in the tech-
nical sense of the words, that I think they peculiarly show that he
did so mean — they would, otherwise, be wholly insensible. If they
did not take an estate tail, it was perfectly immaterial whether they
died before or after twenty-one. They seem to indicate the testator's
conception, that, at twenty-one, the children would have the power of
alienation. It is impossible to decide this case without holding that
Doe V. Goff is not law.
I n this case, even admittjn g it to be the general in ten t of the te s-
tator, to give to William an estate onlv for life, the remainders to th e
cl iiTdren might as ea sily be defeated, because William might, by agree-
ment with the heir, have destroye d~their estates before they arose.
Suppose he had had a child who died, and then Tie had committed a
forfeiture, the devisee over would have entered and enjoyed the es-
tate. Suppose he had several children, and some had died, and some
had been living, the proportions would have been changed, and after-
born children would not have come in to take the shares of those who
were dead. These are absurdities arising out of the construction pro-
posed. If the testator had considered the effect of the words he used,
and the rule of law operating upon them, he probably would have used
none of the words in the will.
Judgment reversed. ^^
12 " The doctrine that the general intent must overrule the p{irtiVn1nr in -
te nt has been much, and we conceive Justly, objected to of late ; as being, as
a general proposition, incoi-rect and vague, and likely to lead in its applica-
tion to erroneous results. In its origin, it was merely descriptive of the op-
eration of the rule in Shelley's Case ; and it has since been laid down in
124 CLASSIFICATION OF FUTURE INTERESTS (Part 1
JORDAN V. ADAMvS.
(Exchequer Chamber, 1861. 9 C. B. [N. S.] 4S3.)
Chanxell, B.^3 The question is what estate William Jordan took
under the fifth head of devise in the will of John Jordan set out in the
case.
The testator by his will devised the lands in dispute to trustees. By
the fifth head of his will he directed and appointed the trustees to
stand seised thereof, t o permit the said Wil li am Jordan to occupy the
same or receive the rents and profits thereoT f or his own use duri ng
hi s natural life, and. after his decease, then to permit and sutterlhF
heir s male of the body of the said William Jor dan,to occupy the same
or receive the rents and profits thereof for their several natural live s
in succession according to their respe ctive s eniori ties, orj n such parts
aiifd prop orti ons; "manner and^orm,~"and amongst ther nTas'^the" said
William Jordan their father, should directTTimit, oF~appoint; and, in
others, where technical words of limitation have been used, and other words,
showing the' intention of the testator, that the objects of his bounty should
talie in a different way from that which the law allows, have been rejected;
but in the latter cases, the more correct mode of stating the rule of construc-
tion is. that technical words, or words of known legal import, must have their
legal effect, even though the testator uses inconsistent words, unless those in-
consistent words are of such a nature as to malie it perfectly clear that the
testator did ncft mean to use the technical words in their proper sense ; and
so it is said by Lord Redesdale in Jesson v. Wright. This doctrine of gen-
eral and particular intent ought to be carried no further than this; and thus
explained, it should be applied to this and all other wills. Another undoubted
rule of construction is, that every part of that which the testator meant by
the words he has used, should be carried into effect as far as the law will
permit, but no further; and that no part should be rejected, except what the
law makes it necessary to reject." Per Lord Denman, C. J., in Doe d. Gal-
lini V. Gallini, 5 B. & Ad. 621. 640 (1S33).
"Another rule of construction has been referred to by several of the Irish
as well as by some of the English judges, viz., that the general intentio n of
the testator' was to prevail over the pa rticular iutentio' iu This doctrine,
which commenced, I believe, with Lord Chief Justice Wilmot, and has pre-
vailed a long time, had, I thought, notwithstanding the use of those terms
by Lord Eldon in the leading case of Jesson v. Wright, been put an end to by
Lord Kedesdale"s opinion in the same case, and by the powerful arguments
against its adoption in Mr. Hayes's Principles, by Mr. Jarniau in his excellent
work on V/ills, and by the judgment of the court delivered by Lord Denman
in Doe v. Gallini, in which the opinion of Lord Kedesdale is approved and
adopted. And, certainly, if_ accurac-v of exp ression i s importan t, tlie use of
thos e ter ms ha d better he dis c ontinued, though if qualified and understood
as explained iii the last-mentlOlled case and in the opinion of some of the
judges — Mr. Baron Watson, for example — it can make no difference in the
result. Lord Redesdale says 'that the general intent shall overrule the par-
ticular is not the most accurate expression of. the principle of decision. The
rule is that technical words shall have their legal effect, unless from other
words it is verv clear that the testator meant otherwise.' " Per Lord Wens-
leydale, in Kod'd y v Fitzgera ld, 6 U. L. C. 82;^, 877 (18.3S).
See also llayes, Principles, 44, 106 ; 2 Jarm. Wills (4th ed.) 484 et seq.
But the notion that the Rule in Shelley's Case has for its object to carry
out the "general intention," is very hard to kill. See Bowen v. Lewis, 9 Ap.
Cas. 890, 907 (1884).
13 The opinions only are given.
Ch. 7) RULE IN Shelley's case 125
de fault of such issue male of the said William Jordan, then upon trust
to and for the use ot liis brother, Richard Jor dan, an d liis-iieirg_ male ,
in such parts, sTiares^ and proportiolTs, manner and forin as the said
Richard Jordan shoutd^appomt, charged, in case the said Richard
Jordan or his^lieirs" sTfdu!d~T)ecome seised thereof, with the sum of
i2,0C0 in favor of the daughters, if any, of the said W'ilHam Jordan.
Subject to the performance of the trusts the testator limited and ap-
pointed the estates to the right heirs of Robert Jordan, forever.
The Court of Common Pleas decided that William Jordan took under
the will an es tate fof"tiTe ! W^tlTthe greatest respect tofThFjudgmerTT'
of that coui%I am of opinion that W'illiam Jor dan took an estate in
tail male ; and that the decision appealed against ought to be rever?5Ti7
I'agreFTn the opinion expressed by my Brother Williams in the judg-
ment of the court below, as reported in the 6th Common Bench Reports,
N. S. p. 765, that, but for the use ^of the \vords "their fathet^" in the
power of appointment, an estate in fee 'would pass by the gift to the
heirs male of the body of William Jordan. This consequence seems to
me to follow from our giving to the words "heirs male of the body"
their legal import, and from the intention apparently expressed in the
will that the estate should go over to Richard Jordan and his heirs
male, upon failure of the issue male of William Jordan, and not until
such failure. But I am unable to concur with my Brother Williams in
the conclusion at which — nof, I tliink, without great doubt and hesita-
tion — he ultimately arrived, that the words "their father" demonstrat-
ed that the words "heirs male of the body" meant "sons," or that the
words "heir of the body" could be controlled by the words "their fa-
ther," in the power of appointment, as interpreting words, showing in
what sense the words "heirs male of the body" had been used by the
testator.
The authorities cited on the argument before us are the same as
those which were cited in the Court of Common Pleas, with the excep-
tion of Roddy v. Fitzgerald, decided by the House of Lords (6 House
of Lords Cases, 823). All these authorities, excepting the last, are, I
believe, collected in Jarman on Wills, 2d edit., by Wolstenholme and
Vincent, vol. 2, pages 267 and 299 and following pages, ch. Z7 , partic-
ularly in s. 3. I do not profess to reconcile all the authorities. I think
it unnecessary to go through them in detail. But I may observe that
the case of White v. Collins, Com. 289, much relied on by the Court of
Common Pleas as an express authority, does not appear to me to be so.
The devise there was, to one for life, and, after his decease, to the
heir male (in the singular), not "heirs," in the plural. There are other
cases in which the word used was "heir," and not "heirs." This dis-
tinction is not, I think, immaterial. The word "heir" may be under-
stood as pointing to an individual, whereas the word "heirs" points to a
class.
The leading cases appear to me to be Jesson v. Wright, 2 Bligh, L
and Roddy v. Fitzgerald, 6 House of Lords Cases, 823.
126 CLASSIFICATION OF FUTURE INTERESTS (Part 1
The rule in Jesson v. Wright, as I understand it, is, that technical
words shall have their legal effect, unless from subsequent inconsistent
words it is very clear that the testator meant otherwise. Roddy v.
Fitzgerald upholds and explains the former case of Jesson v. Wright.
These decisions appear to me to give the rule of construction which we
must apply to the present case. In Roddy v. Fitzgerald the opinions
of the judges, both in Ireland and in England, were reviewed by the
House of Lords. In their opinions the judges were nearly equally di-
vided ; indeed, but for a circumstance noticed by Lord Chancellor Cran-
worth in the report of the case, the opinions of the judges would have
been equally divided. In unison with the opinions expressed by a
minority of the judges, I humbly submitted that the words "issue" in
Roddy V. Fitzgerald, — words more flexible than "heirs of the body,"
— had been in that case by the whole context of the will explained and
interpreted by the testator himself to mean "children." The House of
Lords unanimously rejected this construction, and held that the words
"issue" there used must have their ordinary legal import and eft'ect.
This case of Roddy v. Fitzgerald is treated by the Court of Common
Pleas as deciding that words that would create an estate tail are to have
that effect, unless a judicial mind sees with reasonable certainty from
other parts of the will tliat the testator's intention was that those words
should not operate as words of limitation of the inheritance, but should
be words of purchase, creating an estate in remainder in the persons
coming within the designation of heirs male of the body, and within the
further description contained in the will.
This is no doubt so. But if, by reference to the words "their father,"
in the power of appointment in the will in question, the words "heirs
of the body" are explained to be, and are to be read as, sons (the only
ground on which, as it appears to me, the decision of the Court of
Common Pleas can be supported), then it would seem to me to follow,
that, if William Jordan had died having had an only son who had died
in his lifetime, but had left a son who survived his grandfather, such
grandson would take nothing under the will. I cannot suppose this
to have been the testator's intention ; and I am therefore unable to adopt
the argument that the testator has interpreted the words "heirs of the
body" as meaning "sons."
In determining whether the legal import of the words "heirs of the
body" is to be cut down, we must not surmise, but must see very clear-
ly that the alleged interpreting words do cut down other words which
carry with them a recognized legal meaning.
Consistently with Roddy v. Fitzgerald, I cannot hold, either from
the power of appointment or the general context of the will, that such
was in the present case the intention of the testator.
I am of opinion that the judgment of the Court of Common Pleas
ought to be reversed.
Martin, B. This is an appeal from the judgment of the Court of
Common Pleas : and the question is, whether, upon the construction of
Ch. 7)
RULE IN Shelley's case
127
a devise in the will of John Jordan, dated the 8th of May. 1825, Wil-
liam Jordan took an estate in tail male. The substance of the devise is
as follows : "As to certain land (describing it), I direct my trustees to
stand seised thereof, and permit William Jordan to occupy the same or
receive the rents and profits thereof for his own use during his natural
life ; and, after his decease, then to permit and suffer the heirs male of
his body to occupy the same or receive the rents and profits thereof for
their several natural lives in succession according to their respective
seniorities, or in such parts and proportions, manner and form, and
amongst them, as the said William Jordan, their father, should by deed
or will, duly executed, direct, limit, or appoint ; and, in default of such
issue male of tlie said William Jordan, then upon trust to and for the
use of Richard Jordan and his heirs male, in such parts and propor-
tions, manner and form, as he should by deed or will direct or appoint,
but charged with the sum of £2,000 for the daughters (if any) of the
said William Jordan; and after the performance of the said trusts,
and subject thereto, that the said trustees should stand seised of the
said lands to and for the use of the right heirs of Robert Jordan, for-
ever." The Court of Common Pleas were of opinion that William
Jordan took an estate for life only. All agree that the true rules of
construction are laid down in Jesson v. Wright, 2 Bligh, 1, and Roddy
V. Fitzgerald, 6 House of Lords Cases, 823. I f the devise ha d not con-
tained the powers of appoin tment, I a g2rehen(i_there would"~have~been
no^Joubt BuFlHatlt w(5ul3 have giA^en^ajn^estate^uTi^^
JorcTarf.^ IFwo ulcTliave been a'devise to him for life, and, after his
his body, to occupy the same or take the
death, to the heirs_mal
rerfts and~pfoHts'for their sever al natural live sj n succession, accor ding
to their respect ive seniori ties, and, in default of such issue male, to
RicHar3~"jor3an7 This would express the intention of the testator
that William Jordan should have the land for his life, and that, after
his death, his male heirs as a class, that is, in succession according to
their respective seniorities, should have it. It is true it wa sjii^ s int en-
tion tliat they should have it for their lives only, and w itlfno greater
pdweF over it th an tenant s for life have : but this the law doe snot per-
mit ; and it seems to me nothing more than the expression of a n inten-
tiofT v^hicH" by la^^a nnot be effected. Applyuig tlie rule in Shelley's
Case, 1 Co. Rep. 93 a, which is a technical rule of law, and the doc-
trine of Jesson v. Wright and Roddy v. Fitzgerald, by construction of
law the estate of William Jordan would be an estate in tail male. I
think it impossible to express more clearly than these words do the
original estate tail contemplated by the Statute de Donis, viz. an es-
tate for life in the donee, and a_ser ies of life-estates continui ng so long
as there w-ere he irs of the b ody_of_the donee, they taking in succession
in~flie~ordeirand*accordingto theriile ot lineal
ce. This is
whaTan estate tail in substance was. until the courts of law converted
it for all practical purposes into an estate in fee simple.
128 CLASSIFICATION OF FUTURE INTERESTS (Part 1
The judgment of the Common Pleas is, that WiUiam Jordan took an
estate for life, and that the words "heirs male of his body" meant
"sons ;" so that, if he had died having had an only son, who had died
in his father's lifetime, leaving a son who survived' his grandfather,
this grandson would take nothing under the devise. Is this correct
either in construction of law or as the true expression of the will of
the testator? The cases of Jesson v. Wright and Roddy v. Fitzgerald
are authorities that the words "heirs of the body'' have not only a plain
natural meaning, but are also words of known legal import, and prima
facie denote and mean the whole of the descendants or issue as a class,
and are to be read and understood in this their natural and legal sense,
unless it be clear that the testator intended to use them in a different
sense. Lord Wensleydale's expression in Roddy v. Fitzgerald is,
"unless a judicial mind sees with reasonable certainty from other parts
of the will an opposite intention."
I agree with Mr. Justice Williams that the only other parts of this
will to show the opposite intention are the words "their father," in
the power of appointment. The testator certainly wished that the heirs
of his body should take life-estates. This is what nine tenths — proba-
bly ten tenths — of testators who make entails wish ; but there is noth-
ing in the expression of it to show that he desired that the grandchil-
dren or more remote descendants of William should not take at all.
If the words had been "the father," or "the ancestor," I apprehend
they could not have had the effect of altering the legal import of the
words "heirs male of the body." And, in my opinion, that which the
testator has expressed, and in all probability meant and intended, was,
that William Jordan should have a power to appoint amongst his sons,
but not that the estate or estates previously given to the heirs male
of his body should be altered or affected otherwise or beyond the al-
teration effected by the exercise of the power.
It appears to me that the use of the words "in default of such is-
sue," and not "in default of such sons," strongly confirms this view.
Had the words used been "in default of issue," I should have thought
it conclusive. Suppose that William Jordan were dead, and the liti-
gant parties were his grandson and Richard Jordan, — can it be said
that a judicial mind would clearly see from the language of the will
that the testator meant Richard to take, and not the grandson? I
think not ; and, to decide against the grandson, the law requires that
this must be made out, and that clearly. The result is, to say the
very least, that I do not think there is sufficient in the will to justify
the alteration or cutting down of the words "heirs male of the body,"
which are words having a plain, clear, natural meaning, and are also
technical words of a known legal import and meaning, into "sons."
I cannot bring my mind to the conclusion that the testator has ex-
pressed his will to be that Richard Jordan should take in exclusion of
William's grandchild.
Ch. 7) RULE IN Shelley's case 129
If there were any decision upon the point, I would readily yield ;
but none has been cited before us. It is said in the judgment of the
Common Pleas that the case of White v. Collins, 1 Comyns, 2<S9, is
in point for the defendant. I do not agree in this at all. The devise
there was to a son, F., to enjoy during his life, and, after his death,
to the heir male of the body of F. (in the singular number), during
the term of his natural Hfe, and, for want of such heir male, to an-
other son, C, a brother of F.'s. Whatever doubts may have existed
at the time when this case was decided, the works of I\Ir. Fearne, a
subsequent writer, have abundantly cleared them up : and it seems
to me that the words of that will clearly express, that by the word
"heir," was meant an individual, and not the heir of the body of F.
as a class.
I quite concur with Mr. Justice Blackstone (1 Hargr. Tracts, page
505) that common-sense showed the meaning of the expression used.
I concur also with the Court of Common Pleas as to the importance
of adhering to the doctrine of Jesson v. Wright, confirmed in Roddy
V. Fitzgerald ; and I do so in expressing my opinion that William
Jordan took an estate tail.
WiGHTMAN, J. I am of opinion that the j udgment of the Court of
Common~Tleas~is right, and that the plaintiff took only an estate" for '
li fe]tTr-tb€-- p i c i nises "in""qiiestion7~and noI~aii estate tail, either legal or
equitable.
The testator by his will devised all his freehold and leasehold es-
tates to trustees, and directed them, as to the premises in question,
"to permit and suffer the plaintiff to occupy and enjoy or to receive
and take the rents, issues, and profits thereof for his own use and
benefit during his natural life, and, after the decease of the plaintiff,
then to permit and suffer the heirs male of his body to occupy and
enjoy the same or to receive and take fhe rents, issues, and profits
thereof for their several natural lives, in successi^on, according to their
respective seniorities, or in such parts and proportions, manner and
form, and amongst them, as the said William Jordan (the plaintiflf),
their father, should by deed or will direct ; and, in default of such is-
sue male of the said William Jordan, then over."
The question is, "whether the words "heirs male of his body," as
used in this devise, are words of limitation or words of purchase ;
and it appears to me, that, taking the whole clause together, they are
words of purchase, and mean the sons of the plaintiff', wlio are to
take for their lives in succession, according to seniority or in such pro-
portions, manner and form amongst them as their father (the plain-
tiff) should by deed or will direct. I am unable to give any other
meaning to the clause in question ; and, though, by the use of the
words "heirs male of the body," the testator may be supposed to have
intended to give an estate in tail to the plaintiff, as those words stand-
ing alone and unexplained by the rest of the clause would be words
4 Kales Prop. — 9
130 CLASSIFICATION OF FUTURE INTERESTS (Part 1
of limitation and not of purchase, yet the subsequent words, that they
(the heirs male) are to take the profits,. &c., of the estate for their
natural lives in succession, according to their respective seniorities,
or in such manner as their father shall by deed or will direct, show
too clearly in my opinion to admit of doubt, that the testator, by "heirs
male of the body," meant the "sons" of the plaintiff, who were to
take in succession for life, or in such parts and proportions between
them as their father should direct.
I have forborne to observe upon the cases which were cited upon
the argument, tlie question in all the cases, as in this, being, what was
the intention of the testator by the terms he used in his will ; and as
everything depends upon the words used, it seems to me that little
assistance is derived from decisions upon terms which are not the same
as those used in the will in question. I therefore think, drawing my
conclusion from the terms actually used by the testator in this case,
that the court below was right in the conclusion to which it came, and
that the judgment should be affirmed.
CocKBURN, C. J. I am of opinionthatjth^^
Coq^on'Pleas~5hDuldrbe attinned; ^uFbeing~unable to concur in all
the reasons~oh which the decision of the majority of that court ap-
pears to have been founded, I think it necessary to explain the grounds
on which the conclusion I have arrived at is based.
We are called upon to construe a devise, whereby a testator gives
certain estates to trustees, in trust to permit one William Jordan to
occupy and enjoy or to receive and take the rents and profits for his
own use and benefit, during his natural life, and, after his decease, to
permit and suffer the heirs male of his body to occupy and enjoy the
same, or to receive and take the tents and profits, for and during
their natural lives, in succession, according to their respective seniori-
ties, or in such parts and proportions, manner and form, and amongst
them, as the said William Jordan, their father, shall by deed or will
duly executed and attested direct, limit, and appoint; and, in default
of such issue male of William Jordan, then over.
The question is, whether under this devise William Jordan (who is
the plaintiff in this action) took an estate for life or an estate tail;
or — to put the same thing in another form — whether the heirs male
of his body took an estate by purchase or by descent.
Three things occurring in this devise are relied on to take it out of
the ordinary rule that a gift to a man for life, with remainder to the
heirs of his body, creates in point of law an estate tail in the ancestor.
These are, first, that the devise to the heirs is for their natural lives;
secondly, that their estate is subject, with reference botli to the order
of succession and quantity of estate, to the appointment of the ances-
tor ; thirdly, that the ancestor is distinctly described as the father of
the heirs male of the body, from which it is said to be plain that the
words "heirs male of the body" must necessarily be read as sons.
I am of opinion that, in construing this devise, the two first circum-
Ch. 7) RULE IN Shelley's case 131
stances cannot be taken into account. I take the effect of the authori-
ties on this subject clearly to be, that where land is devised to a man
for life, with remainder to his heirs or the heirs of his body, no in-
cident superadded to the estate for life, however clearly showing that
an estate for life merely, and not an estate of inheritance, was intend-
ed to be given to the first donee, nor any modification of the estate
given to the heirs, however plainly inconsistent with an estate of in-
heritance, nor any declaration, however express or emphatic, of the
devisor, can be allowed, either by inference or by the force of express
direction, to qualify or abridge the estate in fee or in tail, as the case
may be, into which, upon a gift to a man for life, with remainder to
his heirs, or the heirs of his body, the law inexorably converts the en-
tire devise in favor of the ancestor, notwithstanding the clearest in-
dication of the intention of the donor to the contrar}\ Thus, with
reference to the estate for life, although the donor may have super-
added to it some incident of an estate of inheritance, — for instance, as
in Papillon v. \^oice, 2 P. Wms. 471, unimpeachability of waste, — or,
as in King v. ]\Ielling, 2 Lev. 58, a power of jointuring, both which
provisions would have been superfluous if an estate of inheritance had
been intended; or although, as in Coulson v. Coulson, 2 Str. 1125, he
may have interposed trustees to presence contingent remainders, — a
provision palpably inconsistent with the estate of the ancestor being
other than an estate for life ; or though he may have declared in ex-
press terms, as in Perrin v. Blake, 4 Burr. 2579, 1 Sir W. Bl. 672, that
his intention in creating the estates for life was to prevent any of his
children from disposing of his estate for longer than his life; or al-
though, as in Robinson v. Robinson, 1 Burr. 38, he may have expressly
declared that the estate for Hfe should last for the Hfe of the devisee
and no longer ; or, as in Roe d. Thong v. Bedford, 4 M. & Selw. 362,
has declared that the devisee should have no power to defeat his in-
tent, — none of these provisions or declarations will avail anything.
So, on the other side, with reference to the estate to the heir, although
the devisor may have annexed to it incidents wholly inconsistent with
an estate by descent, — as, that the heirs shall take according to the ap-
pointment of the ancestor (as in Doe d. Cole v. Goldsmith, 7 Taunt.
209), or that the heirs shall take as tenants in common (as in Ben-
nett V. The Earl of Tankerville, 19 Ves. 170), or share and share alike
(as in Jesson v. Wright, 2 Bligh, 1), or without regard to seniority of
age (which, though held in Doe d. Hallen v. Ironmonger, 3 East, 533,
to prevent the operation of the rule, would nowadays, it seems, receive
an opposite construction; see 2 Jarm. Wills, 303), — no inference
arising from such provisions can be allowed to prevail against the rule
of law ; nay, even although a devisor should expressly declare that
the heirs should take by purchase and not by descent, the declaration
would be set aside as unavailing (see Harg. Law Tracts, 562).
When once the donor has used the terms "heirs," or "heirs of the"^
body," as following on an estate of freehold, no inference of inten-
132 CLASSIFICATION OF FUTURE INTERESTS (Part 1
tion, however irresistible, no declaration of it, however explicit, will
have the slightest effect. The fatal words once used^the law fastens
uponthenijand attaches to the^itro\VTrTTTeanIno^and effecTaTToThe
estatF^reateJ^h^Them, and rejects, as niconsistent witlT'thelnain pui^
pose which it inexor^al^ly and despotically fixes on the donor, all the
provisions of the will which would be incompatible with an estate of
inheritance, and which tend to show that no such estate was intended
to be created ; although, all the while, it may be as clear as the sun
at noonday that by such a construction the intention of the testator is
violated in every particular.
Such being the principle involved in the decisions of the House of
Lords in the cases of Perrin v. Blake, 4 Burr. 2579, 1 W. Bl. 672;
Jesson V. Wright, 2 Bligh, 1 ; and Roddy v. Fitzgerald, 6 House of
Lords Cases, 823, it appears to me that we cannot give any effect to
the provisions of this devise that the heirs shall take by appointment,
or, in default of it, in succession, for their natural lives. If, indeed,
the matter were res integra, I should entirely concur with the ma-
jority of the Court of Common Pleas in thinking that these provisions
ought to be conclusive as to the intention of the testator. Speaking
under the shadow of the great names of Lord }\Iansfield and Lord
Ellenborough, and the eminent judges of the Court of Queen's Bench
who were parties to the decisions of that court in Perrin v. Blake and
Doe d. Strong v. Goff, 11 East, 668, and of those who in the' Com-
mon Pleas decided the cases of Crump d. WooUey v. Norwood. 7
Taunt. 326, and Gretton v. Haward, 6 Taunt. 94, I have no hesitation
in saying, that, but for the decisions of the supreme court of appeal, I
should certainly have held that an arbitrary rule of law as to the ef-
fect of certain words might well be m.ade to yield, as similar rules
have in other instances been made to yield, in construing a devise, to
the rule, — one of paramount importance in construing wills and de-
vises, — that effect is to be given to the intention of the testator; con-
formity to which is in my opinion ill obtained by forcing on the tes-
tator a meaning directly the reverse of what he really intended. But
we are, of course, bound by the decisions of the House of Lords ; and
as the law has been there settled, so we must apply it.
But although the rule thus established is inllexible to the extent I
have stated, there is, nevertheless, one quarter from which it permits
light to be let in and effect to be given to the real intention of the tes-
tator : this is where by some explanatory context, having a direct and
immediate bearing upon the term "heirs," or "heirs of the body," the
devisor has clearly intimated that he has not used these words in their
technical, but in their popular sense, namely, that of sons, daughters,
[_or children, as the case may be. An illustration of this branch of the
rule is given by Lord Brougham in his judgment in Fetherston v.
Fetherston, 3 CI. & F. 67: "If there is a gift to A. and the heirs of
his body, and then, in continuation, the testator, referring to what he
had said, plainly tells us that he used the words 'heirs of the body'
Ch. 7 RULE IN Shelley's case 133
to denote A.'s first and other sons, then clearly the first taker would
only take a life estate."
This appears to ma to be directly applicable to the present case, with
reference to the direction of the testator, following immediately on
the devise to the heirs male of the body of William Jordan, that they
shall take "in such parts, proportions, manner, and form, and amongst
them, as the said William Jordan, their father, shall direct." ^^'e can-
not reject these words : there is no audiority for saying that the par-
ticular intent is to yield to the general one, — at all times an unsatisfac-
tory rule, — to the extent that, where the testator has himself afforded
a clear indication of the sense in which he has used the words, we are
to reject his own interpretation, in order to preserve the legal eft'ect
of the term "heirs of the body :'" on the contrary, the cases of Lowe
V. Davies, 2 Ld. Raym. 1561 (per nom. Law v. Davis, 2 Stra. 849, 1
Barnard. 238), of Lisle v. Gray, 2 Lev. 223, and Goodtitle d. Sweet v.
Herrin, 1 East, 264, 3 B. & P. 628 (in which last case the judgment
of the Queen's Bench was affirmed in the House of Lords), and the
cases of North v. ^lartin, 6 Sim. 266, and Doe d. Woodall v. Woodall,
3 C. B. 349, establish conclusively, that where, following on a gift to
heirs of the body, the term "son or sons," "daughter or daughters,"
or "child or children," is used in apposition, as it were, to the term
"heirs of the body," the latter is to be taken in its more restricted and
not in its legal sense. The cases of Pope v. Pope, 14 Beav. 591 ;
Gummoe v. Howes, 23 Beav. 184; and Smith v. Horsfall. 25 Beav.
628, are equally in point as establishing that the same eft'ect is pro-
duced in limiting the term "issue," which, when unexplained by the
context, has, as is now well established, the same force as the term
"heirs of the body." In Smith v. Horsfall, the ^Master of the Rolls
says : "Issue here means children ; and such is its signification in all
cases where a direct reference is made to the parent of the issue. I
entertain no doubt on the point : and I should be unsettling the law
if I were to hold the contrary."
It is quite plain, according to these authorities, that if, in the pres-
ent devise, the devisor, after the gift to the heirs male of the body of
William Jordan, had gone on to say, "the said sons of the said Wil-
liam Jordan to take in such parts, &c., as the said William Jordan shall
appoint," this direction must have had the effect of giving to the term
"heirs male of the body" the more limited meaning of "sons." Now
this although in another form, the testator has to all intents and pur-
poses done; for what possible diff'erence can there be between speak-
ing of the heirs of the body as the sons of the first taker, and of the
first taker as the father of the heirs? Instead of using the one form
of expression, the testator has used the correlative and corresponding
one, and one altogether equipollent in eff'ect. He has given his own
key to the meaning of the words "heirs of the body of William Jor-
dan," namely, those heirs of the body of William Jordan of whom
William Jordan is the father; that is, the sons of William Jordan.
134 CLASSIFICATION OF FUTURE INTERESTS (Part 1
The authorities are as strong for giving effect to such an exposition
of a testator's meaning of the term "heirs of the body," where it ex-
ists, as for enforcing the technical meaning where it does not. We
have no right, as it seems to me, to reject these words, or to hold them
to mean something else, so as to give to William Jordan an estate tail ;
more especially as all the other provisions of the devise lead only to
the conclusion that the testator never entertained the intention to give
him any such estate.
Nor am I embarrassed by the use of the words "in default of such
issue," which follow in the ensuing limitation. The word "issue" is;
as every one knows, a flexible term; if the term "heirs of the body"
can be controlled by an explanatory context, the term "issue" cannot
be less susceptible of being modified in like manner. The "issue" here
spoken of are plainly the same as were previously spoken of as "heirs
male of the body." If the latter are shown by the context to have
been the sons of William Jordan, such also must be the meaning of
the term "such issue."
The judgment of the House of Lords in the case of Roddy v. Fitz-
gerald, which was pressed on us in the argument, does not, as it ap-
pears to me, conflict with this view. It was not at all intended by that
decision, as I read the judgments of Lord Cranworth and Lord Wens-
leydale, to overrule the numerous cases at common law and in equity
to which I have last referred ; or all that class of cases (collected in
2 Jarm. Wills, 273-277), in which the term "issue" has been cut down
to mean sons, daughters, or children, by the testator having used one
or other of those terms in the context of the will. Lord Cranworth
expressly says, — "Where the testator shows upon the face of his will
that he must have used technical words in another than their technical
sense, there is no rule that prevents us from saying that he may be
his own interpreter ; " and again, "The word 'issue' when used in a
will is prima facie a word of limitation ; but if the context makes it
apparent that the word is not so used, then it may be treated as a
word of purchase." The question in the case, as put by Lord Cran-
worth, was, whether in a devise to testator's son William for life with
remainder to his issue, in such manner, shares, and proportions as he
should appoint, and in default of such appointment, then to the issue
equally, if more than one, and if only one child, to the said child;
and on failure of issue, over, — there was anything in the context to
control the ordinary effect of the term "issue." And the House of
Lords held that there was not. "Issue" being, as was pointed out by
Lord Wensleydale, prima facie equivalent to heirs of the body, the
direction that the heirs should take according to the appointment of
the ancestor, or, in default of appointment, in equal shares, was al-
together inoperative, as settled by the authority of Jesson v. Wright.
The further provision, which seems to have been added by the tes-
tator unnecessarily and ex nimia cautcla, that in the event of there
being but one child, that child should take the whole, did not appear
Ch. 7) RULE IN Shelley's case 135
to their Lordships strong enough to control the larger sense of the
word "issue." But there is nothing to show that, if the context had
been sufficiently clear and strong for that purpose, their Lordships
would not have given effect to it. On the contrary, as I have pointed
out, Lord Cranworth's language is a clear recognition of the existence
of the rule as I have stated it farther back. Looking at that language,
I cannot but think that if, in Roddy v. Fitzgerald, the testator had,
as in the present instance, described the first taker as the father of
those whom he spoke of as his issue, effect would have been given to
so striking an exposition of his meaning. I find no intimation of any
intention to overrule the numerous cases already referred to in which
the more general terms "heirs of the body" and "issue" have been
restricted, by words used in juxtaposition importing issue in the first
generation only, to the latter more limited meaning. Nor can I sup-
pose that their Lordships would have overruled such a series of au-
thorities silently, and, as it were, by implication, or without a clear
intimation of their intention to do so. I therefore consider them as
still in force and binding upon us.
Being, then, of opinion that the devisor has afforded a clear indi-
cation of the sense in which he has used the term "heirs male of the
body," namely, that of sons, — from which, of course, it would follow
that no estate of inheritance was created, and that consequently Wil-
liam Jordan took only an estate for life, — I hold — but on this ground
alone — that the judgment of the Court of Common Pleas should be
affirmed.
The court being thus equally divided, the Lord Chief Justice inti-
mated that if the parties wished to carry the case further, one of its
members would withdraw his opinion, so that the judgment of the
Court of Common Pleas might stand.
Affirmed."
14 In Evans v. Eva ns, [1802] 2 Ch. 173 (C. A.), the limitations were to A.
for life, tlieii fo^ sucli itersons as A. should appoint by will, and in default xif
appointment "to the use of such person or persons as at the decehse of the
sai( T~S:. ahull ha his li eir ^jeirs at law, and of the heir s^aJid- assi.mis of suc h
person or nersons." "Held, the rule in S heiJBy's Case didnot nnplv .
In" file tottowing cases it was held tffat the rule in Shelley's Case did
not apply: Peer v. Hennion, 77 N. J. Law, 693, 76 Atl. itiST, L'y L,. ii.-^
(Nr ts.V'j45 (remainder "to__su ch person or persons as shall be her.h^ or
heirs of lands held by her in 'tee simple") ; Taylor v. Cleary, 29 uratVp a.)
44S~(re iimiiider "L( ^ su ch-person or persons as shall at that time [the death of
the life tenant, R.] answer the description of heir or heirs at law of the said
R., and such person or persons shall take the'^aid land under that descrii)-
tion as purchasers under and by virtue of this deed, and not by inheritance
as heirs of the said R.") ; Earnhart v. Earnhart, 127 Ind. 397, 26 N. E. 895,
22 Am. St. Rep. 652 (remainder "to the perso ns who would have inherited
the same from the said" life tenant "had Tie OWned the same in fee simple
at the time of his death"). In Robinson v. Le Grand & Co., 65 Ala. Ill, it
was provided that after the life tenant's death the land "shall pass according
to the s tatutes of descent a nd distribution of t h e sta te of Alabama now in
force." The rule did 1K)L u|iply.' ' ^ ~" "
In Cook, V. Councilman, 109 Md. 622, 72 Atl. 404, the rule in Shelley's Case
was held to apply where the remainder was limited "to such person or per-
136 CLASSIFICATION OF FUTURE INTERESTS (Part 1
^TNA LIFE INS. CO. v. HOPPIN.
(Circuit Court of Appeals, Seveutli Circuit, 1914. 214 Fed. 928, 131 C. C. A.
224.)
In Error to the District Court of the United States for the Southern
Division of the Southern District of IlHnois ; J. Otis Humphrey, Judge.
Ejectment by the .^tna Life Insurance Company against FrankHn
M. Hoppin and others. Judgment for defendants, and plaintiff brings
error. Aflirmed.
Wilham Jack, of Peoria, 111., for plaintiff in error.
Albert M. Kales, of Chicago, Jll, for defendants in error.
Before Baker, Seaman, and Mack, Circuit Judges.
Baker, Circuit Judge. Plaintiff in error was plaintiff in this action
of ejectment. The cause was submitted to the court, without a jury,
on an agreed statement of facts. Judgment was for defendants.
In 1862 Fassett, owner in fee of land in Illinois, deeded it to "Frank-
lin Hoppin and Sarah Hoppin, his wife, during their natural lives arid
the life of tlips nrvivor of them, and at the death of the survivor to the
heirs o t the body of said Sarah, their heirs and a gsigrns.
fenUlD~dkd in 1865": Sarah , in 1908. In i862.\vhen the Fassett
deed was made, defendants Hoppin and Gar land ^on and dau gliter
of Franklin and Sarah, were in being ; and they were the only cfuIdfeTr
sons asjaaul d. under the laws of t he st atft of Arnry land^inhen^.U3es^
the^]ge irsor~my said nephew [the iTfetenant] i f he liacTdTed i nt estale~seise<i
in' f e^5herei)f ."^
[u\ an Grutteu v. Foxwell, [189T] App. Cas. 658 (H. of L.), the limitations
were iiTsulJstance toTFie testator's child or children for life, and after the
death of such child or children to the heirs of the tody and bodies of such
c hild or childre n, if more than one, to lie~etTtrTrnj' divided between tirellJ. tJliCh"
lands to hB-J4H<alS:^co nveyed and assured unt o s uch heirs of any child or chil-
d ren in ecpial sha res as they should severallTluid resp ectivel.v attain the age
of'^wi'iify-one years, or he married, and to their several and respective neirs~
anTPassi.L'ns lorevef. Power was given to the trustees in the meantime to
apply the rents and prolits in and about the maintenance and education of
such heirs of his child or children. There was a gift over if it should happen
that the testator should depart this life leaving no child or children, or issue
of any child or children, or if such child or children as he should leave and
the issue of such child or children should die before ho, she, or they should
attain the age of twenty-one years or be married. It was held that the_rule_
in Shelley's Case did apply.
"Superadded words' oT limitation and distribution alone do not prevent the
application of the rule in Shelley's Case. Mills v. Seward, 1 J. & H. 73.3;
Anderson v. Anderson, .30 Beav. 209. The following cases, contra, must be
regarded as overruled in England: Doe v. Laming, 2 Burr. 1100; Grettou v.
Howard, 6 Taunt. 94 ; Crump v. Norwood, 7 Taunt. 362.
A foitiori. Avhen superadded words of limitation only are used, the rule
applies. Wright v. Pearson. 1 Eden. 119; Measure v. Gee, 5 B. & Aid. 910;
Kinch V. Ward, 2 S. & St. 409. ^lany American jurisdictions follow the same
ruling. Barlow v. Barlow, 2 N. Y. .3S6; Brown v. Lyon. 6 X. Y. 419; Wight
V. Thayer, 1 Gray (Mass.) 284; Hall v. Thay(>r, 5 Gray (Mass.) 523; Man-
chester V. Durfee. 5 K. L 549; Ex parte INIcP.ee, 03 N. C. 332; Clark v.
Neves, 76 S. C. 4,S4, 57 S. E. 614, 12 L. R. A. (N. S.) 298; Carroll v. Burns,
108 Pa. 386 ; Kepler v. Larson, 131 Iowa, 438, 108 N. W. 1033, 7 L. K. A. (N.
S.) 1109.
Ch. 7) RULE IN Shelley's case 137
ever borri to Sarah. Defendant Vangieson is tenant of his codefend-
ants.
Pl aintiff claims tit le under an e xecution sale on a judgment agains t
d efendants Iloppin and Garland . Judgment was rendered in 1874;
execution was levied and sale was had in 1875 ; and deed thereon was
made in 1877.
Ever smce territorial days there has been a provision in Illinois
(111. St. An. c. 28, § 1) that the common law of England and the gen-
eral acts of Parliament in aid thereof, prior to 1606, shall be in force
until repealed by legislative authority. Since 1819 for descent by pri-
mogeniture has been substituted descent to surviving children and de-
scendants in equal parts, descendants of a deceased child taking the
child's share in equal parts. 111. St. An. c. 39, § 1. The statute de
donis (a part of the English law adopted by Illinois), by which a con-
ditional fee was converted into a fee tail, has been barred since 1827
from taking effect, and what wo uld_be ^ fee tail under the EnglTsIflaw
has been cbajT gpd to a life estate in the donee and__a_ rema inder in fee
si mple t o tlie nex t taker. 111. St. An. c. 30. § 6.
If jjy^he j-'assett deed "the heirs of the body of Sarah" took a con-
ti ngent re mainder, plaintiff' does not deny that the e xecution sale wa s
ine ft'ective to pass anv mterest ni the land . Baker v. Copenbarger, 15
III. 103, 58 Am. Dec. 600; Haward v. Peavey, 128 111. 430, 21 N. E.
503, 15 Am. St. Rep. 120; Ducker v. Burnham, 146 111. 9, 34 N. E. 558,
37 Am. St. Rep. 135; Hull v. Ensinger, 257 111. 160, 100 N. E. 513.
So the question is : What estate or estates were created by the Fas-
sett deed in 1862 under the common law as modified in the two par-
ticulars named?
yEtna Life Ins. Co. v. Hoppin, 249 111. 406, 94 N. E. 669. is an exact
precedent. That was an ejectment case between these parties, involv-
ing the same Fassett deed and the same execution sale. Plaintiff' pre-
vailed in the trial court. On appeal the judgment was reversed and
the cause remanded for retrial. Thereupon plaintiff dismissed, and on
appeal its right to do so was upheld. 255 111. 115, 99 N. E. 375.
Though the decision has no force as an adjudication, it is, what cited
authorities rarely are, a case squarely in point on the very language
presented to us for construction. Exercising an undoubted right,
plaintiff asks us to say whether that case was correctly decided.
Shelley's Case has no application, and therefore section 6 of chapter
30 IS to be dis regarde d, in a deed to A. and his heirs, or heirs of his
body, ihe w^ord ' heirs" is descriptive of the quality of estate given to
A. "Heirs," in the absence of a contrary definition clearly furnished
by the donor, intends an unending line of succession by inheritance.
Though A. has a fee simple or fee tail, his capacity to enjoy the es-
tate, if not alienated, is coterminous with his life. So, when a convey-
ance to A. for his use during life and then to his heirs or heirs of his
body came up for construction, it was held in Shelley's Case that the
word "heirs" was a word of limitation, descriptive of A.'s estate, and
138 CLASSIFICATION OF FUTURE INTERESTS (Part 1
not a word of purchase, descriptive of grantees in remainder; that the
donor either actually intended A. to have an estate in fee, or, if his in-
tent was that A. should take only a life estate, his failure to supply a
new lexicography for "heirs" left his wish as one impossible of gratifi-
cation, namely, that the law should not be enforced. In the present
deed, however, the context displays the sense in which the grantor used
the words "heirs of the body of Sarah." Th ^ context is "Sarah for
lif e^ then the heirs of her body, their heirs and assigns." He did not
inteiidthatJSiara^should have a fee~slmple, foTTEere is no limitation
to liTr^ne^rnllieTrsriiLJinen ding sUCcessj on. He did noi intend that
she should have a fee t ail, for the words o Tlimitation jre not restricted
mereW jn the stream of her blood so long as it shall co ntinue. He in-
tended, what he plainly said, that Sarah should have only a life estate ;
and since, therefore, the heirs of the body of Sarah were not to take
from her by descent, he intended that they should take by purchase;
and since the description of the purchasers is followed by the words of
limitation "their heirs and assigns," he intended that those purchasers
should take the remainder in fee simple. Such we believe is the natu-
ral reading of the deed, and such an interpretation is likewise required
by the rule in Archer's Case, 1 Co. 66b, decided in 1597, when read
wnth primogeniture in mind.
There the devise was to Robert Archer for life, and "afterwards to
the next heir male of Robert, and to the heirs male of the body of such
next heir male." H the devise had been to Robert for life, and then to
his next heir male, the word "heir" could have been construed in a col-
lective sense to denote an indefinite succession through Robert's blood
in the male line, and so under Shelley's Case an estate in fee tail would
have been created. But the added words, "and to the heirs male of the
body of such next heir male," required attention to be given to the
facts that the drafter of the instrument was using the plural form
"heirs" when he intended an indefinite succession by inheritance; that
the indefinite succession was to spring, not from Robert, but from the
next heir male of Robert ; and that the singular form, "next heir male
of Robert," therefore, could not properly be taken as nomen collecti-
vum, but was a description of that person w^ho by primogeniture could
at Robert's death answer as his next heir male. Consequently the
holding was that the next heir male of Robert took by purchase and
constituted a new stock of descent. Robert's next heir male became
the first holder of a fee tail. If the added words of limitation had been
to the general heirs of such next heir male, so that the next heir male
as purchaser would have acquired a fee simple, as is the wording here,
there would have been even less room for contending that Robert Ar-
cher was given a fee tail.
Under the English law of primogeniture no ancestor could leave sur-
viving him more than one heir. If he left sons, the eldest was his heir.
If daughters only, they took as one heir as coparceners. So a deed to
A. for life and then to the heir of his body might have different mean-
Ch. 7) RULE IN Shelley's case ' 139
ings. If there was no context, it was considered that the singular form
was used collectively to indicate indefinite succession, and Shelley's
Case applied. But a context might show that the singular form was
employed to describe the person who by survival would become the
heir of A.'s body, and that such heir should constitute a new stock of
descent. But a deed to A. for life and then to the heirs of his body
contained no ambiguity under English law. "Heirs" could not be tak-
en as descriptive of the one person; it could only mean the indefinite
succession from generation to generation. Therefore, in a deed to A.
for life and then to the heirs of his body, their heirs and assigns, the
added words were ineffectual to obviate the rule in Shelley's Case.
"Heirs of the body," being usable only to create an estate in tail, could
not be descriptive of coexistent persons who on the death of the donee
for life could then answer as the heirs of his body, and whose estate
would be defined by the added words "their heirs and assigns" as a re-
mainder in fee simple. The application of the rule in Shelley's Case to
this last supposed deed (Wright v. Pearson, 1 Ed. 119, Measure v. Gee,
5 B. & Aid. 910) is entirely consistent with the rule in Archer's Case
where primogeniture prevails. Bayley v. Morris, 4 Ves. Jr. 788 ; Ev-
ans V. Evans [1892] 2 Ch. 173. But in Illinois, and in this countr y
generally, where the surviving chil dren as tenants m common stand f or
the survivmg eldest son, "heirs" ma y have difi^erent meanm gs, just as
under English law the smgular t orm^heir" might have different me an-
ing?! If th^re~is no context, "heirs" must be held to indicate the iiv -
deHnite siiccession by iiilieiiLciiiCe,"~and bhelley's Case a pplies. But a
context nra i dLmun ?tfa te that ''heirs ' was a description of purcha sers
whoshould constitute a new stock of descent. .Etna Life ins. Co. v.
Hoppm, Z4y ill. 406. 94 X. E. bOV, where Archer's Case was relied on.
And see, also, De \'aughn v. Hutchinson, 165 U. S. 566. 17 Sup. Ct.
461, 41 L. Ed. 827; De Vaughn v. De Vaughn, 3 App. D. C. 50; Daniel
V. Whartenbv, 17 Wall. 639, 21 L. Ed. 661 ; Dott v. \\'illson, 1 Bav (S.
C.) 457; Lemacks v. Glover, 1 Rich. Eq. (S. C.) 141 ; Mclntyre v.'^Ic-
Intyre, 16 S. C. 290; Jarvis v. Wyatt, 11 N. C. 227; Tucker v. Adams,
14 Ga. 548 ; Taylor v. Clearv, 29 Grat. (Va.) 448 ; Peer v. Hennion, 77
N. T. Law, 693, 76 Atl. 1084, 29 L. R. A. (N. S.) 945 ; Eanihart v.
Earnhart, 127 Ind. 397, 26 N. E. 895. 22 Am. St. Rep. 652 ; Wescott v.
Meeker, 144 Iowa, 311, 122 X. W. 964. 29 L. R. A. (X. S.) 947; Ar-
cher V. Brockschmidt, 5 Ohio X. P. 349; Hamilton v. Wentworth, 58
Me. 101 ; Canedy v. Haskins, 54 Mass. (13 Mete.) 389, 46 Am. Dec.
739; Findlay v. Riddle, 3 Bin. (Pa.) 139, 5 Am. Dec. 355.
Did the purchasers who were described as the "heirs of the body
of Sarah" take a vested or a contingent remainder?
A remainder is vested when throughout its existence it stands ready
to take effect in possession whenever and however the preceding estate
determines. A remainder is contingent when it is limited on an event
which may happen before or after, or at the time of or after the termi-
nation of the particular estate. WiUiams, Real Prop. (21st Ed.) 356-
140 CLASSIFICATION OF FUTURE INTERESTS (Part 1
358; Gray. Rule against Perp. § 134; Williams, Real Prop. (21st Ed.)
345 ; Gray, Rule against Perpetuities, § 101 ; Fearne, C. R. p. 3 ; But-
ler's Note to Fearne, C. R. p. 9; Challis, Real Prop. (3d Ed.) pp. 125-
126; Leake, Digest of Land Law (2d Ed.) p. 233; Archer's Case, 1 Co.
66b; Bayley v. Morris, 4 Ves. Jr. 788; Plunket v. Holmes, 1 Lev. 11 ;
Loddington v. Kime, 1 Salk. 224; Purefoy v. Rogers, 2 Saund. 380;
Egerton v. Massey, 3 C. B. N. S. 338; Festing v. Allen, 12 M. & W.
279; Rhodes v. Whitehead, 2 Dr. & Sm. 532; White v. Summers,
(1908) 2 Ch. 256; Doe v. Scudamore, 2 B. & P. 289; Price v. Hall, L.
R. 5 Eq. 399 ; Cunlifife v. Brancker, 3 Ch. Div. 393 ; City of Peoria v.
Darst, 101 111. 609; Haward v. Peavey, 128 111. 430, 21 N. E. 503, 15
Am. St. Rep. 120; Walton v. Follansbee, 131 111. 147, 23 N. E. 332;
Alittel V. Karl, 133 111. 65, 24 N. E. 553, 8 L. R. A. 655; Temple v.
Scott, 143 111. 290, 32 N. E. 366; Chapin v. Crow, 147 111. 219, 35 N.
E. 536, Z7 Am. St. Rep. 213; McCampbell v. ^lason, 151 111. 500, 38
N. E. 672; Phayer v. Kennedy, 169 111. 360, 48 N. E. 828; Madison v.
Larmon, 170 111. 65, 48 N. E. 556, 62 Am. St. Rep. 356; Golladay v.
Knock, 235 111. 412, 85 N. E. 649, 126 Am. St. Rep. 224; Bond v.
Moore, 236 111. 576, 86 N. E. 386, 19 L. R. A. (N. S.) 540; ^tna Life
Ins. Co. V. Hoppin, 249 111. 406, 94 N. E. 669; Irvine v. Newlin, 63
Miss. 192; Bennett v. Morris, 5 Rawle (Pa.) 9; Stump v. Findlay, 2
Rawle (Pa.) 168, 19 Am. Dec. 632; Waddell v. Rattew, 5 Rawle (Pa.)
231 ; Redfern v. Middleton, Rice (S. C.) 459; Craig v. Warner, 5 Mack-
ey (16 D. C.) 460, 60 Am. Rep. 381 ; McElwee v. Wheeler, 10 S. C.
(Rich.) 392; Fabsr v. Police, 10 S. C. (Rich.) 376; Watson v. Dodd, 68
X. C. 528; Watson v. Dodd, 72 N. C. 240; Abbott v. Jenkins, 10 Serg.
& R. (Pa.) 296; Taylor v. Taylor, 118 Iowa, 407, 92 N. W. 71 ; Young
v. Young, 89 Va. 675, 17 S. E. 470, 23 L. R. A. 642; Nichols v. Guth-
rie, 109 Tenn. 535, 73 S. W. 107 ; Henderson v. Hill, 77 Tenn. (9 Lea)
26; Roundtree v. Roundtree, 26 S. C. 450, 471, 2 S. E. 474; Blanchard
v. Brooks, 12 Pick. (Mass.) 47.
T he remainder given to the "heirs af fhe bndy of Snrah" is nnt vest-
ed, because it does not stand ready throughout its existence to take ef-
fect" in possession whenever and however the preceding esl-ate dete r-
miiiesl It betore Sarah's death the life estate should terminate by for-
f'^ifure^or merger or surrender, the remainder would not stand ready,
according to its terms, to come into possession. The remainder is con-
tingent because it is limited on an event (the death of Sarah, when the
he frs oTlTer body can be ascertained) which may not hapnen until nffer
the termination of the life estate, while i t may be coincident with th e
termtrrat ion of the life esia i g :
There is no escape from holding that the remainder is contingent, ex-
cept by construing "heirs of the body of Sarah'' as meaning her chil-
dren living at the date of the deed and those subsequently born, instead
of denoting such children and descendants as should survive her. But
in our judgment this cannot be done. When it is found that Shelley's
Case does not apply, and that the words "heirs of the body" are de-
Ch. 7) RULE IN Shelley's case 141
scriptio personarum of remaindermen who are given an estate in fee
simple, the question whether the remainder, which is inevitably contin-
gent according to the legal definition and the tnaxim that no one can be
heir of the living, can be treated as a vested remainder in children alive
or as born, must be determined by observing w'hether or not a definition
contrary to the legal one has been furnished by the donor. In Archer's
Case no extra legal definition was supplied, and the remainder was held
to be, not a remainder that vested in Robert's eldest son when born,
but a remainder that was contingent upon a person's surviving Robert
who could then answer to the legal description. When the parties to
the present controversy were before the Supreme Court of Illinois, that
tribunal, after finding that Shelley's Case was inapplicable, ruled that:
"There is no ground whatever in this case for saying that the words
'heirs of the body' were intended to have any other than their ordinary
definite legal meaning, for there are no words in the deed which in any
way qualify them."
This accords with the general holdings that in the absence of a spe-
cial context there is nothing to do but accept the legal definition. Bay-
ley V. Morris, 4 Ves. Jr. 788; Canedy v. Haskins, 54 Mass. (13 Mete.)
389, 46 Am. Dec. 739; Hamilton v. Wentworth, 58 Me. 101 ; Frogmor-
ton V. Wharrey, 2 Wm. Black Rep. 728; :\Iudge v. Hammill, 21 R. I.
283, 43 Atl. 544, 79 Am. St. Rep. 802 ; Harvey v. Ballard, 252 111. 57,
96 N. E. 558; Thurston v. Thurston, 6 R. I. 296, 300; Mercer v. Safe
Deposit Co., 91 Md. 102, 117, 45 Atl. 865; Kirby v. Brownlee, 7 O. C.
D. 460, 463 ; Hanna v. Hawes, 45 Iowa, 437, 440 ; Zuver v. Lyons, 40
Iowa, 513; Crosby v. Davis, 2 Clark (Pa.) 403; Wood v. Burnham, 6
Paige (N. Y.) 513; Tallman v. Wood, 26 Wend. (N. Y.) 9; Jarvis v.
^^'yatt, 11 N. C. 227; Lemacks v. Glover, 1 Rich. Eq. (S. C.) 141;
Tucker v. Adams, 14 Ga. 548; Sharman v. Jackson, 30 Ga. 224; Smith
V. Butcher, L. R. 10 Ch. Div. 113; Lord v. Comstock,-240 111. 492, 88
N. E. 1012; Jones v. Rees, 6 Pennewill (Del.) 504, 69 Atl. 785, 16 L. R.
A. (N. S.) 734; Johnson v. Jacob, 74 Ky. (11 Bush) 646; Hall v. La
France Fire Engine Co., 158 N. Y. 570, 53 N. E. 513 ; Putnam v. Glea-
son, 99 :\Iass. 454; Richardson v. Wheatland, 48 Mass. (7 Mete.) 169;
Read v. Fogg. 60 Me. 479; Williamson v. Williamson, 57 Ky. (18 B.
Mon.) 329; Fulton v. Harman, 44 Md. 251, 264; Horslev v. Hilburn.
4+ Ark. 458; In re Estate of Kelso, 69 Vt. 272, 37 Atl. 747; In re
^^■elrs Estate, 69 Vt. 388, 3S Atl. 83; Hall v. Leonard, 1 Pick. (Mass.)
27; ]\Iorris v. Stephens, 46 Pa. 200; Winslow v. Winslow, 52 Ind. 8.
I n the case s cited by plaintifif to supp ort the contention that "h eirs
of the body"' snould be consirued to mean~"children alive or as born"
there was either a special context or whe n the question of rights ar ose
the" "children" were in fact survivo rs answeri ng_ to the d^scri[)tion of
heirs of the body. Doe v. Laming, 2 Burr. 1100; Doe v. Graft', 11
E^st, 66S; Gretton v. Haward, 6 Taunt. 94; Crump v. Norwood, 7
Taunt. 362 ; Right v. Creber, 5 B. & C. 866; De Vaughn v. Hutchinson,
165 U. S. 566, 17 Sup. Ct. 461, 41 L. Ed. 827.
142 CLASSIFICATION OF FUTURE INTERESTS (Part 1
We therefore conclude that the Supreme Court of Illinois, when
considering the deed now in question, correctly determined and ap-
plied the Illinois law as it stood in 1862 ; that is, the common law of
England and the general acts of Parliament in aid thereof, prior to
1606, as modified by the Illinois statute of descent.
Plaintiff, citing no Illinois cases prior to 1862, insists that the Illinois
decision between these parties is opposed to Butler v. Huestis, 68 111.
594, 18 Am. Rep. 589, decided in 1873, and has been virtually overrul-
ed by Moore v. Reddel, 259 111. 36, 102 N. E. 257, decided in June,
1913.
Tho ugh there were no apposite Illinois d ecisions before 1862, the
law of Illin ois, a^c oinmon-law siateTis to be re^rded as settled in 1862
in accordance wiTh the settlM comi-hon law". Hardin v. Jordan, 140 TJ.
SrSTT, 11 Sup. Ct. 8087838, 35 E. Ed. 428. If this Fassett deed in
1862 conferred upon defendants a contingent remainder in fee simple
under the law then in force, that right in real estate could not be im-
paired or destroyed by subsequent legislation or subsequent decision.
Moore v. Reddel, if it does conflict with ^tna Life Ins. Co. v. Hop-
pin, can be allowed no effect. On this writ the question is whether the
trial court committed error in looking to the evidences of the Illinois
law in force in 1862. Error cannot be predicated on the trial court's
failure to foresee that the Supreme Court of Illinois would not merely
overturn a rule of property as declared shortly before by the same
judges, but would undertake to abrogate. the common law — a right re-
served by chapter 28, § 1, exclusively to the Legislature. Morgan v.
Curtenius, 20 How. 1, 51 L. Ed. 823; Burgess v. Seligman, 107 U. S.
20, 2 Sup. Ct. 10, 27 L. Ed. 359; Security Trust Co. v. Black River
National Bank, 187 U. S. 211, 23 Sup. Ct. 52, 47 L. Ed. 147; Western
Union Tel. Co. v. Poe (C. C.) 64 Fed. 9; King v. Dundee (C. C.) 28
Fed. 33.
This case is at an end, but it may perhaps be not unfitting to say
that we believe plaintiff is mistaken in asserting a conflict between the
cases named. In Butler v. Huestis, in Moore v. Reddel, and in the ad-
ditional case of Winchell v. Winchell, 259 111. 471, 102 N. E. 823, the
foundational finding was that a fee tail was created, on which section
6 of chapter 30 would operate. "As to limitations controlled by that
section, the only use made of the rule [in Shelley's Case] is for the
purpose of determining whether by the common law a fee tail would
have been created." Winchell v. Winchell, supra. Construction of
section 6 of chapter 30 was within the province of the Supreme Court
of Illinois ; and if, in interpreting the legislative will in abrogating the
common law respecting entails, the court found that "heirs of the
body" of the first taker was intended by the Legislature to mean "chil-
dren alive or as born," such statutory construction throws no light on
the meaning of "heirs of the body" at common law in an instrument
where the rule in Shelley's Case fails to bring section 6 into play. This
substantially was stated in ^tna Life Ins. Co. v. Hoppin. The court
Ch. 7) RULE IN Shelley's case 143
there recited the settled construction of section 6, citing the cases cited
in Moore v. Reddel, and then proceeded to say that : "These cases are
not decisive of this case, which does not involve the apphcation of the
statute, but is merely a question of the construction of the conveyance
without reference to any statute."
And the correctness of the position taken in .'Etna Life Ins. Co. v.
Hoppin with respect to the scope and meaning of section 6 was recog-
nized in Moore v. Reddel. We perceive no conflict between the two
lines of decisions, and we believe none was intended.
The judgment is affirmed. ^^
15 I n the following cases, where the only superadd ed words of limitatio n
did not contain the word "heir s." the rule was held to ap] Uv"^ Moore a'. Iled-
dPl, i.':.'J 111. "30, iOl' N. i'J. 257 ("assigns forever"); Fowler v. Black, 180
111. 30.'!, 26 N. E. 596, 11 L. R. A. 670 ("in fee simple by his [the life ten-
ant's] heirs and tlieir assigns forever") ; Winter v. Dibble, 251 111. 200. 95
N. E. 1093 ("in fee simple absolnte") ; Clark v. Neves, 76 S. G. 484, 57 a
E. 614, 12 L. R. A. (N. S.) 298 ; Chamberlain v. Runkle. 28 lud. App. 599, 63
N. E. 486 ; Teal v. Richardson, 100 Ind. 119, 66 N. E. 435.
But see the following cases where the sune radded w ords of limitation did
not contain tne word ••heirs" but onl y such exi n-essioii s as "in fee simnle." or
"ah ^igns rnrever." and where tne rule wp« hAJTjn^ i t tn ^p p u - Wescott v.
:\I^'ker, 144 l6wA. 311,122 N. wr9C4r29 L. R. A. (N. S.) 947; Archer v.
Brockschmidt, 5 Ohio N. P. 349 ; Tucker v. Adams, 14 Ga. 548.
Note on the Appi.icatiox of the Rule in Shelley's Case to Tersonal
Property. — T he rule in Shelley's Case does not apply to limitations of per-
so nal property ! W here, therefore, personal proi>erty is limited to A. lor~TiTe
ana men to A.'s heirs, A . takes a life estate only, with a contingent futur e
inTer(M -t u the pei ' tjQhs de scribed : Smith v. Butcher. L. R. 10 Ch. Div. 113;
In ie Russell, 52 L. T. R. 559 ; Lord v. Comstock, 240 111. 492, SS N. E. 1012 ;
Gross v. Sheeler, 7 Iloust. (Del.) 2t>0, 31 Atl. 812 ; Jones v. Rees, 6 Pennewill
(Del.) 504, 09 Atl. 785. 16 L. R. A. (N. S.) 734. See, also, SicelofC v. Redman's
Adm., 26 Ind. 251, 262.
B ut where personal property is limited to A. for life and then to the heir s
of a7s body, it is s eFFlod by the Eir-^lisli cases (Theobald ou~\Vills [r.th EdJ
p.-64 ^ and i u rm rrry American .lunsdictious. that -^ takes an aljsohite inte r-
est.- Dott V. Cunnington, 1 Bay (S. C.) 4.53. 1 Am. Dec. 624 ; Polk v. Paris. 9
Terg. (Tenn.) 209, 30 Am. Dec. 400; Pressgrove v. Comfort, 58 Miss. 644;
Hampton v. Rather, 30 Miss. 193 ; Powell v. Brandon, 24 Miss. 343 ; Smith v.
iNIeCormick, 46 Ind. 135; AYatts v. Clardy, 2 Fla. 369; Mason v. Pate's Ex'r,
34 Ala. 379; Machen v. JIachen, 15 Ala. 373. See, also, Knox v. Barker, 8
N. D. 272, 78 N. W. 352 ; Home v. Lyeth, 4 Har. & J. (Md.) 431. This must
rest upon the conclusion that a prima facie guide to construction has been
tixed by the authorities that an absolute interest was intended to be created.
Of course, at this day, such a prima facie rule is artificial and contrary t o
the fact. Hence it may be expected to yield readily to a context which fem Ts
t(7 show that a life interest, only -n-.qs infoiidpfl (^pp> Gray Rule against Per-
petuities [2d Ed.] § 647, n. 3; Bucklin v. Creighton. 18 R. I. 325, 27 Atl. 221;
Evans v. Weatherhead, 24 R. I. 502. 53 Atl. 806 ; DuU's Estate, 137 Pa. 112,
201 Atl. 418 ; Bennett v. Bennett, 217 111. 434, 75 N. E. 339, 4 L. R. A. [N. S.]
470, semble), or to be abandone d entirely. (Crawford v. Wearn, 115 N. C. 540,
20 S. E. 724 ; Clemens v. Heckscher, 185Pa. 476, 40 Atl. 80).
144 CLASSIFICATION OF FUTURE INTERESTS (Part 1
PROPOSED LEGISLATION
Where any grant or devise hereafter taking effect of any property
shall limit an estate for life or of freehold to any person and an estate
in remainder to the heirs (or the heirs of any particular description) of
such person, such person shall not be deemed to take an estate of inher-
itance, and the persons who, upon the taking effect of such remainder
in possession, shall be the heirs (or the heirs of the class described as
the same may be) of such person, shall take by virtue of the remainder
so limited to them : it being the intent of this provision to abrogate the
rule of law commonly known as the rule in Shelley's Case.^*
16 Prepared by Professor Ernst Freuiid and embodied in the draft of a bill
presented to the Illinois Legislature at its sessions in 1907 and 1909. See,
also, 1 111. Law Rev. 374^376,
Ch. 8) FUTUUE INTERESTS IN PERSONAL PROPERTY 145
CHAPTER VIII
FUTURE INTERESTS IN PERSONAL PROPERTY
SECTION 1.— CHATTELS REAL
MANNING'S CASE.
(Court of Common Pleas, 1609. 8 Coke, 94b.)
In debt for 200 marks by William Clark plaintiff, and Matthew Man-
ning administrator of Edward Manning deceased, upon plene adminis-
travit pleaded, the jury gave a special verdict to the effect following,
which plea began Mich. 4 Jacobi Rot. 1829. Edward Manning the in-
testate, anno 30 Eliz., was possessed of the moiety of a mill in Clifton
in the county of Oxford, for the term of fifty years, of the clear yearly
value of £40, and afterwards the said Edward Manning, 30 Eliz., made
his will in writing, and thereby devised his indenture and lease of the
farm and mill in Clifton, and all the years therein to come to Matthew
Manning after the death of Mary Manning my wife (which farm and
mill my will is, that Mary Manning my wife shall enjoy during her
life) conditionally, that the said Matthew shall not demise, sell, or give
the said lease, but to leave it wholly to John his son, &c. "In the mean
time my will and meaning is, that Mary Manning my wife shall have
the use and occupation both of the farm and mill, &c. during her natu-
ral life : yielding and paying therefore yearly to the said Matthew
Manning, &c. during her natural life il at the feasts of St. Michael
the Archangel, and the Annunciation of our Lady," and made Mary
his wife sole executrix, and died ; Mary took upon her the charge of
the will, and had not sufficient to pay the debts of the said Edward
Manning above the said term ; but she entered into the said farm and
mill, and paid to Matthew Manning the yearly sum of 17 according to
the said will ; and said, that if she died, the said Matthew Manning
should have the farm and mill aforesaid ; and afterwards the said
Mary, sixteen years after the death of her husband, died intestate,
after whose death the said Matthew Manning entered into the said
farm and mill, and was thereof possessed prout lex postulat ; and after-
wards administration of the goods of the said Edward by the said
Mary not administered was committed to the said Matthew, and that
none of the profiits of the said farm and mill, which accrued in the life
of the said Mary came to the hands of the said Matthew besides the
said 17 yearly as aforesaid. And the doubt of the jury was, if the resi-
4 Kales Pbop. — 10
14G CLASSIFICATION OF FUTURE INTERESTS (Part 1
due of the said term in the said farm and mill should be assets in the
hands of the said Matthew. But I conceived on the trial of the issue
at Guildhall in London, that the devise to Matthew was good, and that
there wa^^ sufficient assent to the legacy, by the said payment of the
rent of "ig/. But yet upon the motion of the plaintiff's counsel, I was
contented that the whole special matter should be found as is afore-
said. And the case was argued at the bar, and at divers several days
debated at the bench, and prima facie Walmsley, Justice, conceived,
that the devise toi Matthew Manning after the death of the wife was
void, for the wife having it devised to her during her life, she had the
whole term, and the devisor could not devise the possibility over no
more than a man can do b}' grant in his life ; for that which the testa-
tor cannot by no advice of counsel in his life, the testator, who is in-
tended to be inops consilii, shall not do by his will ; but by grant in his
life he could not grant the land unto the wife for her life, the remain-
der over to another, for by the grant the wife had the whole term at
least if she so long lived, and a possibility cannot be limited by way of
remainder; and although the later opinions in the case (where a man
possessed of a lease for years devises it to one for life, the remainder
to another) have been that the remainder was good, yet he said that the
old opinion, which hath more reason, as he conceived, was, that the
remainder in such case was void, 28 H. 7, 7 Dyer, Baldwin and Shel-
ley, that the remainder is void, Englefield contrary, 6 E. 6, 74, ace. by
Hales and Montague, 2 E. 6, tit. Dc'vise, Brook, 13, that the remainder
is void, for the devise of a chattel for one hour is good forever. But
Coke, Chief Justice, Warburton, Daniel, and Foster contrary, that
the devise was good to Matthew Manning; and five points were by
them resolved: 1. That Matthew Manning took it not by way of re-
mainder, but by way of an executory devise, and one may devise an
estate by his last will in such manner as he cannot do .by any grant or
conveyance in his life, as if a man is seised of lands in fee held in
socage, and devises that if A. pays such a sum to his executors, that he
shall have the land to him and his heirs, or in tail, or for life, &:c. and
dies, and afterwards A. pays the money, he shall have the land by this
executory devise, and yet he could riot have it by any grant or convey-
ance executory at the common law ; but it stands well with the nature of
a devise ; so in the case at bar when the wife dies it shall vest in Matthew
Manning as by an executory devise, as if he had devised that after a
son has paid such a sum to his executors, that he shall have his term ;
or that after the death of A. that B. shall have the term ; or, that after
his son shall return from beyond the seas, or that A. dies, that he shall
have it, in all these cases and other like, upon the condition or contin-
gent performed, the devise is good, and in the mean time the testator
may dispose of it; and therefore in judgment of law, ut res magis
valeat, the executory devise shall precede, and the disposition of the
lease, till the contingent happen, shall be subsequent, as in the case at
bar it was, and so all shall well stand together ; for when he made the
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 147
executory devise, he had a lawful power, and might well make it: and
afterwards in the same will he had lawful power, and might well devise
the lease till the contingent happened, and therefore it is as much as if
the testator had devised, that if his wife died within the term, that then
Matthew Manning should have the residue of the term ; and farther
devised it to his wife for her life. 2. The case is more strong, because
this devise is but of a chattel, whereof no praecipe lies ; and which may
vest and revest at the pleasure of the devisor, without any prejudice to
any. And therefore if a man makes a lease for years, on condition
that if he do not such a thing, the lease shall be void, and afterwards
he grants the reversion over, the condition is broken, the grantee shall
take benefit of this condition by the common law, for the lease is there-
by absolutely void : but in such case if the lease had been for life, with
such condition, the grantee should not take the benefit of the breach of
the condition ; for a freehold (of which a praecipe lies) cannot so easily
cease ; but is voidable by entry after the condition broken, which cannot
by the common law be transferred to a stranger; and therewith agrees
11 H. 7, 17a, and Br. Conditions, 245, 2 Mariae, by Bromley the same
difference. 3. There is no difference when one devises his term for
life, the remainder over ; and when a man devises the land, or his lease,
or farm, or the use or occupation, or profits oi his land ; for in a will
the intent and meaning of the devisor is to be observed, and the law
will make construction of the words to satisfy his intent, and to put
them into such order and course that his will shall take eff'ect. And al-
ways the intention of the devisor expressed in his will is the best ex-
positor, director, and disposer, of his words ; and when a man devises
his lease to one for life, it is as much as to say, he shall have so many
of the years as he shall live, and that if he dies within the term that
another shall have it for the residue of the years ; and although at the
beginning it be uncertain how many years he shall live, yet when he
dies it is certain how many years he has lived, and how many years the
other shall have it, and so by a subsequent act all is made certain. 4.
That after the executor has assented to the first devise, it lies not in
the power of the first devisee to bar him who has the future devise,
for he cannot transfer more to another than he has himself. 5. In
many cases a man by his will may create an interest, which by grant or
conveyance at the common law he cannot create in his life; and there-
fore when Sir William Cordell, Master of the Rolls, devised his man-
or of Melford, &c., in the county of Suffolk, to his executors for the
payment of his debts, and until his debts should be paid, the remainder
to Edward his brother, &c., and made George Carey and others his ex-
ecutors, and died, and after his death the debts w'ere paid ; and his wife
demanded dower, and one question amongst others was moved, what
interest or estate the executors had? for if they had a freehold, then
the wife should not have dower and if they had but a chattel determina-
ble upon the payment of the debts, then she should be endowed ; and
this case was referred to Anderson. Chief Justice of the Common
1-18 CLASSIFICATION OF FUTURE INTERESTS (Part 1
Pleas, and Francis Gawdie, Justice of the King's Bench, before whom
the case was at several days debated, Pasch. 36 Eliz., and I was of
counsel with the executors ; and it was resolved by them that the execu-
tors had but a chattel, and no freehold ; for if they should have a free-
hold for their lives, then their estat-^ would determine by their death,
and not go to the executors of the executors, and so the debts would
remain unpaid ; but the law adjudges it a particular interest in the land,
which shall go to the executors of the executors, as assets for payment
of his debts. But if such estate be made by grant, or' conveyance at
the common law. the law will adjudge it an estate of freehold, and so a
more favorable interpretation is made of a will in point of interest or
estate to satisfy the will of the dead for the payment of his debts, than
of a grant or conveyance in his life ; which he may enlarge, or make
other provision at his pleasure. And so was it resolved in the begin-
ning of the reign of Queen Elizabeth that where a man had issue a
daughter, and devised his lands to his executors for the payment of
his debts, and until his debts were paid, and made his executors and
died, the executors entered, the daughter married, and had issue and
died, and after the debts were paid, it was resolved in the case of one
Guavarra that he should be tenant by the curtesy. Vide 3 H. 7, 13.
27 H. 8, 5. 21 Ass. p. 8. 14 H.. 8, 13. .
Note, reader, it has been of late often adjudged according tO' these
resolutions, sc, in Weldon's Case, 2 Brownl. 309, Plowd. Com., in
Communi Banco. In Paramour's Case, 2 Brownl. 309, Plowd. Com.,
in the King's Bench, Mich. 26 and 27 EHz. in a writ of error in the
King's Bench, on a judgment given in the Common Pleas, the case was
such: Thomas Amner brought an ejectione firmse against Nicholas
Loddington on a demise made by Alice Fulleshurst for seven years of
certain houses in London, and on not guilty pleaded, the jury gave a
special verdict. Hugh Weldon was seised of the said houses in fee,
and 24 H. 8, demised them to Thomas Pierpoint for ninety-nine
years, who by his will in writing 1544, devised his said lease in these
words : "T devise my lease to my wife during her life, and after her
death I will it go to her children unpreferred," and made his wife his
executrix, and died. His wife entered and was possessed ratione boni
et legationis, and married with Sir Thomas Fulleshurst, and afterwards
2 and 3 Phil, and Mar., Bestwick recovered against Sir Thomas f 140
debt in the Common Pleas, and by force of a fieri facias directed to
Altham and Mallory, sheriffs of London, the said term was sold to
Nicholas Loddington, the now defendant, and afterwards the judgment
against the said Sir Thomas Fulleshurst was reversed in a writ of er-
ror in the King's Bench, et quod ad omnia quae amisitratione judici-
prjed, restituatur, and afterwards Alice the wife and executrix died.
Alice Fulleshurst being then the only daughter who was unpreferred,
entered and made the lease to the plaintiff Thomas Amner. And this
case was often argued at bar by the serjcants in the Common Pleas,
and at last by the judges; and in this case three points by them were
Ch. 8) FUTURE INTERESTS IN TEKSONAL PROPERTY 141)
resolved: 1. That the said executory devise of the lease after the
death of the wife to the daughter unpreferred, was good ; and there is
no difference when the term, or lease, or houses, and when the use or
occupation, &c., is devised, and that in all these cases the executory de-
vise is good. 2. That the sale either by Alice the wife, or by the sheriff
on the fieri facias, after the wife was possessed as legatee, should not
destroy the executory devise, although the person to whom the execu-
tory devise was made was then uncertain, as long as Alice the wife
lived ; for the said Alice the daughter might have been preferred in
her life, and then she should take nothing, so that such executory de-
vise which has dependence on the first devise may be made to a person
uncertain, and this possibility cannot be defeated by any sale made by
the first devisee, &c. 3. That the sale by the sheriff by force of the
fieri facias should stand, although the judgment was after reversed,
and the plaintiff in the writ of error restored to the value, for the sher-
iff who made the sale, had lawful authority to sell, and by the sale the
vendee had an absolute property in the term during the life of Alice the
wife ; and although the judgment, which was the warrant of the fieri
facias, be afterwards reversed, yet the sale, which was a collateral act
done by the sheriff, by force of the fieri facias, shall not be avoided ;
for the judgment was that the plaintiff should recover his debt, and the
fieri facias is to levy it of the defendant's goods and chattels, by force
of which the sheriff' sold the term which the defendant had in the right
of his wife, as he well might, and the vendee paid money to the value
of it. And if the sale of the term should be avoided, the vendee would
lose his term, and his money too, and thereupon great inconvenience
would follow that none would buy of the sheriff goods or chattels in
such cases, and so execution of judgments (which is the life of the
law in such case) would not be done. And according to these resolu-
tions judgment was given in the Common Pleas for the plaintiff, and
in the King's Bench upon a w^rit of error the case was often argued at
the bar before Sir Christopher Wray, and the court there, and at length
the judgment was affirmed, and so the said three points were adjudged
by both courts: and by these latter judgments you will better under-
stand the law in the books, in which there are variety of opinions. 2)7
H. 6, 30. ZZ H. 8. Br. tit. Chattels ZZ. 2 E. 6, tit. Devise, Br. 13. 28
H. 8. Dyer 277. Plow. Com. in Weldon's and Paramour's Case, ^c.
Quia judicia posteriora sunt in lege fortiora.^
1 LfMiipet's Case, 10 Co. 46 b (1612), accord. See Gray, Perpetuities, §§ 148-
152.
150 CLASSIFICATION OP FUTURE INTERESTS (Part 1
CHILD V. BAYLIE.
(Courts of King's Bench and Exchequer Chamber, 1618. Cro. Jac. 459.)
Ejectment of a lease of Thomas Heath of lands in Alchurch.
Upon Not guilty pleaded, a special verdict was found upon the case ;.
which was, that William Heath, possessed of a lease for seventy-six
years of the land in question, let it to one Blunt from the day of his
death until the first of May, 1629 (which was three months before the
end of the lease), if Dorothy his wife lived so long. Afterwards he de-
vised, that William Heath his son and his assigns should have the said
tenements, and the reversion of them, and all his title and interest in
the said tenements, for all the others of the said seventy-six years
which should be unexpired at the time of his wife's death, "provided,
that if the said William die without issue living at the time of his death,
that Thomas his son (the now lessor) should have it for all the residue
of the seventy-six years unexpired from the death of his said wife,
and of William without issue; and if he died without issue, then_lo.his
daughters ;" and made his wife his executrix, and died. The Avif e as-
sented to the legacies ; William assigned all this lease and his interest
thereto to the said Dorothy, who assigned it to Mr. Comb, under whom
the defendant- claims : afterwards Dorothy died, and then William
died without issue. Thomas the devisee enters, and makes this lease to
the plaintiff.
After divers arguments at the bar, it was adjudged for the defend-
ant.
First, it was resolved, where a lessee for years let it after his death
until the first of May, 1629. that it was a good lease, which began im-
mediately by his death, he dying within that time.
Secondly, that the lease being made to begin after his death unto the
first of May, 1629, the lease being made (12 August, 1553), if Dorothy
his wife should so long live, he did not thereby convey the interest and
remainder of the term, viz. from the first of May, 1629, to 12 August,
1629, and the possibility of a long term if Dorothy died before the first
of May, 1629, which interest and possibility together he might devise to
William Heath his son.
Hie third and main question was, whether this devise being to Wil-
liam Heath and his assigns, with a proviso, that if he died without is-
sue living, that Thomas Heath should have it, and he aliens it, and
afterwards dies without issue, whether this alienation shall bind Thom-
as Heath, or that he may avoid it ?
It was resolved, that this alienation shall bind ; for when he limited
to him and his assigns, all the estate was vested in him, and he had an
absolute power to dispose thereof ; for the law doth not expect his dy-
ing without issue. The difference therefore is, where a lease is devised
to one if he live so long, and afterward to another, the first hath but a
qualified estate, and the other hath the absolute interest, and therefore
Ch. 8) FUTURE INTERESTS IX PERSONAL PROPERTY 151
this alienation shall not prejudice him who hath the absolute estate ;
but when it is limited to him and his assigns, then the proviso thereto
added, is void to restrain the alienation : and the limitation to the heirs
oTthe body, and the proviso, are all one; foFall long leases would be
more dangerous than perpetuities : and therefore this case differs
from the cases in 8 Co. 96, and 10 Co. 46, Lampet's Case, that a devisee
for life could not bar him in remainder : and Lewknor's Case, Easter
Term, 14 Jac. 1 ; 1 Roll. Rep. 356, in the Exchequer Chamber, was
cited. Wherefore it was adjudged for the defendant.
Note. — Upon this judgment a writ of error was brought in the Ex-
chequer Chamber ; and the error assigned in point of law, that the re-
mainder of this term limited to Thomas Heath after the death of Wil-
liam without issue then living, was good, and the alienation of William
shall not bind him in remainder.
It was argued by Bridgm an, and afterward by Humphrey Davenport,
for the plaintiff in error, that it \vas a good limitation of the remainder
of the term to William and his assigns, with the proviso, that if he
died without issue then living, the then remainder should be to Thomas,
&c., and that it is no more in effect than after his death; and therefore
it differs from Lewknor's Case, adjudged in the Exchequer, where a
devise of a term to one, and the heirs of his body, and if he die with-
out issue, that it shall remain to another, was held to be a void remain-
der; for he cannot limit a remainder upon a term after the death of
another without issue : but here it is but a remainder after the death
of one without issue, viz. William dying without issue then living; so
upon the matter it depended upon is death, and therefore not like to the
said case ; but it is agreeable to the reasons put in the cases of 8 Co. 94,
Matth. Manning's Case, and 10 Co. 46.-
But it was now argued on the other part by Thomas Crew and
George Croke, that the judgment was well given in the King's Bench ;
for'irere the limitation being to William after the death of tlie devisor's
wife, of all his estate and interest to him and his assigns, it is but a re-
mainder; for the wife may outlive all the term, and then this devise of
the remainder of the term is given to him in particular, and X Villiam
hath but a possibility ; and then to limit it to Thomas after the death of
\\'illiam then living, is to limit a possibility upon a possibility, which is
against the rules of law, as it is held in the Rector of ChedingtonVCase,
1 Co. 156, and Lord Stafford's Case, 8 Co. 7Z.
2 Palmer reports Serjeant Davenport as saying: "There is no danger of
perpetuity by sucti a conveyance. For ho tookji diversity when the contingen-
cy is such as can or ought [doetl to hapi>eii in the life of the devisee. There
a feinamder limited on such an estate in case of a devise of a chattel is good,
as in our case, if he should die without issue of his body living at the time of
his death, so that it does not exceed his life. But if the contingency be such
as is foreign [forrain], or is to connnence in futuro after the death of the
first devisee, there, because such a limitation tends to make a perpetuity, a
remainder limited on it is bad, as if he should die without issue or without
heir, that then it shall remain over. And on this diversity they strongly
[fortement] rely." Child v. Baylie, Palm. 333, 334.
152 CLASSIFICATION OF FUTURE INTERESTS (Part 1
Secondly, that this hmitation to Thomas after the death of WiUiam
without issue then hvipg, is all one as if it had been limited upon his
death Avithout issue : and the addition "then living," doth not alter the
case^ for at the first limitation, non constat that he should die without
issue; and the law shall not expect his death without issue; and it is
not like to the case when it is limited after the death of one ; for it is
certain that one must die, and it may be that he may die during the
term, and the law may well expect it ; but that one should die without
issue, the law will never expect such a possibility, nor regard it : and
it would be very dangerous to have a perpetuity of a term inJhaJt man-
neFflor it would be more mischievous than the common cases of per-
petuities which the law hath sought to suppress : and therefore it was
said, that this case was like to some of the cases which had been ad-
judged, that the remainder of a term after the death of one person
is good, and should not be destroyed by the alienation of the first devi-
see. Vide 8 Co. 94, Manning's Case. 10 Co., Lampet's Case. Plowd.
520 and 540; Dyer 74, 277.
After divers arguments, all the judges of the Common Pleas, viz.
HoBART, Winch, Hutton, and Jones, and all the Barons (except
Tanfiei,d, Chief Baron) agreed with the first judgment : for they said,
that the. first grant or devise of a term made to one for life, remainder to
another, hath been much controverted, whether such a remainder might
be good, and whether all may not be destroyed by the alienation of the
first party ; and if it were now first disputed, it would be hard to maiii::
tain; but being so often adjudged, they would not now dispute it. —
But for the case in question, where there was a devise to one and his
assigns, and if he died without issue' then living, that it would remain
to another, it is a void devise; and it is all one as the devise of a term
to one and his heirs of his body, and if he die without issue, that then
it shall remain to another, it is merely void ; for such a n entail of a
term is not allow able in law, f^r the mischief which otherwise would
ensue, li there should be such a perpetuity of a term. — And altlToiigh
TanJi'eTcfTt^KierBaron, doubted thereof, especially by reason of a judg-
ment given before in the King's Bench in Rethorick v. Chappel, Hil. 9
Jac. 1; 2 Bulst. 28; Godol. 149, where "William Gary possessed of a
term for years devised it to his wife for her life, and afterwards that
John his son should have the occupation thereof as long as he had is-
sue; and if he died without issue unmarried, that then Jasper his
younger son should have the occupation thereof as long as he had is-
sue of his body; and if he died without issue unmarried, he devised
the moiety to Dorothy his daughter, the other moiety to Robert and
William his sons, and made his wife executrix, who assented to the
legacies and died. John and Jasper died without issue, unmarried ;
and afterward Robert and William entered upon the defendant, claim-
ing the moiety, and let to the plaintifit". Upon a special verdict, all this
matter being discovered, it was adjudged for the plaintiff, that he
should recover the moiety, which is all one case with the case in ques-
Ch. 8) FUTURE INTEUESTS IN PERSONAL PROl'ERTY 153
tion. But the defendant's counsel in the writ of error showed, that
there was a difference betwixt the said cases : for first, in that there
is a devise but of the occupation only ; but here, of the term itself.
Secondly, it is a devise here of his estate and term to him and his as-
signs, wherein is authority given that he may assign. Thirdly, the
limitation is there, if he die without issue unmaried, which is upon the
matter, that if he die within the term ; for if he be not married he can-
not have issue" — but in the case here, he might have issue ; and yet if
that issue should die without issue in his life-time, it should remain;
which the law will neither expect nor will suffer : yet the Justices and
Barons, by the assent of Tanfield, all agreed, that judgment should
be affirmed : and in Hilary Term, 20 Jac. L, it was affirmed.
COTTON V. HEATH.
(Court of King's Bench, 1(«8. 1 Roll. Abr. C,12, pi. ?,.)
If A., possessed of a term for years, devises it to B., his wife, for
eighteen years, and then to C, his eldest son, for life, and then to the
eldest issue male of C. for life, although C. has no issue male at the
time of the devise and death of the devisor, yet if he has issue male be-
fore his death, such issue male will have it as an executory devise, be-
cause, although it be a contingency upon a contingency, and the issue
not in esse at the time of the devise, yet as it is limited to him but for
life, it is good, and all one with Manning's Case. On a reference out
of Chancery to the Justices Jones, CrokE, and BERKELEY, by them re-
solved without question.
DUKE OF NORFOLK'S CASE.
(Court of Chancery, 1682. 3 Ch. Cas. 1.)
Lord Nottingham, Ch.' This is the case. The plaintiff, by his bill,
demands the benefit of a term for two hundred years, in the barony of
Grostock, upon these settlements.
Henry Frederick, late Earl of Arundel and Surrey, father of the
plaintiff and defendant, had issue, Thomas, Henry, Charles, Edward,
Francis, and Bernard ; and a daughter, the Lady Katharine : Thomas
Lord Maltravers, his eldest son, was non compos mentis, and care is
taken to settle the estate and family, as well as the present circum-
stances will admit. And thereupon there are two indentures drawn,
3 In this ca.se Tyord Cliancellor Xottingliaui was a.ssisted by Lord Cliief Jus-
tice remberton. Lord Chief Justice Nortli, and Ix)rd Chief Baron Montague.
The judges delivered tlieir ojiiuions in succession on ^larcli 24, 1682, agreeing
tliat the limitation in question was void. The opinions are reported .3 Ch.
Cas. 14-26. The Lord Chancellor differed from the judges, and delivered the
opinion here printed, which sutliciently states the facts.
154 CLASSIFICATION OF FUTURE INTERESTS (Part 1
and they are both of the same date. The one is an indenture between
the Earl of Arundel of the one part : and the Duke of Richmond, the
Marquis of Dorchester, Edward Lord Howard of Eastcricke, and Sir
Thomas Hatton of the other part : it bears date the twenty-first day of
March, 1647. Whereby an estate is conveyed to them and their heirs ;
to these uses: to the use of the earl for his life.
After that to the countess his wife for her life, with power to make a
lease for twenty-one years, reserving the ancient rents.
The remainder for two hundred years to those trustees, and that up-
on such trusts, as by another indenture, intended to bear date the same
day, the earl should limit and declare ; and then the remainder of the
lands are to the use of Henry, and the heirs male of his body begotten,
with the remainders in tail to Charles, Edward, and the other brothers
successively.
Then comes the other indenture, which was to declare the tnist of_
the term for two hundred years, for which all these preparations are
made, and that declares that it was intended this term should attend
the inheritance, and that the profits of the said barony, &c. should be
received by the said Henry Howard, and the heirs male of his body, so
long as Thomas had any issue male of his body should live, (which was
consequently only during his own life, because he was never likely to
marry) and if he die without issue in the life-time of Henry, not leav-
ing a wife privement ensient of a son, or if after his death, the dignity
of Earl of Arundel should descend upon Henry ; then Henry or his is-
sue should have no farther benefit or profit of the term of two hun-
dred years. Who then shall ? But the benefits shall redound to the
younger brothers in manner following. How is that ? To Charles and
the heirs male of his body, with the like remainders in tail to the rest.
Thus is the matter settled by these indentures ; how this family was to
be provided for, and the whole estate governed for the time to come.
These indentures are both sealed and delivered in the presence of
Sir Orlando Bridgman, Mr. Edward Alehorn, and Mr. John Alehorn,
both of them my Lord Keeper Bridgman's clerks ; I knew them to
be so.
This attestation of these deeds is a demonstration to me they were
drawn by Sir Orlando Bridgman.
After this the contingency does happen : for Thomas Duke of Nor-
folk dies without issue, and the earldom of Arundel as well as the
dukedom of Norfolk, descended to Henry now Duke of Norfolk, by
Thomas his death without issue: presently upon this the Mar^uis_of
Dorchester, the surviving trustee of this estate, assigns his estate to
Marriot; but he doth'it upon the same trusts that he had it himself:
Mr." Harriot assigns his interest frankly to my Lord Henry, the now
duke, a:nd so has done what he can to merge and extinguish the term by
the assigning it to him, who has the inheritance.
To excuse the Marquis of Dorchester from co-operating in this mat-
ter, it is said, there was an absolute necessity so to do ; because the
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 155
tenants in the north would not be brought to renew their estates, while
so aged a person did continue in the seigniory, for fear, if he should die
quickly, they should be compelled to pay a new fine. But nothing in
the world can excuse IMarriot from being guilty of a most wilful and
palpable breach of trust, if Charles have. any right to this term: so
that the whole contention in the case is, to make the estate limited to
Charles void ; void in the original creation ; if not so, void by the com-
mon recovery suffered by the now duke, and the assignment of Marriot.
If the estate be originally void, which is limited to Charles, there is no
harm done; but if it only be avoided by the assignment of iMarriot,
with the concurrence of the Duke of Norfolk, he having notice of the
trusts, then most certainly they must make it good to Charles in equity,
for a palpable breach of trust, of which they had notice. So that the
question is reduced to this main single point, whether all this care that
was taken to settle this estate and family, be void and insignificant;
and all this provision made for Charles and the younger children to
have no effect ?
I am in a very great strait in this case : I am assisted by as good
advice, as I know how to repose myself upon, and I have the fairest
opportunity, if I concur with them, and so should mistake, to excuse
myself, tliat I did errare cum patribus ; but I dare not at any time
deliver any opinion in this place, without I concur with myself and my
conscience too.
I desire to be heard in this case with great benignity, and with great
excuse for what I say, for I take this question to be of so universal a
concernment to all men's rights and properties, in point of disposing of
their estates, as to most conveyances, made and settled in the late
times and yet on foot, that being afraid I might shake more settlements
than I am willing to do, I am not disposed to keep so closely and
strictly to the rules of law as the judges of the common law do, as not
to look to the reasons and consequences tliat may follow upon the de-
termination of this case.
I cannot say in this case, that this limitation is void, and because
this is a point, that in courts of equity (which are not favored by the
judgments of the courts of law) is seldom debated with any great indus-
try at the bar; but where they are possessed once of the cause, they
press for a decree, according to the usual and known rules of law ; and
think we are not to examine things. And because it is probable this
cause, be it adjudged one way or other, may come into the parliament, I
will take a little pains to open the case, the consequences that depend
upon it, and the reasons that lie upon me, as thus persuaded, to sus-
pend my opinion.
Whether this limitation to Charles be void or no, is the question.
Now, first, these things are plain and clear, and by taking notice of
what is plain and clear, we shall come to see what is doubtful.
1. That the term in question, though it were attendant upon the
156 CLASSIFICATION OF FUTURE INTERESTS (Part 1
inheritance, at first, yet upon the happening of the contingency, it is
become a term in gross to Charles.
2. That tlie trust of a term in gross can be Hmited no otherwise in
equity, than the estate of a term in gross can be hmited in law : for I
am not setting up a rule of property in chancery, other than that which
is the rule of property at law.
3. It is clear, that the legal estate of a term for years, whether it be
a long or a short term, cannot be limited to any man in tail, with the
remainder over to another after his death without issue ; that is flat and
plain, for that is a direct perpetuity.
4. If a term be limited to a man and his issue, and if that issue die
without issue, the remainder over, the issue of that issue takes no
estate ; and yet because the remainder over cannot take place, till the
issue of that issue fail, that remainder is void too, which was Reeve's
Case ; and the reason is, because that looks towards a perpetuity.
5. If a term be limited to a man for life, and after to his first, sec-
ond, third, &c. and other sons in tail successively, and for default of
such issue the remainder over, though the contingency never happen,
yet that remainder is void, though there were never a son then born to
him ; for that looks like a perpetuity and this was Sir William Back-
hurst his Case in the sixteen of this king.
6. Yet one step further than this, and that is Burgiss's Case. A
term is limited to one for life, with contingent remainders to his sons in
tail, with remainder over to his daughter, though he had no son; yet
because it is foreign and distant to expect a remainder after the death
of a son to be born without issue, that having a prospect of a perpetui-
ty, also was adjudged to be void.
These things having been settled, and by these rules has this court
always governed itself : but one step more tliere is in this case.
7. If a term be devised, or the trust of a term limited to one for life,
with twenty remainders for life, successively, and all the persons in
esse, and alive at the time of the limitation of their estates, these though
they look like a possibility upon a possibility, are all good, because tliey
produce no inconvenience, they wear out in a little time with an easy
interpretation, and so was Alford's Case. I will yet go farther.
8. In the case cited by Air. Holt, Cotton and Heath's Case, a term
is devised to one for eighteen years, after to C. his eldest son for life,
and then to the eldest issue male of C. for life, though C. had not any
issue male at the time of the devise, or death of the devisor, but before
the death of C. it was resolved by Mr. Justice Jones, Mr. Justice Crook,
and Mr. Justice Berkley, to whom it was referred by the Lord Keeper
Coventry, that it only being a contingency upon a life that would
speedily be worn out, it was very good ; for that there may be a possi-
bility upon a possibility, and that there may be a contingency upon a
contingency, is neither unnatural nor absurd in itself; but the contrary
rule given as a reason by my Lord Popham in the Rector of Cheding-
Ch. 8) FUTURE INTERESTS IX PERSONAL PROPERTY 157
ton's Case, looks like a reason of art ; but, in truth, has no kind of rea-
son in it, and I have known that rule often denied in Westminster Hall.
In truth, every executory devise is so, and you will find that rule not to
be allowed in Blanford and Blanford's Case, 13 Jac. I. part of my
Lord Rolls, 318, where he says, if that rule take place, it will shake
several common assurances : and he cites Paramour's and Yardley's
Case in the commentaries where it was adjudged a good devise, though
it were a possibility upon a possibility.
These conclusions, which I have thus laid down, are but prelimina-
ries to the main debate. It is now fit we should come to speak to the
main question of the case, as it stands upon its own reason, distin-
guished from the reasons of these preliminaries; and so the case is
this.
The trust of a term for two hundred years is limited to Henry in tail,
provided if Thomas die without issue in the life of Henry, so that the
earldom shall descend upon Henry, then go to Charles in tail ; and
whether this be a good limitation to Charles in tail, is the question ; for
most certainly it is a void limitation to Edward in tail, and a void limi-
tation to the other brothers in tail : but whether it be good to Charles
is the doubt who is the first taker of this term in gross ; for so it is (I
take it) now become, and I do, under favor, differ from my Lord Chief
Justice in that point ; for, if Charles die, it will not return to Henry ;
for that is my Lord Coke's error in Leonard I<oveis's Case ; for he
says, that if a term be devised to one and the heirs male of his body,
it shall go to him or his executors, no longer than he has heirs male of
his body ; but it was resolved otherwise in Leventhorp's and Ashby's
Case, 11 Car. B. R. Rolls's adjudgment, title devise, fol. 611, for these
Avords are not the limitation of the time, but an absolute disposition of
the term.
But now let us, I say, consider w^hether this limitation be good to
Charles or no. It hath been said.
Object. 1. It is not good by any means ; for it is a possibility upon a
possibility.
Answ. That is a weak reason, and there is nothing of argument in it,
for there never was yet any devise of a term with remainder over, but
did amount to a possibility upon a possibility, and executory remainders
will make it so.
Obj. 2. Another thing w^as said, it is void, because it doth not deter-
mine the whole estate, and so they compare it to Sir Anthonv Mild-
may's Case, where it is laid down as a rule, that every limitation or
condition ought to defeat the entire estate, and not to defeat part and
leave part not defeated; and it cannot make an estate to cease as to
one person, and not as to the other. But,
Answ\ I do not think, that any case or rule was ever worse applied
than that to this ; for if you do observe this case, here is no proviso at
all annexed to the legal estate of the term, but to the equitable estate,
158 CLASSIFICATION OF FUTURE INTERESTS (Part 1
that is built upon the legal estate, unto the estate to Henry, and the
heirs male of his body, to attend the inheritance with a proviso if
Thomas die without issue in Henry's life, and the earldom come to
Henry, then to Charles : which doth determine the estate to Henry, and
his issue; but the other estate given to Charles doth arise upon this
proviso, which makes it an absurdity to say, that the same proviso,
upon which the estate ariseth, should determine that estate too.
Obj. 3. The great matter objected is, it is against all the rules of
law, and tends to a perpetuity.
Answ. If it tends to a perpetuity, there needs no more to be said,
for the law has so long labored against perpetuities, that it is an unde-
niable reason against any settlement, if it can be found to tend to a
perpetuity.
Therefore let us examine whether it do so, and let us see what a
perpetuity is, and whether any rule of law is broken in this case.
A perpetuity is the settlement of an estate or an interest in tail, with
such remainders expectant upon it, as are in no sort in the power of
the tenant in tail in possession, to dock by any recovery or assign-
ment, but such remainders must continue as perpetual clogs upon the
estate ; such do fight against God, for they pretend to such a stability
in human affairs, as the nature of them admits not of, and they are
against the reason and the policy of the law, and therefore not to be
endured.
But on the other side, future interests, springing trusts, or trusts
executory, remainders that are to emerge and arise upon contingencies,
are quite out of the rules and reasons of perpetuities, nay, out of the
reason upon which the policy of the law is founded in those cases,
especially, if they be not of remote or long consideration ; but such as
by a natural and easy interpretation will speedily wear out, and so
things come to their right channel again.
Let us examine the rule with respect to freehold estates, and see
whether there it will amount to the same issue.
There is not in tlie law a clearer rule than this, that there can be no
remainders limited after a fee-simple, so is the express book-case, 29
Hen. Vni. 33, in my Lord Dyer ; but yet the nature of things, and the
necessity of commerce between man and man, have found a way to
pass by that rule, and that is thus ; either by way of use, or by way of
devise: therefore if a devise be to a man and his heirs, and if he die
without issue in the life of B. then to B. and his heirs: this is a fee-
simple upon a fee-simple, and yet it has been held to be good.
My Lord Chief Baron did seem to think, that this resolution did take
its original from Pell's and Brown's Case ; but it did not so, the law
was settled before ; you may find it expressly resolved 19 Eliz. in a case
between Hynde and Lyon, 3 Leonard. Which, of the books that have
lately come out, is one of the best ; and it was there adjudged to be so
good a limitation, that the heir who pleaded riens per descent was
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 159
forced to pay the debt, and it had the concurrence of a judgment in
38 EHz. grounded upon the reason of Wellock and Hammond's Case,
cited in Beraston's Case, where it is said, Crook, Ehz. 204, in a devise
it may well be, that an estate in fee shall cease in one, and be trans-
ferred to another : all this was before Pell's and Brown's Case, which
was in 18 Jac. It is true, it was made a question afterwards in the
Serjeant's case ; but what then ? We all know that to be no rule to
judge by; for what is used to exercise the wits of the serjeants, is not
a governing opinion to decide the law. It was also adjudged in Ilil.
1649, when my Lord Rolls was Chief Justice, and again in Mich. 1650,
and after that indeed in 1651, it was resolved otherwise in Jay and
Jay's Case, but it has been often agreed that where it is within the com-
pass of one life, that the contingency is to happen, there is no danger
of a perpetuity. And I oppose it to that rule which was taken by one
of the lords and judges, that where no remainders can be limited, no
contingent remainders can be limited, which I utterly deny, for there
can be no remainder limited after a fee-simple, yet there may a con-
tingent fee-simple arise out of the first fee, as hath been shown.
Thus it is agreed to be by all sides in the case of an inheritance ; but
now say they, a lease for years, which is a chattel, will not bear a con-
tingent limitation in regard of the poverty and meanness of a chattel-
estate. Now as to this point, the difference between a chattel and an
inheritance is a difference only in words, but not in substance, nor in
reason, or the nature of the thing; for the owner of a lease has as
absolute a power over his lease as he that hath an inheritance has
over that. And therefore where no perpetuity is introduced, nor any
inconveniency doth appear, there no rule of law is broken.
The reasons that do support the springing trust of a term as well as
the springing use of an inheritance, are these.
1. Because it hath happened sometimes, and doth frequently, that
men have no estates at all, but what consist in leases for years; now
it were not only very severe, but (under favor) very absurd, to say that
he who has no other estate but what consists in leases for years, shall
be incapable to provide for the contingencies of his own family, though
these are directly within his view and immediate prospect. And yet
if that be the rule, so it must be ; for I will put the case ; a man who
has no other estate but leases for years, chattels real, treats for the
marriage of his son and thereupon it comes to this agreement: these
leases shall be settled as a jointure for the wife, and provision for the
children : says he, I am content, but how shall it be done ? Why thus :
you shall asign all these terms to John A. Styles, in trust for yourself
and your executors, if the marriage take no effect ; but then, if it takes
effect, to your son while he lives, to his wife after while she lives, with
remainders over. I would have any one tell me whether this were a
void limitation upon a marriage settlement ; or if it be, what a stranp-e
160 CLASSIFICATION OF FLTTURE INTERESTS (Part 1
absurdity is it, that a man shall settle it if ihe marriage take no efifect,
and shall not settle if the marriage happen.
2. Suppose the estate had been limited to Henry Howard and the
heirs male of his body, till the death of Thomas without issue, then to
Charles, there it had been a void limitation to Charles : if then the addi-
tion of those words, if Thomas die witliout issue in the life of Henry,
&c. have not mended the matter, then all that addition of words goes
for nothing, which it is unreasonable and absurd to think it should.
3. Another thing there is, which I take to be unanswerable, and
gather it from what fell from my Lord Chief Justice Pemberton ; and
when I can answer tliat case, I shall be able to answer myself very much
for that which I am doing. Suppose the proviso had been thus penned,
and if Thomas die without issue male, living Henry, so that the earl-
dom of Arundel descend upon Henry, then the term of two hundred
years limited to him and his issue, shall utterly cease and determine,
but then a new term of two hundred years shall arise and be limited to
the same trustees, for the benefit of Charles in tail. This he thinks
might have been well enough, and attained the end and intention of the
family, because then this would not be a remainder in tail upon a tail,
but a new term created.
Pray let us so resolve cases here, that they may stand with the reason
of mankind, when they are debated abroad. Shall that be reason here
that is not reason in any part of the world besides? I would fain know
the difference, why I may not raise a new springing trust upon the same
term, as well as a new springing term upon the same trust; that is
such a chicanery of law as will be laughed at all over the Christian
world.
4. Another reason I go on is this ; that the meanness of the consid-
eration of a term for years, and of a chattel-interest, is not to be re-
garded : for whereas this will be no reason anywhere else ; so I shall
show you, that this reason, as to the remainder of a chattel-interest, is
a reason that has been exploded out of Westminster Hall. There was
a time indeed that this reason did so far prevail, that all the judges in
the time of my Lord Chancellor Rich, did 6 Edvardi VL deliver their
opinions, that if a term for years be devised to one, provided that if
the devisee die, living J. S. then go to J. S. that remainder to J. S.
is absolutely void, because such a chattel-interest of a term for years is
less than a term for life, and the law will endure no limitation over.
Now this being a reason against sense and nature, the world was not
long governed by it, but in 10 Eliz. in Dyer, they began to hold the
remainder was good by devise; and so 15 Eliz. seems to, and 19 Eliz.
it was by the judges held to be good remainder ; and that was the first
time that an executory remainder of a term was held to be good. When
the chancery did begin to see that the judges of the law did govern
themselves by the reason of the thing, this court followed their opinion,
the better to fix them in it, they allowed of bills by the remainder-man,
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 161
to compel the devisee of the particular estate, to put in security that he
in remainder should enjoy it according to the limitation. And for a
great while so the practice stood, as they thought it might well, because
of tlie resolution of the judges, as we have shown ; but after this was
seen to multiply the chancery suits, then they began to resolve that
there w^as no need of that way, but the executory remainder-man should
enjoy it, and the devisee of the particular estate should have no power
to bar it. Men began to presume upon the judges then, and thought if
it were good as to remainders after estates for lives, it would be good
also as to remainders upon estates-tail: that the judges would not
endure, and that is so fixed a resolution, that no court of law or equity
ever attempted to vreok [sic] in the world. Now then come we to this
case, and if so be where it does not tend to a perpetuity, a chattel-
interest will bear a remainder over, upon the same reason it will bear a
remainder over upon a contingency, where that contingency doth wear
out within the compass of a life, otherwise, it is only to say, it shall
not, because it shall not: for there is no more inconveniences in the
one than in the other.
Come we then, at last, to that which seems most to choke the plain-
tiff's title to this term, and that is the resolution in Child and Bayly's
Case; for it is upon that judgment, it seems, all conveyances must
stand or be shaken, and our decrees made. Now therefore I will take
the liberty to see what that case is, and how the opinion of it ought to
prevail in our case.
1. If Child and Bayly's Case be no more than as it is reported by
Rolls, part 2d, fol. 119, then it is nothing to the purpose: a devise of
a term to Dorothy for life, the remainder to William, and if he dies
without issue, to Thomas, without saying, in the life of Thomas ; and
so it is within the common rule of a limitation of a term in tail, with
remainder over, which cannot be good.
But if it be as Justice Jones has reported it, fol. 15, then it is as far
as it can go, an authority; for it is there said to be, living Thomas.
But the case, under favor, is not altogether as Mr. Justice Jones hath
reported it neither; for I have seen a copy of the record upon this
account; and, by the way, no book of law^ is so ill corrected, or so ill
printed as that.
The true case is, as it is reported by Mr. Justice Crook; and with
]\Ir. Justice Crook's report of it, doth my Lord Rolls agree, in his
abridgment, title Devise, 612. There it is, a term of seventy-six years
is devised to Dorothy for life, then to William and his assigns all the
rest of the term, provided if William die without issue then living, then
to Thomas ; and this is in effect our present case ; I agree it. But that
which I have to say to this case is.
First, it must be observed, that the resolution there did go upon
several reasons, which are not to be found in this case.
1. One reason was touched upon by my Lord Chief Baron, that \\'i\-
4 Kales Pbop. — 11
1G2 . CLASSIFICATION OF FUTURE INTERESTS (Part 1
Ham having the term to him and his assigns, there could be no remain-
der over to Thomas, of which words there is no notice taken by Mr.
Justice Jones-
2. Dorothy the devisee for life, was executrix, and did assent and
grant the lease to William, both which reasons my Lord Rolls doth lay
hold upon, as material, to govern the case.
3. William might have assigned his interest, and then no remainder
could take place, for the term was gone.
4. He might have had issue, and that issue might have assigned, and
then it had put all out of doubt.
5. But the main reason of all, which makes me oppose it, ariseth out
of the record, and is not taken notice of in either of the reports of
Rolls, or Jones, or in Rolls' abridgment. The record of that case goes
farther, for the record says : there was a farther limitation upon the
death of Thomas without issue to go to the daughter, which was a
plain affectation of a perpetuity to multiply contingencies. It further
appears by the record, that the father's will was made the 10 of Eliz.
Dorothy, the devisee for life, held it to the 24, and then she granted
and assigned the term to William; he under that grant held it till the
31 of Eliz. and then re-granted it to his mother, and died; the mother
held it till the 1 of R. James, and then she died ; the assignees of the
mother held it till 14 Jac. and then, and not till then, did Thomas, the
younger son, set up a title to that estate ; and before that time it ap-
pears by the record, there had been six several alienations of the term
to purchasers, for a valuable consideration, and the term renewed for
a valuable fine paid to the Lord. And we do wonder now, that after
so long an acquiescence as from 10 Eliz. to 14 Jac. and after such suc-
cessive assignments and transactions, that the judges began to lie hard
upon Thomas, as to his interest in law, in the term, especially when
the reasons given in the reports of the case, wese legal inducements to
guide their judgments, of which there are none in our case? But then,
Secondly, at last, allowing this case to be as full and direct an au-
thority as is possible, and as they would wish, that rely upon it; then
I say —
1. The resolution in Child and Bayly's Case, is a resolution that nev-
er had any resolution like it before nor since.
2. It is a resolution contradicted by some resolutions ; and to show,
that the resolution has been contradicted, there is —
1. The case of Cotton and Heath, which looks very like a contrary
resolution ; there is a term limited to A. for eighteen years, the remain-
der to B. for life, the remainder to the first issue of B. for life, this
contingent upon a contingent was allowed to be good, because it would
wear out in a short time. But
2. To come up more fully and closely to it, and show you, that I am
bound by the resolutions of this court, there was a fuller and flatter
case 21 Car. 2, in July 1669, between Wood and Saunders. The trust
of a long lease is limited and declared thus: to the father for sixty
Ch. S) FUTURE INTERESTS IN PERSONAL PROPERTY 163
years if he lived so long; then to the mother for sixty years, if she
lived so long ; then to John and his executors if he survived his father
and mother; and if he died in their lifetime, having issue, then to his
issue ; but if he die without issue, living the father or mother, then the
remainder to Edward in tail. John did die without issue, in the life-
time of the father and mother, and the question was, whether Edward
should take this remainder after their death ? and it was resolved by
my Lord Keeper Bridgeman, being assisted by Judge Twisden and
Judge Rainsford, that the remainder to Edward was good, for the
whole term had vested in John, if he had survived; yet the contingen-
cy never happening, and so wearing out in the compass of two lives in
being, the remainder over to Edward might well be limited upon it.
Thus we see, that the same opinion which Sir Orlando Bridgeman
held when he was a practiser, and drew these conveyances, upon which
the question now ariseth, remained with him v.-hen he was the judge in
this court, and kept the seals ; and by the way, I think it is due to the
memory of so great a man, whenever we speak of him, to mention him
with great reverence and veneration for his learning and integrity.
Object. They will perhaps say, where will you stop if not at Child
and Bayly's Case?
Ansv/. Where? why ever}'where, where there is not any incon-
venience, any danger of a perpetuity; and whenever you stop at the
limitation of a fee upon a fee, there we will stop in the limitation of a
term of 3'ears. No man ever yet said, a devise to a man and his heirs,
and if he die without issue, living B. then to B. is a naughty remainder,
that is Pell's and Brown's Case.
Now the ultimum quod sit, or the utmost limitation of a fee upon a
fee, is not yet plainly determined, but it will be soon found out, if men
shall set their wits on work to contrive by contingencies, to do that
which the law has so long labored against, the thing will make itself
evident, where it is inconvenient, and God forbid, but that mischief
should be obviated and prevented.
I have done with the legal reasons of the case: it is fit for us here
a little to observe the equitable reasons of it ; and I think this deed is
good both in law and equity ; and the equity in this case is much strong-
er, and ought to sway a man very much to incline to the making good
this settlement if he can. For,
1. It was prudence in the earl to take care, that when the honor de-
scended upon Henry, a little better support should be given to Charles,
who was the next man, and trod upon the heels of the inheritance.
2. Though it was always uncertain whether Thomas would die with-
out issue, living Henry, yet it was morally certain that he would die
without issue, and so the estate and honor come to the younger son:
for it was with a careful circumspection always provided, that he
should not marry till he should recover himself into such estate of
body and mind, as might suit with the honor and dignity of the family.
3. It is a very hard thing for a son to tell his father, that the provi-
164 CLASSIFICATION OF FUTURE INTERESTS (Part 1
sion he has made for his younger brothers is void in law, but it is much
harder for him to tell him so in chancery. And if such a provision be
void, it had need be void with a vengeance ; it had need be so clearly
void, that it ought to be a prodigy if it be not submitted to.
Now where there is a perpetuity introduced, no cloud hanging over
the estate but during a life, which is a common possibility where there
is no inconvenience in the earth, and where the authorities of this court
concur to make it good ; to say, all is void, and to say it here, I declare
it, I know not how to do it. To run so coimter to the judgment of that
great man, my Lord Keeper Bridgeman, who hath advised this settle-
ment ; and when he was upon his oath in this place decreed it good. I
confess his authority is too hard for me to resist, though I am assisted
by such learned and able judges, and will pay as great a deference to
their opinions as any man in the world shall.
If then this should not be void, there is no need for the merger by
the assignment or the recovery to be considered in the case : for if so
be this be a void limitation of the trust, and they who had notice of it,
will palpably break it, they are bound by the rules of equity to make it
good by making some reparation. Nay, which is more, if the heir enter
upon the estate to defeat the trust, that very estate doth remain in eq-
uity infected with the trust; which was the case of my lord of Tho-
mond ; so also was the resolution in Jackson and Jackson's Case : so
that to me the right appears clear, and the remedy seems to be difficult.
Therefore my present thoughts are, that the trust of this, term was
well limited to Charles, who ought to have the trust of the whole term
decreed to him, and an account of the mean profits, for the time by
past, and a recompense made to him from the duke and Harriot for
the time to come. But I do not pay so little reverence to the company
I am in, as to run down their solemn arguments and opinions upon my
present sentiments; and therefore I do suspend the enrolment of any
decree in this case, as yet: but I will give myself some time to con-
sider, before I take any final resolution, seeing the lords the judges do
differ from me in their opinions.
[On June 17, 1682, the case was reargued, and the Lord Chancellor
gave judgment as follows:]
Lord Nottingham, Ch. I am not sorry for the liberty that was tak-
en at the bar to argue this over again, because I desired it should be so ;
for in truth I am not in love with my own opinion, and I have not
taken all this time to consider of it, but with very great willingness to
change it, if it were possible I have as fair and as justifiable an op-
portunity to follow my own inclinations (if it be lawful for a judge to
say he has any) as I could desire; for I cannot concur with the three
chief judges, and make a decree that would be unexceptionable: but it
is my decree, I must be saved by my own faith, and must not decree
against my own conscience and reason.
It will be good for the satisfaction of the public in this case, to take
notice how far the court is agreed in this case, and then see where they
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 1G5
differ, and upon what grounds they differ ; and whether anything that
hath been said be a ground for the changing this opinion. The court
agreed thus far
That in this case it is all one, the limitation of the trust of a term, or
the limitation of the estate of a term, all depends upon one and the
same reason. The court is likewise agreed (which I should have said
first, to despatch it out of the case, that it may not trouble the case at
all) that the surrender of Harriot to the Duke of Norfolk, and the com-
mon recovery suft'ered by the duke, are of no use at all in this case.
For if this limitation to Charles be good, then is that surrender and
the recovery a breach of trust, and ought to be set aside in equity ; so
all the judges that assisted at the hearing of this cause agreed: if the
limitation be not good, then there was no need at all of a surrender to
bar it, nor of the common recovery to extinguish it.
But then we come to consider the- limitation, and there it is agreed
all along in point of law, that the measures of the limitations of the
trust of a term, and the measures of the limitations of the estate of the
term, are all one, and uniform here, and in other cases, and there is no
diffei"ence at chancery or at common law, between the rules of the one
and the rules of the other; what is good in one case, is good in the
other. And therefore in this case the court is agreed to, that the lim i-
tations made in this settlement to Edward, &c. are all void, for they
tend directly and plainly to perpetuities, for they are limitations of re-
mainders of a term in gross after an estate-tail in that terno^ which
commenceth to be a term in gross, when the contingency for Charles
happens.
Thus far there is no difference of opinion : but whether.the Jimita-
tion to Charles, if Thomas die without issue, living Henry, whereby the
honor of the earldom of Arundel descends upon Henry ; I say, whether
that be "void too, is the great question of this case wherein we differ in
our opinions.
It is said that is void too; and yet (sever it from the authority of
Child and Bayly's Case, which I will speak to by and by) I would be
glad to see some tolerable reason given why it should be so ; for I agree
it is a question in law here upon a trust, as it would be elsewhere upon
an estate ; and so the questions here, are both questions of law and eq-
uity. It was well said, and well allowed by all the judges, when they
did allow the remainders of terms after estates-tail in those terms to be
void. I shall not devise a term to a man in tail with remainders over ;
the judges have admirably well resolved in it, and the law is settled,
(and ^Matthew Alanning's Case did not stretch so far) because this
would tend to a perpetuity.
Now, on the other side, I would fain know, when there is a case be-
fore the court, where the limitation doth not tend to a perpetuity, nor
introduceth any visible inconvenience, what should hinder that from
being good : for though if there be a tendency to a perpetuity, or a
visible inconvenience, that shall be void for that reason ; yet the bare
166 CLASSIFICATION OF FUTURE INTERESTS (Part 1
limitation of the remainder after an estate-tail, which doth not tend to
a perpetuity, that is not void. Why? because it is not? I dare not say
so : see then the reasons why it is so. The reasons that I lie under the
load of, and cannot shake off, are these : —
The law doth in many cases allow of a future contingent estate to be
limited, where it will not allow a present remainder to be limited ; and
that rule, well understood, goeth through the whole case. How do you
make that out? thus: if a man have an estate limited to him, his heirs
and assigns forever, (which is a fee^simple) but if he die without issue,
living J. S. or in such a short time, then to J. D. though it be impossi-
ble to limit a remainder of a fee upon a fee, yet it is not impossible to
limit a contingent fee upon a fee. And they that speak against this
rule, do endeavor as much as they can to set aside the resolution of
Pell and Brown's Case, which (under favor) was not the first case that
was so resolved ; for, as I said before, when I first delivered my opin-
ion, it was resolved to be a good limitation. 10 Eliz. in the case of
Hinde and Lyon, 3 Leonard, 64, which by the way is the best book of
reports of the later ones that hath come out without authority. If that
be so, then where a present remainder will not be allowed, a contingent
one will. If a lease for years come to be limited in tail, the law allows
not a present remainder to be limited thereupon, yet it will allow a fu-
ture estate arising upon a contingency only, and that to wear out in a
short time. "
But what time? and where are the bounds of that contingency? you
may limit, it seems, upon a contingency to happen in a life : what if it
be limited, if such a one die without issue within twenty-one years, or
one hundred years, or while Westminster-Hall stands ? where will you
stop if you do not stop here ? I will tell you where I will stop : I will
stop wherever any visible inconvenience doth appear; for the just
bounds of a fee-simple upon a fee-simple are not yet determined, but
the first inconvenience that ariseth upon it will regulate it.
First of all, then, I would fain have any one answer me, where there
is no inconvenience in this settlement, no tendency to a perpetuity in
this limitation, and no rule of law broken by the conveyance, what
should make this void? and no man can say that it doth break any
rule of law, unless there be a tendency to a perpetuity, or a palpable
inconvenience. Oh yes, terms are mere chattels, and are not in con-
sideration of law so great as freeholds, or inheritances. These are
words, and but words, there is not any real difference at all, but the
reason of mankind will laugh at it: shall not a man have as much
^1 power over his lease as he has over his inheritance? if he have not,
he shall be disabled to provide for the contingencies of his own family
that are within his view and prospect, because it is but a lease for
years, and not an inheritance of a freehold. There is that absurdity in
it which is to me insuperable, nor is the case that was put, answered in
any degree. A man that hath no estate but what consists in a lease for
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 167
years, being to marry his son, settled this lease thus : in trust for him-
self in tail, till the marriage take effect; and if the marriage take effect
while he lives, then in trust for the married couple ; is this future limi-
tation to the married couple good or bad? if any man say it is void, he
overthrows I know not how many marriage settlements : if he say it is
good, why is not a future estate in this case as good as in that, when
there is no tendency to a perpetuity, no visible inconvenience?
All men are agreed, (and my Lord Chief Justice told us particularly
how) that there is a way in which it might be done, only they do not
like this way ; and I desire no better argument in the world to maintain
my opinion, than that ; for, says my Lord Chief Justice, suppose it had
not been said thus ; if Thomas die without issue, living Henry, then
over to Charles ; but thus, if it happens that Thomas die without issue
in the life of Henry, &c. then this term shall cease, and there shall a
new term arise and be created to vest in Charles in tail, and that had
been wonderful well, and my lord of Arundel's intention might have
taken effect for the younger son. This is such a subtilty as would pose
the reason of all mankind : for I would have any man living open
my understanding so far, as to give me a tolerable reason why there
may not be as well a new springing trust upon the same term to go to
Charles, upon that contingency, as a new springing lease upon the same
trust : for the latter doth much more tend to a perpetuity than the for-
mer doth, I am bold to say it.
But I expect to hear it said from the bar, ajid it has been said often,
the case of Child and Bayly is a great authority; so it is. But this I
have to say to it, first, the point resolved in Qiild and Bayly's Case
was never so resolved before, nor ever w'as there such a resolution
since. Pell and Brown's Case was otherwise resolved, and has often
been adjudged so since. In the next place, I will not take much pains
to distinguish Child and Bayly's Case from this, though the word (as-
signs) and the grant of the remainder by the mother, who was execu-
trix, are things that Rolls lays hold on as reasons for the judgment.
But I know not why I may not, with reverence to the authority of that
case, and the learning of those that adjudged it, take the same libert}^
as the judges in \\'estminster-Hall sometimes do, to deny a case that
stands single and alone of itself. And I am of opinion the resolution
in that case is not law, though there it came to be resolved upon xtry
strange circumstances to support such a resolution ; for the remainder
of a term of seventy-six years is called in question when but fifteen
years of it remained, and after the possession had shifted hands sev-
eral times, and therefore I do not wonder that the consideration of
equity swayed that case.
But I put it upon this point ; pray consider, there is nothing in Child
and Bayly's Case that doth tend to a perpetuity, nor anything in the
settlement of the estate there, that could be called an inconvenience,
nor any rule of law broken by the conveyance; but it is absolutely a
168 CLASSIFICATION OF FUTURE INTERESTS (Part 1
resolution quia volumus. For it disagrees with all the other cases be-
fore and since ; all which have been otherwise resolved ; but it is a res-
olution, I say, merely because it is a resolution. And it is expressly
contrary to Wood and Saunder's Case, which no art or reason can dis-
tinguish from our case or that. For here was that case which was
clipped and minced at the bar, but never answered. Wood and Saun-
der's Case is this : to the husband for sixty years, if he lived so long ;
to the wife for sixty years, if she lived so long; then if John be living
at the time of the death of the father and mother, then to John ; but
if he die without issue, living father or mother, then to Edward. Sup-
pose these words (living father or mother) had been out of the case,
and it had been to John, and if he die without issue, to Edward, will
any man doubt, but then the remainder over had been void, because it
is a limitation after an express entail? How came it then to be ad-
judged good ! because it was a remainder upon a contingency, that was
to happen during two lives, which was but a short contingency, and
the law might very well expect the happening of it? Now, that is this
case; nay, ours is much stronger: for here it is only during one life,
there were two. ,
The case of Cotton and Heath in Rolls comes up to this ; a term is
devised to A. for eighteen 5^ears ; the remainder to B. for life, the re-
mainder to the first issue male of B. which is a contingent estate after
a contingency, and yet adjudged good, because the happening of the
contingency was to be expected in so short a time. Now that case was
adjudged by my Lord Keeper Coventry, Mr. Justice Jones, Mr. Justice
Crook, and Mr. Justice Berkley, as Wood and Saunder's Case was by
my Lord Keeper Bridgeman, Mr. Justice Twisden, and Mr. Justice
Rainsford; so that however I may seem to be single in my opinion,
having the misfortune to differ from the three learned judges who as-
sisted me, yet I take myself to be supported by seven opinions in these
two cases I have cited.
If then this be so, that here is a conveyance made which breaks no
rules of law, introduceth no visible inconvenience, savors not of perpe-
tuity, tends to no ill example, why this should be void only, because it
is a lease for years, there is no sense in that.
Now if Charles Howard's estate be good in law, it is ten times bet-
ter in equity. For it is worth the considering, that this limitation upon
this contingency happening, (as it hath, God be thanked) was the con-
siderate desire of the family, the circumstances whereof required con-
sideration, and this settlement was the result of it, made with the best
advice they could procure, and is as prudent a provision as could be
made. For the son now to tell his father that the provision that he had
made for his younger brother is void, is hard in any case at law ; but it
is much harder in chancery, for there no conveyance is ever to be set
aside, where it can be supported by a reasonable construction, and here
must be an unreasonable one to overthrow it.
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 169
I take it then to be good both in law and equity ; and if I could alter
my opinion, I would not be ashamed to retract it; for I_ani__as_other
men ar e, an d have my partiali ties as other men have. When all this is
done, 1 am at the bar desired to consider further of this case : I would
do so, if I could justify it; but ex pedition is ^s much the rig^h tjof the
s ubject, as justice is, and I am bound by ^lagna Chai^tjij nulH negar<;
nulii^difTerre justitiam! TTiave taken as much pains and time as I
could to be informed; I cannot help it if wiser men than I be of an-
other opinion ; but every man must be saved by his own faith, and I
must discharge my own conscience.
I have made several decrees since I have had the honor to sit in this
place, which have been reversed in another place, and yet I was not
ashamed to make them, nor sorry when they were reversed by others.
And I assure you, I shall not be sorry if this decree which I do make
in this case be reversed too ; yet I am obliged to pronounce it, by my
oath and by my conscience. For I cannot adjourn a case for difficulty
out of an English court of equity into the parliament ; there never was
an adjournment propter difficultatem, but out of a court of law where
the proceedings are in Latin. The proceedings here upon record are in
English, and can in no way now come into parliament, but by way of
appeal, to redress the error in the decree. I know I am very likely to
err, for I pretend not to be infallible ; but that is a thing I cannot help.
Upon the whole matter, I am under a constraint, and under an obliga-
tion which I cannot resist. A man behaves himself very ill in such a
place as this, that he needs to make apologies for what he does ; I will
not do it. I must decree for the plaintiff in this case, and my decree is
this.
That the plaintiff shall enjoy this barony for the residue of the term
of two hundred years ; the defendant shall make him a conveyance ac-
cordingly, because he extinguished the trust in the other, and the term
contrary to both law and reason, by the merger and surrender, and
common recovery. And that the defendants do account with the plain-
tiff for the profits of the premises by them or any of them received
since the death of the said Duke Thomas, and which they or any of
them might have received without wilful default; and that it be refer-
red to Sir Lacon William Child, Knight, one of the masters of the
court, to take the said account, and to make unto the defendants all
just allowances ; and what the said master shall certify due, the said
defendants are to pay unto the plaintiffs, according to the master's re-
port herein to be made: and that the defendants shall forthwith de-
liver the possession of the premises to the plaintiff, and that the plain-
tiff shall hold and enjoy the said Barony of Grostock, with the lands
and tenements thereunto belonging, for the residue of the said term
of two hundred years, against the defendants, and all claiming by,
from, or under them. And it is further ordered and decreed, that the
said defendants do seal and execute such a conveyance of the said term
170 CLASSIFICATION OF FUTURE INTERESTS (Part 1
to the plaintiff as the master shall approve of, in case the parties can-
not agree to the same; but the defendants are not to pay any costs of
the suit.*
EYRES V. FAULKLAND.
(Court of Common Bench, 1697. 1 Salk. 231.)
H. possessed of a term for ninety-nine years devised his term to A.
for life, and so on to B. and live others successively for life; all seven
being now dead, the question was. Who should have the residue of the
term? Et per TrEby and Powell: Anciently, if one having a term
devised to A. for life, remainder to B., such remainder was void : 1st.
Because an estate for life is a greater estate; and, 2dly, Because the
term included the whole interest, so that when he devised his term,
nothing remained to limit over. Afterwards the law altered ; for a de-
vise of the term to B., after the death of A., was held good; and by
the same reason to A. for life, remainder to B., for it was but dis-
posing of the interest in the mean time ; but a devise to A. in tail, re-
mainder over, is too remote ; so if it be to A., and if he die without is-
sue, remainder over. As to the principal case, they held that all the
remainders were good ; and that the first devisee, and so every devisee
in his turn, had the whole term vested in him ; during which the next
man in remainder, and so every other after him, had not an actual re-
mainder, but a possibility of re^mainder, and the executor of the de-
visor a possibility of reverter; for there may be a possibility of re-
verter, even where no remainder can be limited, as in the case of a
gift to A. and his heirs while such a tree stands : No remainder can
be limited over, and yet clearly the donor has a possibility of reverter,
though no actual reversion; a fortiori, there shall be a possibility of
reverter, where a remainder may be limited over ; f oi the testator gave
but a limited estate, and what he has not given away must remain in
him; and the words for life can be no more rejected in the last limita-
tion than in the first.
* This decree of Lord Chancellor Nottingham was reversed on bill of re-
view by Ix)rd Keeper North, May 15, 1683 ; but, on appeal to the House of
Lords, the decree of the Lord Keeper was, June 19, 1685, reversed, and the
decree of the Lord Chancellor affirmed. 3 Ch. Cas. 53, 54.
Ch, 8) FUTURE INTERESTS IN PERSONAL PROPERTY 171
SECTION 2.— PERSONAL PROPERTY OTHER THAN
CHATTELS REAL
HIDE V. PARR AT.
(Court of Chancery, 1696. 2 Vern. 331.)
The plaintiff, Hide's father, devised the goods in his house at Hod-
desden in these words, "I give and bequeath unto my wife all my house-
hold goods that are in my dwelling-house at Hoddesden, in the parish of
]\Iuch-Amwell, during her natural life: and after her decease I give
and bequeath my said household goods unto my son Joseph forever."
The question was, whether the devise over of these personal chattels (as
the will was worded) was good or not.
It was insisted by the defendant's counsel that the devise over was
void, and relied on the dift'erence taken in the books, where the thing
itself was devised, as in this case the goods were devised, the devise
over was void ; but where only the use of them is devised to one for
life, it is otherwise ; and for that purpose cited the case Z7 H. 6, 30,
Brook's Abridgment, tit. Devise, Plowden's Commentaries, 521 b,
Owen's Reports, Z2>, and March's Reports, 106, where a prohibition
was granted out of the Court of Common Pleas to the Court of the
IMarches of Wales for proceeding for the devise over of a personal
chattel.
For the plaintiff it was answered that all these authorities cited were
built upon the case 37 H. 6, but of latter times it had been otherwise
resolved upon great debate, and instanced in the case of Lord Ferrars.
Hart and Say, and A'achel and Vachel, 1 Ca. in Ch. 129, &c., and
that in the present case, the same arising upon a will, a construction
(as far as the law will admit) is to be made, that the intention of the
testator may take place. And therefore if a man possessed of a term
for years grants the term to one for life, the remainder over, the re-
mainder over is void; but in the case of a will, or of an assignment by
way of trust, there the remainder over is good.
The Lord Keeper [Sir John Somers] held that the devise over was
good, for as to the personal chattels, the civil and canon law is to be
considered, and there the rule is, where personal chattels are devised for
a limited time, it shall be intended the use of them only, and not the
devise of the thing itself, and therefore allowed the remainder over to
be good.*
4 S. C. 1 P. Wms. 1.
"J. S. deviseth £500 to his danehter, and if she die before thirty years of
age unmarried, then to he divided between three; she does receive the money,
and dies lieforc that time. And resolved that the money should be divided, and
her execiitor charireable. as imssessed in trust for the devisees in remainder."
Anon., Freem. Ch. 137, pi. 172.
172 CLASSIFICATION OF FUTURE INTERESTS (Part 1
HOARE V. PARKER.
(Court of King's Bench, 178S. 2 Term R. 376.)
Trover for plate by the plaintiffs, who claimed under a remainder-
man, against the defendant, to whom it was pawned by the tenant for
life. Admiral Stewart by will gave his plate to trustees for the use of
his wife durante viduitate, requiring her to sign an inventory, which
she did at the time the plate was delivered into her possession. She
afterwards pawned it with the defendant for a valuable consideration,
who had no notice of the settlement; and before the commencement of
this action she died. A demand and refusal was proved. A special
case was reserved before Buller, J., at the last sittings at Westminster,
stating these facts ; and the question was, Whether the defendant were
bound to deliver up the plate without being paid the money he had ad-
vanced on it?
Baldwin, for the defendant, declared that he could not argue against
so established a point.
Gibbs, for the plaintiff.
Per Curiam. This point is clearly established, and the law must
remain as it is till the legislature think fit to provide that the possession
of such chattels shall be a proof of ownership.
Postea to the plaintiffs.
EVANS V. WALKER.
(Chancery Division, 1876. 3 Ch. Div. 211.)
John Brown, by his will, dated the 13th of February, 1812, made
the following disposition of his property: "I give and bequeath unto
Maria Evans £50 per annum from the day of my decease during the
term of her natural life, and from and after her decease to the children
she may have born in wedlock, equally to be divided between them,
share and share alike, during their natural lives, the said annuity to be
paid half-yearly; and from and after the decease of the survivors
herein named to go to my nephew Edwin Walker, and my two nieces,
Sally Brown Walker and Eliza Walker, equally between them, and I
hereby desire that my nephew and nieces will see it fulfilled. I declare
this my last will and testament."
This suit was instituted in 1816 for the purpose of having a sum of
money set apart out of the estate of the testator to answer the annuity
of i50, and a sum of £1666 13s. 4d. was accordingly paid into court
for that purpose. Maria Evans died without having been married, in
1874. The nephew and two nieces of the testator died some time since,
and a petition was now presented by their legal personal representatives
to have the money paid out of court to them in equal shares.
Malins, V. C. The first point is, whether the gift to the nephew
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 173
and two nieces of the testator is void for remoteness, and it is quite
clear to my mind that it is not, because there is no objection to a gift
to unborn children for life, and then to an ascertained person, provided
the vesting is not postponed. That point I commented upon in Stuart
V. Cockerell, Law Rep. 7 Eq. 363. Property may be given by will or
secured by settlement to an unborn person for life, or to several unborn
persons successively for life, with remainders over, provided that the
vesting of the remainders, or the ascertainment of those who are to
take in remainder, be not postponed till after the death of such unborn
person or persons. Therefore the circumstance of there being life es-
tates given to all the children unborn of Maria Evans does not create a
perpetuity if there are persons capable of taking immediately, and
here there are such persons. So they take immediate vested interests. °
[The court then decided that the gift after the decease of the sur-
vivors of INIaria Evans' children, "to my nephew Edwin Walker, and
my two nieces Sally Brown Walker and Elizabeth Walker, equally be-
tween them," gave to each an absolute interest. The balance of the
opinion on this point is omitted.]
In re TRITTON.
Ex parte SIXGLETON.
(High Court of Justice. 18S9. 6 Morrell's Bankruptcy Cases, 250.)
This was an application on behalf of the trustee in the bankruptcy
for an order declaring that he was entitled to certain pictures bequeath-
ed to the bankrupt by his father subject to the life interest of the bank-
rupt's mother.
The case was taken specially on the ground of urgency, before Mr.
Justice Wills, sitting for the Bankruptcy Judge during the absence of
Mr. Justice Cave on circuit.
The father of the bankrupt by his will gave and bequeathed to his
wife Elizabeth Ann Tritton for her own absolute use and benefit cer-
tain watches, jewelr}^, trinkets, &c., and the wall continued: "I also
give to my said wafe the right of possession and enjoyment of all my
pictures during her life (if she shall so desire), and, subject as afore-
said, I give and bequeath all my said pictures to and for my son, H% J.
Tritton, for his own absolute use and benefit."
The testator died, and Mrs. Tritton, who is still alive, retained pos-
session of the pictures under the right so given to her.
On March 2Sth, 1884, H. J. Tritton executed an assignment in favor
of one Raymond by way of security for an advance of £2,500, by which
as mortgagor and beneficial owner he assigned inter alia, "All that the
share and interest of him the said H. J. Tritton under the will and
6 Accord: Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73,
174
CLASSIFICATION OF FUTURE INTERESTS
(Part 1
codicil of his father, Henry Tritton, deceased, and of and in the sums
of money, hereditaments, and premises, devised and bequeathed there-
by expectant upon the decease of his mother, EHzabeth Ann Tritton."
On April 26th, 1888, a receiving order was made against H. J. Trit-
ton, upon which he was adjudicated bankrupt, and the pictures were
now claimed by the trustee subject to the life interest of Mrs. Tritton,
on the ground that the assignment in question required to be registered
as a bill of sale.
Wills, J. I wish to preface my judgment with a short statement
why I allowed this case to be taken as urgent at this time, and when
the state of business is in the condition in which it is owing to nearly
all the judges being away from London. I do not want there to be any
risk of the opinion going abroad that I am willing always to certify a
case as urgent if I am asked to do so. From what was represented to
me there is urgency here, because an offer has been made to the trus-
tee for the purchase of these pictures, which offer is only open until
September, and the question therefore had to be settled. That appear-
ed to be a reason why I should hear the case at this exceptional time.
Now having said that, I must say that notwithstanding the discus-
sion as to the difficulty of the present case, I do not entertain any
doubt as to which way my judgment should go, and so I will give judg-
ment at once. In my opinion the case of the trustee fails, and it fails
upon the short ground that the only interest which Tritton, the bank-
rupt, had in these pictures was a chose-in-action, and therefore ex-
pressly excepted from the Bills of Sale Acts by section 4 of the Act of
1878. It seem s to me clear upon the authorities that you cannot hal/fc
1ife_es tates and rpin.ilnriPi ::^_QUt-o£-fiej:§ onal chattels, and that tlieTnteK
est whicli,thi.sUady_took^s_definjle_ajid^ first, and entitles her
to__t ^eenjoyn if^^ ^ nH pn-^sp^'^inn of thpt;p thinii^^thatTsTTo the^ prop-
ert^ ^in t hese thing s during her lifetime. It seems to~meThnfTh]^mter-
est of_th e son w ^'^ an pvfrn tory bequest, which creates no present or
vested int erest, and which, if the moth er survived him, Avould never
co me info^operation . In my opinion ir~is~nearly_i n tHe~natiire of a
chose-i n-action — or I w^ill say it is ,.ajchosejjii2acHonr^and_nothing high-
er, an5^xpressly_exce pted from th £-Operationof th e BilIs~o"f Sale Ac t.
I found my judgment on that, and I do not tliuik it necessary to travel
further into the thorny paths of the law relating to Bills of Sale,
which has already given rise to many difficulties. The motion must be
refused, and the trustee must pay the costs, but he may recoup himself
out of the estate if there is any.
Application refused.
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 175
ANONYMOUS.
(Superior Court of North Carolina, 1802. 3 N. C. 161.)
Testator had devised a ncgro_to his wife and also lands for life;
and the executors of the testator siied^forlTie negro.
Johnston, Ju^ge. The words "and also" continue the clause, and
the words "for life" refer to all that precedes. She had an interest for
life in the negro as well as in the lands, and there remained a^reversion
whic h vested in the executors; and although the next of kin may be
entitled to it, yet the executors must distribute it, and must recover in
the first instance, in order to that distribution.
Judgment accordingly.®
DUKE V. DYCHES.
(Court of Appeals of South Carolina, 1829. 2 Strob. Eq. 3.j3, note.)
Moses Duke, the plaintiff's testator, in his lifetime made a deed of
gift of certain negro sla ves to Esther Benson, his illegitimate daughter,
nmv fhe'w^ife of the defendant, rese'rvmg a life estate to himself.
After his death the defendant took possesslorrbf the negroes. An ac-
tion was brought for tlieir recovery by the executors, and a nonsuit or-
dered on circuit, on the ground that the plaintiffs showed no title in
themselves. The case was heard, on appeal from this order, at Colum-
bia, December Sittings, 1829, and the following is the opinion of the
Court of Appeals :
NoTT, J. Moses Duke, the plaintiff's testator, in his lifetime made
a deed of gift of the negroes in question to Esther Benson, his illegiti-
mate daughter, now the wife of the defendant, reserving a life estate
to himself. After his death the defendant took possession of the ne-
groes. The copy of the deed of gift is as follows :
"To all to whom these presents shall come, I, Moses Duke, do send
greeting. Know ye that I, the said Moses Duke, of Barnwell District,
in the State of South Carolina, for and in consideration of the love,
good will and affection which I have and do bear towards my loving
daughter, Esther Benson, of the same place, have given and granted,
and by these presents do freely give and grant, unto the said Esther
Benson, her heirs, executors and administrators, one certain negro boy
slave named Arthur, and one negro girl slave named Jane, to be and
remain as her proper right and property after the death of the said
Moses Duke, or at any time previous thereto, if the said Duke shall
think fit to do so. But it is the true intent and meaning of the said
Moses Duke that if the said Esther Benson shall die without lawful
« Accord: Boyd v. Strahan, 36 111. 355. See, also, Gray, Rule against Perp.
(2d Ed.) §§ 97, 852. State v. Savin, 4 Har. (Del.) 56, note ; Merkel's Appeal,
109 Pa. 235. are contra.
176 CLASSIFICATION OF FUTURE INTERESTS (Part 1
issue, then the said negroes, viz. : Arthur and Jane, shall go to the
lawful heirs of the said Moses Duke, to be and become thereafter the
rightful property of his said heirs, in as full and ample manner as if
this present deed had never been made or given. And the said Esther
Benson the said property shall and may hold, upon the terms and con-
ditions above mentioned, as her proper goods and chattels, without any
sort of reserve whatever. Witness my hand and seal this 4th day of
August, in the year of our Lord one thousand eight hundred and four,
and in the 29th year of American Independence.
"Moses Duke. [L. S.]
"Signed, sealed and delivered in the presence of
J. Hughes and Micajah Hughes."
And the only question now submitted to us is w hether pergona l
property can be limited oyerjb y deed to take effect after the termination
of~aniTe~estate. 1 Fearn. 26; 1 Mad. Ch. 2237 It^was formerly held
that no such limitation could be made, either by deed or will; but a
gift for life, or even for a day, carried the whole estate. Fearn., supra ;
1 Pr. Wms. 1, Hyde v. Parrot et al. ; do. 500, Tessin v. Tessin; do. 651,
Upwal V. Halsy. The first deviation from that rule was by way of dis-
tinction between the gift of the use of a thing, and a gift of the thing
itself. Since those decisions the distinction between the use a nd^the
thing itself has been laid aside,~an^~argift of the chattellt self, for life,
is considered as^^~gift oi_ the use only] Fl^earn. 241. But it is cqn-
ten ded" that |hpse_decisions apply only to, executory beques ts by will,
or to trusts, and not to cases where the property^ is given immed iately
by deed! And i do not know that such aTTimitation by deed has ever
been held good in England ; neither do I recollect any modem decision
where the contrary has been held. And it now remains for this court
to decide whether that distinction, between deeds and wills, is still to be
maintained, or whether it is now time to lay aside that distinction also,
or rather whether any such distinction has ever prevailed in this State.
And I would here remark that the invasion of the common law prin-
ciple, in England, has not been by legislative authority, but by the
courts alone. And if a gift by will for life conveys nothing but the
use, why may not the same words in a deed have the same operation?
If the courts have the power in one case to effect such a change, as
being more consistent with reason and common-sense, and more con-
sistent with the intention of the party, why may they not in the other?
I am not, how^ever, friendly to that kind of judicial legislation v/hich
authorizes judges to innovate upon an established rule of law because
they think it is time that it should be changed. And if I found the cur-
rent of decisions running against the principle which I am advocating,
I should feel bound to go with them. But I have already remarked
that it is a subject on which the late English authorities are almost
silent, and on which I think I shall be able to show that I am well sup-
ported by the decisions of our own courts. I mean, howe ver, to con-
fine my remarks exclusively to the species of property nowMinder cor>
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 177
sid eration. For although, by our law, slaves are considered as personal
est ate, yet we have, in various respe CTs. m ade a distinc tion beTw^n
that species of property and other personal chattels. The limitation
over^of a f eniale^lave has 1)eenlietJ to'cafry with it a limitation over
of the offspring born during the life estate, which is not the case with
any other animal. The conversion of a female slave to the use of a
person, renders the party liable for damages, to the amount of the
value of the issue, born during the time of the possession, as well as the
value of the mother, contrar}' to the rule in case of female brutes.
And in the case of Geiger v. Brown, 2 Strob. Eq. 359 note, decided
at our last court, we held that a bequest of a female slave for life, with-
out any limitation over, carried only a life estate, and that the slave and
her issue, at the termination of the life estate, were unbequeathed as-
sets in the hands of the legal representatives, for which the administra-
tors might maintain an action. We have thus given to this kind of
property attributes of realty which do not belong to other personal
chattels. And t o hold it not capable of l i mitation over after a life _es-
tate, would be inconsistent with the character which has been ascribed
to TTBy^The whole current "of^ouF decisions^ But the^uestion is "not
left~to interence^ it is supported by the~^xpress opinions and direct
decisions of our courts. In the case of Dott v. Cunnington, 1 Bay, 453,
1 Am. Dec. 624, it is said, "It cannot be denied that in many cases per-
sonal chattels or terms for years, may be limited over, either by execu-
tory devises, or deeds, as effectually as real estate, if it is not attempted
to render them unalienable beyond the duration of lives (in being), or
twenty-one years after (see page 456). And although in that case it
was held, that the property vested in the first taker, yet it was on the
ground that the limitation was too remote, and not that a limitation
over after a life estate, was not good. On the contrary, throughout the
whole argument of the court it is manifest the limitation over would
have been supported, if it had not gone so far as to create a perpetuity.
In the case of Stockton v. Martin, 2 Bay, 471, similar language is used.
And although in that case, also, it was held that the contingency on
which the property was to go was too remote, being after an indefinite
failure of issue, yet it was on that ground and on that alone that the
limitation was not supported. In the case of Tucker v. Executors of
Stevens, 4 Desaus. 532, the question was directly decided. That was a
deed of gift of a brother to his sister for life, with a limitation over to
such issue as should be living at the time of her death, and the court
supported the right of the children under the deed. That was indeed
only a circuit decision, and therefore cannot be relied on as a binding
authority. But it was the opinion of a very able and learned chancel-
lor, whose opinion is always of high authority, and the acquiescence of
the counsel is evidence of the prevailing opinion of the bar. We are
supported, then, by the opinions of the highest tribunals of the country
from the year 1794. And those not expressed as mere speculative and
4 Kales Prop. — 12
178 CLASSIFICATION' OF FUTURE INTERESTS (Part 1
doubtful opinions, but as the settled principles of law. And those suc-
cessive opinions, from such sources, for such a length of time, though
not expressed in the most solemn form, ought now to be considered as
conclusive authority upon this court. I concur therefore in the opinion
of the presiding judge on the effect of this deed. I have not entered
into the inquiry whether it may not be supported upon some other con-
struction. For the view which I have taken of it covers the whole
ground, and if correct renders it perfectly immaterial whether it is not
susceptible of some other construction which would lead to the same
conclusion. I am of opinion that the plaintiffs showed no title in them-
selves, and that the nonsuit was properly ordered. The motion must
therefore be refused.
C01.COCK, J., and Johnson, J., concurred.
Motion refused.''
BRUM MET V. BARBER.
(Court of Appeals of Sontli Carolina, 1834. 2 Hill, 543.)
Trover for negroes. The plaintiff claimed as the son of Spencer
Brummet, and tlie defendant as the administratrix of Natlianiel Barber,
dec'd. The jury, in a special verdict, found the following facts : That
the negroes Sine and Mille, who (with their increase) are the subjects
of this action, originally belonged to Spencer Brummet and Daniel
Brummet ; that they g ave the negroes to Com fort Perry, their niece ;
and, through William Brummet, delivered them to her father, Zadock
Perry, who, at the time, si gned the followi n g receipt or acknow ledg-
ment i n writing, as containing the terms and Hmitations of the gift:
"1 say received of William Brummet, for the use of my daughter Com-
fort Perry andnheTieirs^f her body71:wo negro girls, named Sine and
Millej burshDiildrlhe^Tatd "X!jDm Tortdie without children to heir the
said negroes, then the said negroe s_are to return to the sons of S pencer
and Darnel Brummet, and their heirs forever. This 8th day of Jan-
uary, 1792. (Signed) Zadock Perry."
That Comfort Perry intermarried with Nathaniel Barber, and the
negroes in question thereupon went into his possession, on which occa-
sion he signed the following instrument, referring to the former receipt
"' Accord: McCall v. Lee, 120 111. 261, 11 N. E. 522 (limitations created by
a writing not under seal and delivery). See Gray, Rule against Perp. (2d Ed.)
§§ 95, 849.
Contra: North Carolina: Gray, Rule against Perp. (2d Ed.) §§ 92-94. In
that state a grant by deed" of a life interest in a chattel passes the abso-
lute property. There can be no reversion and attempted gifts over are void.
Gray, Rule against Perp. (2d Ed.) § 92.
But even in North Carolina a future limitation after a life estate in chat-
tels personal is valid when created by will. The same is true of other Amer-
ican jurisdictions: Gray, Rule against Perp. (2d Ed.) fi 88.
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 179
of Zadock Perry, and acknowledging that he took the negroes agree-
ably to its terms, to wit :
"Received of Zadock Perry two negro women, named Sine and
Mille, and their increase, agreeable to a receipt in the hands of Dan-
iel and Spencer Brummet, it being in full of all debts and demands
of the same, likewise a clear receipt for all dues and demands for my-
self, of the above-named Zadock Perry. I say received by me, this
30 December, 1798. (Signed) Nath'l Barber."
Comfort Perry (then Mrs. Barber) died in 1829 without issue, hav-
ing borne a child who died before her death. The negroes afterwards
continued in the possession of Nath'l Barber until his death, when they
passed into the hands of the present defendant, his widow and adminis-
tratrix, who holds and claims them in right of her intestate. Daniel
Brummet died without issue, and Spencer Brummet died leaving the
plaintiff, his only son, who claims under the limitation over on the gift
to Comfort Perry. If the court should be of opinion, from these facts,
that the plaintiff is entitled to recover, the jury find for the plaintiff
eight thousand five hundred dollars ; but if the court should hold other-
wise, they find for the defendant.
The presiding judge ordered the postea to be delivered to the de-
fendant.
The plaintiff appealed, and moved to reverse the decision of the Cir-
cuit Court, and for leave to enter judgment for the plaintiff', on the
ground : That upon the proper construction of the instruments in writ-
ing, connected with the facts found by the jury, the conditions and
limitations therein expressed are valid and effectual, and the plaintiff
entitled to recover.
The defendant also appealed, and moved for a nonsuit or a new trial,
on the grounds :
1. That the receipt signed by Zadock Perry was improperly received
in evidence.
2. That the finding of the jury that the negroes belonged to Spencer
and Daniel Brummet was without evidence.
3. That the limitation condition, or trust of the gift, was by parol,
and cannot, therefore, be sustained.
O'Neall, J. In this case several questions are made on the appeal
by both the plaintiff and the defendant. Those made by the latter are
precedent to the main question involving the plaintiff's right to recover.
They will be first considered.
1. It is contended that the paper signed by Zadock Perry, and con-
taining the terms on which he received the slaves from the Brummets,
for the use of Comfort Perry, was improperly received in evidence.
Regarding Zadock Perry as the bailee or trustee of the property for
Comfort Perry and the other parties entitled to take under the bail-
ment or trust, there can be no doubt that the paper is properly in
evidence. It is, indeed, the evidence of the bailment made or trust
180 CLASSIFICATION OF FUTURE INTERESTS (Part 1
created. For it is the undertaking of the bailee or trustee to deliver
over the property to the uses which the bailors or donors directed when
they put it into his possession.
But if there could be any doubt about the matter after this illustra-
tion of it, still, in another point of view, it would be removed. The
verdict of the jury has found the fact that Nathaniel Barber, the hus-
band of Comfort Perr}'^, and the intestate of the defendant, when he
received the possession of the said property from Zadock Perry, "exe-
cuted the paper signed N. Barber, bearing date 30th December, 1798,
referring to the former receipt of Zadock Perry, and acknowledging
that he received the negroes agreeable to that receipt." This made the
paper signed by Zadock Perry the same as if it had been signed by
Nathaniel Barber ; and it is, hence, his admission of tlie- manner in
which he held possession of the said slaves. In this point of view,
it is perfectly clear that it was properly admitted to be read in evidence
on the trial of this cause.
2. It is supposed that the jury improperly found the said slaves to
have been the property of Spencer and Daniel Brummet, the supposed
donors. The fact, that Zadock Perry received from William Brummet
the negroes for the use of his daughter, and the heirs of her body ; but
if she should die without children, then that they were to return to
the sons of Spencer and Daniel Brummet, goes, in itself, very far to
show that Spencer and Daniel were the owners and donors. For the
words "to return" mean, in ordinary acceptation, to go back ; as used
in this paper, they would fairly mean and imply, that if the donee and
her descendants could not enjoy the property, then that it should go
back to a part of the family of the persons from whom it came. When
the receipts of Perry and Barber are connected with the testimony of
Mrs. Gregory, they abundantly sustain the verdict in this behalf.
3. It is urged by the defendant_t hat a limitation over in per sonalty
ca nnotbe~created by^aj writing noT under seal. To meet this objection
fairly, this case ought to be considered in two different points of view:
1st, as a trust in chattels personal; 2d, as a direct gift.
Upon examining the case in the first point of view, there seems to be
n otjmig to prevent a trust in personalty from being created by pa rol,
ei ther Ivritten or unwritten. The 7th and 8th sections of the Statute
of Frauds ahd Perjuries require all declarations or creations of trusts
or confidences, in lands, tenements, or hereditaments (except implied
or constructive trusts), to be in writing, signed by the party, who is,
by law, enabled to declare such trust, or by his last will in writing.
P. L. 83. This provision applies altogether to land, leaving personal
property still, as at common law; but it is useful to see that even in
real estate, and by Statute, it is not necessary to declare or create a
trust, that the same should be declared or created by deed. What is
a trust in personalty at common law ? It is a mere bailment, the de-
livery of a thing to one person, on the confidence that he would de-
Ch. 8). FUTURE INTERESTS IX PERSONAL PROPERTY 181
liver it to another. The ilhistrations of the principle established in
Jones V. Cole, 2 Bailey, 332, show that this is the correct notion of a
trust in personal property. This being so, it may be created by any
words or acts which show that the party in possession received it for
another; or for himself and another together; or for himself for his
own life, or the life of another, and then that it go over in remain-
der or reversion. Each of these cases, as well as all other cases of
qualified interests in personal property in possession, are, most gener-
ally, nothing more than legal trusts, or, as they are more technically
termed, bailments. These arise from the fact that the possession is
fiduciary, and not in one's own right. That parol is competent to
qualify possession, has never been doubted. But to show the admissi-
bility of mere word of mouth, to make out a trust, in personal proper-
ty, to the satisfaction of every one, let us state a plain and common
case. A. is in the possession of goods, which he verbally admits he is en-
titled to hold only for his own life, and then that they are to go over to
B. or to return to the donor C. Who would doubt that on proof of
such an admission, B. or C. (as the case might be), would be entitled,
after the termination of A.'s life estate, to recover against his personal
representatives, who might be in possession of the goods? Why is
this so? Because his admission shows that his right of property ex-
tended only during his own life, and this being consistent with his pos-
session, the latter could confer no higher or greater right ; and that thus
being a tenant for life, in possession, acknowledging the remainder or
reversion, he is a trustee for the preservation of the same.
In the case under examination, connect Zadock Perry's receipt with
Nathaniel Barber's (which is the true position of the case), and divest
it, for the present, of the question as to the validity of the limitation
over, and a plain acknowledgment, on the part of Nathaniel Barber,
is made out, that he held the negroes absolutely, if his wife Comfort
should die leaving children ; but if she should die without having chil-
dren, then that the negroes should go over to the sons of Spencer and
Daniel Brummet. This is not a covenant to stand seised to uses, which,
as is very properly said in Porter v. Ingram, 4 ]\rCord, 201, appHes
altogether to real estate ; but it is an acknowledgment that Nathaniel
Barber is in possession, on the trust and confidence, that on the death of
his wife without children, he would deliver over the slaves to the re-
maindermen, or, as it really turned out, to the remainderman the plain-
tiff. There is nothing to prevent such a future expectancy, by way of
trust, from being created by any instrument of writing. For in Powell
V. Brown, 1 Bailey, 100, it was held that a future interest in a chattel
personal might be created or reserved, by way of remainder or rever-
sion by deed. Let it be borne in mind, that to pass personal property, a
deed is not necessar}^; that it was the nature of the thing itself, its
perishableness, which at common law originally forbade an estate in
remainder or in reversion in it. This ancient and strict notion of the
182 CLASSIFICATION OF FUTURE INTERESTS (Part 1
common law having given way to the change in the value and nature
of personal property, such an interest is now permitted to be raised
and to exist; and it follows, that if it can be created or reserved by
deed, which never was essential to the transmission of personal prop-
erty, it may be in any other way in which personalty may be passed
from one person to another, as by delivery of possession according to
mere w^ord of mouth, or any written instrument defining the interest to
be taken and enjoyed therein.
If, however^ in this c ase, we di scard all the doctrine in relation to
tru^ts^of personal jyojDertyj^and consider it as a gift7 evidence(l"^bv the
ad mission of Barber, properly inf erredT fr om his receipt in connect ion
with and explainedby^that of ZadodT Perry, I thi nk the limitation over ,
created by a parol instrument of writing, is good, as between the plain-
tifiFT^the^remamderman, and~the defendant, the" widow of Nathaniel
Barber, the tenant per auter vie. It seems jto^ be clear that anything
which will be good and effectual in law to pass personal property must
be equally so to limit it ; and this I take to be the settled principle,
prqpert}rdeducible fronTthe case of Dupree v. Harrington, and Reeves
V. Harris.
In Dupree v, Harrington, Harp. 391, it was held, that a written
stipulation in a note given for the purchase of a mare, "that the mare
should remain the property of the vendor until half the price was paid,"
was good and valid ; and that the property remained in the vendor,
notwithstanding the possession was in the vendee, until the condition
was complied with. If, by writing, the right of property may be re-
tained after the vendor has delivered possession of personal property,
it would seem to follow that the owner of it might, at the time he parts
with the possession, create or reserve, by writing, any future interest
which was not too remote.
In Reeves v. Harris, 1 Bailey, 563, a verbal condition on the sale of a
horse, that he should still remain the property of the vendor, until the
price was paid, notwithstanding the vendor delivered the possession to
the vendee, was held to be legal even against a creditor. As between
the vendor and a creditor, that case is, I think, an anomalous and un-
sound authority. For in Dupree v. Harrington, on the authority of
which it professes to be decided, the question was between the vendor
and the administrator of the purchaser. So far, between the parties,
the principle of both cases is right ; as between them any conditions
which enter into their contract, either verbally or in writing, must be
binding. So, too, in a gift of personalty : the donor may, in writing
or verbally, annex any conditions he pleases, provided they be not in
other respects contrary to law ; and if the donee accept the gift under
such conditions, he will be bound by them.
4. This brings up for consideration the limitation itself in the paper
made by Zadock Perry, and adopted by Nathaniel Barber, the defend-
Ch. 8) FUTURE INTERESTS IN PERSONAL PROPERTY 183
ant's intestate. I s it too renTo te?__IjLh[nl<jiot. [The discussion on
this point is omitted.]
The motion to reverse the decision of the judge below, and for leave
to the plaintiff to enter up judgment for his damages on the special
verdict, is granted.
Johnson and Harper, JJ., concurred.®
8 See, also, Gray, Rule against Perp. (2d Ed.) §§ 846, 848. Accord: Hill v.
Hill, Dud. Eq. 71 (S. C, Court of Chancery and Court of Appeal, 18.36, 1S37).
Here the enforcement of the shifting interest created by deed was upon a
bill in equity.
A fortiori, shifting interests in chattels created by will are valid. Rogers
V. Randall, 2 Speers, 38 (S. C, Court of Appeal, 1842).
Contra to principal case: Wilson v. Cockrill, 8 Mo. 1 (1843), where it is
apparently conceded that shifting interests created by will in personal prop-
erty are valid.
PART II
CONSTRUCTION OF LIMITATIONS
CHAPTER I
INTRODUCTION
ON THE PRINCIPLES OF LEGAL INTERPRETATION, by F.
Vaughan Hawkins, 2 Juridical Society Papers, 298 (1858-63) : "There
is obviously both a science and an art of interpretation. The business
of the art is to collect and furnish practical rules and maxims for per-
forming the process of Interpretation, in relation to this or that class
of writings upon which it may have to be exercised. The business of
the science is to analyse the nature of the process itself of Interpreta-
tion, and to discover, by a deductive method, the principles on which
it rests, and in conformity with which the proceedings of the art are
or ought to be regulated."
WIGMORE ON EVIDENCE, §§ 2458, 2459: "The process of
Interpretation is a part of the procedure of realizing a person's act in
the external world. * * *
"The method of it consists in ascertaining the actor's associations
or connections between the terms of the act and the various possible
objects of the external world. * * *
"The first question must always be. What is the standard of inter-
pretation ? The second question is. In what sources is the tenor of that
standard to be ascertained? Sometimes one or the other of these
questions miay interpose no difficulty ; but both must always be settled.
"(1) The standard of interpretation, as involved in legal acts, is the
personality whose utterances are to be interpreted. There are practi-
cally four different available standards. First, there is the standard of
the normal users of the language of the forum, the community at large,
represented by the ordinary meaning of words. Next, there is the
standard of a special class of persons within the community, — the fol-
lowers of a particular trade or occupation, the members of a particular
religious sect, the aliens of a particular tongue, the natives of a par-
ticular dialect, who use certain words in a sense common to the en-
tire class, but different from that of the community at large. Thirdly,
there is the standard of the specific parties cooperating in a bilateral
(184)
Ch. 1) INTRODUCTION 185
act, who may use words in a sense common to themselves and unknown
to any others. Finally, there is the standard of an individual actor,
who may use words in a sense wholly peculiar to himself ; and here
the question will naturally arise whether he may insist on his individual
standard in the interpretation of the words of the contract, or even
of a unilateral act such as a will. The first inquiry in interpretation,
then, is to determine which of these standards is the proper one for the
particular act to be interpreted; and for this purpose certain working
rules have to be formulated.
"(2) The sources for ascertaining the tenor of the standard form the
second object of inquiry. Since interpretation consists in ascertaining
the associations between the specific terms used and certain external
objects, and since these associations must be somehow knowable in
order to proceed, the question is where they are to be looked for. So
far as the standard of interpretation is solely the normal one of the
community, the inquiry is a simple one ; the usage of the community
(as represented in dictionaries and elsewhere) is the source of informa-
tion. But that standard (as will be seen) is rarely the exclusive one.
The mutual standard of parties to a bilateral act, and for wills the in-
dividual standard of the testator, is constantly conceded to control ;
and it then becomes necessary to search among the prior and subsequent
utterances of the party or parties to ascertain their usage, or fixed
associations with the terms employed. In resorting to these data, the
question then arises whether there is any prohibitive rule of law which
limits the scope of search and forbids the use of certain data. These
rules, if any, form the second part of the law of interpretation.
"Before proceeding, however, to these two parts of the subject in
their order, it is necessary to fix upon a terminology and to avoid
misunderstanding in the use of words. When we seek to ascertain the
standard and sources of interpretation, and thereby to discover the
actor's association of words with external objects, what is the term, in
one word, which describes the object of the search? Is it the person's
'meaning' ? Or is it his 'intention' ? Over this difference of phraseology
has persisted an endless controversy, which, like that of the two knights
and the shield at the cross-roads, is after all resolvable mainly into a
difference of epithets only.
"§ 2459, Same : 'Intention' and 'Meaning' Distinguished. The dis-
tinction between 'intention' and 'meaning' is vital. The distinction is
independent of any question over the relative propriety of these names ;
for there exist two things, which must be kept apart, yet never can be
unless different terms are used. The words 'will' and 'sense' may be
taken as sufficiently indicative of these two things and free from the
ambiguity of the other terms.
"Will and Sense, then, are distinct. Interpretation as a legal process
is concerned with the Sense of the word used, and not with the Will
to use that particular word. The contrast is between that W^ill, or
volition to utter, which, as the subjective element of an act, makes a
186 CONSTRUCTION OF LIMITATIONS (Part 2
person responsible for a particular utterance as his, and that Sense
or meaning which involves the fixed association between the uttered
word and some external object. It has already been seen (ante, § 2413)
that by the general canon of legal acts, the person's actual will or in-
tent to utter a given word can seldom be considered for legal purposes.
If he has exercised a volition to utter something, then he is responsible
for such utterance as is in external appearance the utterance he in-
tended, — whether or not he actually intended it. On the other hand,
the sense of his word as thus uttered — his fixed association between that
symbol and some external object — may usually be given full efl:'ect, if it
can be ascertained. The rules for the two things may be different.
The law has thus constantly to emphasize the contrast between the pro-
hibitive rule applicable to the creation of an act (ante, § 2413), and the
present permissive rule applicable to its interpretation. Judges are de-
sirous, when investigating the sense of the words as uttered by the per-
son, of emphasizing that they do not violate the rule against inquiring
whetlier he actually intended to utter those words. Hence the reitera-
tion of the contrast between 'intention' and 'meaning' :
"1789, Kenyon, L. C. J., in Hay v. Coventry, 3 T. R. 83, 86: 'We
must collect the meaning of the testator from those words which he
has used, and cannot add words Avhich he has not used.'
"1833, Parke, J., in Doe v. GwiUim, 5 B. & Ad. 122, 129: 'In ex-
pounding a will, the Court is to ascertain, not what the testator actually
intended, as contradistinguished from what his words express, but
what is the meaning of the words he used.'
"1833, Denman, L,. C. J., in Rickman v. Carstairs, 5 B. & Ad. 663:
'The question * * * jg not what was the intention of thp parties,
but what is the meaning of the words they have used.'
"The common terminology of these judicial explanations is unfor-
tunate, because 'meaning' has a suggestion of the state of the person's
mind as fixed on certain objects, and 'intention' bears the same sugges-
tion. The constant exclusion of the state of the person's mind in one
aspect, and yet its consideration in another aspect, are thus apparently
contradictory and irreconcilable. But the terms 'will,' or 'volition,' and
'sense,' serve to avoid this ambiguity. They emphasize the distinction
that the will to utter a specific word is one thing, and the fixed associa-
tion of that word is another thing. Thus the Creation of the act and
its Interpretation as created are kept distinct."
ON THE PRINCIPLES OF LEGAL INTERPRETATON, by F.
Vaughan Hawkins, 2 Juridical Society Papers, 329 (1858-63) : "One
consideration, however, I will not pass over : I mean the great dift'er-
ences which exist in the measure of interpretation as applied under dif-
ferent judicial systems and by different judicial minds, and the con-
sequent necessity for accumulating a certain mass of decisions, in or-
Ch. 1) INTRODUCTION 187
der to supply a uniform standard, and to fix the nearest approach to
absohite correctness by striking an average of opinions through a long
series of years. It is sometimes said, in relation particularly to testa-
mentary interpretation, that authorities can be of no service : that to
quote cases is to construe one man's nonsense by another man's non-
sense, and that all a judge has to do is to read the writing and endeav-
our to make out from it the meaning of the testator. Now, if interpre-
tation were, like the determination of the meaning of words whose
signification is fixed, something that can be done with absolute certain-
ty, in which one man would come to the same conclusion as another,
and which is, so to speak, the same all the world over, the study of
previous authorities might indeed be unnecessary. But, in truth, it
would be as reasonable to say, that no authorities were to be consulted
on a question of equity, that a judge ought to act upon his own notions
of what was equitable, and that as circumstances are infinitely various,
one case could never show what it was right to do in another. Ex-
perience shows that the limits of interpretation will be fixed at very
different points by different persons ; and there is, perhaps, no legal
subject which brings out peculiarities of individual bias and disposi-
tion more strongly than difficult problems of construction. By the com-
bined result of the decisions of a succession of judges, each bringing
his mind to bear on the views of those who preceded him, a system of
interpretation is built up, which is likely to secure a much nearer ap-
proach to perfect justice than if each interpreter were left to set up
his own standard of how far it was right to go in supplying the de-
fective expression, or of what amounted to a conviction of the intent
as distinguished from mere speculative conjecture. Rules of construc-
tion are matters, the expediency of which may be more doubtful ; but,
that Principles of construction there must be in every system of rational
interpretation, and that these are only to be gathered by a comparison
of a large number of important cases, and by striking the average of a
large number of individual minds, will not, I think, be denied by any
one who considers interpretation to be as I have described it, a pro-
cess of reasoning from probabilities, a process of remedying, by a sort
of equitable jurisdiction, the imperfections of human language and
powers of using language, a process whose limits are necessarily in-
definite and yet continually requiring to be practically determined, and
not, as it is not, a mere operation requiring the use of grammars and
dictionaries, a mere inquiry into the meaning of words."
INTERPRETATION OF WILLS, by Francis M. Nichols, 2 Jurid-
ical Society Papers, 376 (1858-63): "Difficulties of interpretation
more frequently arise in consequence of the events after the date of
the will being different from those contemplated by the testator. In
such a case it may be said that the testator had no intention specially
188 CONSTRUCTION OF LIMITATIONS (Part 2
applicable to the events which have happened. It is not necessary,
however, tliat a testator should foresee all the consequences of his di-
rection. The only question for the interpreter is, whether the provision
logically includes the actual case. The probability, however great, that
a testator would have qualified a clause if he had contemplated all its
logical consequences in the actual state of circumstances, is not a suffi-
cient reason for refusing to give effect to it."
GRAY, NATURE AND SOURCES OE LA\Y.— Appendix VII.
Rules of Construction: Sec. 700. In statutes any rules of interpreta-
tion ever suggested have been of tlie most general character, and the
same is true of legal writings generally; but in two classes of instru-
ments, deeds of real estate and wills, particularly the latter, the limited
character of provisions, probable or possible, causes language of a simi-
lar nature to be often employed, and thus gives opportunity for the es-
tablishment of rules of construction.
Sec. 701. The making of these rules was at on© time carried too
far in the Common Law ; they were often pushed into such refinement
that they lost tlieir practical value, and, what is more, they sometimes
attributed to a testator the very opposite of the intention which he was
likely to have had, as with the rule that the words "dying without is-
sue" meant an indefinite failure of issue. Against this disposition
there has of late years been a decided reaction on the part of the
courts. Judges have spoken with contempt of the mass of authorities
collected in Mr. Jarman's bulky treatise on Wills, have declared that
the mode of dealing with one man's blunder is no guide as to the mode
of dealing with another man's blunder, and especially ha\e said that
each will is to be determined according to the intention of the testator
and that the judicial mind should apply itself directly to that problem,
and not trouble itself with rules of construction.
Sec. 702. And yet it may be doubted whether the pendulum of ju-
dicial theory and practice has not swung too far in this direction. It
undoubtedly sounds very prettily to say that the judge should carry
out the intention of the testator. Doubtless he should ; but some judg-
es, I venture to think, have been unduly influenced by taking a fiction
as if it were a fact. As is said in the text with reference to the Legis-
lature, when a testator has a real intention, it is not once in a hundred
times that he fails to make his meaning clear. For instance, if a testa-
tor should have present to his mind the question w^hether a legacy to
his wife was to be in lieu of dower, it is almost incredible that he should
not make what he wished plain. When the judges say they are inter-
preting the intention of a testator, what they are doing, ninety-nine
times out of a hundred, is deciding what shall be done with his prop-
erty on contingencies which he did not have in contemplation. Now
for cases in which a testator has not provided, it may be well that
Ch. 1) INTRODUCTION 189
there should be fixed rules, as there are for descent in cases of intes-
tacy.
Sec. 703. It would seem that the first question a judge ought to
ask with regard to a disputed point under a v/ill should be : "Does the
will show that the testator l.-ad considered this point and had any actual'
opinion upon it?" If this question be answered in the affirmative,
then there is no doubt that the solution of the testator's intention must
be sought in the will. But in the vast majority of cases this is not
what has happened. What the judges have to do is, in truth, to say
what shall be done where the testator has had no real intention ; the
practice of modern judges to which I have alluded is to guess from the
language used in the particular will what the testator would have
meant had he had any meaning, which he had not; the older practice
was to look for an established rule oi construction. In the modern
practice the reasoning is often of the most inconclusive character,
but the judges have got to decide the case somehow, and having turn-
ed their backs upon rules of construction, have to catch at the slightest
straw with which to frame a guess.
Sec. 704. Take, for instance, the word "heirs," so often, indeed
almost always, put into a will to fill out the final limitations. There are
jurisdictions where no counsel dares to advise on what is to be done
with property that is bequeathed to "heirs." The judging of each will
by itself leads necessarily to the bringing up of each will to be judged,
and is responsible for a great deal of family dissension and litigation.
Sec. 705. That the unsatisfactory character of many of the rules
for the interpretation of wills is largely responsible for their present
unpopularity with the courts cannot be denied; but I only wish to
point out that what many judges are setting up against the rules of
construction of wills is, not their opinion of what testators really in-
tended, but their guess at what the testators would have intended if
they had thought of the point in question, which they did not, a guess
resting often upon the most trifling balance of considerations.
EATON v. BROWN, 193 U. S. 411, 24 Sup. Ct. 487, 48 L. Ed. 730
(1904), Mr. Justice Holmes: "The English courts are especially and
wisely careful not to substitute a lively imagination of what a testatrix
would have said if her attention had been directed to a particular point
for what she has said in fact. On the other hand, to a certain extent,
not to be exactly defined, but depending on judgment and tact, the pri-
mary import of isolated words may be held to be modified and con-
trolled by the dominant intention to be gathered from the instrument
as a whole."
190 CONSTRUCTION OF LIMITATIONS (Part 2
CHAPTER II
MEANING OF HEIRS IN A LIMITATION TO THE TESTA-
TOR'S HEIRS OR THE HEIRS OF A LIVING PERSON
HOLLO WAY V. HOLLOW AY.
(Court of Chancery, 1800. 5 Ves. 399.)
Edward Reeves by a codicil, dated the 21st of July, 1763, gave to
trustees the sum of £5000 : in trust to put the same out at interest on
Government or other securities, and to pay the interest, income and
produce, thereof to his daughter Hindes for and during the term of
her natural life, se]:arate and apart from her husband. The codicil
then proceeded thus :
"And after the decease of my sai d daughter Hinde s then u pon thi s
farther trust, that they, the said Augustine Batt and Benjamin Hollo-
way, their executors or administrators, do pay the said £5000 unto such
child or childr en of my said d aug hter Hinde s_as_sfie]^slTatHe'ave at the
time of her decease in such shares and proportions a^ she "shall tlfmk
propeFlo"~giveT[fe same; and in case she shall die leaving no child,
then as to £100 0, part of the said £5000, in tr ust for the 'Cxecutors, ad-
ministrators or as signs, of my ^Hd^ daughteriliindesT'ahd'^ to the
£40C0 _remai nder of the said £5000^ in tr ust for such^person^oFpersons
as's liall be m y heir or heirs at law."
The testator died in 1767; leaving his daughter Su_sa nnah H indes
and two other daughters his co.-heiresses at law and his_ne;vt of km at
the time of his deH Ti7~^usaimah~Tfindes~Iiaving survived her husband
died~without issue in August, 1798.
The bill was filed by the great-grandchildren of the testator by his
two other daughters, the plaintiffs being his co-heirs at law at the death
of Susannah Hindes, against the representatives of the surviving trus-
tee, and against several other persons, who with the plaintiffs were the
next of kin of the testator and of Susannah Hindes ; praying, that the
plaintiffs, as co-heirs of the testator at the death of Susannah Hindes,
may be declared entitled to the said £4000, &c. ; or in case the court
shall be of opinion, that any other construction ought to be put upon
such bequest, then that the rights of the plaintiffs and defendants may
be declared, &c.
Master of the; Rolls [Sir Richard Pepper ArdEn]. This ques-
tion arises upon a very doubtful clause in this codicil. Unquestionably
it is competent to a testator, if he thinks fit, to limit any interest to such
persons as shall at a particular time named by him sustain a particular
character. The only question is, whether upon the true construction
of this codicil it must necessarily be intended, he did not mean by these
Ch. 2) MEANING OF HEIRS 191
words what the law prima facie would, strictly speaking, intend, heirs
at law at the time of his death. A testator certainly may by words
properly adapted show, that by such words persona designata, answer-
ing a given character at a given time, is intended. But prima facie
tl iese wo rds must jjgjjjidgJistood in their legal_sense, unless by the con-
text or by express words they plaiuljTappear to be intended otherwise.
In this case these words are not necessarily confined to any particular
time : nor from the nature of the gift is there any necessary inference,
that it should not mean, what the law would take it to mean, heirs at
the death of the testator. It is not like the case of Long v. Blackall, 6
Ves. Jr. 4S(x The words there put it out of the power of the cotirt to
put upon it any other interpretation ; though it was much contended,
that it meant at the death of the testator. I n that case the word " then "
pl ainly proved that t j2e__personal_rf^ prp^pnf^ntiv ps_ivLthe time of the
de ath were not intended ; and if that word had not occurredTthere'was
a great deal to show, it could not be the intention (and that applies
here) ; for there the wife was his executrix; and it would have been a
strange, circuitous, way of giving it to her.
In Bridge v. Abbot, 3 Bro. C. C. 224, and Evans v. Charles, 1 Anstr.
128, a great deal of discussion took place upon such words as these.
In the first of these cases it was contended, and I had for some time
little doubt upon it, that it was intended to give a vested interest to a
party, who was dead before : but from the absurdity of that and of
letting it be transmissible from a person, in whom it never vested, I
was of opinion, that upon the true construction it must have been in-
tended such persons as at the death of the testatrix would, if John
Webb had then died, have been his personal representatives. I wish
to add a few words to the report of that case, to show, what the de-
cree was. The report states, that I declared the persons entitled as
legal representatives to be the persons, who would have been entitled
as next of kin to John Webb at the death of Mary King. I desire,
that these words may be added : "in case he had at that time died in-
testate." I believe, those words were added in the decree.
The case of Evans v. Charles arose upon similar words, but under
very dissimilar circumstances. Lord Chief Baron Eyre observes upon
Bridge v. Abbot; and though the decision of the court was different
from mine, they seem to think my opinion right in that case. Evans
V. Charles was determined upon other grounds ; upon which the Court
of Exchequer felt themselves obliged to give to the administratrix of
the creditor. There is certainly an obvious distinction between them.
It was truly said in Evans v. Charles, that it must always be taken to-
gether with the context. The words must have their legal meaning,
unless clearly intended otherwise. In this case I was struck with the
circumstance of the gift to the daughter for life, &c. ; giving it to the
heirs at law ; of whom she would be one. But that alone would not, I
apprehend, be sufficient to control the legal meaning of the words. If
ati estate for life was devised to one, and after h is death to the right
192 CONSTRUCTION OF LIMITATIONS (Part 2
heirs of the testator, it never would be held, that, though th e tenant fo r
lTTe"was one ot the heirs, that would reduce hiio to an e"stale for hte:
but he would take a fee.
Long v^~Blackall has that very leading distinction from this case
upon the word "then" ; tliat there could be no doubt personal repre-
sentatives at a given time were intended. I must therefore hold, that,
if that word had not occurred, the judgment of the Lord Chancellor
would not have been such as it was ; but, as it is, I perfectly concur in
that judgment, together with the argument from the circumstances.
In this case I_canno t upo n that ground alone, that the daughter
named in the will was one of the heirs at law, h ol d, that li eirs at a
particular time we re intended . My opinion is, that there is not enough
in this will to give the worH^s any other than their prima facie con-
struction : heirs at law at his own death . If so, i t would b e a ves ted
int erest in tl ie__persons aris}\ 'ering th at description at his own death. I
have not put thisconstniction^upon it in order to avoT3 the ditticulty,
that would otherwise arise: but I am very glad, that this relieves me
from the necessity of stating, who are meant by the words "heirs at
law" as to the property, which is the subject of this bequest. This
is personal property; and it is said, that though "heirs, &c.," have a
definite sense as to real estate, yet as to personal estate it must mean
such person as the lawpoi nts out to suc ceed to personal property. I
am" much inclmed to think so. If personal property was given to a
marf^nd his'heirsTrT^ould go to his executors. I rather think, if I
was under the necessity of deciding this point, I must hold it heirs
quoad the property : that is, next of kin : but J[_am _relieved from that ;
as, if heirs, at his death are meant, they are the same persons ; the tHree
daughters bemg both heirslmd nextot km; and if they didTiot fake
as~heifs at law, they took an absolute~interest in themselves in the per-
sonal estate. Great dif/iculties would arise from the construction, that
heirs at law are intended, arTd~~arpplying it to persorraf-property. He
might have ditferent heirs at lawl heiTs "descending from himself as
first purchaser : heirs ex parte paterna and ex parte materna. I am
inclined to think, the court would in such a case consider him as the
first purchaser ; so as to take in both lines. However, there is no oc-
casion to say anything upon that.
Declare, that the words "heir or heirs at law" in this will must be
taken to m ean heir or hei rs at law at the time of the testator's death ;
and that the sum of £4000 vested in his three daughters^
lAccord: Abbott v. Bradstreet, 3 Allen (Mass.) 5S7; Dove v. Torr, 128
Mass. 38 ; Kellett v. Shepard, 1J}9 111. 433, 28 N. E. 751, 34 N. E. 2.j4 ; Brown
V. Brown, 253 111. 4G6, 97 N. E. 680; Allison v. Allison, 101 Va. 537, 44 S. E.
904, 03 L. R. A. 920 ; Winn, In re Brook [1910] 1 Ch. 278.
Tlie same result is reached when the ultimate gift is to the "next of kin"
of the testator. In re Trusts of Barber's "Will, 1 Sm. & G. 118 ; Lee v. Lee,
1 Dr. & Sra. 85.
In Allison v. Allison [1910] 1 Ch. 278, the next of kin at the testator's death
took, although the gift to such next of kin was contingent upon their sur-
Ch. 2) MEANING OF HEIRS 193
WARE V. ROWLAND.
(Court of Chancery, 1847. 2 Phil. Ch. 635.)
Philip Slater, by his will dated the 18th of July 1806, directed his
executors to purchase, in the 3 per cent, reduced annuities, the sum of
£600 a year, upon trust to permit his wife to receive the said annuity
for her life, and after her death in trust for his daughter Anna Maria
Slater; and after her death, to distribute the principal amongst the
viving the life tenant, who was one of the six next of kin at the testator's
death.
In some cases an additional and special context tending to show that
"heirs at law" meant those who would have been the testator's heirs at law
if the testator had died at the time of the death of the life tenant was held
insufficient to change the primary meanins; of the words. Brown v. Brown,
25.3 111. 466, 97 N. E. 6S0 ; 8 111. Law Kev. 121 ; Abbott v. Bradstreet, 3 Allen
(Mass.) 587.
A fortiori, where the life tenant is not one of the heirs at law or next of
kin of the testator at his death, the ultimate gift to the testator's heirs at
law or next of kin. as the oa>;e may be, means primarily those who answer
that description at the testator's death. Doe dem. Pilkington v. Spratt, 5
Barn. & Adol. 731 ; AMiall v. Converse, 146 Mass. .345, 15 N. E. 660. In the
latter case Holmes. .!., said (146 Mass. 348. 15 N. E. 662): "The general rule
is settled that, in case of an ultimate limitation like that of the fund in ques-
tion to the testator's heirs at law, the persons to take are those who answer
the description at the time of the testator's death. Dove v. Torr, 128 Mass.
38. 40. Minot v. Tappan. 122 Mass. 535, 537. Abbott v. Bradstreet, 3 Allen
[Mass.] 587. The reasons for this rule are, that the words cannot be used
properly to designate anybody else; that such a mode of ascertaining the
beneficiary implies that the testator has exhausted his specific wishes by the
previous limitations, and is content thereafter to let the law take its course ;
and, perhaps, that the law leans toward a construction which vests the in-
terest at the earliest moment, 'j-here is nothing to take this case out of the
general rule, and it requires no discussion beyond what will be found in the
decisions cited."
In Smith v. Winsor, 239 111. 567, 88 N. E. 482, interests were devised by a
husband to his wife for life, with a remainder to the testator's heirs at law.
By the third clause of his will the testator "in case his wife survived him''
devised to his wife for life and then to the testator's heirs at law. By the
fourth clause he provided in the alternative "in case my wife shall not sur-
vive me," then to the testator's heirs at law. "Heirs at law" in the fourth
clause necessarily excluded the wife. "Heirs at law" meant the same thing
in the third clause that it did in the fourth and therefore it excluded the
wife in the third clause. See also, Sears v. Russell, 8 Gray (Mass.) 86.
Note on the Meaning of Hetks at Daw of the Testator in a Gift to
Such Heirs Where the Subject of the Gift is Personal Property Alone,
OB a Mixed Fund of Real and Per.sonal Property. — Where personal prop-
erty alone is bequeathed to heirs at law, those take who are entitled to per-
sonalty on an intestacy. Alexander v. Masonic Aid Assn., 126 111. 558. 18 N
E. 556, 2 D. R. A. 161 ; Clay v. Clay, 63 Ky. (2 Duv.) 295 ; Lawton v. Corlies.'
127 X. Y. 100, 27 N. E. 847 : Ashton's Estate, 134 Pa. .'JOO, 19 Atl. 699 ; Kendall
V. Gleason, 152 Mass. 457, 25 N. E. 838, 9 L. R. A. 509.
AVhere a blended fund of real and personal proi>erty is devised to the trus-
tee's "heirs," heirs has that meaning as to the whole fund which it has when
applied to real estate alone. Allison v. Allison, 101 Ya. 537, 44 S. E. 904, 63
L. R. A. 920 ; Commonwealth v. Crowley, 167 Mass. 434, 45 X. E. 760 ; Heard
v. Read, 169 Mass. 216, 47 X. E. 778 ; Sehouler on Wills (5th Ed.) §§ 522, 547 ;
2 Jarmau on Wills (5th Am. Ed.) *62, *82. But see Rawson v. Rawson, 52
111. 62.
4 Kaxes Prop. — 13
194 CONSTRUCTION OF LIMITATIONS (Part 2
children of his said daughter, at their respective ages of twenty-four
years, with maintenance in the meantime ; after which the will proceed-
ed as follows : — "If at the death of my said daughter she should leave
no child or children living, or in the event of such child or children
dying under twenty-four, then I direct my trustees to sell the said
principal fund, and to pay thereout to my son-in-law J. G. Christian,
and my grandson G. T. Rowland £500 each, if they should severally be
alive at that time ; and all the rest and residue of the said principal fund,
with the interest and dividends, I give and bequeath to and amongst
my heirs-at-law, share and share alike." In a subsequent passage of
the will the testator gave the residue of his property to his daughter
Anna Maria Slater by name.
Anna Maria Slater was the only surviving child of the testator at the
date of his w'ill, and she was also his sole heiress-at-law, and next of
kin at the time of his death. Upon her death, in the year 1844, with-
out having married, the heirs-at-law of the testator were Philip Slater
Fall and Isaac Hodgson Wilson, two of his great-nephews, grand-chil-
dren of his two sisters ; and his next of kin at the same time was Je-
mima Brune, a daughter of one of those sisters.
On the death of Anna Maria Slater, the principal fund set apart to
answer the annuities, consisting of about £20,000 stock, was contested
between three parties, the personal representative of Anna Maria, as
the sole heiress-at-law and next of kin of the testator at the time of his
death; Fall and Wilson, as his co-heirs-at-law at the death of Anna
Maria; and Jemima Brune, as his sole next of kin at the same period.
The Vice-Chancellor of England having decided in favor of the first,
the other two parties presented separate appeals, \vhich came on to be
argued together.
The Lord Chancellor [Lord Cottknham]. If Holloway v.
Holloway, 5 Ves. 399, lays down the rule correctly, there can be no
doubt of its governing this case. In that case, as in this, the testator
had a daughter, to whom he gave the interest, for life, of a sum of
money which he directed should be taken out of his general estate and
invested. In that case, as in this, after the daughter's death, her chil-
dren, if any should be living at the time of her death, were to have the
fund, and if she left no children, part of the fund in Holloway v. Hol-
low^ay was to be held in trust for the personal representative of the
daughter; and the remainder of the fund in trust for such person or
persons as should be the testator's heir or heirs-at-law. In the present
case, in the event of the daughter not leaving children the trustees were
then, that is in that event, to sell the trust-monies, and to pay thereout
to two other persons a certain part, if they should be severally living at
that time ; and then follow these words : "All the rest and residue of
the said principal trust-monies, with the interest, increase, and divi-
dends, I give and bequeath to and amongst my heirs-at-law, share and
share alike ;" and in a subsequent part of his will, he gave all the
residue of his property to his daughter by name.
Ch. 2) MEANING OF HEIRS 195
In both cases the word "then" is to be found ; but in both it refers to
the event and not to the time. In Holloway v. Holloway, the part of
the fund to be separated from the rest was, in the event of the daughter
not leaving children, to be her's absolutely ; and the gift to the heirs
is of the remainder of the fund ; whereas, in the present case, if the
persons to whom part of the fund was given did not survive the daugh-
ter, the gift to them was not to take effect; in which case, therefore,
such part continued a constituent part of the fund, and would pass with
it to the heirs. In Holloway v. Holloway, the trust for the heirs is, "for
such person or persons as shall be my heir or heirs-at-law," there being,
at the testator's death, three daughters his co-heirs-at-law and next of
kin; and the word "shall" seemed to describe persons who should be
found to the heirs at a future time. In this case, there being but one
heir and next of kin, the testator gives "to his heirs-at-law share and
share alike." He uses the plural, although there was but one : in
Holloway v. Holloway he uses the singular, although there were three
heirs. In Holloway v. Holloway the testator describes the duty of the
trustees to arise upon the death of the daughter without issue. In the
present case, after prescribing their duty as to the portion of the fund
to be separated and paid to other persons, he makes a new and distinct
gift to the heirs : "All the rest and residue of the said trust-monies I
give and bequeath amongst my heirs-at-law, share and share alike."
Having in view a provision for certain persons not to be permanent ex-
cept in particular events, he no longer declares any trust of the fund so
appropriated, but, in effect, lets it fall into the residue of his estate by
giving the fund subject to such prior gift to "his heirs," who, being his
daughter, was his general residuar}^ legatee.
In all the particulars in which the two cases differ, the differences
are in favor of~tIie claim oF"the tuturej ieir m Holloway v. Hollowav ;
but" IvOrd Alvanley actmg u pon "tHeauthority of many earlier cas e s ,
held that the heirs at the "5e ath were the parties describe^ d. Such, he
said, was the intendment ot the law, and such must be understood to be
the meaning of the words, unless by the context or express words they
plainly appear to be intended otherwise, of which he did not find suffi-
cient proof in that will. But if Lord Alvanley could not find such proo f
in that case, I certainly canriot hn d it in this, thinking, as I do. that
there was mucti more ot~evidence tending to that proof iirthat case fhah
there is m this. There is, indeed, nothing of such tendency in this case,
except tUe description of heir in the plural. I have already ob-
served, that there was a similar inadaptation of the expressions used to
the state of the family in Holloway v. Holloway ; but in the present
case there is, I think, a veiy obvious solution of the apparent incon-
sistencies.
Suppose a testator, after making all such provisions as he was anx-
ious about, finds that in certain events all these provisions might fail,
and having no other object in view, might naturally wish that the law,
196 CONSTRUCTION OF LIMITATIONS (Part 2
with respect to the disposition of his property, should take its course.
If he so expressed his wish, his heir or next of kin would take in the
event of the provisions failing ; but as that might not take place until
some distant period, it would be uncertain who would, at such time,
stand in the place of such heirs ; and the testator might therefore very
naturally express such a wish in the terms used in this will ; and it is
not at all inconsistent with such an expression as to a future and con-
tingent interest, that he should give the residue of his property, being a
direct gift, to his daughter by name; or he might have contemplated
the possibility of his daughter's death in his own lifetime.
Since Holloway v. Holloway several cases have occurred, and par-
ticularly Jones V. Colbeck, 8 Ves. 38, and Miller v. Eaton, Sir Geo.
Cooper, 272, which, it might have been supposed, would have received
a decision different from that which Sir W. Grant pronounced upon
the authority of Holloway v. Holloway ; but in none of those cases do
I find any disapprobation expressed at that decision, or any intention
entertained of overruling it; but in all, distinctions are taken, which,
whether tenable or not, leave that authority untouched : yet in none of
these is the claim of the heir at the death supported by circumstances
so strong as are to be found in the present case.
T here is, I think, no ground for the claim of the heir or next of kin
to the exclustmr-gf' the daughter ;'~ arKi~slie fillih g the~ctTaracters~Both
of ITeTr and next of km^ no""q[uesrion arise ^as~td wKetHer s he_took the
fund in tlie"one~cliaracte r or in t hfi-Qther ; I therefore think the decree
righlrrand thaf^e appeals must be dismissed with costs.^
2 Accord: Bird v. Luckie, 8 Hare, 301 ; Eawlinson v. Wass. 9 Hare, 673;
Wrightson v. Macaiilay, 14 Meeson & W. 214 ; In re Frith ; Hindson v.
Wood, 85 L. T. R. 45.5 ; Rand v. Butler, 48 Conn. 293 ; Stokes v. Van AVyck,
83 Va. 724, 3 S. E. 387.
Contra: Pinkham v. Blair, 57 N. H. 226 (1876); Johnson v. Askey, 190 111.
58, 60 N. E. 76 ; Bond v. Moore, 236 111. 576, 86 N. E. 386, 19 L. R. A. (N. S.)
540 ; Farso v. Miller, 150 Mass. 225, 22 N. E. 1003, 5 L. R. A. 690 ; Heard v.
Read, 169 Mass. 216, 47 N. E. 778; Delaney v. McCormack, 88 N. Y. 174;
Tyler v. Theilig, 124 Oa. 204, 52 S. E. 606.
Suppose, after an absolute interest to A., there is a gift over to the testator's
heirs. Welch v. Brimmer, 109 Mass. 204, 47 N. E. 699 (1S97) ; Doe v. Frost,
3 Barn. & Aid. 546 ; De Wolf v. Middleton, 18 R. I. 810, 26 Atl. 44, 31 Atl. 271,
31 L. R. A. 146 ; Burton v. Gagnon, 180 111. 345, 54 N. E. 279.
Ch. 3) "survivor" construed vs. "other" 197
CHAPTER III
"SURVIVOR" CONSTRUED vs. "OTHER"
HARMAN V. DICKENSON.
(Court of Chancery, 17S1. 1 Brown, Ch. Cas. 91.)
A bequest to two daughters of the testator, and if one should die
without issue, then to the surviving daughter and her issue. One of
the daughters married and died, leaving issue ; then the unmarried
daughter died.
Lord Chancellor [Thurlow] held that the money went to the
issue of the married daughter, although she did not survive her sister.^
1 The statement of this case is so very short and inaccurate, that it seems
to require to be entirely new modelled. An exposition of it, therefore, from
the Registrar's book, may be desirable:
The testator vested a sum of £10,000 New South Sea Annuities in trustees^,
with directions to suffer each of his tw o grandd ajj^hters^ A. and B., to re-
ceive the dividen ds and lut>'resr"to Ul'ise on £ouOO part thereof, for her sep-
arate use; and, atter_thel clccease of each of such granddaughte rs, and when
and as each of them should hapi>en to die, to transfer and assign £5000 part
of the said £10,000 New South Sea Annuities, u nto and amon g such one or
mjoreof the children of each granddaughte r so happening to die, who should
be~TTviug"anier decease, in such sharesT^c, as his said granddaughter so
dying should direct, &c. ; and in default thereof, then in trust to assign,
transfer, pay, and dispose of the said £5000 and the dividends thereof, unto
or equally among all and every the children of his granddaughters so dying,
which should be living at her decease, in equal proportions, «S:c. ; the shares
to be transferred to them at twenty-one, and the interest, in the meantime,
for their maintenance; but in case either of his gr anddaughters s hould die
w ithout leavin g issue, or that sucn issiie^ should all die before their shares
should become transferable respectively as aforesaid, then the £5000 so in-
tended for the children of such granddaughters so dying without issue, or
failing issue as aforesaid, and the dividends thereof should go and be paid,
and transferred, &c., in manner following, viz., the yearly dividends to suc h
i^ar viving granddaughter fo r_her_ own use for life, and thepriucipal to go,
survive anti accrue, and De transferred to the child or children of any_of such
sur vivi ng granddaught ers, in the same manner, &c., and subject to suT-h pow-
er of 'dlhiLiibuliuu us were thereinbefore mentioned, concerning his or their
original share of the £10.000 New South Sea Annuities intended for him, her,
or them, after the decease of his, her, or their parents. And in case of the
d eath of both his said granddaughters, . withjo ut leaving issue of their or ner
bodies, or the deatn ot sucn issue betore their share should become payable,
that then the trustees should transfer the said £10,000 untd, and ectually be-
tween two of his tefetator's grandsons, therein named.
A., one of the granddaughters, married, and died in her sister's lifetime,
leaving issue; then B., the other granddaughter, died unmarried.
The bill was filed on behalf of the infant children of A.
The Lord Chancellor held, on the clear manifest intention, that the whole
fund went to the issue of A., the married daughter, although she did not
survive her sister ; and declared that the plaintiffs, the infants, were entitled
to the two sums of £5000 and £5000, New South Sea Annuities, subject to the
contingencies in the will of the testator concerning the same. — Belt.
Accord: (1) Where life interests are given to several with a remainder to
the issue of each tenant for life, with a gift over on the death of any tenant
198 CONSTRUCTION OF LIMITATIONS (Part 2
HARRISON V. HARRISON.
(Chancery Division, 1901. [1901] 2 Ch. 136.)
This was a petition by the now sole trustee of the will and seven
codicils of Benson Harrison, the testator in this cause, who died in
November, 1863. The object of the petition was to obtain the judg-
ment of the court as to who, upon the proper construction of the will
and codicils, became entitled on the recent death of Benson Harrison, a
son of the testator, to a share of personal estate in which Benson Har-
rison was entitled to a life interest.
The testator had three sons, Matthew Benson Harrison, Words-
worth Harrison, and Benson Harrison, and two daughters, Mrs. Dob-
son and Mrs. Bollard, who all survived him.
The testator bequeathed his eight and a half sixteenth shares in the
business of Harrison, Ainslie & Co. from the 1st day of January, 1864,
upon trust to carry on the business in conjunction with the other part-
ners, and stand possessed of three and a half of the shares upon trust,
subject to the deduction of a sum of i250 a year during the life of his
son Matthew Benson Harrison, to pay the whole or any part of the
for life without issue to the surviving tenants for life for their lives, and then
to their issue with an ultimate gift over if all the tenants for life die with-
out issue. Cases where realty involved: Cole v. Sewell, 4 D. & War. 1; 2
H. L. 186; Askew v. Askew, 57 K J. Ch. 629. Cases where personalty in-
volved: Lowe V. Land, 1 Jur. 377; In re Keep's Will, 32 Beav. 122; Badger
V. Gregory, 8 Eq. 78; Waite v. Littlewood, 8 Ch. 70; Wake v. Varah, 2 Ch.-
Div. 348 ; Garland v. Smyth [1904] 1 Ir. 35 ; Cooper v. Cooper, 7 Houst. (Del.)
488, 31 Atl. 1043.
(2) Where life interests are given to several with a remainder to the issue
of each tenant for life, with a gift over on the death of any tenant for life
without issue, to the surviving tenants for life in like manner as the original
shares are given, with an ultimate gift over if all the tenants for life die
without issue. Cases where real estate involved: In re Tharp's Estate, 1
De J. & S. 453 ; In re Row's Estate. 43 L. J. Ch. 347. Cases where personal-
ty involved: Holland v. Alsop, 29 Beav. 498; Hurry v. Morgan, 3 Eq. 152;
In re Palmer's Trusts, 19 Eq. 320 (ultimate gift over not mentioned).
In Waite v. Littlewood, L. R. 8 Ch. 70, 73 (1872), supra, Selborne, L. C,
said: "I do not entirely assent to language which is to he found pen'ading
almost all the cases upon questions of this kind, that the question is whether
the word 'survivor' is to be read 'other.' I think there is certainly a very
strong probability that any one using the word 'survivor' does not precisely
mean 'other' by it, but has in his mind some idea of survivorship; and if the
question is simply whether yon are to turn it into 'other,' and say it is used
merely by mistake for the word 'other,' which is the true word to express the
testator's meaning, there is undoubtedly a strong onus probandi cast upon
any one who would do that violence to the literal meaning of the word. It
would be a strange thing to liold that so many testators were in the habit of
using the word 'survivor' when they simply meant 'other.' Generally speak-
ing, a reason of some kind will Ije found for the use of the word 'survivor'
where it occurs, though it may very possibly be, and often in these cases is,
an imperfect expression, not expressing completely and exhaustively the
whole intention. If no such explanation can be suggested, it is a strong argu-
ment against any construction that would reject the word in its proi)er and
primary meaning altogether, and substitute a word which has a different
meaning."
Ch. 3) "survivor" construed vs. "other" 199
income and accumulations of income to Matt h ew Benson Harrison
d uring hi s life at their discretion, and af ter his decease to hold the three
an d a half sh ares^arid^acc umulations of proceeds on th ejxusta.id££lared
for the children and remoter issue of the testator's son M atthew Ben^
son .Harnson (such issiie to be born in his lifetime).
The testator by his will settled in the same way three shares (altered
by codicil to two shares) in the business on his son Wordsworth Harri-
son, and the other two shares (altered by codicil to three shares) on
his son Benson Harrison.
After these gifts the will proceeded : "And in case any of them
the ^aid Matthew Benson Harrison, Wordsworth Harrison, and Ben-
sorLHarri son res pect ively shaircHeTarid^ i o'chlld^or other issue of such
of them so dying shall acquire a vested in terest in t he shares iier£r
by set tled up on_ them respectively under the trusts or powers afore-
sai^, r direct that the_re spectiv £^sli ares o i_^uch— oi^ my sa id sons a s
sh all so die, or so much t hereof as s liall not have been applied under
the_ j)owers herein containe d, and the annual income thereof, shall be
held for th e benefit of the, survivors or surviv or of theiTLjriy_sn.jd sons
an ^their or his respective issue, in equal shares upon such and the
like trusts, and to and for such and the like interests and purposes, and
with, under, and subject to such and the like powers, provisos, and
declarations as are herein declared with respect to their respective
original share or shares."
The testator by his will also settled pecuniary legacies and one-
third of his residue (altered by codicil to one-third of his ultimate res-
idue) upon each of his three sons and their issue by reference to the
settlements of the shares of his business, with gifts over in the case of
the death of each son without issue who should take a vested interest
in favor of the survivors or survivor and their issue. The legacy in
favor of Benson Harrison and his issue was in the following terms :
"And as to the sum of £26,000, the remaining part of the said sum of
i66,000, and also as to one other third part of the ultimate residue
of my said personal estate, I direct my said trustees or trustee for the
time being to stand possessed thereof for the like interests and purposes
and with the like powers in favor or for the benefit of my said son
Benson Harrison and his children and other issue (such issue to be born
in his lifetime), and with the like discretionary powers as to the pay-
ment of the interest or other annual produce thereof to my said son
Benson Harrison during his life as are hereinbefore declared with re-
spect to the shares in my said partnership businesses hereby .settled upon
him and them ; and in case no child or other issue of my said son
Benson Harrison shall acquire a vested interest in the said sum of
£26,000 and his said share in my residuary personal estate under the
trusts or powers hereinbefore contained or referred to, I direct that the
same or so much thereof as shall not be applied under the said pow-
ers and the annual income thereof shall be held in trust for my sur-
viving sons in equal proportions, upon the like trusts and for the like
200 CONSTRUCTION OF LIMITATIONS (Part 2
intents and purposes, with the Hke powers, in favor of my said sons
and their children or other issue, and with the hke discretionary pow-
ers as to the payment of the interest or other annual produce thereof
to them during their respective lives as hereinbefore declared with re-
spect to their respective original shares in the said sum of £66,000 and
in the residue of my said personal estate." There was no gift over in
case all the sons died and had no issue who attained vested interests.
The testator's sons Matthew Benson Harrison and Wordsworth Har-
rison both died in the lifetime of their brother Benson Harrison, and
left issue who took vested interests in their settled shares of the busi-
nesses and residue. Benson Harrison, the son, never had a child:
he was now dead. The question raised on this petition was whether
his share accrued to the shares of the issue of his deceased brothers, or
whether there was an intestacy.
CozEns-Hardy, J, This petition involves the construction of the
will and codicils of Benson Harrison, who died in 1863. He had three
sons: (1) Matthew Benson Harrison, who died in January, 1879,
having had three children; (2) Wordsworth Harrison, who died in
June, 1889, having had five children; and (3) Benson Harrison the
younger, who died in November, 1900, without issue. Under these cir-
cumstances the question arises who are entitled to a share in the testa-
tor's business which the son Benson enjoyed during his life, and also
who are entitled to a share in the residue which he likewise enjoyed
for life. [His Lordship read the material parts of the will, and con-
tinued:]
Now, it will be observed that there is no gift ove r on death of all
th ree sons witho ut issue, either as to t he bu siness or ~as~to the residue.
On beh alf of the clTiTdren of M atthew Benson and Wordsworth, it
has "EeeiTargued that th^y t ake althougE" their parents did not survive
Benson. This cont ention is bas^dTayo^n "tEe"^rouhd" that thefe~is suffi-
clent matter in^this will to justify the court in readThg^"surviving" as
meaning "other," or (b) on the ground that "surviving" has the mean -
in g'oT^Wrpital" sur vivorship, oT_(c)_on the ground that as a mat ter of
con struction the gifts are_ to the surviving _son s for li fe_and~to the
children or issue of the sons whether such sons survive or not. ~
On behalf of theHex't ofTdrTiFhas been^argued~^cI7tHafTliere is no
justification for departing from the plain meaning of the language
used, and that there is no gift except to the children or issue of sons
who survived.
Reading the will without reference to authorities, I think iLis__rea-
sonably clear that tlie_only_chi]dren_o^jssue who can take Benson's
share are'cTiiTdr e n or iss ue_of^ such of his Two brot hers as" mig ht sur-
vive hj m, and that, as neither of the two brothers_sur vived hiniTHier e
a re no chil dre n or issue who can tak e. It is not for me to guess wheth-
er this is what the testator would have desired. My duty is to construe
the language he has used.
Ch. 3) "sukvivor" construed vs. "other" 201
But in a will of this nature it is not possible wholly to disregard prior
decisions so far as they lay down principles, and my attention has been
called, and properly called, to a great many authorities. I do not pro-
pose to discuss them at length, more particularly as the wit of man
cannot reconcile them all. It is sufficient for me to say that I cannot
adopt the view that "surviving" means "other," or means "surviving
in person or in descendants," without running counter to Beckwith v.
Beckwith, 46 L. J. (Ch.) 97; 25 W. R. 282, Lucena v. Lucena, 7 Ch.
D. 255; In re Horner's Estate (1881) 19 Ch. D. 186, and In re Benn,
29 Ch. D. 839, three of which are decisions of the Court of Appeal.
1 cannot, however, pass over so lightly that which I have called
the third argument on the part of the children. It is supported by,
if not based upon, the considered judgment of Kay, J., in In re Bow-
roaiL. 41 Ch. D. 531. After dealing with the particular will before
him, the learned judge lays down three propositions as correctly sum-
ming up the law in cases of this nature :
"It seems to me that the decisions establish the following propo-
sitions :
"Where the gif t is to A., B., a nd C, equally for their respective i
lives, and attei ^the death of an y to his children, but il" any die withou t
chil dren~to the survivors for IJTe witl i r emainder to their childr en,
only c hildren of survivors can take under the gift over.
^T Tlo similar w ords there is added a limitation over if all the ten- ^
ants for life die without children, then th e chil dren of a predeceased
te^ iant for life participate in the share of one wlio dies without chil-
dren after their parent. ,-
"They_also_participate^although the re is j io general gift ove r, where 5 i '^ ^^ ^^
the li mitations are to A., B., a nd C. equally for their respective lives, /Lj; c^-^^l. 1
and a Tter the d eath qf^any to^hTs children, andTiFa ny die witTiout chil- "^
dren to the surviving te nants for li fe and tl iei^j'es^ective-c hildrpn, ip
the same manner as theironginalshares."
OftlTese three pro"positions the tirst and second seem to be well es-
tablished, and I adopt them without hesitation. The third propo-
sition, which covers the present case, has caused me considerable diffi-
culty. Kay, J., has stated this proposition as the result of the authori-
ties, and it is necessary to consider how far the authorities cited bear
out this view and how far those authorities have been overruled. They
are Hodge v. Foot, 34 Beav. 349, In re Arnold's Trusts (1870) L. R.
10 Eq. 252, and In re Walker's Estate, 12 Ch. D. 205.-
Now, in Hodge v. Foot, 34 Beav. 349, Sir John Romilly proceeded
partly upon the "scope and object" of the will, and the circumstance
that an intestacy would result unless "surviving" was read as "other."
It must, I think, be admitted that those reasons cannot now be accept-
2 See also Balch v. Pickering, 154 Mass. 363, 2S N. E. 203, 14 L. R. A. 125 ;
Fox's Estate. 222 Pa. lOS, 70 Atl. 954; Carter v. Bloodgood's Exr's, 3 Sandf.
Ch. (N. Y.) 293.
202 CONSTRUCTION OF LIMITATIONS (Part 2
ed: see the observation of Fry, L. J., in In re Benn, 29 Ch. D. 842.
Sir John Romilly also reHed upon Harman v. Dickenson (1781) 1 Bro.
C. C. 91, where, however, there was a general gift over such as would
bring the case within Kay, J.'s second proposition, and upon Hawkins
V. Hamerton, 16 Sim. 410. In that case Shadwell, V. C, did not lay
down any general principle. There was an express direction that
"after the decease of my said son and daughters, then I will and direct
that the whole of such residue * * * shall be paid and divided
amongst all and every the children of my said son and daughters in
equal parts." The class was not limited to children of such of the son
and daughters as should survive the wife. And the subsequent, and
apparently unnecessary, clause, that in case any of the son and daugh-
ters should die without leaving issue, then the share given to him, her,
or them so dying should go and be divided "amongst the survivor or
survivors of my said children and their issue in the like equal parts,
shares and proportions" was construed so as to make it consistent with
the former gift. This is the view taken of that case by Wood, V. C, in
In re Corbett's Trusts, Joh. 591.
In In re Arnold's Trusts, h- R. 10 Eq. 252, Malins, V. C, proceed-
ed upon a view which has since been distinctly repudiated by the Court
of Appeal. I may refer to Wake v. Varah, 2 Ch. D. 348. I think In
re Arnold's Trusts, L. R. 10 Eq. 252, cannot be regarded as a binding
authority : see the observation of Lindley, L. J., in In re Benn, 29 Ch.
D. 841. In re Walker's Estate, 12 Ch. D. 205, was a decision of Hall,
V. C. ; but in the subsequent case of In re Horner's Estate, 19 Ch. D.
186, the Vice-Chancellor in effect said (Ibid. 191) that his earlier deci-
sion could not be supported having regard to B^ckwith v. Beckwith,
46 L. J. (Ch.) 97, 25 W. R. 282. It is, I think, not incorrect to say
that not one of the three decisions relied upon by Kay, J., as warrant-
ing his third proposition can now be regarded as satisfactory, or as
laying down any principle which a judge of co-ordinate jurisdiction
ought to follow.
Against these decisions there is a considerable body of authority.
I refer especially to Milsom v. Awdry, 5 Ves. 465, 5 R. R. 102. There
there was a residuary bequest to the testator's nephews and nieces
equally per stirpes for their lives, and after the death of either of his
said nephews and nieces his or her share to be paid equally unto and
among his or her children. And if any of his said nephews and nieces
should die without leaving any child, then the share or shares of him,
her, or them so dying "should go to and among the survivors or sur-
vivor of them in manner aforesaid." The Master of the Rolls held
that the words "in manner aforesaid" meant in the same manner as the
original share — namely, for life only, and that the share of each, both
original and accruing, went to the children, if any. This seems to be
precisely the case contemplated by Jay, J., third proposition. But the
Master of the Rolls held that on the death of the last nephew without
Ch. 3) "survivor" construed vs. "other" 203
issue there would be an intestacy, although there were children of de-
ceased nephews and nieces. Milsom v. Awdry, 5 Ves. 465, 5 R. R. 102,
was approved by Wood, V. C, in In re Corbett's Trusts, Joh. 591,
which is indeed a strong decision in the same sense. It is true that
Malins, V. C, in In re Arnold's Trusts, L. R. 10 Eq. 252, 256, said
he was satisfied that Milsom v. Awdry, 5 Ves. 465, 5 R. R. 102, was
"contrary to a long line of subsequent authorities, and that it is no lon-
ger a binding authority." But for the reasons above stated, and hav-
ing regard to the judgments of the Court of Appeal, I am not able to
accept this view. Milsom v. Awdry, 5 Ves. 465, 5 R. R. 102, must, I
tliink, be considered as good law.
It follows that in my opinion the third proposition in In re Bowman.
41 Ch. D. 525, is not warranted by the authorities, and I must decline
to~Iollow iT. In my^vtew^TTlriakes no difiference whether the giftjpf
an accruing share is to the surviv ors f oiMife with remainder to their
children expressly, or is to the survivors and their childre n by refer-
en ce~To"the limitations o TTlTe on ginaTshar es.
I must therefore declare that on the death of Benson without issue,
his share in the business fell into the residue, and that there is an in-
testacy as to his share of residue thus augmented.
This declaration will probably suffice to enable minutes to be pre-
pared for effecting the division of the funds. ^
8 Approved Inderwick v. Tatchell, [1901] 2 Cli. (O. A.) 738.
204 CONSTRUCTION OF LIMITATIONS (Part 2
CHAPTER IV
VESTING OF LEGACIES
CLOBBERIE'S CASE.
(Court of Chancery, 1677. 2 Vent. 342.) i
In one Clobberie's Case it was held, that where one bequeathed a
sum of money t o a woman, at her age of twenty-one years, or day of
marriage, tobep aid unto her with interes t, and she d ir'^"^pf'^'"p pifber,
that the money should go t o her executor ; and was so decreed by my
Lord Chanceli^or Fynch.
But he said, if money were bequeathed to nne^f his age of twenty-
one years ; if he dies before that age the money is lost.^
On the other side, if_ money be given to one, to be paid at the age
of twenty-one year s ; though, if the party dies before, it shall go to the
executors.^ " " '
1 The decree was confirmed in the House of Lords. S. c, sub nom. Cloberry
V. Lampen, Freem. C. C. 24.
2 So, where the gift is contained only in the direction to pay at the expira-
tion of a certain number of years after the testator's death, the gift is con-
tingent on the leaatee surviving that time. Smell v. Dee, 2 Salli. 415 ; Bruce
V. Charlton, 13 Sim. 65; In re Eve, 93 L. T. R. 235; In re Cartledge, 29
Beav. 583 ; Hall v. Terrv, 1 Atk. 502 ; In re Kountz's Estate, 213 Pa. 390. 62
Atl. 1103, 3 L. R. A. (N. S.) 639. 5 Ann. Cas. 427 ; Id., 213 Pa. 399, 62 Atl.
1106 ; Andrews t. Lincoln. 95 Me. 541. 50 Atl. 898, 56 L. R. A. 103 ; Reid v.
Voorhees, 216 111. 236, 74 N. E. 804, 3 Ann. Cas. 940.
Fearne on Contingent Remainders, p. 1, Butler's note: "A. convoys land
by lease and release to B. and his heirs, to the use of C. and his heirs, from
the 1st day of tbe following January, or devises land to C. and his heirs, from
the 1st day of January next after the testator's decease. In the first case,
the fee remains in A. ; in the second, it descends to the heir at law of A.
till the day arrives upon which C. is to be entitled to the land, for an estate
in fee simple in possession. In the meantime, C. has not an estate in posses-
sion, as he has not a right of present enjoyment; he has not an interest in
remainder, as the limitation to him depends on the estate in fee simple, which
in the first case remains in A., and in the second descends to A.'s heir; he
has not a contingent interest, as he is a person in being and ascertained, and
the event, on which the limitation to him dei>ends, is certain ; and he has not
a vested estate, as the whole fee is vested in A. or his heirs. He therefore
has no estate, the limitation is executory, and confers on him and his heirs
a certain fixed right to an estate in possession at a future period."
3 Accord : In re Bartholomew, 1 Mac. & G. 354 ; Shrimpton v. Shrimpton, 31
B. 425 ; Maher v. Maher, 1 L. R. Ir. 22 ; Chaffers v. Abell, 3 Jur. 577.
But the executor or administrator of the legatee shall not have the legacy
until the legatee would have reached the time specified if he had lived.
Rodin V. Smith, Amb. 588 (1744) ; Maher v. Maher, 1 L. R. Ir. 22 (1877).
Semble, except where the whole interest of the legacy is given in the mean-
time. Rodin V. Smith, supra.
In Furness v. Fox, 1 Cush. (Mass.) 134, 48 Am. Dec. 593 (1848), the testator
provided as follows: "In the first place I give and bequeath to my grand-
son, John William Furness, son of my son John C. Furness deceased, five hun-
dred dollars, if he shall arrive to the age of twenty-one years, then to be paid
Ch. 4) VESTING OF LEGACIES 205
CHANDOS V. TALBOT.
(Court of Chancery, 1731. 2 P. Wms. 601.) *
The last question was touching the legacy of £500 which by the first
part of the will of Sir Thomas Doleman was given to his nephew Lewis
Doleman, to be paid at his age of twenty-five, and so a vested legacy as
to the personal estate,^ after which the testator's real estate was charged
therewith; and in regard Lewis Doleman died an infant of about the
age of fifteen, and before the time appointed for the payment, it was in-
sisted that this being a legacy charged upon land, did sink for the bene-
fit of the hseres f actus or natus ; that here the premises chargeable with
over to him by my executor hereinafter named." "All the rest residue and
remainder of my estate both real and personal of every sort and description
and wherever situated or being I give devise and bequeath to my children"
(naming five persons) "their heirs and assigns forever to be equally divided
l)etween them." The legatee, John William Fnrness, died before arriving
at the age of 21 years, and the executor sought to recover the money which
had been paid over to him. There was a verdict for the plaintiff, but excep-
tions were allowed atid a new trial ordered, the court holding that the legacy
was not contingent on the legatee surviving 21. Metcalf, J., said: "We have,
therefore, only to inquire whether, in the case before us, the words, "if he
shall arrive at the age of twenty-one years," relate to the words which pre-
cede, or to the words which follow them; or, in other language, whether the
arrival of the legatee at the age of twenty-one years is a condition precedent
to the gift of the money, or only to the payment of it into his hands. And
we are of opinion that the testator meant to make an immediate be<;iuest to
the gi-andson. as the representative of his deceased father, but that the mon-
ey should not go into his hands, during his minority. ' This seems to us to be
the most natural construction of the mei'e words of the bequest, although the
testator's meaning is obscured by the unfortunate collocation of those words,
and the inartificial punctuation of the sentence. We are somewhat confirm-
ed in this construction by the only other devising clause in the testator's will.
After the bequest to his grandson, he gave all the residue and remainder of
his property to his five children who were then alive, to be equally divided
among them, without any limitation over, by express mention, of the five hun-
dred dollars, in the event of his grandson's dying under age. It is true that
this residuary clause would have passed to the five children the money be-
queathed to the grandson, if the legacy to him had failed of effect ; but it is
hardly probable that the testator knew that such Avould be its legal operation."
* Only part of the case is here given.
5 See In re Hudsous, Dm. & Sugd. 6, where the legacy was vested so far
as it was charged upon a term.
So, if interest be given in the meantime, that will not vest the legacy so far
as it is charged upon land. Gawler v. Standerwick, 2 Cox, 15. But see
Murkin v. Phillipsou. 3 M. & K. 257.
■"It is a well-established rule as to portions or legacies payable out of lands,
that if made payable at a certain age, a marriage, or other event personal to
the party to be benefited, and such party die before that time arrive, the
portion or legacy is not to be raised out of the land; but if the payment be
postponed until the happening of an event not referable to the i^erson of the
party to be iHjnefited, but to the circumstances of the estate out of which the
portion or legacy is to be paid, such as the death of a tenant for life, then it
will be raisable after the death of the tenant for life, although the term out
of which it was to be raised had not arisen in consequence of the party to be
benefited not having been in esse at the time of the death of the tenant for
I'Jfe, as in Emperor v. Rolfe, 1 Ves. Sen. 20S ; Cholmondley v. Meyrick, 1 Eden,
7'^. 85; and many other cases." Per Lord Cottenham, C., in Evans v. Scott,
1 H. L. C. 43, 57 (1847).
206 CONSTRUCTION OF LIMITATIONS (Part 2
this legacy, amongst other parts of the real estate of the testator, were
devised to trustees and their heirs, upon the trusts and to the uses
hereinbefore mentioned ; it was true in case of a bequest of any sum
of money out of a personal estate to one, to be paid at his age of twen-
ty-one or twenty-five, if the legatee dies before the time of payment,
it becomes notwithstanding a vested legacy transmissible to executors
or administrators; but where such legacy is devised out of a real es-
tate, and the legatee dies before the time appointed for payment, there
the legacy shall sink into the land ; because equity will not load an
heir for the benefit of an executor or administrator.
At another day, this cause having been adjourned in order to search
precedents, the Lord Chancellor [King] said he had looked into the
case of Yates and Phettiplace in 2 Vern., and also that of Jennings
and Lookes [2 P. Wms. 276] , both which came fully up to the present
case, viz., that where the personal estate was not sufficient, and the real
estate in failure thereof was made liable to answer the legacies, in case
of the legatee's dying before the legacy became due, the charge upon
the land determined ; that it seemed but a very slight and superficial
diversity between a legacy given at twenty-one, and payable at twenty-
one; and though it had been established in the spiritual court, as to
legacies given out of a personal estate, it did not deserve to be fa-
vored or countenanced, where the legacy is charged upon land, and the
infant legatee dies before t}venty-one, or before the time when the leg-
acy is made payable^ that there was not any the least difference between
a sum of money charged by a will on land, payable to an infant at
twenty-one, and where such charge arises by a deed. That the authori-
ties before mentioned show there is no difference where the real as well
as the personal estate is charged, for in such case, as far as the exec u-
tor or administrator claims out of the latter, he shall succeed according
to" ~tHe rule of that~coiI rt w here these th ings ar e determinabTer" even
thoug h the infa nt legatee dies before the time of paymen t, but as^ar as
the legacy is diarged upon the land^^o_fa r shall it, on the l egatee's
dytngljefore the legacy becomes payabTe, jmk ; and this beingthe rure
which has of late universally prevailed, be the legatee a child or a
stranger, it would be of the most dangerous consequence, and disturb
a great deal of property for him to break into it.
Wherefore he thought that the £500 legacy payable to Lewis Dole-
man at twenty-five, on his dying before that time, as to so much thereof
as was payable out of the land, must sink.^
6 "I have often heard it said, that the reason why legacies, &c., charged ou
land, payable at a future day, shall not be raised, if the legatee dies before
the day of payment, though it is otherwise in the case of a charge on the
personal estate, is this, that the heir is a favorite of a court of equity, and
ought to have the preference of the representative of a legatee, and likewise
that the court will go as far as they can in keeping the real estate entire, and
as free from encumbrances as possible.
"But I think the court has never gone upon such reason, but the true rea-
son I take to be this, that the court will govern themselves as far as is con-
Ch. 4) VESTING OP LEGACIES 207
ATKINS V. HICCOCKS.
(Court of Chancery, 1737. 1 Atk. 500.)
A testator devises in these words, "I devise to my daughter Eliza ^^
beth Hiccocks, the surn of ^£200 to bej^ai d her at the time of herliTar^
riageT or withinTlhree months after, jiiovide d she marry w it h the ap^
probatioiiof_ my twoTons William and Sani uel^Hicc ocks, or the sur-
vivor of them ; and my wnll is, that my said daughter Elizab eth shall
yearly receive, an d be paid, until suchjime as she_sh all m arry, the sum
of twelve poun'HsT free and clear of all taxes and impositions whatso-
ever." And "willed, that his leasehold estate called , should
stand charged with the payment of the said £12 per annum, and like-
wise with the payment of the £200 when the same should become due,
and devised the said leasehold premises, and his whole personal estate,
to his two sons, and made them his executors.
El izabeth died after 21, but without being married ; and the present
plaintiff, as her administrator, brought a bill against the executors of
Hiccocks for the £200.
The general question, \\'hether the legacy vested in Elizabeth, and
whether it so vested as to be transmissible to her administrator?
Lord Chancellor [Hardwicke]. I am of opinion this was not a
ve sted legacy ; in the common cases of legacies to be paid at the age of
2l7there is a certain time fixed, not to the thing itself, but to the exe-
cution of it, and the time being so fixed, must necessarily come : but
when the time annexed to the payment is merely eventual, and may or
may not come, and the person dies before the contingency happens, I
can find no instance in this court, w'here it has been held that the legacy
at all events should be paid. The rule as to the vesting is founded upon
another rtile, certum est quod certum reddi potest, and it is plain that
the testator did not regard the point of time, but the fact that was to
happen, the marriage, which makes it a legacy on a condition, and
cannot be demanded till the condition be satisfied.
It has been argued by ]\Ir. Attorney-General, that this bequest dif-
fers not from a legacy given to be paid at 21, which vests immediate-
ly, and the time of payment only is postponed.
But it has been always held, with regard to such a limitation of
payment at 21, that it is debitum in prgesenti, solvendum in futuro,
and the payment postponed merely on account of the legatee's legal
sistent with equity hy the rules of the common law. In the case of personal
estate, the rule is the same here as in the civil law, that there may be an
uniformity of judgments in the different courts ; but in the case of lauds, the
rule of the common law has always been adhered to: as suppose a person
should covenant to pay money to another at a future day, if the covenantee
dies before the day of payment, the money is not due to his representative.
The same rule holds in the case of a promise to pay money." Per Lord Hard-
wicke, C, in Prow.se v. Abingdon, 1 Atk. 4S2, 486 (1738). See, accord Pearce
V. Loman, 3 Ves. 135 (179G).
208 CONSTRUCTION OF LIMITATIONS (Part 2
incapacity of managing his own afifairs till that age ; and this has been
the established rule of this court ever since Clobberie's Case, 2 Ventris
342.
In the Digest, lib. 35, tit. 1, lex 75, de Conditionibus, &c., it is
held that dies incertus conditionem in testamento facit, and these are
the Avords of the text, and not of the commentator ; so that a time
absolutely uncertain is put on the same footing as a condition ; but as
the civil law is no further of authority than as it has been received in
England, let us see what our own authors say. Swinbourn, part 4,
sec. 17, page 267, old edition, makes a difference between a certain
and an uncertain time, and lays it down, that if a legacy is given to be
paid at the day of marriage, and the legatee die before, the legacy is
lost. God. Orp. Leg. 452, is to the same eft'ect.
It has been insisted, that the testator's giving £12 per annum to Eliz-
abeth till the contingency of her marriage, is in the nature of interest
for the i200 and that from thence it appears to be his intention, that
the legacy should vest in the meantime ; but whenever this doctrine has
been allowed, the payment of the principal hath been certain, and
so not similar to the present case, because here this is not m eant as
in terest, for it is an annuity of £12 per annum charged up on, and is-""
suing out of an estate.'^
'The^asc in-t Salk, 1/0, Thomas v. Howell, was plainly a condition
subsequent, and being made impossible by the act of God, it was ad-
judged that the condition was not broken, and consequently should not
devest the estate out of the devisee.
The second point is very strong against the transmissibleness, which
is her marrying with the consent of her two brothers^ and shows plainly
the testator intended a conditi on precede nt, that if she married she was
to have £200 for her portion ; but it she died before, there was no
occasion to have it raised for the benefit of a stranger.
It is true indeed, as there is no devise over, the clause of consent
might be only in terrorem, but in all cases, where the condition of'
marrying is annexed, it is necessary that the condition, as to the mar- '
r> TTrg'^ least, should be performed, though she is not obliged to marry
with consent. ~~~ ~ "
am the more satisfied, because it appears to be the intention of the
testator, tliat this £200 should be in the nature of a marriage portion,
for he has taken it out of a leasehold estate ; and if she did not marry,
it was manifestly his design that it should sink in that estate for the
benefit of his sons : therefore I think this bequest is to be considered
as a condition precedent, which not being performed, the legacy did
never vest, and consequently the administrator can make no title to it.
The bill dismissed.^
7 See Watson v. Hayes. 5 Myl. & Cr. 125 (1839).
8 Accord: Morgan v. Morgan, 4 De G. & S. 164; In re Cantinon's IVIinors,
16 Ir. Cli. 301 ; Corr v. Corr, I. Ri 7 Eq. 397 ; Taylor v. Lambert, 2 Cli. D.
177.
Ch. 4) VESTING OF LEGACIES 209
BOOTH V. BOOTH.
(Court of Chancery, 1799. 4 Ves. Jr. 399.)
Robert Bragge by his will, dated the 21st of January, 1777, devis-
ed his real estate to his great-nephew Robert Booth and his issue in
strict settlement, with remainder to his brother Richard Booth and his
issue in strict settlement; with similar remainders to their sisters
Phoebe Booth and Ann Booth, and their issue respectively.
The testator also gave a legacy of £600 to his great-nephew Robert
Booth, and ilOO to Robert Lathropp, whom he appointed sole execu-
tor; and, after giving some other pecuniary legacies, he gave all the
residue of his estate and effects, which should remain after paying
Ris" delits, funeral expenses, charges of proving his will, and the lega-
cies, to Sir John Chapman and Robert Lathropp, their executors, ad-
ministrators, and assigns, upon t rust as soon after his decease as con-
veniently might be to collect and get in same, and i nvest same from
time to time in some of the public funds or upon government or real se-
curity in their joint names or in the name of the survivor with pow-
er to change such funds ; and upon t rust to pay the dividends and
p roduce thereof , as the same should from time to time become due,
equally between his great-nieces Phoe be Booth and Ann Booth until
th eir respecti ve marriages, and trom and mtmediately after their r e-
spective marriages to assign and transfer their respective moieties or
sh ares thereof unto them respectiveTy ^ ~
The tes tator died soon afterwards, Richard Booth took a consider-
able reaT estate upon the death of his father.
At the date of the will Phoebe Booth and Ann Booth wpre both o f
a ge; and they filed the bill to have their interests in the resi due de-
cl ared : but the Master of thd Rolls thought that, as the plaint iffs
mig ht marry, the question was not ripe for decis ion.
By the decree made in that cause on tlie l^tlTof June, 1793^ the
fun d was ordered to be transferred to the Accountant-Genera l ; and
an inquiry was directed for the purpose of ascertaining who were the
testator's next of kin at the time of his death.
The report stated that the plaintiffs and their two brothers Robert
and Richard Booth were the testator's next of kin at the time of his
death ; and that the plaintiff Phoebe Booth died in June, 1797, without
h aving been ever married. B y~her will, made shortly before her death,
she appointed her brother, the defendant Richard Booth, and the
plaintiff Ann Booth, her executors ; and having disposed of certain
real estates, and given a legacy of .£100 to her brother Richard Booth
for his trouble as one of her executors, she gave the residue of her
personal estate to the plaintiff Ann Booth, but with such request an-
nexed, as therein mentioned.
4 Kales Pbop. — 14
210 CONSTRUCTION OF LIMITATIONS (Part 2
The cause coming on for farther directions, the question was, wheth-
er the shnre of Phnehe Bootli in the residue of the personal estate of
Ro bert Bragge un der his will was an abso lute vested interest in her,
to be transferred to her executors, or whether in the event of her
having died unmarried it belonged to the next of kin of Robert Bragge
as undisposed of.
Master of the Rolls [Sir Richard Pepper Arden]. This case
deserved very great consideration, lest it should be supposed, that the
court had by deciding it transgressed the rule laid down as to legacies
given payable at an uncertain time. When it was argued, I was im-
pressed with an idea, that it was disti nguishable from all the cases in
respect of its_being not the case of a legacy, but a residue ; and allthe
cases, in which that rule prevailed, were cases of mere legacies, to be
paid out of the personal estate by the executor ; the residuary legatee,
or the executor, if he was to have the residue, having only to pay at
the time the legacy became due, and taking the residue. But this is
not that case, but the case of a residue.
I do not see, that any of the pecuniary legacies are given to Phoebe
and Ann Booth; though I do not think, that would make much differ-
ence : they are both comprehended in the limitations of the real estate.
It is to be observed, that Robert Lathropp only is executor : Sir John
Chapman is a trustee, but not executor. Therefore it is not a gift of
the residue to tlie executor, but to him and another person upon these
trusts. Both these residuary legatees were adults at the time the
residue was, given to them : if it had been otherwise, it might have
made some ingredient in the argument. The event that has happen-
ed, is that one of them has died without having ever been married ;
and the bill ^ i s filed by her sister claiming under her will, and insistin g,
that s he was entitle d, though she never married; that marriage was
not'~a" condition precedent, upon wh ich the residue was to vest; but
mei'elv denoted "IHe tiiT ie^_a x which the residuary legatees were to be
put in full possession of the property .
THe^ argument upon the part of the plaintiff turned upon a ground,
that is frequently taken upon legacies payable at a future day, which
on account of the death of the legatee never arrives ; that the time
being mentioned merely as the time of payment on account of the
situation and circumstances of the party is never held to defeat tlie
legacy. The cases were commented upon on both sides. Atkinson
V. Paice [1 B. C. C. 91], was mentioned; which I lay out of the case.
It does not prove much. Of the other cases, Boraston's Case [3 Co.
19a], Doe v. Lea [3 T. R. 41,], Goodtitle v. Whitby [1 Burr. 228],
and Mansfield v. Dugard, 1 Eq. Ca. Ab. 195, are in favor of the plain-
tiff: but it was properly observed, they were all cases of an abso-
lute interest; the possession of which was to be given at a certain
time. The reasoning upon them would be sufficient for the plaintiff,
9 A supplemental bill was filed after the report in the original cause.
Ch. 4) VESTING OF LEGACIES 211
if applied to this case; for the reasoning is, that though the testator
has given a partial interest till that time, those words of reference as
to the time are not to be considered as referring to the time, upon
which only the devise is to take place, but the time, at which the devisee
or legatee is to be entitled to the full and absolute benefit of the be-
quest ; and a reason is given, which does not apply to this case, that
it cannot be supposed, that, if the devisee or legatee should die before
that time, leaving children, the intention was, that children should not
take. I shall not comment upon the cases. The arguments of the
judges, who decided them, are very full to show, that such words do
not make a condition precedent, but merely denote the time of absolute
possession.
It is very true, the cases relied on by the defendant, Garbut v.
Hilton [1 Atk. 381], Atkins v. Hiccocks [lb. 500], and Elton v. Elton
[3 Atk. 504], are very distinguishable from th is. First, t hey are all
cases of mere legacy, not of a residue : se condly , in the very gift of the
legacy it is perfectly clear, as Lord Hardwicke observes in Etton v.
Elton, that they are all cases of a conditi on absolutely precede nt. It
is impossible not to see, that~^tlie testator meant the legatee to bring
himself into the circumstances specified. In all those cases the legacy
was given upo n a marriage with a given consen t, it is impossible ni
that sort ot case to say, the legatee could be entitled without that. It
would be to put a violation upon the very words of the bequest. There-
fore the plaintifif's counsel are fully justified in saying, those cases
cannot be brought to bear upon this question. They are cases of
legacies, and conditions precedent. They were considered and deter-
mined as such.
For the defendant, besides the cases, I have mentioned, the late case
of T|^^,f^fri'"'^ ^' ^^'^bbf^^ [3 Ves. Jr. 363], was relied on; in which the
Eord Chancellor took a great distinction between a bequest of a sum of
money payable at a future time and a gift of the interest until a certain
time and then a gift of the principal. His Lordship gives a short
judgment; but upon consideration of all the cases he laid it down, that
it is necessary to show, the principal was intended to be given, before
the time arrived ; and in that case he for that reason held, the legacy
(for that was the case of a legacy) never attached.
It is to be considered, whether this case is in its circumstances
distinguishable from all these cases ; and I am of opinion, it is. It
is distinguished from Batsford v, Kebbell in this respect: that this_
is m~fact an aTDSolTTtCgift of the residue to" trustees. It may be said,
so much ot the trust as is not sutticiently declared must go to the person,
who would be entitled, in case there was no disposition : but I think,
it is equivalent to saying, in trust for them, to pay and dispose of the
dividends and interest to them till their respective marriages, and
then to assign and transfer the principal : for it is not merely a gift
o f the intere st until m arriage,_stopping ther£, and after -tlie„iiian:i age
a gitt ot the principal rbut it is impossi ble not t^ '^("p, <^hn i- thp^p vv-nrH'^
212 CONSTRUCTION OF LIMITATIONS (Part 2
a re equivale nt to a gift of Jhe principal. The testator co nsiders it a s
given. He spe aks of it as their shares o'f the residue! 'ihe day of
their marriage is the time, at which they are to be put into actual
possession of their shares. I cannot construe this otherwise than an
absolute gift of the residue, qualified only thus, that until their mar-
riages, until when, I suppose, he thought they would not want it, they
were not to have the actual possession.
That there is a difference between a bequest of a legacy and a residu e
with refer ence to this point cannot be denied either upon principle or
prece dent. ^Every inten dment i s to be made against holding a m an
to cTTe intestate, who sits down to dispose of the residue of his prop -
erty!! How did this testator dispose of it? It might be supposed nat-
ural, that they would marry. It might be in his idea, that there might
be a possibility, that they might not marry. If he did not mean by
the residuary bequest to dispose of the absolute interest, it was nat-
ural, that he should declare, what should be the case, if they should
not mtirry. He has done that. So much as to the principle.
Next, how far in point of precedent has a gift of the residue been
held distinguished from a mere legacy? In Monkhouse v. Holme, 1
Bro. C. C. 298, Lord Loughborough comments upon all the cases; and
among others mentions Love v. L'Estrange [3 P. C. C. (Toml. Ed.)
59] ; upon which I mainly rely in this case. His Lordship says, that
case was determined upon the ground of its being a residue; and,
if the report is correct, he gives a decided opinion, that Love v.
L'Estrange, if it had not been the case of a residue, would not have
been decided as it was; being of opinion, that, if it had not been the
case of a residue, but a legacy, it would not have been a vested inter-
est. I am not now coinmenting upon the point, whether that argu-
ment strictly applies to Love v. L'Estrange. It is enough for me to
avail myself of Lord Loughborough's comment upon it ; who was evi-
dently of that opinion upon the ground, upon which Batsford v. Keb-
bell was decided. In ]\Ionkhouse v. Holme Lord Loughborough seems
to be of opinion, as he was in Batsford v. Kebbell, that in Love v.
L'Estrange, there being no gift of the principal until the age of twenty-
four, and only a partial gift in the meantime, from the age of twenty-
one, not so much as the interest, the principal could not attach until
that time, unless upon its being the case of a residue ; which distin-
guished it from Batsford v. Kebbell, a case in other respects very
like it. I do not find, that is mainly insisted on in the printed case of
Love V. L'Estrange; and I see, in May v. Wood [3 B. C. C. 471], I
stated that fact, that it was not insisted on; and that I did not see
any difference between the cases of a legacy and a residue. If I did
say so, I spoke with too much latitude ; for I then thought, and I now
think, there is a distinction ; though in that case it made no dift'erence ;
the words being so like those in Doe v. Lea, and Goodtitle v. Whitby ;
in the latter of which some principles are laid down by Lord Mansfield,
with regard to all words, that may be construed words of reference to
Ch. 4) VESTING OF LEGACIES 213
the time, at which possession is to be given, and not words of condi-
tion, that seem to me to govern the decision of this case. The first
principle laid down by Lord Mansfield is, that wherever the whole
property is devised, with a particular interest given out of it, it oper-
ates by way of exception out of the absolute property.
In that case the estates were given to trustees and their heirs, upon
trust to apply the rents and profits for the maintenance and education
of the nephews of the devisor during their minorities ; and when and
as they should respectively attain the age of twenty-one then to the
use of his said nephews.
Another principle laid down by Lord Mansfield is, that, where an
absolute property is given, and a particular interest given in the mean
time, as until the devisee shall come of age, &c., and when he shall
come of age, &c., then to him, &c., the rule is, that shall not operate
as a condition precedent, but as a description of the time, when the
remainder-man is to take in possession.
If this will had mentioned a particular age instead of marriage, there
could be no doubt, that these cases would have absolutely governed it;
for though I do not deny, that dies incertus in testamento conditionem
facit, I say, admitting that principle that marriage is the time, at which
they were to be put in possession. It is true, the testator fixes the mar-
riage to the time at which they were to be put in possession. It is not
a marriage under any qualification, but whenever they s hould marr y.
W^ iere is the absurdity, that that tmie shou ld be hxed, as the time for
thei r being put into possession ? The testator thought that the time at
which they might want it, and until which it would be better applied
upon that trust for their benefit.
Therefore, without breaking in upon that rule of the civil law, or
the cases before Lord Hardwicke, to whose doctrine I wish to refer,
that, it is impossible not to see, that the testator in those cases did
mean those circumstances to be conditional, I am of opinion, tliere i s
no thing in this will to show a c ondition precedent to the vesting o f
this 'interest. Another reason may be given. Suppose, one of these
sisliefs had married, and had children: this interpretation puts it in
the power of the other to provide for those children. It has been de-
termined, that where a legacy is given, payable at the "age oi' LrreiiLy " ^
fouT^ the legatee at ihe age of twenty-one may dispose of it by will.
The saint I'easuii applies lo tnis case.
Upon these circumstances, and the ground, that tliis is a residue, and
upon the words of the bequest in this case, I am of opinion that the
plaintiff^ is vyell entitled under the Avill of her sister to her share of the
residue.
The counsel for the plaintiff applied fo r a direction for payment o f
her moietA "^
TIaster o? the Rolls. I doubt as to giving that direction. In alj^
the se c ases the court has never yet accelerated the paymen t. It ma>
be a vested mterest, and disposable, but not tangible in the rr\e^r,~}:mF^
214 CONSTRUCTION OF LIMITATIONS (Part 2
It is worth consideration upon the question, whether the survivor has
any right to denlflnd p;iyffleill Uiid t u be puL in pusb.essiOn of this vested
in terest until the day of her marriage. Suppose, i n Love v. L'Estran ge,
where the testator had anxiously given only £10 a year till Walter
Nash should attain the age of twenty-four, having attained the age
of twenty-one he had brought his bill : does it follow, that he would
have been put in possession? No other person could have had any
advantage from it in that case. It is like the case of an infant, who
ma y dispo se of property, though he caniiot have possession of it,_until
hejs^qf age] I will consider of this point. I am not sure, it may not
be a wise provision, intended for the benefit of the legatee.
By the decree it was d eclared , that the plaintiff Ann Booth and the
defendant Richard Booth as executor and executrix of the testatrix
Phoebe Booth are entitled to one moiety of the Bank Annuities and
B ank Sto ck, constituting the clear residue ot the personal estate of the
testator Robert Bragge, and it was ordered, th at one moiety of the said
Bank Annuities and Bank Stock be transf erred accordingly, to be a p-
plied by them to the purposes m tlie said testatri x's will mentioned ;
and that the i nterest and dividend s to accrue due on the other moiety
of the said Bank Annuities and Bank btock be trom time to time pa id
to the said Ann Booth dufing~her l ifej _f\nd in case of her marriag e
th e said Ann Booth, or in case of her death before marriage any ot he r
perso n interested in the said Bank Annu iti es and Bank Stock, are to
be at liberty to apply to the court, as there shall be occasion.
SAUNDERS v. VAUTIER.
(High Court of Chancery, 1S41. 1 Craig & P. 240.)
Richard Wright, by his will, gave and bequeathed to his executors
and trustees thereinafter named, all the East India stock whic h sh ould
be^sFan ding in his name at the time of his death, upon trust to ac-
cu mulate the interest and clividencls which shou fd "accrue due thereon
unti l Daniel W right Vautier, the eldest son of his (the testator's) neph-
ew, Daniel Vautier, shou ld, attain his age of twenty-five years, and
th eii to pay or transfer the principal of such East India stock, togetlier
w i th such accumulated interest and dividends, unto the sa id Daniel
WViglTt Vautier, his executors, administrators, or assigns absolutely;
and the testator gave, devised, and bequeathed all his real estates, and
all the residue of his personal estate whatsoever and wheresoever, to
his executors and trustees thereinafter named, their heirs, executors,
administrators, and assigns, upon t rust tose ll an d convert into money
all his said real and personal estates immeoiately after his decease, and
t o inves t the produce arising therefrom in their names in the £3. per
cent consolidated bank annuities, and to stand possessed thereof upon
Ch. 4) VESTING OF LEGACIES 215
t rust fo r the said Daniel Vautier and Susannah his wife, and the sur-
vi vQC ot them, durmg their respec tive lives, and from and afltif Lire
decease of the survivor of them, upon trust for their children, equally,
when and as they should, severally, being sons, attain the age of twenty-
one years, or being daughters, attain that age or be married, with the
consent of their trustees and guardians, and in the meantime to apply
the interest and dividends, of the respective shares of such children
for their benefit, education, or maintenance ; and in case any child
should die before attaining a vested interest in the fund, then the tes-
tator directed that the share of the child so dying should go and sur-
vive to the others : and the testator nominated and appointed his friends
John Saunders and Thomas Saunders his executors and trustees.
The testator died on the 21st of March, 1832, at which time a sum
of £ 2000. E ast India stock was standing in his name. The executors,
having proved the will, left that sum standmg m the testator's name,
but invested the dividends on it, as they accrued, in the purchase of
like stock in their. own names.
Shortly after the testator's death, this suit was instituted by the ex-
ecutors against Susannah Vautier and her children (Daniel Vautier
having died in the testator's lifetime,) for the purpose of havTng'flie
trusts "of the will carried into execution under the direction of the
court; and a decree was accordingly made, directing the usual ac-
counts. A p etition was afterwards presented on behalf of Daniel
Wright Vautier, who was the n a minor , praymg the appointment ot
a '"gual'di^lh, and an allowance tor his past and future mai ntenance :
and, the usual reference having been directed, the master, by his re-"
port, found, amongst other things, that the petitioner's fortune con-
sisted of the sum of £2277 . 6s. 7d. East India stock, being the amount
of the above-mentioned sum of £2000., with the accumulations thereon
since the testator's death, and of one-seventh shai-e of the testator's
residuary estate, which would be divisible on the death of the peti-
tioner's mother. He also found that the petitioner had been educated
and maintained, since the death of the testator, by his mother, and that
she had properly expended in such maintenance the sum of £338. 2s.,
which he found ought to be paid to her by sale of a sufficient part
of the £2277. 6s. 7d. East India stock; and he found that the sum
of £100. per annum would be a proper sum to be allowed for the main-
tenance and education of the petitioner for the time to come during
his minority, and that it should be paid out of the dividends of the
East India stock.
By an order of the Master of the Rolls, (Sir C. C. Pepys,) dated
the 25th of July, 1835, that report was confiniied and carried into ef-
fect, and, in pursuance of that order, the trustees continued, during
the minori ty of Daniel Wright Vautier, to pay the sum of £100., out
of tt grtTiviclcnds of Jh e stock, for his maintenance.
0aniel Wi^ight Vautier attained twenty-o ne in the month of Marc h,
1 84 1," and being then about to be married, he presented a petition to
216 CONSTRUCTION OF LIMITATIONS (Part 2
the Master of t he Rolls, ^'^ praying that the trus tees might be ordered
t cf tia n yit'i lu him the E ast India stock , or that it might be reterred
to' the master to inquire whether it would be fit and proper that any
and what part of the stock should be sold, and the produce thereof
paid to the petitioner, regard being had to his intended marriage, and
for the purpose of establishing him in business.
Upon that petition coming on to be heard before the Master of the
Rolls, his lordship's attention was called to the order of the 25th of
July, 1835, whereupon he declined to deal with the question raised
upon the petition, so long as that order remained ; and it was, in con-
sequence, arranged that the petition should stand over, for the purpose
of enabling the other residuary legatees to present an appeal petition
from that order to the Lord Chancellor.
An appeal petition was accordingly presented, praying, simply, that
the order of the 25th of July, 1835, might be discharged or varied;
and that petition now came on to be heard.
The Lord Chance;llor [Lord Cottenham]. I cannot recognize
the principle that the existence of an erroneous order as to maintenance
prevents the court from making an order inconsistent with it, as to the
principal fund. There was nothing to prevent the Master of the Rolls
from disposing of the petition which was brought before him, notwith-
standing that order. But, with respect to this petition, I do not see
to what purpose I can deal with it. If the party were still a minor,
and the payment of the maintenance under the order were going on,
there might be a reason for applying to stop it for the future ; but by
discharging that order, I should be making the trustees liable for the
payments they have made for maintenance. The petition presented
to the Master of the Rolls is not now before me, or, wnth the con-
sent of the parties, I would dispose of it.
The; Lord Chancellor. I should not have thought this a case of
any difficulty; but the form in which it came before me, namely, a
rehearing of an order mad e by me at the Rolls, though not, as I at
first understood, at the suggestion of the Master of the Rolls, has
called upon me to give it my most careful attention. I have no recol-
lection of the case, and have no means of knowing how far my judg-
ment was exercised upon the construction of the will. I cannot, how-
ever, assume that the order was made without my having considered
the state of the property as stated in the master's report; as that would
have been contrary to the course which I have always thought it my
duty to adopt in such cases.
It is argued that th e testator's great nephew, Daniel Wrigh t Vautier,
does not take a vested interest in the East India stock before his age
o f twenty- five, because there is no gift but m the direction tcT transfer
the stock to him a t that age, but is that sor There is Jin inTmediate
10 Lord Langdale, the successor of Sir C. C. Pepjs, who became chancellor
with the title of Lord Cotteuhaiu. The case before Lord Langdale, Master of
the Rolls, is reported 4 Hfetiv. 115.
Ch. 4) VESTING OF LEGACIES 217
gift of the East India stock; it is to be separated from the estate and
vested in trustees; and the question is whether the great nephew is
not the cestui que trust of that stock. It is immaterial that these trus-
tees are also executors; they hold the East India stock as trustees,
and that trust is, to accumulate the income till the great nephew at-
tains twenty-five, and then to transfer and pay the stock and accumu-
lated interest to hirn, his executors, administrators, or assigns. The^ e
is no gi ft over; and the East Indi^ stock eitlier_belon^ to the j^reat
ne pncw, or will fall intoThe residue m the event of his dying under
twenty-rive. I am clearly of opinion that he is entitled to it. If the
gift were within the rule, there would be circumstances to take it out
of its operation. There is not only the gift of the intermediate inter-
^st, indicative, as Sir J. Leach observes in Vawdry v. Geddes, 1 Russ.
& Mylne, 203 (see p. 208), of an intention to make an immediate gift,
because, for the purpose of the interest, there must be an immediate
separation of the legacy from the bulk of the estate; but a positive
di rection to separate the legacy from the estate, and to ho ld it upon
tru st for the legatee when he shall attain twenty-fiv e, 'ihe decision in
Vawdry v. Geddes and other cases, in which there were gifts over,
cannot affect the present question. Booth v. Booth, 4 Ves. 399, is cer-
tainly a strong case, and goes far beyond the present, and so does
Love V. L'Estrange, 5 Bro. P. C. 59; and it is a decision of the House
of Lords. That case has many points of resemblance to the present;
and although Lord Rosslyn seems in Monkhouse v. Holme, 1 Bro. C. C.
298, to question the principle of that decision, Sir W. Grant, in Hanson
V. Graham, 6 Ves. 239 (see p. 248), justifies it upon grounds, most of
which apply to this case, particularly that the fund was given to trus-
tees till the legatee should attain a certain age, and that it should then
be transferred to him ; from which and other circumstances he thought
it was to be inferred, that the fund was intended wholly for the benefit
of the legatee, although the testator intended that the enjoyment of
it should be postponed till his age of twenty-four. Such, I think, was
clearly the intention of the gift in this case.
It was observed that t he transfer is to be made to the great nephew,
h is executors, administrators, or assigns. It is true that the addition
of tliose words d o^es not prevent the lapse of a legacy by the dea th of
th e^ legatee in the l ifetime of the testator, but they are not to be ovef -
1 ooked, when the qu estion is, whether the legacy became vested bef ore
the _age sp ecified; because if it were necessary that the legatee should
live till that age to be entitled to the legacy, then there would be no
question about his representatives at that time.
I am therefore of opinion that ^ order of 1835 wasjright, and that
the^petiti on of rehearing mu s t be clismissed, and with costs ; which I
should not have ordered, if the Alaster of the Rolls had recommended
the parties to adopt that proceeding upon a view of the merits of the
case, but which I am now informed was not the case. The order for
218 CONSTRUCTION" OF LIMITATIONS (Part 2
a transfer of the funds, u pon the regular evidence of the legatee hav-
ing^ attai ned twenty- one, will tollow this jecisioii ii2on tlTFco nstruction
of the wUT. ~
HOATH V. HOATH.
(Court of Cbancery, 1785. 2 Brown, Cli. Cas. 3.)
Upon a petition, the testator, by his will, gave a sum of £1 00 to
Tho mas Hoath, at his age of twenty-one, and directed the interest, in"
the meantim e, to be paid to his mo tlier for his maintenance. Thomas
Hoath d}dng under age, the question wasT^TTether this legacy was, or
was not, vested.
Lord Chance;IvLOR [Thurlow] said, it was impossible now to con-
tend that where the i nterest of a l egacy is given to the legatee, until
the time oj^gayment of the principaF, I TiaTt It is not "a" vested legacy ;^
and tlieg iying the interest for his maintenance _is__^e_cisely the same
thing/ ^
BATSFORD V. KEBBELL.
(Court of Cbancery, 1797. 3 Ves. Jr. 363.)
The testatrix gave and bequeathed to Robert Endly the dividends,
that should become due after her decease upon ibUO 'i'hree per cent
Bank Annuities, un til he s hould arrive at the full age of thirty-two
year_s; at which time s he direc ted her executors to transfe r to~Ti iin
the princip al sum of £500 of h e^JThree per cent Annuities for his own
use.
R obert Endly died before he attained the age oi thirty-two. The
bill Was filed by the residuary legatee; and the question was, whether
the vesting of the legacy or the time of payment only was postponed,
till the legatee should attain the age of thirty-two.
May 12th. Lord Chancellor [Loughborough]. It strikes me at
present, that there is a very precise distinction here between the divi-
dends and the fund. If I construe it a gift of the fund to him, I must
strike out the suspension of it till the age of thirty-two. I wish to look
at the cases.
May 13th. Lord Chancellor. I have read over the will, and have
looked into the cases, and am confirmed in my opinion. Upon the
cases it appears, that dividends are always a distinct subject oT legacy,
aiid capital stock another subject of legacy. In this _case there is no
gifFbut m__the dfrection for payment; a nd Tlie (^ rectio n for paym ent
attJlcHei^nly upon ajperson of the age of thirty^twd." "Therefore he
dtJ^^Tiot~tall wiTITrn the description. In alTthe other cases the thing
is given, and the profit of the thing is given.
11 See, also, In re Hart's Trusts, 3 De G. & J. 195 (1858).
Ch. 4) VESTING OF LEGACIES 219
Declare, that t his legacy o f i.500 stack J", t^e .event, that has hap-
pened, felMntojhe_ixsjduej^i2on_^^ ; and di-
rect a transfer to the plaintiff.
HANSON V. GRAHAM.
(Court of Chancery, 1801. 6 Ves. 239.)
James Graham by his will, dated the 18th of March, 1771, gave to_
MarvH anson, Thomas H anson, jmd^ Rebecca Graham Hanson^, the
three _childrenof^ his daughter Mary Hanson, £500 apiece o"f Foujr
per cent Cons olidated Bank Annuities, when they sh ould respectively
attam their ages of twenty~one yea rs or d ay or^days of marriage, whicH
s liouMJi rst_Mj3p^n7 f)rovided,"lt w as with such consent of hTs e xecu-
tors and trustees as tnerem mentioned ; and he declared, his mind aiid.
wTTiNvas^ that the mterest""of~sai d several £500 amount ing in the whole
to £1500 Four per ceiit Consolida ted Bank Annu ities, so given to his
three grandcliildren, as afor'esaid, as often as the same shoiftd l^ecom^
due ITncl payable^ should be laid oujt_at^e discretion~oniTs~exec'ators
and truygegjn^suchrii Taiiner as they or the survivor oF them should
think proper for the be nefit of his said gra ndchil Hren, till They ^should
attattr-ttrelr respective ages of twenty-one years or day or days of mar-
riage, and to and for no other use, intent, or purpose whatsoever ; and
after devising his real and leasehold estates, and giving two legacies
of £10 each, he gave all the residue of his personal estate to his son
Isaac Graham; and appointed him sole executor.
The testator died soon after the execution of his will. Afterwards,
in 1774, Rebecca Gra ham Hanson di ed intestate at the age of nine
years ; leaving her mother and h er bTother "Thoma.s Hanson and her
sister Mary Coates7"'sirrviving. The mother died ; and bequeathed all
her personal estate to her^son Thomas Hanson; and appointed him
■executor.
The bill was filed by Thomas Hanson and Mary Coates against
Isaac Graham for an account of what was due in respect of Rebecca
Graham Hanson's legacy of £500 &c.
The Master oe the Rolls [Sir William Grant]. The question
is, whether this legacy vested. It is contended for the plaintiffs, that
it di d vest, upon two ground s : 1st, they say, it would have been vested ;
supposing, there was nothing more than the words, with which the
clause begins ; and that if it rested upon a legacy, when the legatee
should attain the age of twenty-one or marriage, it is now settled, that
these words give a vested interest ; and that is established by May
V. Wood, 3 Bro. C. C. 471 ; and undoubtedly a proposition is there
laid down ; which would have the effect of making this a vested legacy ;
if it is true in the extent there stated. The proposition is there laid
down very broadly and generally by the late Master of the Rolls ; that
all the cases for half a century upon pecuniary legacies have deter-
220 CONSTRUCTION OF LIMITATIONS (Part 2
mined the word "when," n ot as denoting a condition p recedent, but
as on ly markin g_t he perio dj_when_thej xirty sl iall havetlie Full benefit
of t he' gif t ; except something appears upon theface ot tlie'wili to
show, that his bounty shall not take place, unless the time actually ar-
rived.
This proposition is stated so broadly and generally, that I rather
doubt the correctness of the report. Considering the well-known dili-
gence of the late Master of the Rolls in examining cases, and his un-
common accuracy in stating the result of them, he would hardly have
drawn this conclusion from an examination of the cases ; for no case
has determined, that the word "when," as referred to a period of life,
standing by itself, and unqualified by any words or circumstances, has
been ever held to denote merely the time, at which it is to take effect
in possession; but standing so-unqualified and uncontrolled it is a word
of condition : denoting the time, when the gift is to take effect in sub-
stance. That this is so, is evident upon mere general principles ; for
it is just the same, speaking of an uncertain event, whether you say
"when" or "if" it shall happen. Until it happens, that, which is
grounded upon it, cannot take place. In the civil law, the words "cum"
and "si," as referred to this subject, are precisely equivalent; and
from that law we borrow all, or at least the greatest part, of our rules
upon legacies; and particularly the rule upon the subject immediately
under consideration in that case, with reference to the words, by which
a testator denotes his intention as to the gift taking eft'ect, or taking
effect in possession. In the Digest it is thus laid down : —
"Si Titio, cum is annorum quatuordecim esset factus, legatus fuerit,
et is ante quatuordecimum annum decesserit, verum est, ad heredem
ejus legatum non transire: quoniam non solum diem, sed et condi-
tionem hoc legatum in se continet ; si effectus esset annorum quatuor-
decim. Qui autem in rerum natura non esset, annorum quatuordecim
non esse non intellegeretur; Nee interest utruni scribatur, si annorum
quatuordecim factus erit, an ita : cum priore scriptura per conditionem
tempus demonstratur ; sequenti per tempus conditio : utrobique tamen
eadem conditio est."
It is very true: the word "when," not so standing by itself, but
coupled with other expressions or circumstances, that have a reference
to the time, at which the possession of the thing is to take place, has
been held by the civil law not to have so absolute a sense that it cannot
possibly be controlled. Another passage in the Digest is thus ex-
pressed :
"Seius Saturninus Archigubernus ex classe Eritanica testamento
fiduciarium reliquit heredem Valerium INIaximum trierarchum : a quo
petiit ut filio suo Seio Oceano, cum ad annos sedecim pervenisset,
hereditatem restitueret. Seius Oceanus, antequam impleret annos, de-
functus est."
Then it states, that a claim was made by the uncle of Seius, as next
of kin, which was resisted by the fiduciary heir, who contended, that^
Ch. 4) VESTING OF LEGACIES 221
as Seius had not lived to the age of sixteen, it was not vested. The
opinion is this :
"Si Seius Oceanus, cui fideicommissa hereditas ex testamento Seii
Saturnini, cum annos sedecim haberet, a \'alerio IMaximo fiduciario
herede restitui debet, priusquam praefinitum tempus aetatis impleret,
decessit: fiduciaria hereditas ad eum pertinet, ad quern csetera bona
Oceani pertinuerint : quoniam dies fideicommissi vivo Oceano cessit :
scilicet si prorogando tempus solutionis, tutelam magis heredi fidu-
ciario permisisse, quam incertum diem fideicommissi constituisse,
videatur."
This distinction was transferred from the civil law to ours ; at least
so far clearly as regards pecuniary legacies. In the case cited, Staple-
ton V. Cheales, Pre. Ch. 317, it was clearly held, that the expressions
"at twenty-one," or "if," or "when," he shall attain twenty-one, were
all one and the same ; and in each of those cases if the legatee died
before that time, the legacy lapsed. I do not find any case, in which
this position has been ever contradicted. In Fonnereau v. Fonnereau,
3 Atk. 645, it was clear, if it had stood upon the first part of that be-
quest, it would have been held not vested. Lord Hardwicke rests en-
tirely upon the subsequent words, as controlling the word "when ;" as
it would have operated, standing alone. That will sets out precisely
as this does; but when it went on with words, making the intention
clear, giving interest for his education, with a power to the trustees to
lay out any part of the principal to put him out apprentice, and the
remainder to be paid to him, when he should attain the age of twenty-
five, it was clear, upon the whole, nothing but the payment was post-
poned.
A distinction has been introduced between the effect of giving a
legacy at twenty-one and a legacy payable at twenty-one. That is also
borrowed from the civil law. The Code thus states it :
"Ex his verbis, do lego .■Elia; Severinae filiae meas et Secundje decem :
quae legata accipere debebit, cum ad legitimum statum pervenerit : non
conditio fideicommisso vel legato inserta : sed petitio in tempus le-
gitimae aetatis dilata videtur :"
For there the words were, that the time of payment was to be at
her legitimate age:
"Et ideo si .^lia Severina filia testatoris, cui legatum relictum est,
die legati cedente, via functa est: ad heredem suum actionem trans-
misit; scilicet ut eo tempore solutio fiat, quo Severina, si rebus hu-
manis subtracta non fuisset, vicessimum quintum annum aetatis im-
plesset."
This distinction however has been held by some equity judges al-
together without foundation ; and by others it has been treated as too
refined. Lord Keeper Wright, in Yates v. Fettiplace, Pre. Ch. 140,
alluding to the distinction in Godolphin and Swinburne from the civil
law, declared it altogether without foundation. Lord Cowper acknowl-
edged, that it was at least a refi: em.ent; but he thought, it was now well
222 CONSTRUCTION OF LIMITATIONS (Part 2
established. Lord Hardwicke likewise said, it was originally a refine-
ment. But in what did that refinement consist ? It was not in holding,
that it should not vest before the age of twenty-one, but in holding,
that it should vest, though the party should not attain that age : theii'
opinion being that it should not vest. Then wli y should we refine
upona j-efine.menf by deviati rjCT_gtri1 more, a ndjipldingjirbitra nly, th at
the word "when" standing by itself d oes^nol imjjort condition ; I say,
that standmg by itself it does import condition; and it requires other
words to show, it was meant to defer payment. But according to the
report of the judgment in May v. Wood, it is quite the reverse; that
standing alone it imports delay of payment ; and other words are nec-
essary to show a condition. That is a distinction upon a distinction;
which original distinction has by several great judges been held to
have been originally a refinement. The only cases alluded to in May v.
Wood are cases of real estate ; beginning with Boraston's Case, 3 Co.
16; and ending with Doe v. Lea, 3 Term Rep. B. R. 41. The princi-
ple of tliem all is stated by Lord Mansfield in Goodtitle v. Whitby, 1
Bur. 228, in a way that renders them perfectly consistent with the
opinion I entertain as to the word "when," standing by itself, unquali-
fied and uncontrolled. Lord Mansfield there lays down these rules of
construction :
"1st, wherever the whole property is devised, with a particular
interest given out of it, it operates by way of exception out of the ab-
solute property."
"2dly, where an absolute property is given, and a particular inter-
est in the mean time, as until the devisee shall come of age, &c., and
when he shall come of age, &c., then to him &c., the rule is, that that
shall not operate as a condition precedent, but as a description of the
time, when the remainder-man is to take in possession." ^-
There could be no doubt of the intention there. Everything was
given to the trustees for the benefit of the infant. He was entitled
ultimately to have tlie whole. The reason of giving to the trustees in
the ,mean time evidently was, that he was not intended to have the
possession and management until the age of twenty-one.
Upon exactly the same ground was Boraston's Case. It was not
alleged in that case, that these were not words of contingency taken
by themselves : but it was said, you must model these unapt words :
so as to get at the intention from the whole will. The evident intention
was to defer payment for a particular purpose ; as if he had calculated,
how many years it would take to pay off his debts, and in how many
years Hugh Boraston would attain the age of twenty-one ; and if given
to the executors, with remainder to him at twenty-one, it would be
clear vested remainder. The court approves that argument of the
counsel ; but does not say, that "when," standing by itself, would not
12 These rules are applied to pecuniary legacies, Lane v. Goudge, 9 Ves.
225 (1803) ; Packham v. Gregory, 4 Hare, 39G (1845).
Ch. 4) VESTING OF LEGACIES 223
have made a condition. So, in Manfield v. Dugard, 1 Eq. Ca. Ab.
195, it was clear, the testator meant to postpone the enjoyment of the
son for the sake of the antecedent benefit of the wife: but he clearly
meant a vested remainder, not contingent, whether the son should take
any benefit at all in the estate. But that makes a very different ques-
tion from this ; whether, where there is no precedent estate, no purpose
whatsoever, for which the enjoyment was to be postponed, you shall
say, the enjoyment only is to be postponed. So in Doe v. Lea the
devisee was intended to have the whole benefit : but trustees were inter-
posed, to keep the management of the estate, until he should attain the
age of twenty-four ; with a charge out of the rents and profits to keep
the building in repair. There was a reason for postponing the posses-
sion ; and it was evident, nothing but the enjoyment was intended to
be postponed. It was not a bare devise to him, when he should attain
twenty-four.
If those cases therefore had occurred as to pecuniary legacies, there
is no ground to say, the decision ought to have been dififerent ; for from
the very same circumstances and expressions it might be collected, that
the word "when" was used, not as a condition, but merely to post-
pone the enjoyment; the possession in the mean time being disposed
of in another way. It is impossible, that Lord Mansfield, and there is
nothing in his judgment indicating it, could have considered the word
"when" standing by itself, as other than a word of condition. It is
impossible ; for only two days before, in Gross v. Nelson, 1 Bur. 226,
having occasion to speak of legacies, upon a note of hand, which he
compared to the case of a legacy, he says, "but if the time is annexed
to the substance of the gift, as a legacy, if, or when, he shall attain
twenty-one, it will not vest, before that contingency happens." He
considered "when" precisely the same as "if."
Love V. L'Estrange, 3 Bro. P. C. ZZ7, seems to have been consider-
ed a strong authority for holding "when" to operate conditionally. The
late Lord Chancellor was so strongly impressed with the idea he had
thrown out at an early period in Monkhouse v. Holme, 1 Bro. C. C.
298, that he found it difficult to account for it otherwise than upon
the distinction as to a residue ; which the late Master of the Rolls in
Booth V. Booth acknowledged there might be. But it was not necessary
to resort to that ; for Love v. L'Estrange may be warranted upon the
principles laid down in Goodtitle v. Whitby. It w^as not a simple, un-
qualified gift ; but there were many circumstances to show, that Walter
Nash was meant to have the benefit absolutely; and that the enjoy-
ment only was postponed ; the testator giving it to trustees in the mean
time; and applying a reason for withholding the enjoyment from this
minor; that he wished him to follow his trade as a journeyman; with
which object he naturally thought that fortune would interfere; and
therefore he postpones the enjoyment of it until the age of twenty-four.
But he gives it to trustees entirely and absolutely for the benefit of
Walter Nash ; to improve it for his benefit ; to transfer the whole to
224 CONSTRUCTION OF LIMITATIONS (Part 2
him, when he arrives at that age : and to make him a certain allowance
in the mean time. That is very different from a simple bequest to him,
when twenty- four ; for if that had been a legacy, it would have been
separated from the residue immediately upon the testator's death ; and
must have been paid over to the trustees immediately : and they would
have managed it, until the legatee had attained the age of twenty- four.
Upon the whole view of the cases, and taking the reason of the doc-
trine and the origin of it into consideration, there is no ground wdiat-
soever for the generality of the proposition, which the Master of the
Rolls is represented to have laid down in May v. Wood. To that
proposition the following words are added :
"And not, where he has merely used the word 'when' for the sole
purpose of postponing the time of payment."
If the Master of the Rolls meant so to qualify his former proposi-
tion, that I admit; and have no difficulty in agreeing to it. But it is
evident, tliat this is inaccurately taken ; for the two parts of the proposi-
tion do not accord. First, it is laid down generally, "that it requires
words to show, 'when' does operate conditionally :" in the latter part
it is stated, that if it appears, "when" is used only for postponing pay-
ment, it shall not operate farther. Nothing can be clearer than that.
In this cause therefore I should have determined against the plaintiffs ;
if it stood merely upon the first words. But then it is contended, that
they are entitled ; because interest is given ; and that they come within
an established rule of the court; that though such words are used as
would not have vested the legacy, yet the circumstance of giving interest
is an indication of intention, explanatory ; and denoting, that the testa-
tor meant the whole legacy to belong to the legatee. On the other side
it was contended, tliat the interest is not so given as to bring it within
the general rule, but what is given is more like maintenance. It is
true, it has been held, that has not the same effect as giving interest;
upon this principle ; that nothing' more than a maintenance can be called
for ; what can be shown to be necessary for maintenance : however
large the interest may be; and therefore what is not taken out of the
fund for maintenance must follow the fate of the principal ; whatever
that may be. But by this will it is clear, the whole interest is given.
Can there be any doubt, that in this case all the interest became, as it
fell due, the absolute property of these infants, as separated altogether
from the residue? All, that is left to the trustees, is to determine, in
what manner it may be best employed. It is not merely so much of
the interest as shall be necessary for the maintenance, but the interest
entirely, separated from the principal. It is therefore the simple case
of interest. It was observed for the defendants, that here is not only
the period of the age, but also marriage with consent ; and it was asked,
supposing any of them had married without the consent of the execu-
tors, was it to vest? That is just the same question. If it is shifted,
to the question, whether it is to be paid, if any of them married with-
out consent, the executors might say, no : the period of payment had
Ch. 4) VESTING OP LEGACIES 225
not arrived. But marriage with consent is not a condition precedent;
for at the age of twenty-one, whether married with consent or not,
they would be entitled. That therefore, not operating as a condition
precedent, does not make any material distinction. The l egacy is ac -
companied with an absolute gift of the interest ; _which_a_cc ording to
the established rule has the effect of vesting it. I am therefore of opin-
ion, that tlie plaTntrffs are entitled."
In re ASHMORE'S TRUSTS.
(Court of Chancery, 18G9. L. R. 9 Eq. 99.)
Petition.
Elizabeth Ashmore, widow, by her will dated the 14th of May, 1844,
bequeathed all her r esiduary personal estate to trustees upon trust to
assign and transfer a leasehold house as therein mentioned ; and further
-Upon trust, after the decease of her daughter, Mary Ann Hopkins, to
assign^tr anster, and pav ilOQQ (part of her sa id estate}^ or_the_jri-
vestments thereof, and all other her moneys, estate, and e ffects, unt o
and ~~eq ually between ^ suctr~of Ifer tour grandchildren, James Joseph
Hopkins, George Thomas Hopkins, Elizabeth l:Iopkms, and Robert
Hopkins, as should be livi ng at the_decea se of h er (testatr ix's) said
daughter, and as should t hen have atta ined or should t hereafter live
to attain me age of twenty-one ye ars ; and in the mean time to apply
the dividends and annual proce eds of the sh a re or shares o f suc h of
them as sliould be underjthe age_of twenty-one vears or so miuch there-
of as might be necessarv. in or towards his, her, or their maintenanc e
and education"
TestatrixTHen continued as follows :
"Provided, and my will is, that in case any of my said fou r grand-
children shall die in the lif eti me of my said daughter leav ing l awful
issue, them, liim, or her survTvTng, the share or shares of suc h of the m
so dy ing shall be "assigned and transferred to such_issue_res pectively,
in equal shares and proportions, on th eir attaining the age of twenty -
one years, and the dividends and proceeds there of in the mean ti me to
be applied in or towards their rnnintenance nnd e d uratinn ."
'testatrix died on the 13th of November, 1850.
]\Iary Ann Hopkins. the daughter, died on the 31st of August, 1859.
At th at dateone of the grandchil dren, namely. J::!<iizabetli "Andrews,
formerl y Hopkins, was dead! "
isAccord : In re Bunn, 16 Ch, Div. 47 (1880) ; Scotnev v. Lomer, 29 Ch.
Div, .535, 54 L. J. Ch. 558, 31 Ch. Div. 380 (1885) ; Bolding v, Strugnell, 24 W.
K. 339, 45 L. J. Ch. 208 (1876).
So where the legacy is contained only in the direction to pay upon the leg-
atee's marriage, yet the gift of interest or ineonio in the meantime vests the
legacy hofore marriase. Vize v. Stonev, 1 Dr. & War. 337, 2 Dr. & Wal. 659;
In re Wrey, 30 Ch. Div. 507, 54 L. J. Ch. 1098.
4 Kales Prop. — 15
226 CONSTRUCTION OF LIMITATIONS (Part 2
Elizabeth Andrews had had four children, nameTy, the petitioner,
Edward, who was born on the 2d of July, IMSj _Eli^b^th', who waF"
borrTon the 27th orFebruary7TSS0, an d \vlib died i n L851 ; Mary Ann,
wht? was born m IgSTX-^ nd Emma , ^ho was bo rn in 1852.
Since the death of Mary Ann Hopkins, ]\Iary~7VtTn and Emma
Andrew s had both die d~inf ahts,~teavmg j^^^petitipn er E d Avard An drews
the sole survivor of t he issue of Elizabeth Andr e ws. ~
I'he petitioner attained twenty-one on the 2d of July, 1869; and the
question now between him and his father, who had taken out adminis-
tration to the infants, or some of them, was, whether the interests of
the infants in thei r mother's share vested at the^eath of their mother ,
or Whether such sha re vestedin the only one of the issue who lived to
attain twenty-one.
"i he surviving trustee of the will having paid Mrs. Andrews' fourth
share into court, the petitioner now prayed that it might be paid out to
his solicitor.
Sir W. M. James, V. C. I tliink, on the whole, I cannot distin-
guish this case from Pulsford v. Hunter, 3 Bro. C. C. 416. My first
impression was the other way, but Pulsford v. Hunter seems to me to
be exactly the same case, with a slight alteration of the order of tlie
words.
In Pulsford v. Hunter a testator, after giving two annuities, enu-
merated some sums of stock then in his possession, and proceeded as
f ohows : "the interest of the remainder part to be applied for the use
and education of my grandchildren till they arrive at the age of twenty-
one years, and the principal to be then equally divided amongst them ;"
and the Lord Chancellor (Eord Loughborough) thought that how z.
e yer it might be where interest was give n^j;;e;^t hat the g iving maiiite_-
na nce was a differe n t case, a nd_was_no t equivalent to j ^ivmg inte rest.
In this case the fund is given to the issue on their attaining twenty-
one, and the dividends and proceeds in the mean time are to be applied
in or towards their maintenance and education.
I am really not able substantially to distinguish these two cases.
I think it very probable that the decision may be sustained by an-
other consideration, — namely, that t his is a gift n ot of a separate
share to each of the issue on attaining twenty-oneTwith a gitt_ot the_
dividends and proceeds thereof in the meantime to be applied in main-
tenance; but a. gllTof aTund to each ol t he issue on att ainlng^ twenty- '
one in equal shares and proportions, and a g ift of the dividends and
in terestT h the mean lirne : ~ ~ ~~~
In this respect the case is exactly that of Pulsford v. Hunter. That
authority has never been questioned, and certainly never overruled.
There will be a declaration to the effect that the interests of those of
the issue who died under twenty-one passed to the survivors.^*
14 Butcher v. Leach (1843) 5 Beav. 392 (income for maintenance) ; In re
Morris (1885) 33 Weekly Rep. 895 (income for maintenance). Bacon, V. C,
Ch. 4) VESTING OF LEGACIES 227
FOX V. FOX.
(Court of Chancery, 1875. L. R. 19 Eq. 286.)
Thomas Were Fox the elder, by his will, dated the 9th of August,
1859, gave, devised, and bequeathed unto William Fox, Mark Stephens
Grigg, John Williams, and Thomas Were Fox, the son, and Henry
Fox, his real and personal estate not thereby specifically disposed of,
subject to the pecuniary legacies and annuity thereby bequeathed, and
to the payment of his debts, funeral and testamentary expenses, upon
trust, in the first place, to raise thereout and set apart therefrom the
sum of £15,000, and to invest the same sum in their names as therein
mentioned, and to pay the income of the said sum of £15,000 so in-
vested as aforesaid to his wife half-yearly during lierlife, and after
h er dece ase to pay the incom e of one equal htth part ol the said suiTTof
il 5',000 so mvested as aforesaid to Ihomas Were box, the son, haH-
yea rly during his lif e, and after his decease to pay the said income"
thereof half-yearly to his widow, if he should leave a widow, during
her widowhood; but i f he should not leave a widow, or if he shoul d,
the n, so soon as she should marry again or die, to divide and transfer
the said eq iial one-fifth part of tlie said principal jum o^ril5,00u to and"
amongst the children of the said Thomas Were Fox, the son, equally
as and whe n they sliould respectively attain the age of twenty-five
y ears ; but if he should have but one child, then to transfer the whole
of "the said one-fifth part to such only child, applying from time to
ti me the income of the presump tive share of each child (if more than
o ne), or the income o f the wh ole it an only child, or so mu ch thereof
respectivelyas_the^ trustees or trustee for the time b eing might think
proper, to and for his and her maint enance and education~until slich
share~or entir ety, as the case might beT^o uld becom e payable as af ore-
said ; but iTThe said Thomas Were Fox, the son, should leave no chil-
dren or child him surviving, or if he should and they should all die be-
fore attaining the age of twenty-five years, then to pay and transfer
the said fifth part to the testator's son, the said Henry Fox, if then liv-
ing, or if dead, to his children equally amongst them (if more than one)
on attaining the age of twenty-five years respectively.
said: "There are here two distinct gifts: one gift to the trustee of the in-
come to be applied for the maintenance and education of two children. But
there is no division of the income equally between the two, and no gift of
any specified part of the income to either child. There is a gift of the corpus
etiually between the two children, but only when they shall respectively at-
tain twenty -one; there is, therefore, no gift of the corpus till they attain
twenty-one. This case is, therefore, distin guishable from the cases cited by
]\ tr. Stirling where the w hole income of a i^lteclBc fund \v tuj dlrect(.^ d Jr> hp .q-pr
plied td\Vurda Ihfe imilrrt^hance o f a particular p ergorT Tliat is not the case
h^TC: 'R rcrc muiAt be a d eo laiallT Tn that there is a lapse as to a moiety of the
residuary estate of this testatrix." In re Martin (1887) 57 L. T. K. (N. S.)
471 (income for maintenance) ; Spencer v. Wilson, L. R. 16 Eq. 501 (here the
income was to be divided among the members of the class, but was not di-
rected to be for maintenance).
228 CONSTRUCTION OF LIMITATIONS (Part 2
The testator died in February, 1860, and his widow in July, 1862.
Thomas Were Fox, the son, died on the 4th of July, 1870, leaving a
widow and nine children, of whom the eldest was born on the 1st of
May, 1854.
The widow of Thomas Were Fox, the son, married a second time in
August, 1873.
The question was, wh ether the gift of one fifth of the^sum of il5,-
000 by the will of Thomas Were Fox, "the el der, to~t he^childre n of
T1v5^aTWprp21inx7^^^on 7 w^ vafid^
"""Sir^gTJessEL, M. R. The first question is, whether a gift con-
tained in a direction to pay to legatees on attaining a certain age,
followed by a gift of the interest for maintenance, is vested?
In the case of In re Ashmore's Trusts, Law Rep. 9 Eq. 99, Lord
Justice James, when Vice-Chancellor, held that a similar gift was not
vested. He admitted that his first impression was the other way, but
he decided as he did on the authority of an old case, Pulsford v. Hunter,
3 Bro. C. C. 416. I cannot help thinking there is some mistake in the
report of Pulsford v. Hunter. The observations in the judgment, as
reported, seem to me to point, not to a gift of the interest for mainte-
nance, but to a gift of maintenance out of the interest, which is not in
accordance with the terms of the will as given in the report. However
that may be, it seems to me that the law is clearly laid down in subse-
quent authorities.
In Watson v. Hayes, 5 My. & Cr. 125, 133, Lord Cottenham says :
"It is well known that a legacy which w^ould, upon the terms of the
gift, be contingent upon the legatee attaining a certain age, may be-
come vested by a gift of the ixiterest in the mean time, whether direct
or in the form of maintenance, provided it be of the whole interest;
which clearly marks the principle that it is the gift of the whole interest
which effects the vesting of the legacy. * * * It is therefore the
giving the interest which is held to effect the vesting of the legacy, and
not the giving maintenance ; but when maintenance is given, questions
arise whether it be a distinct gift, or merely a direction as to the appli-
cation of the interest ; and if it be a distinct gift, it has no effect upon
4he question of the vesting of the legacy."
If that be the law, it is very difficultto supjport the jleci^sion^ in In re
Ashmore's Trusts'. What the Vice-Chancellor said was thisl [lTi9
HoiiorTeadThe~|udgment] .
I agree that In re Ashmore's Trusts is not tO' be distinguished from
Pulsford V. Hunter as regards the terms of the will, but I do not find
that Lord Loughborough said that giving the whole of the income for
maintenance was not equivalent to giving interest. The report says
that "the Lord Chancellor thought that, however it might be where
interest was given, yet that the giving maintenance was a different case,
and was not equivalent to giving interest." These observations, if cor-
rectly reported (which I doubt), seem to me to point to the distinc-*
Ch. 4) VESTIXG OF LEGACIES 229
tion taken by Lord Cottenham between a gift of interest to be applied
in maintenance and a gift of maintenance apart from interest ; but if
this be not the true meaning of them, then I think they are overruled
by what Lord Cottenham said and by the current of modern authori-
ties. Indeed, I cannot think that Watson v. Hayes and the subse-
quent cases were called to the Vice-Chancellor's attention ; if they had,
I feel sure he would willingly and cheerfully have followed them.
One of these cases is that of Re Hart's Trusts, 3 De G. & J. 195,
200, 202, before the Appeal Court. There the testator gave real estate
to a devisee for life, with remainder to trustees in fee, in trust to sell
and out of the proceeds to pay a legacy of £500 when the legatee
should attain twenty-five, and he directed that tlie legacy should carry
interest from the death of the tenant for life, to be paid towards the
legatee's maintenance until she attained twenty-five. The legatee sur-
vived the tenant for life, but died under twenty-five ; and it was held
that the legacy was vested. Lord Justice Knight Bruce says that the
legatee, "if the gift in question had been a legacy out of the testator's
personal estate merely, would, in my opinion, upon principle equally
and authority, have acquired a vested right to the £500 for her absolute
use, either on the testator's death (subject to his mother's life estate)
or on the death of his mother. For by the will interest was made pay-
able on the £500 from the time of the death of the testator's mother,
and that interest was directed to be applied wholly for the benefit of"
the legatee. Lord Justice Turner adverts to the distinction taken by
Lord Cottenham in Watson v. Hayes, and says : "In the present case
the direction is, that the legacy shall carry interest, annexing, as it
seems to me, the interest to the legacy ; and I do not see how we could
hold this legacy not to be vested, unless we were prepared to hold that
no legacy to be paid when a legatee attains a prescribed age, with in-
terest in the mean time, vests until the legatee has attained the specific
age, a conclusion which would be quite at variance with Hanson v.
Graham, 6 Ves. 239, and many other decided cases." Both the Lords
Justices take the same view, which appears to me to be quite at vari-
ance with what was decided in Pulsford v. Hunter.
The Vice-Chancellor, in the case of In re Ashmore's Trusts, appears
to have thrown out the suggestion that there might be a distinction
between a gift of a separate share to each of the children on attaining
twenty-one, with a gift of the income in the mean time for maintenance,
and a gift of a fund to each of the children on attaining twenty-one, in
equal shares, with a gift of interest in the mean time. I can find no
such distinction taken in any other case, and it seems to me to be much
too fine to be relied on.
There still remains the difficulty that the gift here is not a gift of
the whole income absolutely for maintenance : there is a discretionary
power to apply the whole income, or so much as the trustees may think
proper, and the question is, whether that is a gift of the whole interest
230 CONSTRUCTION OF LIMITATIONS (Part 2
within the rule as laid down in Watson v. Hayes and the other cases I
have referred to. On that point Harrison v. Grimwood, 12 Beav. 192,
is a distinct authority. There the legacy was given to a class, followed
by a direction, during the minority of the members of the class, to
apply the interest, "or a competent portion thereof," for maintenance ;
and the court held the legacy was vested. Lord Langdale does not
appear to have considered the indication of intention derived from the
direction to pay the whole income as affected by the words enabling
the trustees to apply a competent portion for maintenance ; he treated
it as a gift of the whole income followed by a discretion to apply less
than the whole income ; and that appears to me to be a rational view.
Being opposed to the frittering away of general rules, and thinking
that stiL'h rulesT'so long as they remam rules, "ougEtld^e followed, Hf
holdThaFa^glfF^ontained in a direction to pay and divide amongst a
class^at a specihc age, folfowedTy a direction to apply the whole in-
come for mamtenanceT^n the mean time, is vested, and notihe less so
because "there is a discretion conferred on the trustees to apply less
than tHe whole incorhe foFfhat^ifrpose. ' '
f'also think Ihat^he gift over, If not conclusive on the question,
certainly aids the construction adopted by me.
The answer to the special case must be that the gift is valid.^"*
In re PARKER.
(Chancery Division, ISSO. 16 Ch. Div. 44.)
Martha Elizabeth Parker, widow, who died in 1863, by her will,
dated in 1856, gave her residuary real and personal estate to trustees in
trust for sale and conversion, and to invest the proceeds upon the stocks,
funds, and securities therein mentioned, and to stand possessed of
the said stocks, funds, and securities, "upon trust to pay the dividends,
interest, and income thereof, or such parTthereof as my said" trustees
f orlihe time being shall from time to time_deem expedient, in and to-
ward the mamteiiarice and_ediicationj3f my chHdren untjljny said chil-
dren shall attamlherr respective ages of 21 y ears; and from andTm-
mediately af ter th eir_ attainin ^ their respective age s of twenty-one
years, then upon trust to pay, assign, and trans fer th e ^aid stocks,
funds, and secifnties t o my sai d chiTdrenln equal shares, if more than
one, and if but one, then to such one child ; and as to each daughter's
share, whether original or accruing, upon trust to settle the same," for
15 Accord: Eccles v. Birkett, 4 De G. & S. 105; In re Turney, L. R. [1899]
2 Ch. 739; In re Williams. L. R. [19071 1 Ch. 180. But see oiuuion of North,
J., in In re Wintle, L. R. [1890] 2 Ch. 711 ; al-so Wilson v. Knox, L. R. 13 Ir.
349.
Ch. 4) VESTING OF LEGACIES 231
the benefit of herself and her children. And the testatrix declared
"that i t sha ll be lawful for the trustees or trustee for the time being of
this my wHT To assign,~Tfarisfer, or d ispos e ofany competent part, not"
ex ceeding onFTTaTTof the pfesijmptive share of any of my children fo£
the preferment or advancing in life, or preparing for business, or on the
marTiage'or any such child (being daughters) notwithstanding their
minorities."
The testatrix had three children, two sons and a daughter, all of
whom survived her. One of the sons died in 1873 an infant, leaving
his brother and sister, who both attained twenty-one, his next of kin.
The daughter, Mrs, Barker, married in 1878 and in pursuance of the
direction in the will a settlement was executed of her "moiety" of
her mother's residuary estate.
The question was whether Mrs. Barker's moiety of surplus income
of the infant's one third remaining unapplied by the trustees for his
maintenance and education devolved upon her as one of his next of kin,
or whether it was bound by her settlement; in other words, whether
the infant's share was to be treated as "vested" or "contingent."
Jessel, M. R. It appears to me that t his case is Hifferenf- -Frnm
t hat of F oTc V. Fox_ Law Rep. 19 Eq. 286. In my opinion, w hen a_
le gacy is payable at a certain age, but is, in terms, rnntincrent^ the leg-
ac y becomes vested when there is a direction to p^y thp ini-prp-;t jj^
the m ean time to the person to whom the legacy is given : and not fhp
less so when the re is superadded a direction that the trustees "shal l
pay the who le or "such part ot the interest as thev shall think fit." But
I am not aware ol^ any case where, the gift being of an entire fund pay -
able to a cla ss~of persons equally on their attaining a certain age^ g.
dire ction to apply the Income of the whole fund in the mean time for
th eir mamtenanc e h as been held to create a vested interest in a member
of the class who does not att ain that age.
I'he woras nere are piam. Tlie trust is of residue : "to pay the
dividends, interest, or income thereof, or such part thereof as my said
trustees for the time being shall from time to time deem expedient, in
or towards the maintenance and education of my children, until my said
children shall attain their respective ages of twenty-one years ;" so
tliat there is nothing here giving an aliquot share of income to any indi-
vidual child ; the direction being to pay the income of the whole fund
in_such_shares as the trustees shall think fit. I do not think you can
infer anything from the direction for the settlement of the daughters'
shares.
Then follows a gift of the whole fund to the children equally on
attaining twenty-one. I should have felt no difficulty if it had not
been for the a dvancement clause, which s peaks of the "presump tive
s hare of any of my child ren," but I do not think that clause is sufijcien"?
t o'alter the effect of the preceding part of the will .
That being so, I hold that the infant did not take a vested interest
>i
232 CONSTRUCTION OF LIMITATIONS (Part 2
in his one-third share of the residue, and, accordingly, that Mrs. Bar-
ker's moiety of the unappHed income of that share is bound by the
trusts of her settlement.^^
DEWAR V. BROOKE.
(Chancery Division, 18S0. 14 Ch. Div. 529.)
Petition in an administration action.
James Dewar, by his will, dated in 1866, after specific and pecuniary
bequests, gave and bequeathed his real and residuary personal estate
to trustees' upon trust for sale, conversion, and investment, and then
proceeded as follows: "Subject to the preceding trusts and directions
my trustees shall stand possessed of my said estate in trust for _aUniv
ch_iJdren_or any my child who being sons or a son shall attain twenty-
five, or bemg~"daughteTs or a daughter sharTattainthe age of twenty-
is Accord: In re Grimsliaw's Trusts, L. R. 11 Ch. Div. 406; In re Mervin
[1891] 3 Ch. 197. See also Andrews v. Lincoln, 95 Me. 541. 50 Atl. 898, 56 L.
R. A. 10.3 ; Anderson v. :\Ienefee (Tex. Civ. App.) 174 S. W. 904.
In In re Griuishaw's Trusts, supra, Hall, V. C, said: "With reference to
the decision of the ^Master of the Rolls in Fox v. Fox, Law^ Rep. 19 E(i. 2S6,
it is sufficient for pi-esent purposes to say that the frame and scheme of the
disposition in that will were different. The first trust there was of the cap-
ital fund, and after the gift of that in the first instance to the children there
followed as a sort of annex to that trust these words, 'applying from time to
time the income of the presumptive share of each child (if more tlian one),
or the income of the whole if an only child, and so much thereof respective-
ly as the trustees or trustee for the time being might think proper.' I can
understand in such a case where the trust in the first instance was a trust of
the capital fund with a superadded provision for maintenance, although the
words were 'or so much thereof respectively as the trustees or trustee might
think proi>er,' that it might well be considered that in substance there was a
trust of the whole income, with a mere authority given to tlie trustee to re-
duce the amount to be applied for maintenance — that there was in substance
a trust of the capital fund and income for the children in the fii-st Instance.
That distinguishes that case from the present."
In Pearson v. Dolman, L. R. 3 Eq. 315, at 321, Sir W. Page Wood, V. C,
said: "* * * where the principal is given at a distant epoch, and the
whole income is given in the meantime, the Court, leaning in favour of vest-
ing, has said that the whole thing is given ; but if there occurs an interval
or gap, which separates the gift of the income from the principal, it is not
vested. In this way I think some, though perhaps not all, of the cases may
be reconciled where the income has been only partially given, that is to say,
where a certain amount has been given to trustees for the purpose of main-
tenance and not the whole income of the fund."
So if the income is not given to the legatee during the period before the dis-
tribution of the principal, but is itself only given at the time of distribution
and along with the principal, the gift of income is contingent, like the gift of
the principal, and furnishes no argument for the vesting of the gift of the
principal. Locke v. Lamb, 4 Eq. 372 ; Russell v. Russell, L. R. [1903] 1 Ir. 168.
See also I^ake v. Robinson, 2 Mer. 3G3, post, p. 519.
So if income is divided equally between parents and in case of the death of
a parent before the period of distribution the income formerly payable to the
parent is payable to the parent's children ])or stirpes and subse(]uently the
principal is to be divided equally among all the children of the parent per
capita, the gift of income furnishes no argument in favor of vesting. In re
Kountz's Estate, 213 Pa. 399, 62 Atl. 1106.
Ch. 4) VESTING OF LEGACIES 233
one years or marry, and i£ more than one in equal shares, and to be
divided and paid on the youngest" of my said children attammg twenty-
one years, and tlie sha£ e_of_each otmy daughters to bef or Jier^sep-
arateTus e "with re main deFto het^hild rej r^qu ahy, aiid iiide f aviltoF
children for such person or persons as she sh^Ill)y ~wair"gr'T:odtrii~ap-
point\ Tempower my trustees to raise any part not exceeding one-half
ofihe vested or pr esumj^tive share of a child or remoter issue, ari d
appTy The same for HTs or her adva ncemeiit. I empower my said trus-
tees to apply the whole or such part as they shall think fit of the'^aii-
nuaf income to which any child or remoter issue shall be entitled m
e xpectancy towards the maintenance or education ofsuch child."
The testator, who died in 1867, had issue two children only, viz.,
the Petitioner, David Douglas Dewar, who was born on the 17th of
December, 1856, and was now of the age of twenty-three y ears, and
Jessie Ethel Dewar, who was born on the 11th of September, 1858.
During the infancy of Jessie Ethel Dewar an administration action
was instituted on her behalf against the Petitioner and the trustees, in
the course of which the estate of the testator had been administered
and the clear residue thereof ascertained, under the direction of the
Court, at the sum of £49,000.
Jessie Ethel Dew^ar attained twenty-one in September, 1879, and
the Petitioner, being about to marry, and being desirous of making
a settlement on his marriage, now presented this petition, praying, 1.
for a declaration that according to the true construction of the will of
the testator his residuary estate became divisible and payable on his
daughter, the youngest child, attaining twenty-one, in equal shares be-
tween her and the Petitioner, as the only children of the testator, and
that their respective shares might be ascertained and divided and paid
accordingly ; or 2, in the alternative, that the trustees might be di-
rected to and might raise one-half part of the Petitioner's vested or
presumptive share of the testator's residuary estate, and apply the same
for his advancement, he being willing and thereby offering that such
one-half part should be settled upon certain trusts for himself,- his in-
tended wife, and the issue of the intended marriage therein specified ;
and that the trustees might be directed to pay the income arising from
tlie other half part of the Petitioner's vested or presumptive share to
the Petitioner towards his maintenance.
Hall, V. C. The trust here is for the children who being sons
or a son attain twenty-five, or being daughters or a daughter attain
twenty-one or marry. In Fox v. Fox, Law Rep. 19 Eq. 286, the trust
was a trust for sons "as and when" they attain twenty-five. Here a
son who has not attained twenty-five is not one of the cestuis que trust.
The maintenance clause is not inconsistent with a son under twenty-five
not being a cestui que trust, it providing for the maintenance of chil-
dren entitled to income in expectancy. In Fox v. Fox the maintenance
clause did not describe the child as a child who w^as entitled to income
in expectancy, but was in these terms : "Applying from time to time
L i
234 CONSTRUCTION OF LIMITATIONS (Part 2
the income of the presumptive" share "of each child (if more than
one) or the income" of the whole "if an only child, or so much thereof
respectively as the trustees for the time being might think proper to
and for his and her maintenance and education, until such share or en-
tirety, as the case might be, should become payable as aforesaid." I
think I should be departing from the ordinary meaning of the words
used in this "will it 1 were t^Tiold that by force of the mamtenance
claii seP\vhich is what is mamly relied upon f ort H e Petitioner.^TTie P e-
titioner is entitled to a vested interest. With regard to the payment
and^ivisiorT being dn-ected at" the time when the youngest child at-
tains twenty-one years, that direction may, and I think does, mean
that actual division and payment shall not take place until the youngest
attains that age; the testator says, in effect, that there is not to be
payment or division until the youngest attains twenty-one; i. e., you
are to wait for that event before you make payment and division, and
when that happens you are to make payment and division ; such pay-
ment and division being, however, necessarily subject to postponement
or incomplete in reference to any sons who may be under twenty-five,
and as to daughters, it is observable that when the youngest child at-
tains twenty-one there might be included in the division a daughter who
was not twenty-one but married. As__to_Fox _v. Fox, LgAV Rep. 19
Eq. 286, it may in some other cas e have to be determined^ wjietHer it
is in conflict with the decision of IHeTJord Justice James in the case
of InTe Ashmore 's~Trusts7Xaw~Rep. 9 Eg. 99. an^JT lf sorw hic"h de-
cisiorrts to"be followed. ^^
IT "It is important to distinguish a gift to a contingent class and a gift to
a class upon a contingency ; thus, a gift to children who attain twenty-one.
or to such children as attain twenty-one, is a gift to a contingent class, and
will only vest in those who attain twenty-one, though there may be a gift of
interest or other circumstances, which in a gift to a class upon a contingency,
as, for instance, at twenty-one, might have the effect of vesting the bequest."
See Gotch v. Foster, 5 Eq. 311.
There are several cases where no special argument could be made in favor
of vesting, such as the payment of interest or income in the meantime, and
where the gift was held to be to a contingent class: Bull v. Prit chard, 1
Russ. 213 ; Leake v. Robinson, 2 Mer. 363 (post, p. 519) ; Stead v. Piatt, 18
Beav. 50.
Ch. 5) GIFTS OVER 235
CHAPTER V
GIFTS OVER UPON THE DEATH OF A PREVIOUS TAKER
SIMPLICITER, OR WITHOUT CHILDREN, OR WITH-
OUT ISSUE SURVIVING THE FIRST TAKER
O'MAHONEY v. BURDETT.
(House of Lords, 1874. L, R. 7 Eng, & Ir. App. Cas. 388.)
The Lord Chancellor [Lord Cairns]. My Lords, Jane Brooke,
by her will, dated on the 18th of September, 1840, made a bequest of
a sum of ilOOO in the following words : "I bequeath tojny^^ister^Grace
L'Estrange, the widow of Colonel L'Estrange, of Moystown, the sum
of ilOOO in the 314 per cent. Irish stock, for her li fe, and after her
deat h to her daughter, Grace L'Estrang e. If my said niece should die
unmarri ed or without children, the ilOQO rtTefe~wiII^t o~reverrt(r my~
nephewTColonel Hen ry L'Estrange , of Moystown ;" and thelestalfix
appotnted her nephew, John Burdett, her residuary legatee. Colonel
Hen ry L'Estrange died before the testatrix, and so did G race L'Es-
tranp^pjJTP^i-pnnnt fnr lifg^ pf the leg acy. The testatrix herself died on
the 29th of March, 1848. G race L'Estrange, the niece of the tes-
tatrix, was married inl 851 to the Appel lant O'Malioney, and died in
18/1, and there was no child of the marriage.
The Ap pell ant, under these circumstahcer, contends that the interest
of Grace L/Estrange, the niece, otherwise O'Mahoney, became, upon
her surviving both her own mother and the testatrix, the tenant for
life,fabsolute and indefeasible. He contends, in other words, tha^b}'
the expression^ "if my niece should die unmarried or^vyit hout children ,"
is to be u nder stood the deatli of the^niece unmarried or wit hout ch ij-
dr'en, not at any time whatsoever, but only during the lifetime of the
te nant for li fe. Uf this opiniorTwas the then Master or~the Rolls in
Ireland, who made an ord er to that effect on the 15th of July, 1859.
But this o_rde r was reve rse d by the Judg es jn the Court of Appea Hn
Ch ancery in Ireland^ who by an order dated the 17th of November,
1859, declared that the bequest of ilOOO stock to Grace O'Mahoney
was defeasible in the event of her dying unmarried or without chil-
dren, at any time. Lender this order the Respondent, as the representa-
tive of the residuary legatee, now claims to be entitled to the legacy.
In tli e absence of any auth ority to the contrary, I should entertain
no do ubt that the decision of the Court oT Appeal i n Chancery iiTTre-
lan d was in accor dance with the true interpretation of tli e^vijl. A
bequest to A., and if she shall die unmarried or without children to
B., is, according to the ordinary and literal meaning of the words, an
236 CONSTRUCTION OF LIMITATIONS (Part 2
absolute gift to A., defeasible by an executory gift over, in the event
of A. dying, at any time, under the circumstances indicated, namely,
unmarried or without children. And in like manner, a bequest to X.
for life, with remainder to A., and if A. die unmarried or without
children to B., is, according to the ordinary and literal meaning of the
words, an executory gift over, defeating the absolute interest of A.
in the event of A. dying, at any time unmarried or without children.
In this particul ar will any lig ht that is to be obtained from the con-
text isliot opposedto, but supports, the naturarmeaiTmg~oT the words.
The~Tlirection that it the niece should die unmarried or without chil-
dren the ilOOO is "to revert to my nephew Colonel Henry L'Estrange,"
ap pears to indicate that the legacy wasTo'coime b acTc^ or come away,
f rom the niece a fte r sh^ h nd h sd t h e p ossess io n ^ nd enjoyment of i t,
rather than to imply that the only state of circumstances under which
Colonel Henry L'Estrange could take, would be a state of circum-
stances under which the niece would have had no enjoyment of the
legacy at all. In other words, the benefit intended for the nephew ap-
pears to me to be introduced through the medium of an executory limi-
tation over after enjoyment by a previous taker, and not as an alterna-
tive gift to take efifect, if at all, before the period of enjoyment com-
mences.
B ut it is said that there is now established a n absolute rule of law,
or rule of constructi on, that w her e there is" a gifFToTTife, foU owgdHby
a glit over ot the 'capit^^with a proviso that ijth e second takei^hall
dieUnder age, or unmarried, or without children, there the death of
the second taker, thus deicribed, is to be taken to refer, liot to death
under those circumstances at any time, but to death under those cir-
cu msTaiices be tore the tenanL Jor life ; and the case of Edwards v. Ed-
war diirFBea^r^ST^TnTjTTch.) 324], decided by the late Master of
the Rolls, is referred to as the authority for this proposition.
It is clear that the case of Edwards v, Edwards [15 Beav. 357, 21
L. J. (Ch.) 324] , decided in the year 1852, could not establish any new
rule of construction applicable to cases of this kind; and it is equally
clear, looking at the report of the case, that the Master of the Rolls
did not intend to establish any new rule of construction. His Honor
endeavours to collect and classify the various decisions which have
taken place as to construction of gifts over in the case of death, or in
the case of death under particular circumstances ; and the question is,
whether that part of his judgment which deals with gifts, like the one
before your Lordships, is a just expression of the principles to be de-
duced from decisions before that time.
As regards the question actually decided in the case of Edwards v.
Edwards [15 Beav. 357, 21 L. J. Ch. 324], with reference to the will
then before the Court, there were expressions in that will which may
well have warranted the conclusion at which the Court arrived. The
testator devised freeholds and leaseholds to his wife for life or widow-
hood. Then part of the property he gave to his eldest son "for him
Ch. 5) GIFTS OVER 237
and his heirs to possess immediately after his mother's death or mar-
riage." He made similar devises and bequests to another son and to
a daughter; and he continued: "If my wife shall remain my widow
my trustees shall assign and transfer to each of my children their
shares, immediately after her death, and as soon as they arrive at twen-
ty-one years of age. * * * Farther, if one of my children shall
die leaving no children, his or her share shall be equally divided be-
tween the other two." The direction here for an assignment and trans-
fer, coupled with immediate and absolute possession upon the death of
the tenant for life, may well have justified the decision confining the
contingency, of death without children, to the life of the tenant for
life.^
The Master of the Rolls, however, in his judgment, divides the cases
on this subject into four classes. Upon the first three classes it is not
necessary to do more than to point out that the conclusions drawn from
them by His Honour do not appear to me in any way to lead up to
the rule which he deduces from the fourth class of cases which he
mentions. The first class of cases is that where there is a gif t to A.,
and if he shall die to B . If in such a case the words are to be rea^~Tit-
erally, j'ou have, in the first place, the absolute gift, and then a gift
over in the event of death ; an event not contingent but certain, and in
order to avoid the repugnancy of an absolute giving and an absolute
taking away, th e Court is fo rced to read the wor ds "in case of death"
as meanitioi^in case of death before tlie'mterest vests7 "
'^ith regard to the second class of cases, namel)'', gifts to A. for -2-
1 "If the fund is vested in trustees, who are directed to distribute it at a
certain time, so that the trusts then determine, and the legatees, who are to
take upon the deatli of prior legatees without issue, are contemplated as tak-
ing through the medium of the same trustees, there is prima facie reason for
restricting the death without issue to death without issue before the time of
distribution. Galland v. Leonard, 1 Sw. 161 ; Wheable v. Withers, IG Sim.
505 ; Edwards v. Edwards, 15 B. 357 ; Beckton v. Barton, 27 B. 99 ; Dean v.
Handley, 2 H. & M. 6.115. See Smith v. Colman, 25 B. 217 ; In re Hay wai'd,
Creery v. Lingwood, 19 Ch. D. 470 ; In re Luddy, Peard v. Morton, 25 Ch. D.
394; Lewin v. Killey, 13 App, C. 783, P. C." Theobald on Wills (7th Ed.) p.
662.
"\\Tien there is a direction that a legatee is to have the absolute control of
her legacy at a particular time, a subsequent gift over will be limited to take
effect before that time. Clark v. Henry, 11 Eq. 222, 6 Ch. 5SS." Theobald on
W'ills (7th Ed.) p. 663.
2 "If there is an immediate gift to A. and a gift over in case of his death,
or any similar expression implying the death to be a contingent event, the
gift over will take effect onlv in the event of A.'s death before the testator.
Lord Bindon v. Earl of Suffolk, 1 P. W, 96; Turner v. Moor, 6 Ves. 556;
Cambridge v. Rous, 8 Ves. 12 ; Crigan v. Baines, 7 Sim. 40 ; Taylor v. Stain-
ton, 2 Jur. N. S. 634; Ingham v. Ingham, I. R. 11 p:q. 101; In re Neary's Es-
tate, 7 L. R. Ir. 311 ; Elliott v. Smith, 22 Ch. D. 236 ; In re Bourke's Trusts,
27 L. R. Ir. 573. See Watson v. Watson, 7 P. D. 10." Theobald on Wills (7th
Ed.) p. 658.
" But, as a rule, when t here is a gift to A. indefinitely, followed by a gift
at his decease, A . Wlir tirKe" only a lite interesT; Constable v. Bull, 3 De 'G7~^
S. 411; Waters v. WatefsT'lZS' L. J. Ch. 624; Adams' Trust, 14 W. R. 18 ,
Joslin V. Hammond, 3 M. & K. 110 ; Reid v. Reid, 25 B, 469 ; Bibbens v. Pot-
238 CONSTRUCTION OF LiJiiTATiONS (Part 2
life,' an d If he shall die witho u t children , over, the Master of the Rolls
expresses himself thus: "In the second of the supposed cases there is
a manifest distinction. There the event spoken of on which the leg-
acy is to go over is not a certain but a contingent event. It is not in
case of the death of A., but in case of his death without children ; and
here it would be importing a meaning and adding words to the will,
if it were to be construed to import as a condition which was to en-
title B. to take, that the death of A. without children must happen be-
fore some particular period. In these cases, therefore, it has always
been held, that if_ at any_time, whejiherjiefore or after the death ^ f
the tes tator, A. should 'd ie withoiitjeavino;_a-jciiildjhe^y^^
eflect, "and __t he legacy~vests IvT' S'. This is established by the case of
Farthing vT^AIlen [2 Madd. 310], mentioned in Haddocks, but re-
ported only in Jarman on Wills." [Vol. 2, p. 688.] My Lords, I
agree with these observations, but I must observe in passing that I
am unable to understand how it is not, to use the expression of the
Master of the Rolls, "importing a meaning and adding words to the
will," if you construe it to imply, as a condition which is to entitle B.
to take, that the death of A. without children must happen before some
particular period, any more where tliere is not. than where there is,
a previous life estate. I may pass over the third class of cases as not
bearing upon the question now before your Lordships.*
ter, 10 Ch. D. 733 ; Re Houghton, Houghton v. Brown, 50 L. T. 529 ; Re Rus-
sell. 52 L. T, 559." Theobald on Wills (7th Ed.) pp. 658. 659.
"In^t he ease of realty, a devise to A. simply in a will before the Wi lls Act,
a nd in~case of pis deat h over, would pernaps be construed as to~?C"^^ ]life,
a nd atter his deatn over . Bowen v. Scowcroft, 2 i. & C. tjx. 640. See, how-
ever, Wright V. Stephens, 4 B. & Aid. 574. On the other hand, if the devise
gives A. the fee, a gift over, in case of A.'s deattr;~^tll~be hetdJELrjefer to Msr
d?nTK befo re the le is l a lor; — BogersrTT'Hogers, 7 W. R. 541." TheobaIdr"on~
WmiT7th EdT^TBBO:
3 In Edwards v. Edwards, 15 Beav. 357, at 361, the Master of the Rolls said:
'•T he second case is that o f3_gift_ to A., and, if he shall diejvvlthout_l§OJ:ing
a child, then to B." This Includes the case where "the first take r is ^Tven an
abs olute interest: — FifeTv. Alleur22S 111. b07, Sl JSI. E. 110b; Carpenter v.
SaagrnmrcrTIoan^ Trust Co., 229 111. 486, 82 N. E. 418; People v. City of
Peoria, 229 111. 225, 82 N. E. 225 ; Humane Society v. McMurtrie, 229 111. 519,
82 N. E. 319.
4 In Edwards v, Edwards, 15 Beav. 357, at 363, the Master of the Rolls
said : "In the third class of cases, wher e a p revioiis-Iiffe=estate is giv en, the
same rule which applies to the^rst cra^gJaJTcaseilaoidis g. equaTly, t h ough th e
ji.ppHrTrmTfrTvF it tiy??s3 diffe rent tlin p In the first case, the rule is, if A. die
bef o r e the " T^ertb^T^f possession or payment, i. e. before the death of the tes-
tator, the legacy goes to B. In the case I am now considering, the rule is
the same, namely, if A. die before the period of possession or payment, i. e.
before the death of the tenant for life of the legacy, the legacy goes to B.
This is the case of Hervey v. McLaughlin [1 Price, 2G4], cited with approba-
tion by V. C. Wigram in Salisbury v. I'etty [3 Hare, 92]. And it may further
be observed, that the propriety of giving effect to the testator's words, mak-
ing death a contingent event, by referring that event to the period when the
legacy is vested in possession, rather than to the death of the testator, where
these periods are not identical, was the ground on which the House of Lords
reversed the decision of Lord Cowper, in Lord Kindon v. The Earl of Suf-
folk [1 P. Wms. 96], although the principle of that decision was then rec-
ognized, and has always been since maintained."
Ch. 5) GIFTS OVER 239
The f oiirth cla ss of cases mentioned by the Master of the Rolls ^
consists o? those where a life^s tate is given, and th e property is then
given to A. with_ a drre ctIonjhatjfJie__shal l die leaving no child (orj m-
marrieSlQX_iin 3er twenty ^ one). over . As to these cases the Master of
the Rolls observes, that the words referring to death without leaving
a child, &c., may be applied to death at any time whenever it may oc-
cur; "nor," he continues, "if it were res Integra would it be easy, in
the absence of any indication of intention to be collected from the rest
of the will, to determine what construction ought to prevail." The /^^^ JX^ H . -'^-^
Master_of ^the Rolls, however, proceeds to say t h at he considers it ^^ set-_ ^c^-t'^C.^ / C^
tied, both bvj^r incip le and authority, that, in the^ absence of any word s ^v^-^J--^ d "5 o,^^
indi cating' a con trary~ Tntention. the~rule isTlha t the words indicating /, -vv/r
deat h without leav mg a child." must be construed to ref e? To the oc- /. , i rf*
currmg of that event betore the period of distri bution, which he ta kes /^^'*-^^*^ "^ A-tvL
as synonymous"lvith the d _eatl i nt th pjhenTmrfn r li^ ' O'-JZ^
The principle to which the Master of the Rolls refers, he states to
be, the desire of the Court to avoid a construction so inconvenient as
one which must suspend the absolute vesting of the gift during the
whole lifetime of the legatee, a principle which, he says, influenced
Lord Brougham in his decision of the case of Home v. Pillans [2 My.
& K. 15]. With regard to the case of Home v. Pillans, it will be
found, when I examine it, to have no application whatever to bequests
of the kind which we are now considering, and I am not aware of any
principle such as the Master of the Rolls refers to, being applied to
control the natural meaning of the terms of a bequest. In the second
class of cases referred to by the Master of the Rolls, the gift continues
defeasible during the whole life of the legatee; and in cases like that
before 3^our Lordships it would, even according to the construction of
the Appellant, continue defeasible during the whole of the life of the
legatee, supposing the legatee to be outlived by the tenant for life.
The Master of the Rolls, however, refers to decided authorities.
These authorities are Da Costa v. Keir [3 Russ. 360], Galland v. Leon-
ard [1 Sw. 161], and Home v. Pillans [2 My. & K. 15]. In Da Costa
V. Keir [3 Russ. 360] the testator gave the residue of his estate to his
widow for her life, and after her decease to a person whom I shall de-
note as C, to and for her own use and benefit, to be at her own dis-
posal, but if C. should happen to die, leaving any children living at
her decease, then to such children ; but if C. should happen to die with-
out any child or children living at her decease, then to D. and E.
equally ; but if either should die before they became entitled to re-
ceive the residue of his estate, then the whole to the survivors ; but if
both should happen to die in the lifetime of the widow, then to his
widow absolutely. There were, in this will, various circumstances
pointing out the death of the widow as the period at which all the in-
terests were to become indefeasible. In the first place the principal of
the residue was given to C. "from and after the death of the widow,
to and for her own use and benefit, to be at her own disposal ;" a pro-
240 CONSTRUCTION OF LIMITATIONS (Part 2
vision which appeared to negative any continuing defeasibility. In the
next place, the gift over from C. was framed, either in case she should
die leaving children, or in case she should die not leaving children.
And inasmuch as she must of necessity die either leaving or not leaving
children, the case was the same as those where the gift over is in the
event of death simpliciter. Farther, the ultimate gift was, in case
D. and E. should both happen to die in the lifetime of the widow, a
provision which seemed to imply that the previous gifts over were
meant to be in case of death in the lifetime of the widow. It was upon
these particular expressions, peculiar to this particular will, and not
upon any general rule of construction, that the Master of the Rolls
arrived at a decision, which, as it appears to me, was in that case en-
tirely justified by the words of the will.
With regard to the case of Galland v. Leonard [1 Sw. 161] it is
unnecessary to delay your Lordships by going through a narrative of
the will. It is singular that there also, as in Da Costa v. Keir [3 Russ.
360] , there was a gift over in the double event of either leaving or not
leaving children, and there was a provision that the children of a daugh-
ter should be entitled to the same share as their mother would have
been entitled to "if then living," and it was upon these expressions,
and on the general construction of the particular will, that the Master
of the Rolls held that the daughters surviving the tenant for life took
indefeasible interests.
The case of Home v. Pillans [2 My. & K. 15] was a case of an en-
tirely different kind. There was there a bequest to the testator's nieces
when and if they should attain twenty-one ; and, in case of the death
of either niece leaving children, or a child, the testator gave the share
of the niece so dying to her children or child. This was not the case
of an absolute gift, with a gift over in a certain event. There was
no gift over, and there was no gift at all until a niece attained twenty-
one, and the child of a niece marrying and dying before twenty-one
would have been wholly unprovided for if the Court had not held that
the words "in case of the death of my said nieces or either of them,
leaving children or a child," pointed to a death under twenty-one.
I am unable, therefore, to find in the authorities referred to bv the
Master of the Rolls the general rule of construction which he deduces
from them.
I may add that there is a well-known class of cases referred to by
Mr. Fearne in his book on Contingent Remainders [9th Ed. p. 471],
and by other writers, where, with respect to executory devises of
terms for years or other personal estates the Court of Chancery has
been accustomed to lay hold of any words in the will to tie up the
generality of the expression "dying without issue," and confine it to
dying without issue living at the time of the person's decease. In sev-
eral of these cases there has been a prior life estate, as in the case of
Atkinson v. Hutchinson [3 P. Wms. 258], but in none of them was it
ever suggested that the words "dying without issue" or without leav-
Ch. 5) GIFTS OVER 241
ing issue, could be construed as pointing to a death before the tenant
for Hfe.
My Lords, I need not refer in detail to cases decided since the case
of Edwards v. Edwards [15 Beav. 357, 21 L. J. Ch. 324], some of
them have professed simply to follow Edwards v. Edwards [15 Beav.
357, 21 L. J. Ch. 324], and among them is the case of In re Heath-
cote's Trust [Law Rep. 9 Ch. Ap. 45 ; see the case Ingram v. Soutten,
post] now under appeal before, and about to be decided by, your
Lordships, Another is the case of Smith v. Spencer [6 Deg., M. &
G. 631], before Lord Cranworth, a case in which, if it is analogous
to the present, the decision of Edwards v. Edwards [15 Beav. 357,
21 L. J. Ch. 324] was certainly not followed.
I a m unable to find, in any rgt^p prjnr tr^ Edw^T'^'^L.y^JP^j^^'''^^'' [15
Beav. 357, 21 L. J. Ch. 324], any authority thatjhej vyords intr oducing
a gift over in case n f f ji fwjpn fT pTm m a rned^ nrlv^hh nut Jl!iJld.rgn_of a
previous taker d6~not ind icat e, acc ordingi lQ_t heir n atural and prosper
meantng. deatlT unmarried_0£ without children occurrin g-Jit any time,
or th afTlns ~ofdinary^nd literal meaning^js^t p be depar ted Jrom other-
wise thaFln~consHJueTi(:e^of~ajCont^^
ing necessafy"oi^ prbperT
r ought to observeTTesTlt should appear to have been overlooked,
that at one period of the argument doubts were expressed whether un-
der the present will the nephew, Colonel L'Estrange, having died in
the life of the testatrix, the gift over from Grace L'Estrange could
take effect. This point was not raised in the Court below, and I am
satisfied that the gift to Colonel L'Estrange having failed t)y lap se,
th'e resi duary legatee is entitled to take all that Colonel L'Estrange," if
livi ng at the death of the testatrix, could have takem
On tlie whole, I am of opinion that the present appeal should be
dismissed with costs. My Lords, I say with costs, more particularly,
because I observe that out of this legacy, not a large one at the best,
the costs of litigation which came on two occasions before the Court
below have already been paid ; and if farther costs were to be paid
out of the legacy, it would in effect be making the owner of the legacy
pay the costs of both sides throughout the litigation.^ * * *
Lord SelbornK. [After dealing with the principal point of the
case and agreeing in the conclusions expressed by the Lord Chancellor,
continued as follows:] This disposes of the appeal now before us, un-
6 Opinion of Lord Ilatherley omitted.
Note on the Meaning ok '"Without Children." — "AYithont any child"
means primarilv without children surviving at the death of the first taker.
Jeffreys v. Conner, 28 Beav. 328 ; In re Booth ; Pickard v. Booth, L, R. [1900]
1 Ch. 7GS.
Where there is a gift to A. absolutely, and a gift over on his death with-
out leaving children, the word "leaying'' will cause the gift over to take ef-
fect if A. dies leaving no children surviving him at his death. See Theobald
on Wills (7th Ed.) pp. 706, 707 ; Smith v. Kimbell, 153 III. 368, 377, 38 N. E.
1029.
4 Kales Prop. — 16
242 CONSTRUCTION OF LIMITATIONS (Part 2
less it can be held that the gift to Grace L'Estrange, the niece, being
absolute in form, never became subject to the divesting clause, be-
cause the contingent gift by the clause was to a person who died in
the testatrix's lifetime. When the appeal was first opened, I doubted
whether, under these circumstances, the effect of the divesting clause
was not wholly evacuated, in the same way as if there had been a blank
in the will for the name of the substituted legatee. But the result of
the preliminary argument on that point, and of the authority cited by
the Respondent, has been to satisfy me that the lapse of a contingent
gift, by way of substitution, to a person named who might have sur-
vived the testatrix, operates (when the contingency has happened on
which the gift to the person was made to depend) for the benefit of
the residuar}^ legatee, or next of kin, in the same way as if the gift
had been originally made to the same person, free from any contin-
gency.
Order appealed from affirmed; and appeal dismissed, with costs.
TREHARNE v. LAYTON.
(In the Exchequer Chamber, 1875. L. R. 10 Q. B. 459.) «
Appeal from the decision of the Court of Queen's Bench discharg-
ing a rule to enter a verdict for the defendants.
The action was in ejectment to recover possession of tenements sit-
uate at Clay Hill, in the county of Hertford.
The defendants as landlords defended for the whole.
The cause was tried before Kelly, C. B., at Hertford spring assizes,
1874.
Jane Clifford, formerly of Clay Hill, made and executed her will
on the 19th of June, 1863, as follows:
"I, Jane Clifford, of Cedar Cottage, Clay Hill, * * * do make
and declare this to be my will and testament in the manner following:
I order that all my just debts, funeral expenses, and charges of prov-
ing this my will, be in the first place fully paid and satisfied, and after
payment thereof all the rest, residue, and remainder of my goods, chat-
tels, debts, ready money, effects, and other my estate whatsoever and
wheresoever both real and personal, I give and bequeath the same, and
every part and parcel thereof, unto my granddaughter Martha Hud-
son, for her sole use during her lifetime, and after her death to her
children in equal parts. And I do hereby order my granddaughter
Martha Hudson to allow my brother Robert Robbins everything neces-
sary during his lifetime in her own house, or my granddaughter Martha
Hudson to allow my said brother fifteen shillings per week so long as
he shall live. In case my granddaughter Martha dies leaving no issue,
6 Only the opinion of Cleasby. B., is given. The concurring opinions of
Grove and Denman, JJ., and Pollock and Amphlett, BB., are omitted.
Ch. 5) GIFTS OVER 243
the whole of the property g-oes to the next of kin,_vvith the understand-
ing'TEarTEey~~Ehe~riext"T7f'knr^~atl6w~i^^ Robert Robbins fif-
teen shilHngs per week during his life."
Martha Hudson married the plaintiff on the 27th of July, 1864.
The testatrix died on the 29th of January, 1867.
In April, 1868, a male child was born to the plaintiff and Martha
Treharne" (tormerly Hudson), andjive d lor~ a^e vir hours only. No
other "child oTTlTFmarrTage'was'Bonraiive^
Martha Treharne died on the 6th of June, 1872.
The property sought to be recovered was freehold property of Jane
Clifford and passed by her will.
The verdict was entered for the plaintiff. Kelly, C. B. reserved leave
to enter a verdict for the defendants, on the ground that there was no
evidence of sufficient title in the plaintiff to enable him to maintain the
action.
A rule was afterwards obtained pursuant to leave reserved.
The rule w^as argued on the 21st and 23rd of November, 1874, and
the Court (Blackburn, j\Iellor, and Lush, JJ.) discharged the rule on
the ground that the phrase "leaving no issue" must be construed as
"having had no issueT" "^ " ' —
^LEASBY, B. We think that the authorities applicable to this case
are so clear and so strong that we should not be justified in saying that
they are wrong. The position they lay down is, that where an estate
is vested in children after a gift to a parent, then the gift over in case
of the parent dying "without leaving issue" must be read "having had
no issue" in order to carry into effect the intention of the testator:
and this rests upon the highest authority and goes back further than
the case of Maitland v. Chalie, 6 Madd. 243, at p. 250, which was a
decision of Leech, V. C. He says : "In this case a clear vested inter-
est is in the first place given to the children of a daughter attaining
twenty-one ; if in the clause which gives the property over on failure
of children of the daughter the word 'having' be read for 'leaving'
the whole will will express a consistent intention to that effect." Then
he says : "I feel myself bound by the authorities," and he refers to
Woodcock V. Duke of Dorset, 3 Bro. C. C. 569; 3 V. & B. 82, (c),
which was no doubt a case of settlement, but we cannot disregard it.
That case was in the time of Lord Thurlow. Then we have the dis-
tinct authority of Parker, V. C, in Re Thompson's Trusts, 5 De G. &
Sm. 667 ; 22 L. J. (Ch.) 273, who, in dealing with the case expresses
himself thus : "I think that this case comes within the authorities cited
in support of the petition. The will gives a life estate and then clearly
a vested interest in the children ; and if any child dies under twenty-
one leaving issue, to the issue of that child. Thus far everything is
vested; and then occurs the clause, 'in case the said Martha Oliver
shall leave no child or children, or leaving such, all of them shall hap-
pen to die under age and without issue,' in which case he gives the
fund over. It is said that if the word 'leave' be understood in its ordi-
244 CONSTRUCTION OF LIMITATIONS (Part 2
nary sense, the gift over takes effect, for Martha Oliver had no chil-
dren who survived her. It appears to me that the testator's intention
was to give this fund over only in case the previous limitation should
fail." And then he adds this remark, which is so just and applicable
to all cases of this description: "But I may observe an observation
that may always be made in cases where there is this kind of question,
that the testator never contemplated the event which has happened of
a child attaining twenty-one and dying in the lifetime of the tenant for
life. He assumed the child would have lived.'' And then he says,
"1 consider the construction is clear according to the authorities." And
he refers to Maitland v. Chalie, 6 Madd. 243, the case decided by Leach^
V. C, which he says is clearly in point. In addition to these decisions
we have that of Kindersley, V. C, in Ex parte Hooper, 1 Drew. 264,
and Wood, V. C, in White v. Hill, Law Rep, 4 Eq. 265, which bring
the authorities down from the time of Lord Thurlow (1792) to the
present time without dispute. At all events, I speak for my learned
Brothers as well as for myself, we do not feel justified in overruling
the decision of the Court of Queen's Bench, based on a long series of
authorities; the judgment therefore must be affirmed.'^
7 "This constr uction cannot be^4oBtgd_whe re the gift ove rJg_im_tlie-death
of the"TenautTor life •wittnTirrTeaAiDs any cETltli'ai at'his death, or wi thou
leaving auv ■(.'hlldrginnm surviving. Young v. Turner, 1 B. & S. 5o(P, In re
HanitrtT'SteTffl^irTreTnrritnglRnnT^ Ch. D. 1S3, 39 Ch. D. 426." Theobald on
Wills (7th Ed.) p. 706.
Ch. G) GIFTS ON FAILURE OF ISSUE 245
CHAPTER VI
GIFTS ON FAILURE OF ISSUE
PELLS V. BROWN.
(Court of King's Bench, 1620. Cro. Jac. 590.)
See ante, p. 38, for a report of the case.^
CHADOCK V. COWLEY.
(Court of King's Bench, 1624. Cro. Jac. 695.)
Ejectment of lands in Bradmere, of a lease of William Hydes. Upon
not guilty pleaded, a special verdict was found, that William Hydes,
the lessor's grandfather, was seised in fee of this land in Bradmere
and East-Leak, holden in socage of that manor ; and having two sons,
Thomas and Francis, devised them by his will in this manner, viz.
to his wife for life, and after her death all his lands in Bradmere to
Thomas his son and his heirs forever; and his lands in East-Leak to
Francis his son and his heirs forever. "Item, I will that the survivor
of them shall be heir to the other, if either of them die without issue."
The wufe enters, and dies, Thomas enters into the lands in Bradmere,
and devises them to Richard his second son in fee, under whom the de-
fendant claims; and William the eldest son of Thomas enters, and
lets it to the plaintiff. Et si super, &c.
The sole qviestion was, Whether this devise be an estate tail immedi-
ate by the devise, or only a contingent estate, if he died without issue
in the life of his brother?
And it was holden by All the Court (absente LE-\), that it was an
estate tail, so the devise of Thomas was void : for although it were ob-
jected, that the words, "the survivor shall be heir to the other if he die
without issue," are idle, for it doth not appear that he had any other
children ; and then when the one dies without issue, the other is his •
heir by the law, and so he wills no more than the law appoints ; sed non
allocatur; for non constat but that he might have other children, and
that by several venters ; and by the devise he intended to give it to
the others by way of devise, if he died without issue. Secondly, for
the words, "that the survivor shall be heir to the other if he dies with-
out issue," they seem to be an estate tail. But if the devise had been,
1 So a gift over, on the first taker in fee dying "without leaving issue sur-
viving," is an executory- de^'ise on a definite failure of issue. Nicholson v.
Battle, 57 Pa. 384.
246 CONSTRUCTION OF LIMITATIONS (Part 2
that "if he died without issue in the life of the other," or "before such
an age," that then it shall remain to the other ; then peradventure it
should be a contingent devise in tail, if it should happen, and not oth-
erwise : but being, "that the survivor shall be heir to the other if he
die without issue ; " that in his intent is an absolute estate tail immedi-
ately, and the remainder limited over, as 7 Edw. 6, "Devise" 38, is ;
and resembled it to the case 9 Edw. 3, "Tail" 21, and 35 Ass. pi. 14,
and 9 Co. 128 and 16 El. Dyer, 330. And that here although the first
part of the will gives a fee, the second part corrects it, and makes it
but an estate tail. Wherefore it was adjudged for the plaintiflf. Vide
Dyer, 354 and 122, 124. And this judgment was given upon the first
argument.''
NICHOLS v. HOOPER.
(Court of Chancery, 1712. 1 P. Wrns. 198.)
John Jackson seised in fee devised lands to his wife Mary for life,
remainder to his son Thomas Jackson and his heirs ; provided, that
if the said Thomas Jackson should die without issue of his body, then
he gave £100 apiece to his two nieces A. and B. to be paid within six
months after the death of the survivor of the said mother and son, by
the person who should inherit the premises ; and in default of pay-
ment, as aforesaid, then the testator devised the lands to the legatees
for payment, and died.
The testator's wife Mary died, and the son Thomas Jackson died,
leaving a daughter, which daughter, within the said six months after
the death of her father Thomas Jackson died also without issue; the
bill was to have the £200 and for the plaintiffs.
It was urged, that though Thomas Jackson left issue living at the
time of his death, yet when that issue died without issue, then did
Thomas Jackson die without issue ; that if a man should devise lands
to A. in tail, and if A. died without issue, then to B. if A. should leave
issue, and that issue should afterwards die without issue, B.'s estate
would plainly commence. So if a rent were limited to commence upon
tenant in tail's dying without issue, if tenant in tail left issue, that
2 Accord: Burrough v. Foster, 6 R. I. 534 (devise to grandchildren and
*"to their heirs and assigns forever," with a gift over "if any of my grand-
children should die leaving no surviving issue," then to "the survivor or sur-
vivors of such as shall die as aforesaid," and "to their heirs and assigns for-
ever" ; the grandchildren took an estate tail) ; Hall v. Priest, 6 Gray (Mass.)
18 (devise to the testator's children and to their "heirs and assigns forever,"
with a gift over "in case of the decease of either of my said children witJi-
out issue, the share of such deceased child or children shall be equally divided
to and among his or her surviving brothers and sisters").
Contra: Anderson v. Jackson, IG Johns. (N. Y.) 382, 8 Am. Dec. 330; St.
John V. Chew, 12 Wheat. 153, 6 L. Ed. 583; Abbott v. Essex Co., 18 How.
202, 15 L. Ed. 352 (semble) ; Lewis v. Claiborne, 5 Yerg. (Tenn.) 3G9, 26 Am.
Dec. 270; Summers v. Smith, 127 111. 645, 650, 21 N. E. 191; Greenwood v.
Verdon, 1 K. & J. 74 (semble) ; Den v. Allaire, 20 N. J. Law, G, 27.
Ch. G) GIFTS ON FAILURE OF ISSUE 247
afterwards died without issue, the rent must commence; and it was
said to be the stronger, in regard, in this case, here was a death with-
out issue within six months after the death of the survivor; (scil.) the
issue of Thomas died without issue within six months after the death
of Thomas her father.
Vernon & Cur' [Lord Kkeper Harcourt] cont' : Thomas Jack-
son is not by this will made tenant in tail, but continues tenant in fee-
simple ; so that this is not like the limitation of an estate ; for it is
agreed, that in case of limitation of estates, in construction of law,
whenever there is a failure of issue of J. S. though J. S. died leaving
issue at his death, yet from that time J. S. is dead without issue.
But where a legacy is given by a will, to commence upon this con-
tingency, (scil.) if J. S. shall die without issue, this shall be taken ac-
cording to common parlance, viz. issue living at his death ; for, in com-
mon parlance, if J. S. leaves issue, he does not die without issue ; and
it cannot be intended that the testator designed, whenever there should
be a failure of issue of Thomas, (which might be 100 years hence,)
that then these legacies, which were meant only as personal provisions,
should take effect.
However, in this case, with respect to the legatees, if the legacies
take any eft'ect, the words of the devise pass a legal interest, and the
court does not hinder the plaintiffs from proceeding at law, in an eject-
ment, but dismisses the bill.
Note. This differed from the case of Goodwin v. Clark, 1 Lev. 35,
where a settlement was on husband and wife for their lives, remainder
to the first, &c., son in tail male, and if the husband should die with-
out issue male, remainder to the daughters for a term of years, for the
raising of £1500 for their portions; and the husband died leaving is-
sue a son and a daughter, after which the son died without issue :
Whereupon it was adjudged, that the daughter should have the
£1500, for that whenever the issue male of the husband failed, he might
properly be said to be dead without issue male. 8 Co. 86, Buckmere's
Case. And this very expectation, remote and precarious as it was (for
there being an estate-tail, a recovery suffered by the tenant in tail would
have barred the portions expectant thereupon) was, notwithstanding,
of advantage to the daughters with respect to their advancement in
marriage; whereas in the principal case, the estate being a fee, no re-
covery could be suffered thereof, and consequently there was danger of
a perpetuity.
248 CONSTRUCTION OF LIMITATIONS (Part 2
HUGHES V. SAYER.
(Court of Chancery, 1718. 1 P. Wuis. 534.)
John Hughes, after several legacies, by his will directed that the sur-
plus of his personal estate should be divided by his executors into ten
shares, three shares whereof should be paid to his nephew and niece,
Paul and Anne Hughes, children of a deceased brother, and upon
either of their dying without children, then to the survivor, and if both
should die without children, then to the children of the testator's other
brothers and sisters.
The question was, whether this devise over of a personal estate upon
the devisee's dying without children, was good or not?
And his Honor [Sir Joseph Jekyel, M. R.], having taken time to
consider it, gave judgment that the word (children) when unborn, had
been in case of a will construed to be synonymous with issue, and there-
fore would in a will, create an estate tail ; and if the word (children)
was understood to be the same with issue in the present case, then the
devise over of the personal estate upon a death without issue would
be void; but that here the words (dying without children) must be
taken to be children living at the death of the party. For that it could
not be taken in the other sense (that is) whenever there should be a
failure of issue, because the immediate limitation over was to the sur-
viving devisee, and it was not probable, that if either of the devisees
should die leaving issue, the survivor should live so long as to see a
failure of issue, which in notion of law was such a limitation as might
endure forever.
And therefore, by reason of the limitation over in case of either of
the devisees dying without children, then to the survivor, the testator
must be intended to mean a dying without children, living at the death
of the parent, consequently the devise over good.^
FORTH V. CHAPMAN.
(Court of Chancery, 1720. 1 P. Wms. 663.)
This cause was reserved for the judgment of the Master of the
Rolls [Sir Joseph Jekyll], who after time taken to consider thereof,
gave his opinion. The case was,
One Walter Gore by will devises thus : all the residue of his estate
real and personal he gave to John Chapman in trust, only the lease of
the ground he held of the school of Bangor, for the use of his nephews
William Gore and Walter Gore during the term of the lease as herein-
after limited, and having given several legacies, declared his will as to
the remainder of the said estate, as well as his freehold house in Shaw's
sAccord: Clapp v. Fogleman, 21 N. C. 4G6.
Ch. 6) GIFTS ON FAILURE OF ISSUE 249
Court, with all the rest of his goods and chattels whatsoever and where-
soever, he gave to his nephew William Gore ; and if either of his
nephews William or Walter should depart this life and leave no issue
for their respective bodies, then he gave the said [leasehold] prem-
ises to the daughter of his brother William Gore, and the children of
his Sister Sibley Price ; upon which the question arose, whether the
limitation over of the leasehold premises to the children of the devisor's
brother and sister, was void as too remote?
The court was of opinion that the devise over was void, and said
that had the words been, if A. or B. should die without issue, the re-
mainder over; this plainly would have been void, and exactly the
case of Love and Wyndham, 1 Sid. 450, 1 Vent. 79, 1 Mod. 50.
Now there is no diversity betwixt a devise of a term to one for life,
and if he die without issue, remainder over, and a devise thereof to
one for life, with such remainder, if he die leaving no issue ; for both
these devises seem equally relative to the failure of issue at any time
after the testator's death ; and for this the court cited and much relied
upon 1 Leon. 285, Lee's Case, where one devised lands to his second
son William, and if William should depart this life not having issue,
then the testator willed that his sons-in-law should sell his lands, and
died : William had issue a son at the time of his death, who afterwards
died without issue; upon which it was clearly resolved by the whole
court, that though literally William had issue a son at his death, yet
v/hen such issue died without issue, there should be a sale ; for at what
time soever there was a failure of issue of William, he upon the mat-
ter died without issue. And in a formedon in reverter or remainder,
whenever there is a failure of issue, then is the first donee, in sup-
position of law, dead without issue.
His Honor mentioned the case of Hughes and Sayer, which he him-
self upon consideration had determined ; and said there was a diversity
betwixt issue and children, issue being nomen collectivum ; and also
between things merely personal and chattels real ; more particularly
in the case of Hughes and Sayer, by the devise over of the money to
the survivor, if either of the donees should die without children, the
testator of necessity must be intended to mean a death of the donee
without children living at his death ; for to wait until a failure of issue,
might be to wait forever.
It being also debated by counsel, where the residue of the term
vested, in regard the devise was to William and Walter Gore : the
court declared that the subsequent words increased their interest, and
gave the whole term to them, it being plainly intended to dispose of
and devise away the whole term from the testator's executors ; that a
devise of a term to one for a day or an hour, is a devise of the whole
term, if the limitation over is void, and it appears at the same time
that the whole is intended to be disposed of from the executors.
Afterwards in Trin, Term, 1720, this case coming before Lord
Parker upon an appeal, his Lordship reversed the decree; and said,
250 CONSTRUCTION OF LIMITATIONS (Part 2
that if I devise a term to A. and if A. die without leaving issue, re-
mainder over, in the vulgar and natural sense, this must be intended
if A. die without leaving issue at his death, and then the devise over
is good; that the word [die] being the last antecedent, the words [with-
out leaving issue] must refer to that. Besides, the testator who is
inops concilii, will, under such circumstances, be supposed to speak
in the vulgar, common and natural, not in the legal sense.
His Lordship likewise took notice that in a formedon in remainder,
where tenant in tail leaves issue, which issue afterwards dies without
issue, whereupon such writ is brought, the formedon says, that the
tenant in tail did die leaving issue J. S. which J. S. died afterwards
without issue, and so the first donee in tail died without issue, thus
the pleading says, that the donee in tail died leaving issue at his death ;
consequently the words [leaving issue] refer to the time of the death of
the tenant in tail, and if the words of a will can bear two senses, one
whereof is more common and natural than the other, it is hard tO' say
a court should take the will in the most uncommon meaning; to do
what? to destroy the will.
2dly, he said that the reason why a devise of a freehold to one for
life, and if he die without issue, then to another, is determined to be
an estate-tail, is in favor of the issue, that such may have it, and the
intent take place ; but that there is the plainest difference betwixt a
devise of a freehold, and a devise of a term for years ; for in the devise
of the latter to one, and if he die without issue, then to another, the
words [if he die without issue] .cannot be supposed to have been in-
serted in favor of such issue, since they cannot by any construction
have it.
3dly, his Lordship observed what seemed very material, (and yet
had been omitted in the pleadings, and also by the counsel at the bar)
that by this will the devise carried a freehold as well as leasehold
estate to William Gore, and if he oi; Walter died leaving no issue,
then to the children of his brother and sister, in which case it was
more difficult to conceive how the same words in the same will, at the
same time, should be taken in two different senses. As to the free-
hold, the construction should be, if William or Walter died without
issue generally, by which there might be at any time a failure of issue ; *
^Accord: As to real estate: Hulburt v. Einerson, 16 Mass. 241; Morehouse
V. Cotheal, 21 N. J. Law, 480; Id., 22 N. J. Law (2 Lab.) 430; Chetwood v.
Winston, 40 N. J. Law, 337 ; Eichelberger v. Burnitz, 9 Watts (Pa.) 447.
Contra, as to real estate: Harris v. Smith, 16 Ga. 545 (1855) ; Flinn v.
Davis, 18 Ala. 132 ; Daniel v. Thomson, 14 B. Mon. (Ky.) 662 ; Smith v. Kim-
bell, 153 111. 368, 38 N. E. 1029 ; Metzen v. Schopp, 202 111. 275, 67 N. E. 36.
In Parish's Heirs v. Ferris, 6 Ohio St. 563, the gift over was in case the
first taker "shall die without children." There was some ground for contend-
ing that children meant heirs of the body or issue. The court held that
even if it had that meaning the gift over was on a definite failure of issue. J.
R. Swan, J., said:
"It is a singular fact that, with the repeated decisions of the English courts
upon this subject, testators, from generation to generation, persisted in using
Ch. G) GIFTS ON FAILURE OF ISSUH 251
and with respect to the leasehold, that the same words should be in-
tended to signify their dying without leaving issue at their death:
however, Lord Chancellor said, it might be reasonable enough to
take the same words, as to the different estates, in different senses,
and as if repeated by two several clauses, viz. I devise to A. my freehold
land, and if A. die without leaving issue, then to B., and I devise my
leasehold to A. and if A. die without leaving issue, then to B., in
these natural words, and which were held to be inoperative and void, until,
in the first year of the reijLin of the present Queen, a statute was passed de-
claring that the words 'die without issue,' or other words which may import
a want or failure of issue, should be construed to mean dying without issue
living at the death of the person, and not an indetinite failure of issue, un-
less a contrary intention appear by the will. The English rule, adopted in
Virginia, and in a modified form in New York, has met the same fate by leg-
islative interposition. In Ohio, as in Iventuclvy, the English rule of interpreta-
tion has never been sanctioned ; and in the latter State, the subject was very
fully considered in the case of Daniel v. Thomson, 14 B. Mon. (Ky.) 6G2, and
the English rule was rejected as one unknown to the community, contrary to
the natural sense and common use of words, founded upon laws and estates
inapplicable to titles in Kentucky, where, as here, estates tail are abrogated,
and so evaded by courts as to be made to depend upon the discretion and
variable opinions of judges. If there be any rule of interpretation of words
which defeats the intention of the testator, and to which the following lan-
guage of Justice Hitchcock is applicable, it is the English rule now under con-
sideration: 'I must be permitted to say that these rules, in most cases, are
applied not for the purpose of ascertaining, but of defeating the intention of
the devisor. In this State, however, we are required, by statute, to carry out
this intention ; and I presume no such statute would have been passed, had
it not been supposed that these antiquated rules of construction were too
much regarded by our courts.'
"We are all of the opinion, for the reasons which have been indicated, that
the words, 'if he die without issue,' or 'without leaving issue,' or 'heirs of his
body,' or 'children,' or other words of similar import, are to be interpreted
according to their plain, popular and natural meaning, as referring to the
time of the person's death, unless the contrary intention is plainly expressed
in the will, or is necessary to carry out its undoubted purposes. We could,
without impeaching the old English rule of interpretation, find in the words
of the will before us, and in the fact that the brotliers and sisters of the tes-
tator were living at the time he made his will, sufficient to restrict the con-
tingency and the devise over, to the time of the decease of his daughter. But
we are unwilling to make an exception by which we sanction the English con-
struction of the words under consideration, as referring in general to an in-
definite failure of issue, and at the same time make the case before us an ex-
ception to that rule; thus leaving open a wide field of uncertain interpreta-
tion of words and circumstances, so that no man would know the nature of an
estate which depended upon the interpretation of these or the like words, un-
til there had been a decision on the particular will on which the question
might arise.
"If the English rule of interpretation had been recognized by our courts as
a rule of property we would not disturb it. It would then be a fit subject of
legislation. But it never has been recognized ; and the uniform course of the
decisions of the courts of this State has been to so construe wills as to carry
into effect the intention of testators. To adopt the English rule, is clearly to
defeat what every person must acknowledge is the real and the lawful in-
tention of testators; it is to presume that a testator intended to create an
estate forbidden by our statute relating to entailments ; and a rule too which,
wherever recognized by courts, has been changed by legislation.
"Indeed the only certain and stable principle is to hold that these words
in a will, as in other cases, must be taken in their natural sense, unless a
contrary intention is plainly expressed."
252 CONSTRUCTION OF LIMITATIONS (Part 2
which case the different clauses would (as he conceived) have the dif-
ferent constructions above-mentioned to make both the devises good ;
and it was reasonable it should be so, ut res magis valeat quam pereat.
TROTTER V. OSWALD.
(Court of Chancery, 1787. 1 Cox, 317.)
The Bishop of Raphoe in Ireland, by his will in July, 1776, gave all
the residue of his property whatsoever, both real and personal, in
trust to the plaintiff Trotter, and to another trustee, "for the use of
John Bogle during his life, and to the lawful heirs of his body after
his demise, but in case of his dying without issue of his body, after
his decease I give all such residue to John Oswald."
The question was, whether the limitation to John Oswald was or
was not too remote.
Pinbury v. Elhin, 1 P. W. 563, and Theebridge v. Kilburne, 2 Ves.
233, were cited.
Maste;r of thk Rolls [Sir Lloyd Kenyon]. In general, words
which give an estate tail in land, give the absolute property in person-
al estate, and a limitation over of personalty, after an indefinite fail-
ure of issue, is clearly void ; but if the failure of issue is limited within
a certain bound prescribed by law, then such limitation is allowed.
The questions therefore on this subject, are questions of construction,
viz., whether, according to the fair construction of the words, such
limits are transgressed. In this case I think a doubt can scarcely be
framed. The residue is first given to Bogle and the lawful heirs of
his body ; if the will had stopped here, it would most clearly have giv-
en him the absolute property; so, if it had rested on the words, "if
he die without issue;" but the important words follow, viz. "after
his decease I give," &c. These make it a contingency with a double
aspect ; if he had a child at his death, then the limitation over would
be at an end; but if not, the limitation over is within legal limits.
This was therefore a good limitation in its creation. The event which
may give it effect, or destroy it, is still in the womb of time; and
therefore at present no direction can be given.^
6 See Eix parte Davies, 2 Sim. N. S. 114 (real estate devised to the testator's
eldest son and his heirs, with a gift over in case said soa should die without
leaving any lawful issue of his body, the freehold estate should at his death
be divided into equal parts, one of which the testator devised to his second
son and his heirs, and the other to his daughter and her heirs; the gift over
was on a definite failure of issue) ; Wilson v. Wilson, 46 N. J. Eq. 321, 19
Atl. 132 (devise to the testator's daughter, and if she die without leaving is-
sue "then it is my will that after her decease I give and devise the remainder
and residue of my estate, both real and personal, whatever it may be at the
decease of my said daughter," to another in fee; the gift over was on a def-
inite failure of issue, but the daughter was not impliedly given any power to
sell or dispose of the subject-matter of the devise) ; Ide v. Ide, 5 Mass. 500
(the gift over was if the first taker "leave no lawful heirs, what estate he
Ch. 6) GIFTS ON FAILURE OF ISSUE 253
ROE ex dem. SHEERS v. JEFFERY.
(Court of King's Bench, 1798. 7 Term R. 5S9.)
The following case was reserved on the trial of this ejectment at
the last summer Warwick assizes for the opinion of this court.
J. Goodacre, being seised in fee of the premises in question, by will
dated 20th May, 1754, devised to his wife A. Goodacre for life, after
her decease to his daughter Mary Friswell, wife of W. Friswell for
life, and after her death to his grandson T. Friswell, son of W. and
M. Friswell and to his heirs forever; "but in case his said grandson
T. Friswell should depart this life and leave no issue, then (his will
was) that the said dwelling-house, &c., should be and return unto
Elizabeth, ]Mary, and Sarah, the three daughters of W. and M. Fris-
well or the survivor or survivors of them to be equally divided be-
twixt them share and share alike ;" nevertheless his will was that the
said premises should go to his son W. Goodacre for life immediately
after the decease of his wife A. Goodacre, "and after his decease the
said premises and every part thereof to go as above mentioned to his
daughter M. Friswell and her issue as aforesaid." On the devisor's
death in 1757, his wife A. Goodacre entered, and continued in pos-
session until her death in April 1762, when W. Goodacre the son en-
tered. In Trinity term 1764 the said Mary Friswell the daughter
(her husband being then dead), Thomas Friswell the grandson and
W. Goodacre levied a fine of the premises in question, the uses of
which were declared to be to E. Inge to make him tenant to the
praecipe in order that a common recovery might be suffered ; in the
Trinity term following a recovery was suffered, and the uses were
declared to be to T. Goodacre and T. Cater his trustee, who after-
wards conveyed the premises to W. Jeffery one of the defendants.
T. Friswell, the devisor's grandson, died in September 1766 unmar-
ried and without issue, never having been in the possession of the
premises. Mary Friswell, the daughter, died in February 1779. And
W. Goodacre, the last tenant for life, died in March 1795. Sarah
Friswell, one of the daughters of W. and M. Friswell, died in August
1782; Elizabeth another of the daughters and one of the lessors of
the plaintiff married Sheers and survived him; and Mary the third
daughter married J. Mawson, and they are the other two lessors of
the plaintiff. The above defendants are tenants in possession of the
whole of the premises. An actual entry was made by the lessors of
the plaintiff after the death of W. Goodacre and before the day of
the demises laid in the declaration.
This case was argued in last Michaelmas term by,
Reader, for the plaintiff.
Romilly, contra.
shall leave, to he equally divided" between J. & N. ; held, the gift over was
on a definite failure of issue only because of the words "what estate he shall
leave").
254 CONSTRUCTION OF LIMITATIONS (Part 2
The court said they would consider of the case ; but
Lord Kenyon, C. J., then said that the distinction taken in Forth
V. Chapman, that the very same words in the same clause in a will
should receive one construction as applied to one species of property
and another construction as applied to another, was not reconcileable
with reason : but that if it had become a settled rule of property it
might be dangerous to overturn it. That it had been quarrelled with
by different judges, and that small circumstances had been relied on
to take particular cases out of the rule. His Lordship added that he
had then formed no decisive opinion of this case, but that it appeared
to him that there were circumstances in the case to show an intention
in the testator that by leaving no issue he meant a failure of issue of
T. Friswell at the time of his death, the remainders over being life
estates only. That he was not then prepared to unsay what he had
said in Porter v. Bradley, 3 T. R. 146, in which he had not given any
judicial opinion respecting the distinction taken in Forth v. Chapman,
but had merely said that it required a good deal of argument to con-
vince him of the propriety of that distinction.
The case accordingly stood over, and now
Lord Ke^nyon, C. J., delivered the opinion of the court, after stating
the case.
When we read this case at first, it appeared to us that there was no
difficulty in it : but the defendant's counsel, in arguing it, seemed to
think that if we decided against his client the established law of the
land would be overturned, and he pressed the case of Forth v. Chap-
man on us with peculiar force. But it did not strike me in the same
light, and on the best consideration that I have since been able to give
to it at different times I think that this is a clear case and may be de-
cided on principles that have not been disputed for a century. We
had occasion a few days ago to advert to this doctrine, when we said
that this is a question of construction depending on the intention of
the party; and nothing can be clearer in point of law than that if an
estate be given to A. in fee, and by way of executory devise an estate
be given over which may take place within a life or lives in being and
21 years and the fraction of a year afterwards, the latter is good by
way of an executory devise. The question therefore in this and simi-
lar cases is, whether from the whole context of the will we can col-
lect that, when an estate is given to A. and his heirs forever but if he
die without issue then over, the testator meant dying without issue
living at the death of the first taker. The rule was settled so long ago
as in the reign of James the First, in the case of Pells v. Brown, Cro.
Jac. 590, where the devise being to Thomas the second son of the de-
visor and his heirs forever, and if he died without issue living William
his brother then William should have those lands to him and his heirs
forever, the limitation over was a good executory devise. That case
has never been questioned or shaken, but it has been adverted to as
an authoritv in every subsequent case respecting executory devises ;
Ch. G) GIFTS ON FAILURE OF ISSUE 255
it is considered as a cardinal point on this head of the law, and can-
not be departed from without doing as much violence to the estab-
lished law of the land as (it was supposed by the defendant's counsel)
we should do if we decided this case against him. On looking
through the whole of this will we have no doubt but that the testator
meant that the dying without issue was confined to a failure of issue
at the death of the first taker ; for the persons to whom it is given
over were then in existence, and life estates are only given to them.
Now taking all this into consideration together, it is impossible not to
see that the failure of issue intended by the testator was to be a fail-
ure of issue at the death of the first taker; and if so, the rule of law
is not to be controverted. It is merely a question of intention, and
we are all clearly of opinion that there is no doubt about the testator's
intention. The consequence of this is that there must be judgment
for the plaintiff.
Postea to the plaintiff.^
PROPOSED LEGISLATION '
In any gift, grant or devise hereinafter taking effect, a limitation of
an executory interest contingent upon the event of a prior taker "having
no issue" or "dying without issue" or "dying without leaving issue"
(or using words of similar import), shall not be held to refer to an in-
definite failure of issue, but shall be deemed to refer to the want or
failure of issue at the time of the death of the person named as an-
cestor.
6 Where, however, the testatrix bequeathed personal estate to her daughter
and her heirs, and in case she dies without issue to be divided between four
nephews and nieces named, one of them to take only for life and her part
to be divided between the survivors, the gift over was upon an indefinite
failure of issue and void for remoteness: Barlow v. Salter, 17 Ves. 479.
7 Prepared by Professor Ernst Freund and embodied in the draft of a bill
presented to the Illinois Legislature at its sessions in 1907 and 1909. See,
also, 1 lU. Law Rev. 314, 315.
256 CONSTRUCTION OF LIMITATIONS (Part 2
CHAPTER VII
IMPLICATION OF CPvOSS-LIMITATIONS ^
SCOTT V. BARGEMAN.
(Court of Chancery, 1722. 2 P. Wms. 68.)
One has a wife and three daughters, A., B., and C, and being pos-
sessed of a personal estate, devises all to his wife, upon condition,
that she would immediately after his death pay £900 into the hands of
J. S. in trust to lay out the same at interest, and pay the interest
thereof to his wife for her life, if she shall so long continue a widow ;
and after her death or marriage, in trust that J. S. shall divide the
£900 equally among the three daughters, at their respective ages of
twenty-one, or marriage, provided that if al l his three daughters
should d ie before th eir legacies should become _ _pavabj_e , then the
m'otTierr~uhom the testator also made executrix, should have the
wlTole,,^2QQ^aid tojier..
'he wife pays the £900 to J. S. and marries a second husband, viz.,
the defendant Bargeman ; the two eldest daughters die under age and
unmarried ; the youngest daughter attains twenty-one ; and the ques-
tion being, whether she was entitled to all, or what part of the £900.
Lord Chancellor [Macclesfield]. The youngest daughter is
entitled to the whole £900, by virtue of the clause in the will, which
says, "if all the three daughters shall die before their age of twenty-
one or marriage, then the wife shall have the whole £900;" for this
plainly excludes the mother from having the £900 or any part of it,
unless these contingencies shall have happened, and the share of £300
apiece did not vest absolutely in any of the three daughters under
age, so as to go, according to the Statute of Distributions, to their
representatives, in regard it was possible all the three daughters
might die before their ages of twenty-one or marriage, in which case
the whole £900 is devised over to the mother ; consequently the whole
£900 does now belong to the surviving daughter the plaintiff. -
1 Cross-remainders will not be raised by implication in a deed: Doe d.
Tanner v. Dorvell, 4 T. R. 518 (1791).
2 "If tliere is a devise of lands to two or more as tenants in common and
the heirs of their bodies respectively, followed by a gift over in default of
such issue, the gift over takes effect only in default of all such issue as would
take under the antecedent limitations, and therefore cross-remainders are im-
plied between the tenants in tail. Doe d. Gorges v. Webb, 1 Taunt. 234 ;
Powell V. llowells, L. R. 3 Q. B. G55 ; Hannaford v. Hannaford. L. R. 7 Q. B.
Ch. 8) DETERMINATION OF CLASSES 257
CHAPTER VIII
DETERMINATION OF CLASSES
WELD V. BRADBURY.
(Court of Chancery, 1715. 2 Vem. 705.)
Wickstead Weld, the plaintiff's father, devised his stock without
doors to be sold by his executors, and after debts and legacies paid,
the surplus arising by sale to be put out at interest ; and one moiety to
be paid to the vouno-er children of the plaintiff, living at his death, and
th e other m oiety to the children of T- S. and J. N.
i\' either I. b. nor | . N. had any child living at the making of the
will, or at the d eath ot the test ator.
FeS-CTr! [Lord Cowper, L. C] It must be intended an execu -
tory devise, and to be to such children, as the y, or either of them
sTiould at any tune after have, and the children to take per capita, and
notper stirpes, tney clamimg in their own right, and not as represent-
ing their parents.^
116; soe Askew v. Askew, 57 L. J. Ch. 629; 58 L. T. 472; 36 W. R. 620."
Theobald on Wills (7th Ed.) 739.
'•The result will be the same if the ?ift over is in default of issue to take
under the preceding limitations, livins? at the death of their parents." Madeu
V. Taylor, 45 L. J. Ch. 5G9. Theobald on Wills (7th Ed.) 739.
••It has been said that, if cross-remainders are provided between certain
objects in certain events, the implication of cross-remainders between those
objects in different events does not arise; so that, for instance, if cross-re-
mainders are provided between the children of separate families among them-
selves, cross-remainders would not he implied between the children of one
family and those of the other. Clache's Case (Dyer, 330), however, which is
usually cited on this point, is no authority for any such proposition. All that
case decides is, that cross-remainders cannot be implied in the face of an ex-
press limitation over in a certain event with which such an implication would
be inconsistent. See the remarks by Turner, L. J., in Atkinson v. Barton, 3
D. F. & J. 339. And the decision in Rabbeth v. Squire, 19 B. 77 ; 4 De G. & J.
406, was based on totally different grounds. The true rule is laid down by
Turner, L. J.: 'Cross-remainders are to be implied or not according to the
intention. The circiimstance of remainders having been created between the
parties in particular events is a circumstance to be weighed in determining
the intention, but is not decisive upon it.' Atkinson v. Barton, 3 D, F. & J.
339 (reversed on appeal, but on different grounds, 10 H. L. 313). See, too,
Vanderplank v. King, 3 Ha. 1 ; Re Ridge's Trusts, 7 Ch. 665 ; In re Hudson,
Hudson V. Hudson, 20 Ch. D. 406 (where the rules deducible from the ciises
are stated); In re Rabbins; Cill v. Worrall, 79 L. T. 313." Theobald on
Wills (7th Ed.) 740.
"Cross-remainders will be implied in a devise to the children of A., which
carries to them only a life estate, with a gift over for want of such issue of
A. Ashley v. xVshley, 6 Sim. 35S." Tlioobald on Wills (7th Ed.) 740.
1 Sii ine as to realtv, Shepher d v. Ingram, ante, page 97.
4 Kales Prop. — 17
258 CONSTRUCTION OF LIMITATIONS (Part 2
• HILL V. CHAPMAN.
(Court of Chancery, 1701. 3 Brown, Ch. Cas. 391.)
The testator, John Spackman, made his will, dated 15th January,
1785, and thereby " gave the residue to his trustees, the defendants , in.
"trust for the benefit of all his grandchildren, by his daughter Sarah,
equally to be divided between them, and laid out for their respective
benefit" ["as aforesaid."] The testator made two codicil s, to his will,
and by the latter, dated 19th November, 1785, he gave annuities to his
servants to the amount of £30 a year, and directed £1000 Three per
cent Bank Annuities to be set apart to pay these annuities.
The plaintiffs were the children of the testator's daughter, Sarah
Hill, born before the death of the testator.
The defendants were the trustees, and a child born after the death
of the testator (but during the life of the annuitants), who was brought
before the court, by a supplemental bill.
And the question was, whether the after-born child should take a
share of this £1000.
Lord Chance:llor [Thurlow]. Where a supplemental bill brings
a new person or a new interest before the court, it is open to the par-
ties to make any objection to the decree that might have been made
at the first hearing.
It is intelligible, that by "the children of A." the testator means_cliil-
dren then born; if you go further, it must extend to all possible cliil-
dren. To tie it up to the death of the testator, is rather a forced con-
struction.
Where it is to one for life, and then to the children, it shows the
intention to be children bom then. If it was a specific legacy to one
for life, and then to be divided, there could be no doubt.
If it were of a part to one for life, then to fall into the residue, and
then the residue was ordered to be divided among children, the same
principle would apply; which must extend to all the children: there-
fore, if the £1000 was to be divided at the death of the surviving an-
nuitants, ftlnust be divided among all then born; but the difficulry—
here is, that the general estate must be divided at the death of the tes-
tator. The circumstance of taking out a part for the special purpose
does not seem very material. If he says nothing upon the subject,
upon the death of the surviving annuitant it must sink into the residue,
which is divisible at the testator's death ; and it is repugnant to say,
one part of the residue shall be divisible at one time, and the other
part at another.
1 tliink it must fall into the residue.
2 After having given distinct legacies to the children of his daughter, Sarah
Hill, nominatim, directing the mode of investment, and the time when each
legatee should have the possession ; see the report in 1 Ves. Jun. 405, and the
MS. reports of the judgment. — Belt's Note.
Ch. 8) DETERMINATION OF CLASSES 259
I have always thought that the case of Ellison v. Airey, 1 Vesey,
111, went on a refinement, and was beside tlie intention of the tes-
tator.^
DEVISME V. NIELLO.
(Court of Chancery, 1782. 1 Brown Ch. Cas. 537.)
Stephen Devisme,* having made his will in 1763, added a codicil
March 20, 1770, which contained this provision: "I give and be-
queath a further sum of i5000 sterling, to purchase stock, and the in-
terest to be paid to my mother Marianne Devisme ; at her death the
interest to be paid to my brother William Devisme ; and at his de-
cease, to my godson_Ste£hen ; at his decease, if before he is of age, to
be divided am ong his brothers equally ."
"Sfephen Devisme, the testator's godson, had died, aged four years,
February 26, 1770, before the making of the codicil. The testator
died in November, 1770. Stephen Devisme, the godson, was th^ son
of the testator's brother William Devisme. Besides Stephen, WilHam
Devisme had two sons who were living both at the date of the codicil
and at the tim^TTfThe testator's death, and another son Andrew, wHo
was"5ornTn" 1778.
^farianne, the testator's mother, died in 1779, and William Devisme
in 1781.
The sum of iSOOO had been invested in stock. The two sons of
William Devisme, who were living at the testator's death, and had
attained twenty-one, brought this bill, that their shares might be
transferred to them. The question was, whether Andrew Devisme
was entitled to share.
Lord Chancellor [Thurlow] was of opinion, that he was obliged
to say t he words iji jhe. bequest of iSOOO to brothers of Stephen, were
not con fined _to those who were his brothers at the time of making
the codicil ; that the testator must have had in contemplation other
sons coming into being; that the intention of the testator appeared
to be to make an aggregate description of a part of the family of
William, by the name of brothers of Stephen, as if he had used the
words male children of William, that he made use of the word broth-
ers merely by relation to the antecedent, the name of Stephen used in
the former part of the bequest, and that he could not otherwise have
8 In Hasrger v. Payne, 23 Beav. 474 (1S57), it was held that where the gift
was of a residue to a class, and part of the residue consisted of a reversion,
yet the class was ascertained and determined for the whole residue when the
time came for the distribution of the residue gcenerally, and not from time to
time as the reversion fell into possession and l^eeame distributable.
4 Tlie following statement is abbreviated from the report, and one of the
points is omitted.
260 CONSTRUCTION OF LIMITATIONS (Part 2
described the sons of Williarn but by a circumlocution ; he therefore
declared that Andrew, bcir.c;- born before the time of distribu tion of
the fund, was entitled to a share of the £5000.^
AYTON V. AYTON.
(Court of Chancery, 17S7. 1 Cox, 327.)
George Lee, by his will of the 10th of October, 1762, "gave unto
his wife Ma ry Lee, the whole rest, residue, and remainder of all his
stockTgoverrtiiient securities, money, and estates real arid personal,
for her life and no longer. Upon her decease he gave and bequeathed
them to the childr en of M r. John Ayton and his wife Jane, to be
equally divided''ambngst them the said fane~Ayton's children ^and i iot
to aiiy children by another marriage of eit her p arty?"
At theTim^~crf~ttle death ot the testator and his widow Mary, the
petitioners John and SusaniTS ii Ayioi Tpvvere the only'"chi!clren"of~John
and Jane Ayton, but a jter tI Te death of the wi dow they had three more
children, Hannah, Jane, an d Elizab eth.
By the decree made in tins cause~^y the jN Iaster of the Rolls on the
5th of December, 1765, his Honor declared, that according to the
words of the will, the testator meant to comprise not only such of the
children of John and Jane Ayton as were living at the time of the
making the will, and at the testator's death, but also all the children
there should be of such marriage, and gave d irections for applyin g
t he fund for benef it of the petitioners, "and any o ther child or chil-
dren_ofJhe_said _Iohn and jane Ayton, as shall be living at the time
of the d eath of A yton an^his^w ife. or either ot tliem. "
TlTFpetitioners now applied to have the cause reheard, complaining
of the decree being erroneous in extending the construction of the
words to children born after the death of the widow Mary Lee.
Masti;r of the Rolls [Sir Lloyd Kenyon]. This certainly is a
question of construction, viz. whether by the words the testator has
made use of, he meant to comprise one class of children or another;
but in this, as in many other cases, t here are technical rules of con-
structi on, which are as binding on the court as rules of law in othe r
cases. The rule of construction applicable to the present case is set-
tled, and settled most conveniently for the parties, by the case of El-
lison v. Airey, 1 Ves. 111. So many child ren as c ome_ j.n esse before
5 It makes no difference that the life interest is not created by the testator.
Walker v. Shore, !•") Ves. 122.
In accord with the principal case: Stiles v. Cummings, 122 Ga. 635, 50 S.
E. 484; Hubbird v. Coin, 137 Fed. 822, 70 C. C. A. 320 (real estate).
Per Buller, J., in Doe d. Comberbach v, Perryn, 3 T. R. 484, 495 (17S9):
"Where the estate is limited to a number of children, it shall vest in the
first, and afterwards open for the benefit of those who shall be born at a
subsequent period." See Gray, Perpetuities, § 110.
Ch, 8) DETERMINATION OF CLASSES 261
thetim c when the fund is d istributa ble shall be comprehended, and
nrT rriorej__tl xe vesting is not~tonje suspended till other children ar e
born, to take away from the shares~of the form ££ There are many
other cases to this point. Roberts v. Higham, 12th July, 1779; Con-
grave V. Congrave, March, 1781; Bartlett v. Lynch, 26 May, 1757;
Baldwin v. Karver, January, 1774, Cowp. 309, Doug. 503 ; Isaacs v.
Isaacs, December, 1768; Devisme v. Mello, July, 1782. The general
w ords w'ill extend beyond children in being; for it will take in any
child born before the remainder takes effect, and therefore so far I
shSTTcertainly goin this case; but the decree in 1 7 65 goes further ,
and e xtends |t to all the children of the marria ge, which is a cmistrpc-
tion that would_ tje'^attended with very great inco nvenien ces ; and I
canfTot seesufficient in the words confiningTReTDequest to the children
of the present marriage to break in upon the rule. I must therefore
reverse the decree, and declare my opinion, that in the events which
have happened the absolute interest i n the j;esid ue ves ted injhe children
born before the death ot Mary Lee Tand not in the children born afte r-
wards?^
MIDDLETON v. MESSENGER.
(Court of Chancery, 1799. 5 Yes. Jr. 136.)
John Messenger by his will, dated the 17th of March, 1785, after
directing his debts to be discharged, proceeded thus:
"Item, I give and bequeath unto my well-beloved wife Lydia Mes-
senger all the interests of my money arising from the 3 per cent. Con-
solidated funds, "and also the profits arising from all my estates w^i at-
soever, and the u se of all mv household furniture, during the term of
heiHiatural life; and at her decease I give to my daughter-in-law Ann
Little th e interest arising from £1500 for her sole use during her nat-
ural life; but to stand in my name deceased; and if any misfortune
by sickness or lameness should attend the said Ann Little, that she
may at any time hereafter be rendered incapable of going to receive
her interest money, my will is, that she appoint by letter of attorney a
person to receive the same : Item, I give and bequeath unto my s ister
O' Brien and to my sister Charlewnnd ten guineas annii alb:-^£ach, be-
ing the interest of i700., to stand in my name deceased: The remaiii -
der of money in the funds and all my estates of every kind or nature
whatsoever to be sola by a tair auction, and the s ums ot money arisin g
thei'efi'om to be eqilfilly divided amon g brothers' and sisters' childr en
(Susan L'harlewood excepted) to whom 1 bequeath one shilling."
6 Theobald ou Wills (7th Ed.) p. 807: "If no children are born before the
death of the tenant for life all afterborn ehildren are admitted. Chapman v.
Blissett, Ca. t. Talb. 145; Wyndham v. Wyndbam. 3 B. C. C. 5S. But this
rule does not apply, if there is a clear intention, that distribution is to be
made once for all when the fund falls into possession. Godfrey v. Davis, 6
Ves. 43, explained in Conduitt v. Soane, 4 Jur. N. S. 502."
'262 CONSTRUCTION OF LIMITATIONS (Part 2
He then gave some mourning rings, and to John IMiddleton and
George Odel ten guineas each ; and he appointed them executors.
The testator afterwards made the following co dicil : "As the lega-
tees diet he benefit of the intere st moneysto go into the family~ot riTy ^
br others^~and sisters' children then survivmg equal share and shar e
alike."
The testator died upon the 3d of June, 1786. Besides stock and
household furniture he was possessed of leasehold estates. His widow
received the interest and dividends of his 3 per cent. Annuities and the
profits arising from all his estates, and had the use of all his house-
hold furniture, during her life. She died upon the 12th of May, 1795.
The annuitants named in the wnW survived her.
The bill was filed by the executors to have the accounts taken, and
the claims of the parties ascertained; and by a decree made at the
Rolls upon the 12th of December, 1786, the accounts were directed;
and an inquiry, who w^ere the brothers and sisters of the testator;
whether they had any and what children living at the time of his death ;
if any were dead, who were their personal representatives ; and wheth-
er any of them (except Susan Charlewood), were living at the death
of the testator's widow.
The Master's report specified the brothers and three sisters of the
testator; and stated, that s everal of their children were l iving at the
testat(Trs__death ; and somp r)T ~them di ed before the deatti ot his
widowl None were bom after the testator's death.
By anotheT^decree, pronounced upon the l6th of February, 1798,
it was directed, that £1500. 3 per cent. Consolidated Bank Annuities,
part of i3350. standing in the name of the testator, should be carried
to the account of the Defendant Ann Little, and the interest to be paid
to her for her life; and it was declared that upon her death the said
£1500. would belong to such of the children of the testator's brothers
and sisters (except Susan Charlewood) as should be living at the death
of Ann Little. The decree farther directed, that £700., other part
thereof, should be carried over in manner following : viz. £350. to
the account of the testator's sister, the Defendant Sarah Clempson (for-
merly O'Brien) ; and the interest thereof should be paid to her for
life; and £350., the other moiety, to the account of his sister Ann
Charlewood; and the interest thereof be paid to her for life: and it
was declared, that the said two sums would belong to such of the chil-
dren of the testator's brothers and sisters (except Susan Charlew^ood)
as should be living at the respective deaths of Sarah Clempson and
Anne Charlewood. Some inquiries were directed as to James Mes-
senger, a brother of the testator; who went to sea in 1785; and has
not since been heard of. Advertisements were published for his chil-
dren : but none came in.
The cause coming on for farther directions, the question was, wji ethj
er^iegeneral residue belonged exclusively to the chjldre n of the te s-
tator's bToIherrand sisleis (except Susan C harlewood), who were li y-
Ch. 8) DETERMINATION OF CLASSES 263
ing at t he death of the widow : or whether children, who died between
th"e~dea tB of the testator and the death of his wido w^ were entitled with
the others. The Counsel tor the Flamtitts were dTrected by the Court
to^support the point in favor of all the children living at the death of
the testator.
Master of the Rolls [Sir Richard Pepper Ardex]. I have
looked over this will with much attention ; and I do not say, I have
not some doubt upon it ; and that I have not in some degree changed
my opinion in the consideration of the question. But upon the whole
will taken together with the codicil I am of opinion, t he codicil up on
the true constructio n is not ex planatory, hni- restnrtivp ; a distribution
olTly of so much as had by theTvill been appropriated; the interest of
which he had given in different proportions to Ann Little, Sarah
Clempson, and Anne Charlewood. By the will making no farther dis-
position of the il500. and i/OO. so appropriated, which are still to
stand in his name, he proceeds to dispose of the remainder of his
money in the funds and all his other property after those appropria-
tions. I understand, he had several leasehold estates. It appears to
me upon the face of the will, and according to the construction put
upon words of division at the deaths of tenants for life and the au-
thority of De Visme v. Mello (1 Bro. C. C. 537 [Am. Ed. 1844, 537-
542, and notes] ; see the cases upon this subject collected and classed
by Mr. Fonblanq. Treat. Eq. vol. ii, 346, and by IMr. Sanders, 1 Atk,
122, in a note upon Heathe v. Heathe ; see also Spencer v. Bullock,
Taylor v, Langford, Malim v. Barker, ante, vol. ii, 687; iii. 119, 151,
and the note ante, i. 408), that the remainder of his money in the
funds and the produce of all his other estates, when sold, were divisi-
ble among all the cl2ildren__Ql_ his bro the rs and sisters, except Susan
Charlewood. liyi ngarhis own death, an d_su ch, if _an Y, as might be bom
•hefnfpTlTplTpafvrnf hi^wrfp^and the 7epre sentatives of such as should
be deadlh the li te ot TTiTwif e^ That is fully established in that case ;
in which every~circumstance contained in this occurs. It is clear upon
that case, to which I perfectly subscribe, that under such a disposition
the fund is divisible among such of the objects, as are living at the
testator's death, and such as shall be born, before the fund is dis-
tributable ; and that they are vested interests. If that is the true con-
struction of this will, and it is clearly so, if De Visme v. niello is right,
the question is, to what the codic il relates ; and it was contended, tha t
it relat ed, not only to the sums appropriated to the annuitants, but
th at it was explanatorv of th e words the testator used, when speaking
of the remainder of his mone y in the tunds, alter that appropriation ,
and"aTrhis other estates; to restra in the disposition, a s i t does, as far
as it relates to the subject o TT t, to children then su rviving! B ut upon
the true construction of this codicil I am of opinion, tt was not to
relate to any thing but the interest und isposed of by the wil l : and tTiat
the testator did not mean to disturb what was given by the will, but to
2G4 CONSTRUCTION OF LIMITATIONS (Part 2
dispose of \vhat had been left undisposed of, the sums of £1500. and
£700. after the deaths of the annuitants.
Declare, that the residue of the testator's personal estate, after the
appropriation of il500. and £700. 3 per cent., &c. for satisfaction of
the annuities given by the will to Ann Little, Sarah Clempson, and
Ann Charlewood, is distributable among the child^eii of_ jh e testator 's
broth,er_a nd sisters (excep t SusanCharlewood) living at his decease,
and the representatives ofTuchas died m t he life" of his wite."^
GILMORE V. SEVERN.
(Court of Chancery, 17S5. 1 Brown, Ch. Cas. 582.)
Testator gave t o the children of his sister Jane Gilmore , wife of
Thomas Gilmore, T350 with interest for the same, to be p aid them
resp ectively, their equal shares and proportions as they should respec -
ti vely attain twenty-on e; and_m_ _case any of them should die und er
twenty-one, th en their shares"should go to the survivors an dsurviA-oT
At the de ath of the testator, Jane Gilmore had twoJHjildrenJ^the
plaintiffs ; after wardT sTT e haH _ another ch ild : the plaintiffs were both
infants; and the Court ISiiTXloyd Ksnyon] was of opinion, that
7 Accord: Holland v. Wood (1870) L. R. 11 Eq. 91 (devise of real estate).
But see Drury v. Drury, 271 111. 336, 111 N. E. 140 (1916) ; Satterfield v.
Mayes. 11 Humph. (Teuu.) 58 (personalty) ; Cole v. Creyon, 1 Hill Eq. (S. C.)
311, 322, 26 Am, Dec. 208 (personalty) ; Conner v. Johnson, 2 Hill Eq. (S. C.)
41 (real estate) ; Robertson v. Garrett, 72 Tex. 372, 10 S. W. 96 (real estate) ;
Teed v. Morton, 60 N. Y. 502. 506 (personalty ; the court suggests difference
between realty and personalty) ; Matter of Allen, 151 N. Y. 243, 247. 45 N. E.
554 (semble ; personalty) ; Hadcox v. Cody, 75 Misc. Rep. 569, 135 N. Y. Supp.
861 (ijersonalty).
In Cole Y. Creyon, supra, the court, by Hari^er, J., said: " I^think it. how -
e ver, the mdi'g liat uVal i mport of t h e words, when the bequest i's~fo'cnii(iren-?\t
tlie death ot the tarumt for lileS ttUlt those who theh answer the d^-Jc'rlptmn
o fchildren, sbouUl be nu';Tn t The intenta^n too, will, 1 tuiuK, in general be
best conipiied with Dy tnis construction. When property is thus given to
children, and one dies before the period of distribution, it will commoidy
happen that his brothers and sisters will be his next of kin, and then it will
be immaterial whether they take as legatees or as next of kin of the deceas-
ed. But it may haiipen that there will be a father or mother to take along
with them ; and when the testator has passed over the parent and given
the whole to the children, it would seem to defeat his intention that the
parent should at the period of distribution, take any portion as next of kin.
When the devise is of real estate in England, one brother would take the
whole of the deceased's portion as heir-at-law ; and this would seem to defeat
the intention that all the children should take ef[ually. There would be rea-
son for making a different construction, and probably a different one ouglit
to be made, wiien the child dying has left children ; and this also to effectu-
ate the intention ; for it cannot be supposed that the testator intended the
object of his bounty not to be capable of transmitting to his children so as to
provide for them."
Compare, however, with the result reached in O'Hare v. Johnston, 273 111.
458, 113 N. E. 127.
Ch. 8) DETERMINATION OF CLASSES 2G5
the ynirnFresj _chilcl. beinff born during the infancy of the other two ,
thoug h after the dea th of the testator. might_b e entitled to a share.
As none were entitled to a veste'd^interest^the court ordered the
money to be paid into the bank.^
ANDREWS V. PARTINGTON.
(Court of Chancery, 1791. 3 Brown, Ch. Cas. 401.)
Robert Andrews, grandfather of the plaintiff, made his will bearing
date 19th August, 1763, and thereby gave to the defendants, Partington
and Andrews (the father of the plaintiffs), all his real and personal
estates (subject to debts) : in the first place, to pay taxes, repairs, and
for the renewal of leases ; and out of the rents, &c., to pay his wife,
Margaret, £800 a year, until his daughters, Diana and Catherine, should
marry; and after their marriages, £600 a year for life; and subject
and without prejudice thereto, out of the rents and profits, to raise
£3000, as soon as might conveniently be, after his decease, to be paid
in manner following: i. e., £2000 te his daughter Diana, and £1000
to his daughter Catherine, accumulating the surplus rents and profits
during the life of his wife; and, after the decease of his wife, the
further sum of £7000 to be paid to his daughters, at such times, and in
such proportions, as therein mentioned; i. e. £3000 to Diana, on the
day of her marriage, and £4000 to Catherine, on the day of her marriage,
provided such marriages should happen after the decease of his wife ;
and in case either of his daughters should marry in the lifetime of the
wife, then her share to be paid her within six months after the death
of the \Yif e ; the shares of the daughters, after decease of the wife,
to bear interest at four per cent ; and in case his said daughters, or
either of them, should die unmarried, then, upon trust, to pay the
share or shares of her or them so dying in the manner following: i. e.,
£2000, part of the £3000 share of Diana, to all and every the child and
children of his son Robert Andrews, equally to be divided between
and among them ; if more than one, share and share alike ; and if
but one, then to such only child ; the parts or shares of such child
or children to be paid in manner following : i. e., the daughter's shares
at her or their age or ages of twenty-one, or day or days of marriage,
which should first happen ; and the son's share or shares, at his or
8 See, also, In re Emmet's Estate, 13 Cb. D. 484 (ISSO). Theobald on \Tills
(7th Ed.) p. 309: "Maintenance out of the shares or presuniptive shares of
children will not extend the class. Gimblett v. Purton, 12 Eq. 427. But if
maintenance and advancement are continued beyond the time when the eld-
est child attains twenty-one, if, for instance, advancement is directed out of
vested and presumptive shares, all children will be let in. Iredell v. Iredell.
25 B. 485; Bateman v. Gray, 6 Eq. 215; In re Courtenay; Pearce v. Fox-
well, 74 L. J. Ch. 654."
266 CONSTRUCTION OF LIMITATIONS (Part 2
their age or ages of twenty-one; or to be sooner advanced, for his
Or their preferment in the world, or benefit, if the trustees, or the
survivors of them, &c., should think fit, with survivorship among the
children, the dividends and interest thereof to be paid by the trustees,
toward the maintenance and education of such child and children,
till their shares become payable, in proportion to their respective
shares and interests therein; and in case all the children should die
before their shares became payable, then the i2000 to be paid to his
son Robert Andrews. The testator also declared the uses as to the re-
maining ilOOO given to his said daughter Diana, for the benefit of the
children of his daughter Margaret Ashcroft; and with respect to
i2000 of the £4000, his daughter Catherine's share, he also gave it in
the same manner with the first £2000 given to his daughter Diana;
and the other £2000, part thereof, he gave among the children of his
daughter Margaret Ashcroft, in the manner therein mentioned; and
he gave the r esidu e of his estate, after the death of his wife, after
payment of £1000, to his son Robert Andrews, and three annuities,
to persons since dead, t o the childre n of de f endant, R obert Andrews,
in the same manner with the £2000 given in the first place toTDianaT"
The testator died 27th August, 1753, and his wife and defendant
Partington, proved his will.
The widow died 23d May, 1774, leaving defendant Partington the
surviving executor.
Catherine Andrews, one of the testator's daughters, intermarried
with John Neale Pleydell Nott, Esq., and £4000 part of the £7000
were, after decease of the mother, paid to the trustees named in the
settlement upon the marriage, together with £1100 arising from savings,
and from another fund.
The remaining £3000 was never raised ; Diana, the other daughter,
never having married ; but interest for the same has been paid to her
from the death of the widow.
Sarah Andrews, wife of the defendant, Robert Andrews, son to the
testator, died in April, 1781, and the plaintiffs are the children of that
marriage, six of whom had attained their ages of twenty-one, previous
to the filing of the bill, and the six others were minors.
The bill prayed (among other things) that the freehold and leasehold
estates might be sold, and six twelfth parts of the produce, and also
of the residue, and accumulation, might be paid to the six plaintiffs,
who had attained twenty-one, and the remaining six twelfth parts be
placed out at interest for the benefit of such of the plaintiffs as are
infants, &c.
The cause came on to be heard 1st March, 1790, when the only
question decided was, relative to the maintenance (vide 3 Bro. C. C.
60), and it was referred to the master, to inquire (inter alia) what chil-
dren the defendant Andrews then had, and had had, and at what times
they were respectively born, and in case any of them were dead, then
when they respectively died.
Ch, 8) DETERMINATION OF CLASSES 2G7
July 11, 1791, the master made his report, and thereby stated, that
the defendant, Robert Andrews, had issue by his late wife, the follow-
ing children, and no more ; plaintifif Elizabeth, born 1761, Robert, 1762,
Catherine, 1764, George, 1765, Charlotte, 1766, Sarah, 1767, Caesar,
1770, Hugh, 1772, Henry, 1773, Frederick, 1775, Marianne, 1777, Au-
gustus, 1779; and that, besides the above-mentioned children, the de-
fendant, Andrews, had an issue by his said wife, the following chil-
dren, who were dead; Sarah, born 1760, died 1763; John, born 1769,
died 1783; and Charles, born 1776, and died in the same year.
And now the cause coming on for further directions upon the mas-
ter's report, the question was, what children should take under the be-
quest of the residue? 1st. Whether all such children as the defendant
Robert should have at the time of his death? 2d. Whether it should
be confined to such as were living at the death of Margaret, the testa-
tor's widow? Or, 3d. To such children as were living at the time the
eldest child attained the age of twenty-one?
Lord Chance:llor [Thurlow] said where a time of payment was
pointed out, as w here a legac y is given to all the children of A., whe n
they shall attain twenty-one, it was too late to say, that the time so
pointed out shall [n ot] regulat e among wha t children the d istribution
shatTbeTiTacIe^ rt~must be among the children in esse at the time^th e
eldest attains sucli age^ He~s"aid he ha'd'o'tten wondered how it came
to' be so decided, there being no greater inconvenience in the case of
a devise than in that of a mar riage settlem ent, where nobody doubts
that the same expression means all the children.
DAVIDSON V. DALLAS.
(Court of Cliancery, ISOS. 14 Ves. 576.)
Alexander Davidson by his will bequeathed t o the children of his
brother Robert Davidson £3000 to be equally divided among them ; and
if either of diem should die ^fore the age of twenty-one years their
share to go to the survivors^
The testator died in 1/92. The master's report stated, that at the
death of t he testator _j liere were six children of his broth er, the eldest
oT'wliom w^as at the date of the report of the age of f ourteen , and two
more children were born since the repo£t . A decree had been taken,
without argument, declaring that the two children of Robert Davidson,
born after the death of the testator, and all the other children to be
born, until the eldest child should attain the age of twenty-one, were
equally entitled with the children who were born before the testator's
death. The cause came on upon an appeal from the decree.
Thi; Lord Chancei^lor [Lord Eldon]. T his legacy i s ajve sted
interest, su bject to be devested bv the death of any of the children
undeTjIiFage of twenty-one, leaving another child surviving. It is an
268 CONSTRUCTION OF LIMITATIONS (Part 2
immediate legacy to the children, living at the testator's death ; in
whom it vested at that time ; equally to be divided among them ; with
a limitation over, if either of them should die before the age of twenty-
one, to the survivors. That period of divis ion and vesting is the death
of the testator ; and that, which is to be divided and~vesfed at that
time, may in certain events go over to some of those, among whom it
was to be divided, and in whom it vested, at the testator's death. The
difficulty that has always been felt to apply the term "survivors" to
those, who may not be alive at the time of the distribution taking place,
has been met by presuming, that the testator intended persons, not
then living, but who might come into existence before the distribution;
construing the word "survivors" as "others ;" to take in all who should
come into existence before that period. There is nothing in this will,
indicating a general intention, upon which the forced construction of
the term "survivors" has been adopted. These words must therefore
have their natural meaning.
The decree declared, that tho se children only of the testator's brother.
who were living at tlie death of the testator, were entitled]
OPPENHEIM V. HENRY.
(Court of Cliancei-y, 1853. 10 Hare, 441.)
The principal question arose on the efifect of the following bequest
of the residuary estate of the testator:
"I desire and will the remaining residue to be appropriated in man-
ner following, — say as soon as conveniently can be after my decease,
to be turned into cash, and brought into the funds, stock £3 per cent.
Consols, in the names of my executors hereinafter named, and to be
held by them in trust for all my grandchildren, to be divided equally
among them _at the end or expiration of twenty years after my decease,
and the in terest by the purchase o Fi3 per cent. _r r»ngr.1g gtnrlr tn ar-
cumulate till that time."
The Vice-ChaxcEllor [Sir W. Page Wood], with reference to
the argument for confining the gift to grandchildren living at the ex-
piration of the twenty years, said, that the cases which were referred
to in support of the argument for postponing the gift until that time,
were cases in which the gift was connected with t he pe ri od of divis ion.
The strongest cases in this form were, perhaps, those in which the gift
was "to children on attaining a certain age." There, no doubt, the gift
was coupled with the period of distribution. In some of those cases it
might possibly have been contended, that the existence of the life in-
terest was tlie only reason for postponing the division. He had no dif-
ficulty in holding, that a gift of stock in trust for all the grandchildren
of the testator, to be divided equally amongst them at the period of
twenty years from the time of his decease, was a vested interest in the
Ch. 8) DETERMINATION OF CLASSES 2G9
grandchildren of the testator. The only question, then, was, in what
grandchildren the gift vested; and upon this he was clearly of opinion,
that the f^ randchildren who werejiving at the death of the testator, a nd
those who were born afterwards before the period of dis tribution, were
entitled? ~~
RINGROSE V. BRAMHAM.
(Court of Chancery, 1794. 2 Cox, 384.)
The question in this cause depended upon the following clauses in
the testator's will :
*T also give t o Joseph Ringrose's c hildren £50 to every child he
hath by his wife Eliza beth, to be jaid to~theiin)y my executors a s thev
sha ll cmiie of ag e, anTTtlieinter est to be paid yearly t ill__ they come of
ag e to t heir fa^er or moth er. I also give to Christopher Rhodes's
children7that he hath by his wife Peggy, £50 to every child when they
come of age, and the interest to be paid yearly till they come of age to
their father or mother. And my will is, that my two executors do
lodge in Mr. W. Foxhall's hands £600, and £100 in Joseph Ringrose's
hands till the children aforesaid come of age, and to receive the interest
yearly, and to pay the same to the above-named children or their father
or mother. And if any of the children should die before they are of
age, then the legacies shall go to my executors."
There were eleven children of Joseph Ringrose and Christopher
Rhodes living a t the'Tlrne oT the making the w ill ; t hirte en ai the death
of ^he testator ; and t hree bor n sinc e.
This bill was tiled by the sixteen children of Joseph Ringrose and
Christopher Rhodes, claiming to be entitled to £50 apiece under the
above bequest.
And it was insisted on the part of the plaintiffs, that there was
nothing to confine these legacies of £50 to the children living at the
time of making the will, or to those living at the death of the testator ;
that altliough the testator has made use of the word "hath," which is
properly of the present tense, yet it is evident that he meant thereby
"shall have," in the same manner as he afterwards uses the word
"come" for "shall come ;" that the sum which he has set apart for
the payment of these legacies does not tally with the number of the
children living at any one of these periods, and therefore nothing can
be inferred from thence, except that he did not mean to confine the
legacies to the children living at the date of the will ; that as the lega-
cies are not to be paid to the respective legatees until they attain twenty-
one, this will at least let in all the children born before any of them
arrives at that age. Gilmore v. Severn, 1 Bro. Cha. Rep. 582.
9 But see Kevern v. Williams, 5 Sim. 171 (1S32) ; Elliott v. Elliott, 12 Sim.
27G (1S41).
270 CONSTRUCTION OF LIMITATIONS (Part 2
Master of the Rolls [Sir Richard Pepper Arden]. The case
of Gilmore V. Severn is ve ry dis tinguishable f romJLhis. In Gilmore v.
Sev ern, a gross sum of £350 was given to the children of Jane GUmore^
to"^ paid to'TTieni in equal shares at twenty-one, and there was no
in convenience in postponing the vesti ng of those shares until some one
of " ttiei n - a tfatireit^hg rggg; so as to let in the children born in the mean
time, because there was nothing to do but to set apart the sum of i350,
and the residue of the testator's personal estate might be immediately
divided ; for whether more or fewer children divided the ;£350, still they
could have but i350 amongst them. B ut here there are distinct lega-
cie s of_i50 to each of the^ hildrgn, and therefore if I am to let in all
fHechildren of these two persons born at any future time, I m ust post-
pone t he distribut io n of the testator's pe rs onal estate until the death of
Joseph Ringrose and Christopher Rhodes, or their wives, for I can
ripv pi- divid g__the ^esidue u ntil I know_hQacmany jggaQ Jes of £5Cri x£-_
pa yable. Therefore, thougTrTperlectly assent to Gilmore v. Severn, it
is^hCTf applicable to this case. At the same time I think I may fairly
construe the woi-d "hath," so as to make it speak at the time the will
takes effect, and let in the children born between the making of the
will and the death of the testator. His Honor therefore declared the
t hirteen plaintiffs only who were living at the death of the testator,
entitled to legacies of £50 each.^"
STORRS V. BENBOW.
(Court of Chancery, 1833. 2 Mylne & K. 46.)
A codicil to the will of William Townsend contained a bequest in
tlie following words : "Item, I direct my executors to pay, by and out
of my personal estate exclusively, the sum of £500 apiece to each child
that may be born to either o f the children of either of my brothers.
lawfully begotten, tj) be paid toje ach of them on his or her attaining the
a ge of twenty-one years, without" beneht of survivorship."
The~question was", whether the plaintiff, William Townsend Storrs,
who was a grandchild of one of the testator's brothers, and who was
born after the testator's death, was entitled to a legacy of £500, under
this bequest.
The Master oe the Rolls [Sir John Leach]. THis is an im me-
diate gift at th e death of thej testator, and is_confined to the children
the n liv ing^ TEe words "rnay be^orn7^rovide3~Tor the~"Mrth of
children bet ween t lie making of the will and the deatiL I'he cases
of Sprackling v. Kanier, 1 Dick. 344, and Ririgrose vT Bramham,
2 Cox, 384, are direct authorities to this point. To give a different
10 If there are no children in existence at the testator's death, does the
provision fail? See Mann v. Thompson, Kay, 638 (1854); Rogers v. Mutch,
10 Ch. D. 25 (1878).' ,^
/
Ch, 8) DETERMINATION OF CLASSES 271
meaning to the words "may be born," would impute to the testator
the inconvenienta nd impro b able inten tiQll_tliat_his_r esiduarv person al
est ate"""sHoul dliot be distributed until after the deaths of al l the child ren
of either oi
MAINWARING v. BEEVOR.
(Court of Chancery, 1849. 8 Hare, 44.)
William Carver by his will, dated in 1835, after bequeathing to his
trustees all his shares and moneys standing in his name in divers
stocks, funds, and securities, and after declaring trusts of three sev-
eral sums of i30,000 consols, for the benefit of his widow and sons,
William James Carver and James Carver, for their respective lives,
with remainder to the children of his said two sons, or their issue, —
declared that, as to the residue of his consols, his £2> per cent reduced
stock, his New iS^^ per cent, and his bank stock, and all other the
stocks and funds or securities which might be standing in his name
at his decease (except the said three sums of £30,000 consols), his trus-
tees should stand possessed of such residue, upon trust (after paying an
annuity of £20 to Alary Scott for her life), to pay and apply such part
and proportion of the dividends, interest, and annual produce of the
residue, as the said trustees or the survivors or survivor of them might
in their or his discretion deem necessary, for or towards the main-
tenance and education of all and every of his grandchildren, the chil-
dren of his said two sons, William James Carver and James Carver,
until they should severally attain the age of twenty-one years. And
the testator directed, that the surplus of such dividends, interest, and
annual produce, which should not be wanted and applied for the pur-
pose last aforesaid, should be invested by his trustees in government
securities (with power to vary and transpose the same), and proceed-
ed : "And when and as each of my said grandchildren shall attain the
age of twenty-one years, upon trust that they my said trustees, &c.,
do and shall, by the sale of such part of the stocks, funds, and securi-
ties then standing in their names or name, as may be necessary for
the purpose raise and pay to each of my said grandchildren so attain-
ing the age of twenty-one years as aforesaid, the sum of £2000 for
their own benefit. And I do hereby declare, that when and so soon
as all and every my said gran dchildren shall have attained their age
r^fn-pnfy-(^^p vpnrQ tinpy my caiM Tfustecs, &c., do and shall Stand
possessed of the whole of the stocks, funds, and securities then stand-
ing in their names, upon any of the trusts of this my will (over and
above the three several sums of £30,000 £3 per cent consols, hereinbe-
fore by me disposed of), upon trust to pay, transfer, divide, and make
over the same respectively, and the dividends, interest, and annual
produce thereof, unto, between, and amongst all and ever}' my said
grandchildren, to and for their own absolute use and benefit as ten-
'li'Z
CONSTRUCTION OF LIMITATIONS (Part 2
ants in common, and not as joint tenants. Provided always and I do
hereby declare, that if I shall have only one grandchild who shall live
to attain the age of twenty-one years, then such one grandchild, upon
his attaining that age, shall have and be entitled to the whole of the
stocks, funds, and securities, and the dividends, interest, and annual
produce thereof, to which my grandchildren, if more than one should
have attained the age of twenty-one years would have become entitled.
And I do hereby further declare, that each of my grandchildren, upon
their severally attaining the age of twenty-one years, shall take vested
interests under this my will. Provided also, and I do hereby further
declare, that in case any or either of my grandchildren shall at any
time during his, her, or their minority, go or be taken beyond the seas,
for the purpose of being or to be educated in any foreign country, or
for any purpose whatever, and shall remain beyond the seas or in any
foreign country, for any purpose whatever, more than three calendar
months in any one year, then and in every such case, and from thence-
forth, the claim, right, and title of each and every such grandchildren
so going or being taken beyond the seas to maintenance and education
out of or in respect of any moneys or property to which they, he, or
she may be entitled under this my will, shall cease and determine and
become forfeited ; but so, nevertheless, that such forfeiture shall not
in any respect affect the right of such grandchild of grandchildren to
the principal of such moneys and propert}^ upon his, her, or their at-
taining the age or ages hereinbefore mentioned for payment of the
same."
The testator died in 1837, leaving his two sons surviving. William
James, one of the sons, had five children living at the testator's death.
James, the other son, was unmarried. The youngest of the five grand-
children attained twenty-one years of age in 1848, and no others had
been born. The grandchildren then filed their bill for the execution
of the trusts of the residue of the stocks, funds, and securities, and for
a declaration that they were entitled to an immediate transfer of their
respective shares. Mary Scott the annuitant was dead, but the sons,
William James and James, were still living.
Vice;-Chancellor [Sir James Wigram]. In the case of a gift to
children when they attain twenty-one, the reason of the rule of the
court is, that the eldest child, on attaining twenty-one, has a right to
demand his share, and that this right is inconsistent with a gift to "all
the children," including those who may afterwards be born of the par-
ent named. In this case there is no such inconsistency. Plere there is
no express direction, conferring upon the grandchildren the right now
to receive their shares, and no inconsistency would arise from holding
a ll the grandchildren born" in the lifetime of either of the parents^
named in the will, entitled t o participate . If the class is to be confined"
to the grandchildren ni esse"lit the death of the testator, the argument
is intelligible. In the case of Elliott v. Elliott [12 Sim. 276], the Vice-
Chanceilor seems to have adopted that construction, on the ground
Ch. 8) DETERMINATION OF CLASSES 273
that it brought the bequest within the rules of law as to remoteness,
proceeding, I suppose, on the principle, that where a will admits of
two constructions, that is to be preferred which will render it valid.
The rules of construction cannot, however, be strained to bring a de-
vise or bequest within the rules of law. If the class cannot be so re-
stricted in this case, and grandchildren born after the death of the
testator are to be admitted, there does not appear to be any reason
for excluding a grandchild, born or to be born in the lifetime of ei-
ther of the testator's sons.
VicE-ChancEllor. Where a testator has given two inconsistent
directions, and has said, that the children, or (which is the same thing)
all the children, shall participate in the fund, and then directs that there
shall be a division when or as soon as each attains twenty-one, in that
case you must do one of two things, — ^you must either sacrifice the di-
rection that gives a right to distribution at twenty-one, or sacrifice the
intention that all the children shall take. The court has in such cases
decided in favor of the eldest child taking at twenty-one, as the will
directs, and sacrificed the intention that all the children shall take.
In this case, the testator has given the residu e to all the children of
his two sons, when the youngest attains thea g e ot twenty-one yea rs.
There are a certain number oflrhildren, and the elder children attain
twenty-one. The inconvenience pointed out by Mr. Prior then arises :
the provision for the maintenance of those children ceases, though, as
it cannot be certainly said that the youngest child has attained twenty-
one, they cannot claim a distributive share of the fund. The question
is, how long is the eldest child or the other children to wait. If the
objects of the testator's bounty can be confined to children of his sons
living at his death, — which, independently of the fact that there is one
son who had no children at that time, I am clear cannot be done in this
case, — it might be possible to get at tlie conclusion which I have al-
ready mentioned, that, the moment the eldest attained twenty-one, the
period pointed out for division arrived. If it be once admiitpH i-h;if
a child bo rn after the death of the testator may take, all the inconven-
ience is let in, and the eldest child may have to wait for a n mdefini le
tim e, so long a£ Vhil dren ma y contmue to be born. Jrlow m that case
is it possible to limit the class entitled m the way suggested, which is,
that the moment the youngest child in esse attains twenty-one, there
is to be a division, although there may be an unlimited number of chil-
dren born afterwards? I do not see how the inconvenience pointed
out can be avoided. The words of the will do not require an immedi-
ate distribution.
With respect to the case of Hughes v. Hughes [3 Bro. C. C. 434],
it appeared to me at first, that though the language of the court in giv-
ing judgment was in favor of the view I take of the case, the decree as
drawn up was dififerent. It is not, however, dififerent, for it lets in
all the children, — whether it means children in esse or children at any
4 Kales Prop. — IS
274 CONSTRUCTION OF LIMITATIONS (Part 2
time born of the daughter, I do not know. It is not now the practice
of the court to make a prospective decree; but the decree is open to
the construction, that every child of the daughter shall take a distribu-
tive share. I see no principle upon which a distribution can be de-
manded in t he~case b etore~me7 merely because the youngest grandchild
in esse has attained twenty-one.
In re WENMOTH'S ESTATE.
(Chancery Division, 1887. 37 Cli. Div. 266.)
William Wenmoth, who died in February, 1871, by his will, dated
the 19th of April, 1870, after certain pecuniary and specific bequests
gave all the residue of his property upon trust to pay to his daughter
Eliza (Airs. M'Kever) an annuity, and directed his trustees during the
life of his said daughter to pay and apply the surplus of the rents,
dividends, interest, and annual proceeds, and after her death to apply
the whole of such income "unto and equally between my grandchildren
(being the children oi my son Joseph and my said daughter Kiiza) on
their respectively a ttaining the age of twenty-one years , during their
respective lives, share and share alike." On the death of any grand-
child (except the last survivor) who should die leaving issue the share
of such income and annual proceeds of such grandchild so dying to be
paid unto and equally between his or her children who being sons
should attain twenty-one or being daughters should attain that age or
marry. After the death of the last surviving grandchild the residuary
estate to be converted, and the proceeds of the conversion to be di-
vided equally amongst testator's great grandchildren living at the death
of his last surviving grandchild and attaining twenty-one. The share
of any grandchild in the said rents and annual proceeds to be invested
by the trustees during the minority of any such grandchild and form
part of the trust. The trustees were also empowered to apply all or
any of the share of the income or capital of any minor for his or her
maintenance, education, or advancement.
Mrs. M'Kever had two children, both of whom died in the testator's
lifetime.
Joseph Wenmoth had eleven children, of whom eight were now liv-
ing.
Of these eight grandchildren of the testator five were born in the
testator's lifetime, and the eldest attained twenty-one on the 25th of
March, 1883. Two were born after the testator's death and before
the eldest grandchild attained twenty-one; one was bom in Febru-
ary, 1887.
The question, raised by originating summons, was whether the trusts
of the will for the benefit of grandchildren were confined to such
grandchildren as were living at the testator's death, or extended (a)
Ch. 8) DETERMINATION OF CLASSES 275
to grandchildren born after his death, before the eldest grandchild at-
tained twenty-one, or (b) to all grandchildren whenever born. A fur-
ther question was whether the grandchildren who for the time being
had attained twenty-one were entitled to the whole of the net income,
subject to Airs. AI'Kever's annuity; and if not, to what part of such
income they were entitled, and whether the plaintiff (the surviving ex-
ecutor) could apply any and what part of such income for the main-
tenance, &c., of such of the grandchildren as for the time being were
under twenty-one.
Chitty, J. An im mediate gift of personal estate to the children of
A. is free from doubt, and those children only take who are living at
the testator's death. A gift to the chil dren of A. who shall attain the
a ge of twentv-one. is also one on which no question can arise . The
class of ch ildren in either case remains open until the period of dis_-
t ribution and th en closes, and all those children who may be born be -
fo re tlfe death of the testator, or before the eldest of them has at -
ta ined twenty-one, are admissible, while those bom after the perio d
of distribu tion are excluded. This rule, excluding as it does from the
class to be benehtea any child born after the period of distribution,
may be explained by the attempt of the court to recon cile two incon-
sis tent directions, viz., that the whole class should take and also" tha t
the fund should be distributed among them at a period when the who le
cla ss could not possibly be ascertained. The rule, which was intended
a s a solution of the diffi cul ty, may be said to be a cutting of the kno t
rath er than an unt}ir)g, and, though it has been called a rule of con-
v enience, must be very inconvenient to those children who m ay be
born after the p eriod of distributio m In Gillman v. Daunt, 3 K. &
J. 48, IvOrd Hatherley, when Vice-Chancellor, said that a child "who
ha s attained twenty-one cannot be kept wa iting for his share; and it
y ou have once paid it to him, you cannot get it back." Where, how-
ever, as in th is will, the distribution is of income and not ot corpus"
there is nothing which requires the application of the rule, and the dil-
fi cuTty does not ar ise.
In the case of the distribution of corpus, the trustees cannot ascer-
tain what is the aliquot share of a member of the class until the class
is closed, but in the case of a distribution of income the distribution is
periodical. Each member of the class, as soon as he becomes entitled,
takes his share of the income, and there is no reason why the rule
should be applied beyond each periodical payment. I have no diffi-
culty, therefore, upon principle in holding that in the case of a bequest
of inco me among a class of children to be paid on their attaining twen-
ty-one years, the date of the first attaining twenty-one years was not
the date of the ascertainment of the class, and that any child at any
time attaining twenty-one years will be entitled to a share of the in-
come. Mogg V. Mogg, 1 Mer. 654, appears to me to be an authority
for my decision as to the distinction between a gift of corpus and a
gift of income. In the two cases cited in support of the contention
276 CONSTRUCTION OF LIMITATIONS (Part 2
that the grandchildren living at the testator's death were the only ob-
jects to take under the bequest (Elliott v. Elliott, 12 Sim. 276 ; In re
Coppard's Estate, 35 Ch. D. 350), there was a c|uestion in each as to
the rule against perpetuities, and although in neither case was remote-
ness made the actual ratio decidendi such a construction was adopted
as avoided an intestacy by the operation of the law of remoteness, and
the decision in each case saved the will. The general law on this point
is stated by Lord Selborne in Pearks v. Moseley, 5 App. Cas. 719:
"You do not import the law of remoteness into the construction of the
instrument, by which you investigate the expressed intention of the
testator. You take his words, and endeavor to arrive at their mean-
ing, 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." If I thought those two cases in point I should have to con-
sider them very carefully, but I do not. I decline to decide the ques-
tion as to the interests of the great-grandchildren as being premature.^^
In re POWELL.
(Chancery Division, 1S97. L. R. [1S9S] 1 Ch. Div. 227.)
Adjourned Summons.
Alvara Powell, by his will dated October 17, 1877, gave all the resi-
due of his personal estate to trustees upon trust to divide the interest,
dividends, and annual profits thereof into three equal portions, and
upon trust to pay one-third part of the i nterest, divide nds, and annual
profits of his personal estate unto the children of his sister Elizabeth ♦
Holmes, and to divide the same equally am oiigjhem during their lix £Sj_
and atter th eir deaths to divide one-third" part of his personal e state
equally~bet ween their children ; but if they should all die without leav-
ing any children, then he directed his trustees to divide the said third
part of his personal estate equally among the children of his nephew
Edward Crosland, share and share alike.
The testator died on July 17, 1879.
The testator's sister Elizabeth Holmes, who was upwards of eighty
years of age at the date of the testator's death, died on November 9,
11 If the gift is to members of the class who attain twenty-one, a member
of the class who has attained twenty-one, there being otber members of the
class in existence under twenty-one, is only entitled to the income of his
sbare, having regard to the number of members of the class for the time be-
ing in existence, but without regard to the possibility of other members of
the class being subsequently born. In re Ilolford, I.. K. [1S94] 8 Cli. 30.
On the other hand, where tliere is a gift to the members of a class who at-
tain twenty-one, of a fund or of real estate, wliicli does not carry the inter-
mediate income, the members of the class who have, for tbe time being, at-
tained twenty-one are entitled to the whole income, though there may be
other meml)ers of the class who have not attained twenty-one. In re Averill,
L. B. [1S08] 1 Ch. 523 ; Theobald ou Wills (7th Ed.) p. ISi'.
Ch. 8) DETERMINATION OF CLASSES 277
1888. She had several children, one of whom had died leaving chil-
dren.
This summons was taken out by the trustees of the will for the de-
termination (inter alia) of the question w hether the trust by the will
de clared of one-third of the testator^s j;esiduarv personal estate in fa-
vor of the children ot the childreii'ofthe testator's sister Elizabeth "
H olmes w^as valid, or void as transgr essmg the rule agamst perpetu -
ties"! ~ ' ~ ~ "
"TvEKEwiCH, J. The first q uestion is Avhether, according to the lan -
g uage of the will, the yift to the children of the testator's sister Eliz a-
beth Holmes must be confined to those living at the date of the death
of tlie testa tor, or be construed so a s to admit any c hil dren who may
be born after that da te, 'i'he argument in favor of the more extensive"
construction, admitting the after-born children, is, I think, founded
entirely on an application, which I venture to call a misapplication, of
the decision of Chitty, J., in In re Wenmoth's Estate, 37 Ch. D. 266.
It is said that the learned judge was there dealing with the same rule
of convenience as that which applies to the present case, and that the
exception to the application of the rule which was adopted by him is
applicable to this case also. The answer, to my mind, is clear. Wheth-
er the rule which I am asked to apply can or cannot be properly de-
scribed as a rule of convenience, it is not the rule of convenience with
which Chitty, J., was dealing. There is some foundation for the argu-
ment, and for calling the rule a rule of convenience. Mr. Theobald, a
well-known and careful author, in his book on Wills has described both
the rule which I have to apply here and the rule with which Chitty,
J., was dealing as rules of convenience. With great respect to Mr.
Theobald's accuracy, I venture to think that the law is better stated in
Mr. Vaughan Hawkins' treatise. He devotes Chapter VII. to "Chil-
dren, &c., when ascertained," and on page 68 he says this : "It might
be supposed that a gift to the children of a person simpliciter, would
include all the children he might have, whenever coming into existence ;
but the testator is considered to intend the objects of his bounty to be
ascertained at as early a period as possible ; and it may be laid down
as a general rule (qualified by the other rules which follow in this chap-
ter) that" — and then he thus states the rule : "A devise or bequest to
the children of A. or of the testator, means, prima facie, the children
in existence at the testator's death: provided there are such children
then in existence." He cites Viner v. Francis (1789), 2 Cox, 190, a
case which is also cited by Mr. Theobald, 4th ed., p. 255. It is over
a hundred years old, and there can be no question about the authority
of it. Mr. Hawkins on a somewhat later page also deals in a similar
way with the rule with which Chitty, J., dealt in In re Wenmoth's Es-
tate. At page 75 he says : "In the cases considered under the preced-
ing rule, the shares of all the objects became payable at the same time,
and the period of distribution was the same for them all : where the
shares become payable at different times, as in the ordinary case of a
278 CONSTRUCTION OF LIMITATIONS (Part 2
gift to children at twenty-one or marriage, the last rule requires to be
supplemented by another, namely, that where there is a bequest of an
aggregate fund to children as a class, and the share of each child is
made payable on attaining a given age, or marriage, the period of dis-
tribution is the time when the first child becomes entitled to receive his
share, and children coming into existence after that period are ex-
cluded." This rule, which accelerates the period of distribution by
fixing it at the time when the first child becomes entitled to receive his
share, is undoubtedly a rule of convenience. The two rules, however,
seem to me to depend on different considerations. The latter is purely
a rule of convenience, which, as is admitted by all who have com-
mented on it, contradicts the words of the will. The other rule does
not necessarily contradict the words of the will, because, in legal
phraseology, "all the children" is intended to mean "all the children
living at the testator's death." No lawyer could doubt that a gift of
a sum of money to the "members of a club" would extend only to
those who fulfilled that description at the time of the testator's death.
There does, therefore, seem to me to be a distinction of substance be-
tween the first rule, which may to some extent be a rule of conven-
ience, and the second rule, which is purely and simply a rule of con-
venience, although, no doubt, they must both be treated as instances
of rules fixing the period of distribution in the case of gifts to a class
of persons. Chitty, J., in In re Wenmoth's Estate, was dealing solely
with the second rule, i. e., the rule which fixes the period of distribu-
tion among children at the time when the first child becomes entitled.
It is that rule which he declines to extend to a case where income only
is given; and I do not think it occurred to him to consider in any
way whether it would be right to depart from the rule as to children
being ascertained at the testator's death because they were only inter-
ested in income, or for any other reason. His judgment does not ap-
pear to me to apply to such a case as the present one, and this gift
must be construed according to the ordinary rule. I therefore hold
that, unde r the_gift of income , only th e children of Elizabeth H olmes
living at the ^stator's death t'aFe. a nd ttiat the'gilLov er tol:he childreTT
children is
laration to that effect.
Ch. 9) EXECUTORY DEVISES AND BEQUESTS 279
CHAPTER IX
DIVESTING CONTINGENCIES AND CONDITIONS PRE-
CEDENT TO THE TAKING EFFECT OF EXECU-
TORY DEVISES AND BEQUESTS
SECTION 1.— FAILURE OF EXECUTORY DEVISE OR
BEQUEST
HARRISON V. FOREMAN.
(Court of Chancery, ISOO. 5 Ves. 207.)
John Stallard, being possessed among other personal estate of £566
annuities of 1778, by his will dated the 13th of August, 1779, gave to
Joseph Jennings and John Harrison £40 per annum, part of the said
annuities, in trust to pay the dividends and produce thereof, which
should from time to time arise and become payable, to his cousin
Mrs. Sarah Barnes during her life, exclusive of her marriage or any
future husband, and not to be subject to his or their debts or control ;
and from and after her decease upon trust to transfer the said sum of
£40 per annum, or the stock or fund, wherein the produce thereof
might be invested, to Peter Stallard and Susannah Snell Stallard,
children of his (the testator's) cousin William Stallard, in equal moie-
ties; and in case of the decease of either of them in the lifetime of
the said Sarah Barnes, then he gave the whole thereof to the survivor
of them living at her decease. He gave all the residue of his estate
and effects of every kind to Elizabeth Stallard and Sarah Stallard,
the children of his cousin Abraham Stallard, to be equally divided be-
tween them, share and share alike; and he appointed Jennings and
Harrison his executors.
By a codicil, dated the 2d of February, 1781, among other things
the testator revoked the disposition of the residue, and gave it in the
same terms to the said Elizabeth Stallard and Sarah Stallard, and
Mary Main, sen., and ]\Iary Main, jun., equally.
By another codicil, dated 9th of Februar}% 1782, the testator, taking
notice of the death of Jennings, appointed another joint-executor
with Harrison.
The testator died in March, 1782. Susannah Snell Stallard and
Peter Stallard died, the former in January, 1784, the latter in Decem-
ber in the same year ; both intestate. Sarah Barnes died in January,
1797. The bill was filed by the executors of the testator; praying
280 CONSTRUCTION OF LIMITATIONS (Part 2
that it may be declared, who are entitled to the said £40 per annum,
annuities, &c. The question was between the defendant Foreman,
administratrix of Susannah Snell Stallard and Peter Stallard, and the
residuary legatees, claiming it as having fallen into the residue.
Master of the Rolls [Sir Richard Pepper Arden]. The only
question upon this will is, whether by the event, that has happened,
the deaths of Susannah Snell Stallard and Peter Stallard in the life
of Sarah Barnes, this sum of £40 per annum annuities given after her
death in their favor is undisposed of ; or in other words whether the
bequest is by these means put an end to and become absolutely void.
Upon the first part of the will, if it stood without the condition an-
nexed in case of the death of either of them in the lifetime of Sarah
Barnes, there could be no doubt, I suppose, that it would have been a
vested interest in those two persons ; for it is a bequest of these an-
nuities to a person during her life; and after her decease to two
given persons in equal moieties. If it rested upon those words, there
could be no doubt it would upon the death of that person have been
a vested interest in them as tenants in common, transmissible to their
representatives, w-hether they survived the person entitled for Ufe, or
died before her. Then comes the condition annexed ; makinsf a dis-
position in a given event different from that which would have been
the effect of the first words. The contingency described in that part
of the will never took place; there being no survivor of those two
persons at that time. The question is, then, whether this makes the
whole void ; as if it never vested at all.
It is perfectly clear, that where there are clear words of gift, giving
a vested interest to parties, the court will never permit that absolute
gift to be defeated, unless it is perfectly clear, that the very case has
happened, in which it is declared, that interest shall not arise. The
case of Mackell v. Winter [3 Ves. Jr. 236, 536], is most analogous to
this. I held the interest absolutely vested in the surviving grandson.
My decree was reversed: the Lord Chancellor holding two things;
in both of which I had given an opinion ; first, that it never did vest
in the two grandsons or the survivor of them: secondly, If it did vest,
yet it sufficiently appeared upon the will, that the testator intended a
survivorship to take place between all three, the grandsons and the
granddaughter, though it was not expressed. As to the first point,
it does not bear upon this case. The Lord Chancellor was of opinion,
the words were not sufficient to give a vested interest to the two
grandsons for this reason ; that nothing was given to them till their
ages of twenty-one : but the capital and the accumulation are directed
to be paid to them at that time and no other. His Lordship's opinion
is expressly founded upon that. My opinion rested entirely upon the
first point. I admit the absurdity of the intention; but that is no
reason why it should not prevail. I am very glad the decree took
the turn it did ; for unquestionably it effected the real intention of
the testatrix.
Ch. 9) FAILURR OF EXECUTORY DEVISE 281
But without entering into that question, or commenting farther
upon that case, to which it is my duty to submit, it is sufficient to say,
that it is impossible any doubt can be entertained upon the words of
this will. Upon the principle of the Lord Chancellor's opinion, that
the words in that will were not sufficient to give any vested interest
till the attainment of majority, my decree undoubtedly was wrong.
But upon the doctrine held both by his Lordship and by me it must
be determined, that upon the words of this will there was a vested
interest, that was to be devested only upon a given contingency, and
the question only is, whether that contingency has happened. No
words can be more clear for a vested interest. Then the rule that I
anplied in Mackell v. Winter, and that was admitted by the Lord
Chancellor, takes place; that if there is a clear vested interest, the
court is only to see, what there is to take it away ; and the only con-
tingency is, that in case of the decease of either of them in the life
of Mrs. Barnes the whole is to go to the survivor. Neither of them
was living at her death. That rule, therefore, that I applied in Mack-
ell V. Winter, and that I still think binding upon a court of equity,
applies. There is a vested interest ; and the contingency, upon which
it is to be devested, never happened : the vested interest therefore re-
mains ; as if that contingency had never been annexed to it. L'pon the
principles laid down by the Lord Chancellor in Mackell v. Winter I
am perfectly clear, his Lordship would have agreed with me in this
case. I could illustrate the principle by putting the case of a real es-
tate, instead of these annuities, given after the death of the tenant
for life to these two persons and their heirs, as tenants in common ;
but, if either of them dies before the death of the tenant for life, then
to the survivor and his heirs. Putting it so, there is no possibiHty of
doubt, it would have been a vested interest in them, to be devested
upon a contingency, which did not take place.
It is unnecessary for me to take notice of that case of Allen v.
Barnes, as 1 have elsewhere [Perry v. \\'oods, 3 Ves. Jr. 204, 208] ob-
served, that it is not correctly reported.
Declare, that these annuities of f40 per annum were a vested inter-
est in Susannah Snell Stallard and Peter Stallard, and now belong to
the defendants Foreman and his wife in right of the latter as their ad-
ministratrix.
282 CONSTRUCTION OF LIMITATIONS (Part 2
JACKSON V. NOBLE.
(Court of Chancery, 183S. 2 Keen, 590.)
This was a bill filed by Mary Anne Jackson and others, against
Mary Ann Noble and Edward Leslie, praying that the wills of David
Russen, George William Riissen, and Jane Russen, might be estab-
lished, and that the rights of the parties to certain property given by
the will of David Russen to the defendant, Mary Ann Noble, might
be declared, and that consequential relief might be given. ^
On the 29th October, 1813, David Russen made his will, and there-
by, after giving to his son, George William Russen, certain leasehold
estates and his money in the funds, with certain exceptions, gave and
bequeathed as follows : "And I do hereby give, devise, and bequeath,
all those my freehold estates, situate and being in Upton Lane, West-
ham, in the county of Essex, in the possession of Mr. Clark : also
my freehold estate situate in Golden Lane, in the city of London, in
the possession of Mrs. Snell and Mr. Sandover : also my moiety or
half part of my copyhold messuage or tenement, garden and prem-
ises, situate at Westham, in the county of Essex, in the possession of
Mr. Stuart, and which said estate I have surrendered to the use of
this my will: also my leasehold estate, situate and being in Philip
Lane, in the city of London, in the possession of Mr. Thomson ; and
il.OOO 3 per cent stock unto my daughter Mary Ann Russen, and
Matthew Peter Davies, of Saint Martin's Le Grand, and George Wil-
liam Russen, of Aldersgate Street, gentlemen, their heirs, executors,
administrators, and assigns, to have and to hold the said last-men-
tioned freehold and leasehold messuages, tenements, estates, and
premises, with their several and respective appurtenances, and the
aforesaid il,000 stock, unto my said daughter Mary Ann Russen, the
said Matthew Peter Davies, and George William Russen, their heirs,
executors, administrators, and assigns, for and according to my sev-
eral estates, right, interest, and term of years therein respectively.
In trust to permit and suffer my said daughter, M. A. Russen, and
her assigns, to receive and take the interest and dividends of the said
il,000 stock, and the rents, issues, and profits of the said several last-
mentioned estates, for and during the term of her natural life, to and
for her own separate, personal, and peculiar use and benefit, inde-
pendent of any husband, with whom my said daughter shall or may
at any time or times hereafter intermarry; and not be subject to his
or their debts, povvers, control, engagement, or intermeddling; and
for which her receipts alone shall from time to time, and at all times
hereafter, be full, good, and sufficient discharges, notwithstanding
any such coverture, in such and the like manner as if she had con-
tinued a feme sole and unmarried, and that to all intents and purposes
1 Only that part of the case which relates to the effect of the executory gift
is here given.
Ch. 9) FAILURE OF EXECUTORY DEVISE 283
whatsoever. And from and after the decease of my said daughter,
in trust to convey and assign the said several last-mentioned freehold
and leasehold estates, and the said £1,000 stock, unto the heirs, ex-
ecutors, and assigns of my said daughter, for and according to all
my estate and right therein respectively. Nevertheless, in case my
said daughter shall intermarry and have no child or children, then the
said estates and money in the funds shall belong to my son George
William Russen; or (in case of his decease before my said daughter,
then to such child or children as he may happen to have) ;" and after
enabling his daughter to grant leases of the freehold and leasehold
estates so given to her, and giving certain other legacies, he gave all
the residue of his estate to his son George William Russen.
By a codicil, the testator gave to his daughter, Mary Ann Russen,
a further sum of il,000 3 per cent reduced annuities, subject to the
like terms and conditions as before mentioned and described in his
will.
The testator died on the 6th of February, 1819. He left his son
George William Russen his heir-at-law and customary heir, and his
daughter Mary Ann Russen surviving. The son George William
Russen proved the will, and became legal personal representative.
He died without issue, having made a will, dated the 28th February,
1833, by the recital of which he showed, that he considered himself
interested in the property given to his sister by his father's will ; and
he made a general gift of his own property to his wife, under whom
the plaintiffs claim to be entitled.
Mary Ann Russen married, and was now the defendant, Mary Ann
Noble ; but she had no child.
The Master of the Rolls [Lord Langdale]. The first question
is, what estate is given to Mrs. Noble? Is she entitled to an estate
for life only, or to an absolute estate, subject to be defeated by a con-
tingent executory gift over? If the former, the plaintiffs are entitled
to the claim, which they have made in this respect. If the latter, it
is to be considered, whether the event on which the executory gift
over was to take effect, can now happen.
It is admitted on both sides, that Mrs. Noble has an equitable es-
tate for life. During her life it is the office of the trustees, to pre-
serve for her, the separate and independent use of the income; after
her decease, it is the office of the trustees, to convey and assign all
the testator's interest to her heirs, executors, administrators, or as-
signs. It is not the case of an equitable or trust estate for life, with
a use executed in the heir, upon the death of the tenant for life; but
a case, in which the trustees have a duty to perform, after, as well as
before, the death of the tenant for life ; and in which the duty after
the death of the tenant for life, is clear and defined, neither requiring
nor admitting of any modification. There would, on the death of the
tenant for life, be nothing for this court to do, but to direct the con-
veyance or assignment to the heirs, executors, administrators or as-
1
284 CONSTRUCTION OF LIMITATIONS (Part 2
signs ; and I think that upon the construction of this part of the will,
independently of the contingent executory gift Over, there is an eq-
uitable estate for life, with an equitable remainder to the heirs, ex-
ecutors, administrators, and assigns ; and that Mrs. Noble has an
absolute estate, subject to be defeated by the executory gift over.
And if this be so, the question is, whether the particular event on
which the vested estate was to be devested, can now happen ; and
having regard to the intention of the testator, and the words in which
the gift over is expressed, I am of opinion, that the gift over was to
take effect, only in the event of Mrs. Noble's marrying and dying
without issue, in the lifetime of her brother, or of such child or chil-
dren as he might happen to leave ; and as he died in her lifetime, and
had no child, I think that the contingent executory gift cannot take
effect, and that the estate already vested in Mrs. Noble cannot now
be devested.^
DOE d. BLOMFIELD v. EYRE.
(Exchequer Chamber, 1S48. 5 C. B. 713.)
ParkK, B.,* now delivered the judgment of the court*
This case comes before us on a writ of error on a judgment of
the Court of Common Pleas on a special verdict. The facts of the
case are fully stated in the special verdict. It is unnecessary to ad-
vert to them in detail ; a very short statement is sufficient to explain
the questions w'hich we have to decide.
On the marriage settlement of Mary Sida, a copyhold estate of
which she was seised in fee, was settled to the use of her husband
2 Bequest to the testator's wife for life ; and after her death the capital
to be divided between the testator's brothers and sisters in equal shares ; but
in case of the death of any of them in the lifetime of the wife, his or her
shares to be divided between all his or her children. Held, that the repre-
sentative of a brother who had died in the wife's lifetime without issue wa&
entitled. Smither v. ^Yillock, 9 Ves. 233 (1S04).
Bequest of interest and dividends of personal property to A. for life, and
on her death the same to be equally divided among her children, or such of
them as should be living at her death. A.'s children all died before her.
Held, that they all took vested interests which had not been divested. Stur-
gess V. Pearson, 4 Mad. 411 (1S19).
See also Norman v. Kynaston, 3 De G., F. & J. 29 (ISGl) ; Ci'ozier v. Crozier^
L. R. 15 Eq. 2S2 (1873) ; In re Pickworth, [1899] 1 Ch. G42.
Bequest of income to two grandchildren until they became of age, when
they were to be paid the principal, and if one died before majority the other
was to receive the whole; if both died before majority, it was to be paid to
their father. Both children died under age, but the gift over did not take
effect, because, as the court construed the limitations, the father only took if
he survived the death of both children under twenty-one. This he did not do.
It was held that the survivorship of the father was a part of the divesting
contingency, and hence, when one child died, the other took the whole, and
that interest had never been divested. Dusenberry v. Johnson, 59 N. J. Eq.
336, 4.5 Atl. 103.
3 Only the opinion is here given.
* Parke, B., Alderson, B., Coleridge, J., Piatt, B., Erie, J., Eolfe, B., and
Wightman, J.
Ch. 9) FAILURE OF EXECUTOEY DEVISE 285
for life, and, after his death, to the use of Mary Sida, for life, and,
from and after her decease, to the use of such child or children of
the body of Mary Sida, by her intended husband, and for such es-
tates or other interest, and in such parts, shares, or proportions, as
Mary Sida, by any deed or writing, sealed in the presence of, and at-
tested by, two witnesses, or her last will, duly executed, might direct
and appoint ; and, for want of such appointment, to the use of all
the children of the marriage, as tenants in common in tail ; and, in
default, to Mary Sida in fee.
Mary Sida, in the lifetime of her husband, and then having two
sons, made a will, duly executed according to the power, and ap-
pointed the estate to her eldest son, John Blomfield, and his heirs and
assigns forever, upon condition that he should pay to her other son
£200, within a year and a day after her husband's death, in case he
should be living, and twenty-one years of age, &c. ; but, if neither of
her sons should be living at the decease of her husband, she appointed
the estate to her father-in-law, his heirs and assigns, upon certain
trusts.
The testatrix died in 1782. John Blomfield, the devisee, died in
1820, in his father's lifetime, leaving the lessor of the plaintiff, his
youngest son and customary heir: and the father died afterwards,
in 1820. William Blomfield, the second son, had previously died, in
1767.
This action was brovight in 1841. The defendant defended for six
seventh parts of the property ; and the question is, whether the lessor
of the plaintiff is entitled to recover those six sevenths.
The Court of Common Pleas decided that he was not; and we are
of opinion that their decision was correct.
Two objections were made to the title of the lessor of the plaintiff.
The first objection was, that there was no dispensation of coverture
in the power given to Mary Sida ; and that her execution of the pow-
er during coverture, was therefore void. The second was, that John
Blomfield, the son, had no estate which descended to the lessor of the
plaintiff.
We intimated our opinion, in the course of the argument, that it
was clear that there was in this case, an implied dispensation of cover-
ture, and that there could be no doubt that the meaning of the settle-
ment was, that the power should be executed by Mary Sida whether
she were sole or covert.
The second was the principal question. It was contended, on be-
half of the defendant in error, that the appointment to the son was
altogether void, by being so connected with the appointment to the
father-in-law that it could not be separated. If this was so, the
plaintiff could not be entitled to recover. But the learned counsel
for the plaintiff in error, argued, that the appointment was not alto-
gether void, but gave a vested defeasible estate in fee to the eldest
son ; and that the appointment over alone was void.
286 CONSTRUCTION OF LIMITATIONS (Part 2
Admitting that argument to be correct, — as we think it was, — ^we
are of opinion, that, in the event which has happened, this estate was
put an end to, and, consequently, that the lessor of the plaintiff is not
entitled.
The learned counsel contended, that, where there is an estate in
fee, liable to be defeated on a condition subsequent, and that condi-
tion eitlier originally was, or by matter subsequent became, impossible
to be performed, the defeasible estate was made absolute; and he
cited Co. Lit. 206 a. Of this there is no doubt; the principle is ap-
plicable to this case, if the condition was impossible. But the ques-
tion is, what was the condition by which the testatrix meant the es-
tate to be defeated? Was it — if the two sons should die in the father's
lifetime? or was it — if they so died, and the estate should, by law,
vest in the father-in-law? In the former case, the plaintiff would
fail ; in the latter, he would succeed.
This question is not peculiar to cases of appointments under pow-
ers : it might arise upon an ordinary will. If a testator were to devise
to A. B. in fee, and to direct, that, in the event of A. B. dying in the
lifetime of J. S., the estate should go over to a charity, it surely is
perfectly clear, that, if A. B. died in the lifetime of J. S., he, A. B., or,
rather, his heirs, would lose the estate. The testator could not give to
the charity, without taking away from the devisee. The testator,
therefore, in such a case, by his will says : "If A. B. dies in the life-
time of J. S., I do not mean that A. B. or his heirs should any longer
have the estate." The estate of A. B. is in such case defeated, not by
the giving over of the estate to the charity, but by the happening of
the event on which the testator intended it should go over." So, in
the case before us : the testatrix (for, for this purpose, she may be
treated as an ordinary testatrix), says, in substance: "If my son John
5 In the case of a devise by A. to B. in fee, upon a contingent event, with-
out more, the land descends to the lieir of A., subject to the contingent ex-
ecutory devise, and the fee is in the lieir of A., until that devise takes effect.
Any declaration that, until the event contemplated, A.'s heirs shall not have
the land, would be nugatory, as the heir necessarily takes in the absence of
an immediate effectual disposition thereof. So, in the case of a devise by A.
to B. in fee on a contingent event, and subject to the contingent devise, to C.
in fee, C. is substituted for the heir of A., and the fee vested in C. remain*
undivested until the devise to B. takes effect. In each case the intention is,
in the event contemplated, not simply that the primai-j- taker shall not re-
tain the land, but that the land shall go preferably to B., and if, from any
cause whatever, B. is incapable of taking, the divesting intention fails. (Ace.
per Rolfe, B., 5 C. B. 744.) Tlie effect is, in substance, the same where A.
devises to B. in fee, with a contingent executory devise over to C. If, by any
means, the devise to C. is removed out of the way, or if the devise to C. is of
a less estate than the fee, the estate of B. is not defeated, or is only partially
defeated. The estate was not intended to be taken from B., for any other
purpose than that of giving it to C, and that purpose failing, A.'s original
bounty remains in full operation. It appears to be immaterial from what
cause the executory devise to C. fails of effect, whether by reason of the con-
tingency itself not arising, or of its being too remote, or of the death of C.
in the lifetime of A., or of O.'s incapacity to take. The late case of Jackson
V. Noble, 2 Keen, 590, appears to be in substance this: A. devises to B. in feei
Cll. 9) FAILURE OF EXECUTORY DEVISE 287
and his brother WilHam die in their father's Ufetime, I do not mean
him (John) to have the property; but I give it over to strangers."
That which defeats the estate of John, is the death of himself and
brother in his father's Ufetime, — not the giving over of the estate to
strangers. The reason why John's representatives cannot claim the
property, is, that his mother expressly declared, that, in the event
but in ease B. shall leave no child, then to C. or his children surviving B.
G. dies in the lifetime of B. without leaving any child. It was held, that the
estate already vested in B. could not be divested, although B. (who was liv-
ing) should die without issue, — that B. had "an absolute estate, subject to be
defeated by the contingent executory gift over," of which gift the object had
failed. It was not attempted to be argued that the contingency on which the
estate was limited over, could be incoriiorated, as a qualifying ingredient, in
the primary gift to B. The principle seems to be, — that the intention in favor
of the primary devisee is qualified for the benefit of another object of lX)unty,
and is for that reason only, not absolute, and that whenever, and by what-
ever means, that object is removed, the inducement to disturb the primary
gift has ceased. The same principle appears to apply equally to a conveyance
inter vivos, and to a posthumous conveyance by devise, although, in the latter
case, the manifestation of the intention of the disposing party, may be less
fettered by technical rules of construction.
Before the 1 Vict. c. 26, § 2o, if A. had devised Blackacre to B. in fee, on
a contingency, which happened, — so that the intention in favor of B. took
effect absolutely — the devise, by the death of B. in A.'s lifetime, lapsed, for
the benefit of the heir of A., notwithstanding the existence of an operative
residuary devise to C. ; for, every devise of land being at that time really
specific, the devise of the residue was nothing more than a devise of the lands
of which A. was then seised, other than Blackacre, which A. supposed him-
self to have already disposed of in all events. But, now Blackacre would
pass under the residuary devise: such a devise embracing all the realty from
any cause whatever not effectually disposed of; 'and thereby constituting a
universal hferes factus. So, under the old law, A. might have expressly
devised Blackacre to B. in every event in which it was not effectually devised
to C. and might have thereby constituted B. a special ha?res factus ; and the
question is, whether A., by devising to B.. with a contingent executory devise
to C, would not have sufficiently declared, that intention. (And see Sweet,
Convey., 2d ed. 424-427.)
Where there is a devise by A. to B. in fee, defeasible on an event which
happens, in favor of C. in fee. and C. dies in the lifetime of A., the only mode,
it is conceived, by which the heir of A. could be let in, would be. to treat the
devise to B. as revoked by the devise to C. becoming absolute, and to consider
the heir of A. as in by the lapse of the devise to C, instead of treating the
devise to B. as ceasing to be defeasible on the failure of the devise to C.
But A., it is submitted, declares, not that if the contingency happens, B. shall
lose the estate, but, simply, that if the contingency happens, C. shall have
the estate. — Rep.
Sugden on Powers (Sth Ed.) 513, 514:
"The case [Doe v. Eyre] has been before the Exchequer Chamber, and the
judgment has been atfirmed (5 Com. Bench, 713), upon clear and satisfactory
grounds. The judges held that the eldest son took a vested defeasible estate
in fee, and that the appointment over alone was void. This estate in the son
in the event which had happened was put an end to, for the condition by
which the estate was to be defeated was, if the two sons should die in" their
father's lifetime, and not if they so died and the estate should by law vest
in the father-in-law. It would be so upon an ordinary devise to one In fee,
and if he died in the lifetime of A. over to a charity, when if the event hap-
pen the devise ceases, although the charity cannot take.
"The reporters have added a note to the above-mentioned case, with a view
to impeach the decision upon the ground that as the gift over to the father-
in-law could not take effect, the gift to the son was not defeated. After show-
ing that where there is a devise in fee upon a contingency, the land in the
288 CONSTRUCTION OF LIMITATIONS (Part 2
which happened, he should not have it. How she would have dis-
posed of it, if she had known that she could not give it in the mode
proposed by her will, can only be matter of conjecture. One thing
quite certain, is that she has not expressed any intention, that in the
events which have happened, John should take : and, as he could only
be entitled by virtue of an expressed intention in his favor, we tiiink
that he fails to establish any right.
Judgment afifirmed.
mean time descends to the testator's heir-at-law, the note proceeds to say that
in the case of a devise by A. to B. in foe on a continireut event, and subject to
the continscnt devise to C. in fee, C. is substituted for the heir of A., and the
fee vested in C. remains undevested until the devise to B. takes effect. In
each case the intention Is. in the event contemplated, not simply that the pri-
mary taker shall not retain the land, but that the land shall go preferably to
B., and if from any cause whatever B. is incapable of taking, the devesting
intention fails, and an observation which fell from Mr. Baron Rolfe during
the argument is referred to in support of this position. Now in the first place
there can be no vested devise over after a contingent devise in fee ; but, to
come to the main point, the opinion of Rolfe, Baron, does not supiX)rt the posi-
tion for which it is quoted. If it did, yet as he concurred in the judgment,
any obiter dictum of his before judgment was pronounced, adverse to the
view of the court, could not be relied upon. In the course of the argument,
Parke, B.. asked for a reference to any case of a limitation to one and a con-
ditional limitation over to a person who could not take, as a corporation, &c.,
to which It was answered from the bar that no doubt there were some such
cases — of that class were the cases of perpetuity ; whereuix»n, Rulfe, B., said,
that can hardly apply: the first taker is clearly intended to take, and takes
forever unless the estate can go over to another. His observation therefore
Is confined to a case where the fee is first given and then there is a gift over
void for perpetuity, in which case the fee remains in the first devisee, and
the gift over is simply void. But this has no bearing upon the principal ques-
tion, for here the testatrix could by law declare her intention, that upon the
happening of the contingency, the devise to her son should cease, whereas in
the case put at the bar and answered by the learned baron, the testator could
not by law defeat the first devise in the event which he provided for: the
law forbade the devise over, and therefore the first devi.se remained unaffect-
ed by it. The reporters state that in these and similar cases it appears to be
immaterial from what cause the executory devise over fails of effect, whether
by reason of the contingency itself not arising, or of its being too remote, or
of the death of the executory devisee in the lifetime of the testator, or of
the incapacity of the executory devisee to take; and in support of this view
the case of Jackson v. Noble, 2 Kee. 590, is relied upon. Mr. Jarman (1 Wills,
2 ed. 783) had previously referred to the same case as an authority, that
where a devise in fee is followed by an executory limitation in fee in favor
of an object or class of objects not in esse, and who in event never came in-
to existence, the first devise remains absolute. And so he adds, if the ex-
ecutory devise were void on account of its remoteness or from any other
cause, the prior devise would be absolute. This we have seen was ruled oth-
erwise by the Exchequer Chamber. The case of .Tackson v. Noble was decid-
ed not on any general rule, but on tlie ground that looking at all the devises
the .estate was not intended to go over in the event which happened. It
would be out of place to enter here into an examination of the case of Jack-
son V. Noble ; but if it cannot be supported upon tlie intention as collected by
the court, it must be considei'ed as opposed to the later decision in the Ex-
chequer Chamber, which aflirmed the judgment of the Common Pleas. The
point upon the devise over appears to have lieen there decided on solid legal
grounds. The point ruled is that an absolute appointment to an object of the
power with an e.Kccutory gift over in a given event to a stranger will cease
upon the hapiiening of the event although the appointee over is incapable of
taking the estate."
Ch. 9) FAILURE OF EXECUTORY DEVISE 289
ROBINSON V. WOOD.
(Court of Chancery, 1858. 27 Law J. Ch. 72G.)
John Dales Allison, by his will, dated the 3d of September, 1840,
devised all his freehold, customary and copyhold estates, whatsoever
and wheresoever, whereof or wherein he or any person in trust for
him was seised or possessed, or to which he was entitled for any es-
tate of inheritance, or over which he had or might have any power of
appointment or disposition, or in which he had any devisable interest,
whether in possession, reversion, remainder or expectancy, to hold the
same to them, their heirs and assigns, upon trust, as soon as conven-
iently might be after his decease, to sell such part of his real estate
as his trustees should think fit or needful, and pay such of his debts
as his personalty was insufficient to discharge, and subject thereto to
receive the rents of the remaining part of the real estate, and pay and
apply the same for the m.aintenance, education and bringing up of his
daughter, Ann Dales Allison, otherwise Ann Dales, born to him by
his wife, Harriet Allison, until she attained the age of twenty-one
years; and when his said daughter should attain the age of twenty-
one years, upon further trust to convey, assign, transfer and assure the
said residuary freehold and other real estate and property, subject as
aforesaid, unto and to the use of his said daughter, her heirs and as-
signs forever. And in case his said daughter should happen to depart
this life under the .ige of twenty-one years, leaving lawful issue her
surviving, then he directed that his said trustees or trustee for the
time being should stand possessed of the said residuary real estate,
upon trust for the absolute use and benefit of such issue, his, her or
their heirs and assigns, as tenants in common ; but (in case his said
daughter should happen to depart this life under the age of twenty-
one years without leaving lawful issue her surviving, then upon trust
to receive the rents, income and profits of his said estates and prop-
erty, and equally divide the same between his said wife, if she should
be then his widow and unmarried, and Mary Allison, share and share
alike, with benefit of survivorship between them during their joint
lives, and after the decease of the survivor upon trust to sell the said
residuary freehold and other real estate and property, and pay the
money to arise from such sale to the treasurer of the Primitive Metho-
dist Society.
The testator died in September, 1840, leaving Ann Dales Allison, his
only child, him surviving. The testator's widow and ]\Iary Allison
both died in the lifetime of the daughter, Ann Dales Allison, who died
in March, 1856, under twenty-one years of age, without having been
married.
The plaintiff, who was the heir-at-law of Ann Dales Allison, filed
the bill in this cause claiming to be entitled to the estates devised by
the testator, alleging that the devise to the testator's daughter was a
4 Kales Pbop. — 19
290 CONSTRUCTION OP LIMITATIONS (Part 2
vested estate in fee simple, and that as the charitable gift to the Primi-
tive Methodist Society was void under the Statute of Mortmain, he
was entitled as her heir-at-law.
The defendants were the trustees of the testator's will, who claimed
the real estates as undisposed of.
KiNDERSLEY, V. C. This is a case of considerable importance.
There are two questions of construction raised and they are questions
of common law without any ingredient of equity except that there is a
devise to trustees, and therefore the interests are equitable, and what-
ever construction a court of law would put upon this instrument, a
court of equity would put the same. The question then is, first, wheth-
er there is by the prior part of these limitations an absolute vested es-
tate in fee simple given to the testator's daughter. It is not necessary
for the determination of this case to decide that question ; but my im-
pression is, that it is a vested estate in fee simple in the daughter, Ann
Dales Allison, liable of course to be divested. It is sufficient however
to say, that I will assume in favor of the plaintiff that the testator's
daughter took such absolute vested estate in fee simple in the first in-
stance, although she did not live to attain the age of twenty-one years.
Then the next question is, whether the estate was divested by virtue of
the subsequent clauses. Those clauses provide for the divesting of
the estate in certain events : first, in the event of her dying under
twenty-one, leaving issue; and the other, of her dying under twenty-
one without leaving issue, which is the event that has happened. Now,
of course, as this was a devise to a charity, it was void under the Stat-
ute of Mortmain, 9 Geo. 2, c. 36, §§ 1 and 2. The Statute directs,
that no lands shall be given in trust, or for the benefit of any char-
itable uses whatever, except in a particular manner. And then fol-
lows the third clause directing that all gifts of any lands, tenements or
hereditaments to or in trust for any charitable uses whatever, which
shall be made otherwise than in that particular manner, shall be ab-
solutely and to all intents and purposes null and void. It has been
argued, that the entire gift over being void, there is nothing to divest
the estate from the original taker, and I confess that I have much dif-
ficulty in getting over that reasoning ; but I find that the precise ques-
tion has been brought before the Court of Common Pleas and the
Court of Exchequer, and it has been held that, where there is a gift
over purporting to divest a prior estate in fee simple, if the devise over
fails for any reason, the intention of the testator must be taken to have
been that the devise should nevertheless operate to carry the estate
over. Now, whatever opinions I may entertain upon the point, it is
not for me, in the exercise of my functions, to overturn that decision.
It appears to me, that not only is every particular the same in the case
of Doe V. Eyre, 5 Com. B. Rep. 713, but the arguments there used are
entirely adverse to the claim of the plaintiff, and I must presume that
the observations used are to be taken as the expression of opinion of
the whole Court of Exchequer Chamber. If that were the case, it
Ch. 0) FAILURE OF EXECUTORY DEVISE 291
must follow as a matter of course, that if the case now before the
court were decided by the same judges, their decision would be ad-
verse to the case of the plaintiff. How, therefore, can I take upon
myself to say that the decision was wrong? If there had been a series
of decisions the other way, one would have to be weighed against the
other; but what are the cases cited, and suggested as being adverse?
First, there is the case of a gift by will of property, or a share of
property, to a child, importing an absolute gift, and directing subse-
quently that the share should be settled ; that does not bear upon the
present case, because that was not a case which turned on divesting
upon a contingency. There was no contingency at all ; the testator
stated that he meant to give an absolute interest, which however he
wished to be modified, in order that the children might have it; but
if there were no children, the original gift was to prevail. Those are
not cases raising the same question. The only other case is that of
Jackson v. Noble, which it is extremely difficult to reconcile with Doe
V. Eyre, by reason of the language there used ; but when it is looked
into, it will be found that the ground of the decision was, that the
contingency there contemplated, on which the gift over was to take
effect, had never happened. Of course, if that was the ground upon
which the decision was founded, it does not touch the present ques-
tion ; and whether that decision was right or wrong is of no moment,
because, at all events, it is not a decision adverse, and therefore upon
the state of the pronounced opinions, it is impossible to say that the
gift over is entirely inoperative ; and whatever my opinion might have
been but for the case of Doe v. Eyre, and I confess it is extremely
doubtful whether I should have been of the opinion there expressed,
I feel myself under the necessity of coming to the same conclusion.
If I had not been precluded by law, I should probably have submitted
this question to the very court who decided Doe v. Eyre, for their
opinion ; and if I had done so, I cannot doubt but that they would
have decided in conformity with their previous decision. I must there-
fore dismiss this bill; but having regard to the nature of the case, I
shall dismiss it without costs.®
O'MAHONEY v. BURDETT.
(House of Lords, 1874. L. R. 7 Eng. & Ir. App. Cas. 3S8.)
See ante, page 235, for a report of the case.'^
6 See Hurst v. Hurst, 21 Ch. Div. 278, 284-286, 290, 293, 294 (1882).
7 Gray, Rule against Perpetuities (2d and 3d Eds.) §§ 783-788 ; Drummond's
Ex'r V. Drummond, 26 N. J. Eq. (11 C. E. Green) 234 (1875),
On the Effect of the Failure of Subseqlejvt Interests for Remoteness.
— See Gray, Rule against Perpetuities, §§ 247, 248 ; Barrett v. Barrett, 255 III.
332, 99 N. E. 625 (1912).
292 CONSTRUCTION OF LIMITATIONS (Part 2
SECTION 2.— FAILURE OF PRECEDING INTEREST
JONES V. WESTCOMB.
(Court of Chancery, 1711. 1 Eq. Cas. Abr. 245, pi. 10.)
A., possessed of a long term for years, by will devised it to his wife
for life, and after her death to the child she was then enseint with;
and if such child died before it came to twenty-one, then he devised
one third part of the same term to his wife, her executors and admin-
istrators, and the other two thirds to other persons, and made his
wife executrix of his will, and died ; and the bill was brought against
her by the next of kin to the testator, to have an account and dis-
tribution of the surplus of his personal estate not devised by the will ;
and two questions were made: 1st, whether the devise to the wife of
one third part of the term was good, because it happened she was
not then enseint at all ; and so the contingency, upon which the devise
to her was to take place, never happened; the other question was,
whether this term, being part of the personal estate, and expressly
devised to her for life, with such other contingent interest on the
death of the supposed enseint child before twenty-one, should shut
her out from the surplus of the personal estate, which belonged to
her as executrix, and so the surplus go in a course of administration^
to be distributed amongst the plaintiffs, as next of kin. As to the
first point. Lord Keeper [Lord Harcourt] delivered his opinion,
that though the wife was not enseint at the time of the will, yet the
devise to her of such third part of the term was good ; and as to the
other point dismissed the plaintift's bill, and so let in the executrix to
the surplus of the personal estate, notwithstanding the devise to her
of part, as aforesaid.^
8 See Murray v. Jones, 2 V. & B. 313 (1S13) ; Mackinnon v. Sewell, 2 M. &
K. 202 (1S33) ; Gulliver v. Wickett, 1 Wils. 105 ; Meadows v. Parry, 1 V. &
B. 12-1.
"Frogmorton v. Ilolyday [3 Burr. IGIS] was a case similar in character to
that of Jones v. Westcomb, and what Lord Mansfield says is this: 'A question
applicable to this part of the argument was pleaded in the days of ancient
Home by Screvola and Crassus, in the famous cause between Curius and
Coponius, and was much agitated in modern times in the courts of West-
minster Hall, in the case of Jones v. Westcomb. A man, taking for granted
that his wife was with child, devised his estate to the child his wife was
enceinte of, and if such child died under age then he devised it over. The
w^oman was not with child. The question was, 'whether the devisee over
should take;' Lord Mansfield (with a little sarcasm perhaps) says, 'the Roman
tribunals at once and the English at last, finally determined that the intent,
though not expressed, must be construed to give the estate to the substitute,
unless a posthumous child lived to be of age to dispose of it; consequently,
no posthumous child having ever existed, the substitute was entitled.' "
Ch. 9) FAILURE OF PRECEDING INTEREST 293
WILLING V. BAINE.
(Court of Chancery, 1731. 3 P. Wms. 113.)
A. by his will devised £200 apiece to his children, payable at their
respective ages of twenty-one; and if any of them died before their
age of twenty-one, then the legacy given to the person so dying, to
go to the surviving children. He devised the residue of his personal
estate to A., B. and C. (being three of his children), and having made
them executors, died.
One of the children died in the testator's lifetime, and after the
testator's death one of the executors and residuary legatees died.
Upon this two questions arose, first, whether the legacy of the child
that died in the life of the testator should go to the surviving chil-
dren, or should be a lapsed legacy, and sink into the surplus? 2dly,
whether when one of the executors and residuary legatees died, his
share of the- residuum belonged to his executor, or to the surviving
residuary legatees ? ®
As to the first, it was objected to be the constant rule, that if the
legatee dies in the life of the testator, this legacy lapses, which took
in the present case ; for here the child, the legatee, died in the Hfe-
time of the testator; that it was true, there was a devise oyer of the
legacy, in case any of the children should die before their age of
twenty-one ; but such clause could not take place in the present case,
because there can be no legacy, unless the legatee sur\ives the testa-
tor, the will not speaking till then ; wherefore this must only be in-
tended, where the legatee survives the testator, so that the legacy
vests in him, and then he dies before his age of twenty-one.
On the other side it was said and resolved by the court [Lord King,
C] that the rule is true, that where the legatee dies in the life of the
testator, his legacy lapses (i. e.), it lapses as to the legatee so dying;
but that in this case the legacy was well given over to the surviving
children ; for which 2 Vern. 207, Miller v. Warren, was cited, where
there was a devise of a legacy of i 1,500 to A. payable at his age of
twenty-one, and if A. died before, then to B. On A.'s dying'in the
lifetime of the testator, though this was never a legacy with respect
to A., but lapsed as to him, by his dying in the Hfe of the testator,
still it was held to be well devised over. So in the case in 2 \^ern.
611, of Ledsome v. Hickman. In like manner, if land were devised
to A. and if A. should die before twenty-one, then to B. on A.'s dying
in the life of the testator, and before twenty-one, this would be a
good devise over of the land to B.
9 That part of the case which concerns this second point is omitted.
294 CONSTRUCTION OF LIMITATIONS (Part 2
TARBUCK V. TARBUCK.
(Court of Chancery, 1835. 4 L. J. [N. S.] Ch. 129.) lo
The testator by his will devised certain hereditaments unto his son
James for the term of his natural life, without impeachment of waste,
and, immediately after his decease, then unto and equally amongst all
the children of his said son James, share and share alike, and to their
respective heirs and assigns forever as tenants in common ; and if but
one only child, then the said testator gave and devised the same to such
only child, his or her heirs or assigns forever, chargeable as therein
mentioned. And the said testator also gave and devised all his other
messuages and dwelling-houses, buildings, lands, and hereditaments,
whatsoever and wheresoever, unto his son Jonathan, for and during
the term of his natural life, without impeachment of waste ; and from
and after his decease, then unto and equally amongst all the children
of his said son Jonathan, lawfully to be begotten, share and share
alike, or to their respective heirs and assigns forever, and for and dur-
ing all his, the said testator's term and interest therein respectively,
as tenants in common ; and if but one only child, then the said tes-
tator gave and devised the same to such only child, his or her heirs or
assigns forever, and for and during all his term and interest therein
respectively, chargeable as therein mentioned ; and in case his said son
James should happen to die without leaving lawful issue, then he gave
and devised the said hereditaments, so devised to him for his life as
aforesaid, unto his, the said testator's, son Jonathan, his heirs and as-
signs forever; and in case his said son Jonathan should happen to
die without leaving lawful issue, then the said testator gave and de-
vised the said hereditaments so devised to him for his life as aforesaid,
unto his, the said testator's, son James, his heirs and assigns forever,
or for and during all his, the said testator's, term and interests therein
respectively; but if both his, the said testator's, said sons, James and
Jonathan, should happen to die without leaving lawful issue, then the
said testator gave and devised the' whole of the said messuages, her-
editaments, &c., equally, unto and amongst all his, the said testator's,
nephews and nieces, share and share alike, and to their respective heirs
and assigns forever, or for and during all his, the said testator's, es-
tate, term, and interest therein respectively, as tenants in common.
At the date of the will, neither of the testator's sons had any chil-
dren, and tliey both died in the lifetime of the testator. James, one
of the testator's sons, left one child, a son, who survived his father
James and his uncle Jonathan, but who subsequently died in the life-
time of the testator, and Jonathan died without children. The tes-
tator died, seised of freehold estates, and possessed of leasehold for
lives and years, all of which were included in the above devise; and
10 Part only of the case is here given.
Ch. 9) FAILURE OF PRECEDING INTEREST 295
the question was, whether, under the circumstances, the devise over
to the nephews and nieces took effect.
Thi5 Master of the Rolls [Sir C. C. Pepys]. It appears that
the testator's son James died in 1814, leaving a son, James ; the tes-
tator's son Jonathan died in 1824 without issue. James, the son of
the testator's son James, died in 1824, and the testator himself died
in 1831 ; so that the devises in favor of the testator's sons, James and
Jonathan, and their children, lapsed and failed. On the part of the
nephews and nieces it was contended, that, in the events which have
happened, they are entitled under the devise to them. On the part of
the heir-at-law of the testator, it was contended, that as the events have
not happened upon which alone the nephews and nieces were to be
entitled, the devise to them cannot take effect, and that therefore there
is an intestacy.
The first question to be considered is. What estates would James and
Jonathan have taken, had they survived the testator? [The discussion
of this first question is omitted.] I am therefore of opinion, that if
James and Jonathan had survived the testator, they would have taken
estates for life, with remainder to their children in fee, but with ex-
ecutory devises over, in the event of their leaving no children at the
times of the death of the respective tenants for life; and if this be
the true construction of the devise, it is clear the gift to the nephews
and nieces could never have taken effect, for that gift is only to take
effect in the event of James and Jonathan dying without lawful issue,
that is, children to the above construction, and James, at the time of
his death, had a son, namely, James, who survived both his father and
his uncle Jonathan.
The only remaining question is, whether the circumstance of James,
and his son, and Jonathan, having died in the testator's lifetime, makes
any difference. The distinction is very nice between those cases, in
which executory limitations have been held not to be defeated by the
failure of a prior estate, as in Avelyn v. Ward, 1 Ves. Sen. 420; Jones
v. Westcomb, Prec. Chanc. 316; Murray v. Jones, 2 Ves. & Bea. 313;
and the opposite class of cases, in which it has been held, that subse-
quent limitations do not arise, although the preceding estates fail, be-
cause the event in which the estate was to go over had not arisen. The
principle, however, is well established, although there has sometimes
been some confusion in the application of it. It is, as I conceive, clear,
that if James and Jonathan had survived the testator, the devise to the
nephews and nieces could not have taken eff'ect under the circum-
stances which happened; and it is, I think, established by authority,
that the situation of the parties is not altered by their having died be-
fore the testator. Williams v. Chitty, 3 Ves. 545 ; Calthorpe v. Gough,
3 Bro. C. C. 394, n. ; Doo v. Brabant, 3 Bro. C. C. 392 ; s. c. 4 T. R.
706; and Humberstone v. Stanton, 1 Ves. & Bea. 385, are decided
cases on this point. I am therefore of opinion that the event, on which
296 CONSTRUCTION OP LIMITATIONS (Part 2
the nephews and nieces were to take, did not happen; and that con-
sequently there is an intestacy. The same declaration with regard to
the leaseholds follows of course.^^
HUGHES V. ELLIS.
(Court of Cliancery, 1855. 20 Beav. 193.)
The testator, by his will, dated in 1823, expressed himself as fol-
lows: "I direct that all my just debts, funeral expenses, the expenses
of proving this my will, and all other expenses attendant thereon be
first paid by my executrix, hereinafter named, out of my personal es-
tate, and from and after the payment of the same, I give and be-
queath the remainder of all my personal estate and effects, of what
nature or kind the same may be, in manner following: videlicet — I
give and bequeath to my mother, Anne Davies, the sum of one shilling.
Also, I give and bequeath to my brother Hugh, and my sisters, Mar-
garet, Anne, Elizabeth, Sarah, and Mary each the sum of one shilling ;
I give and bequeath to my dear wife Mary the rest, residue, and re-
mainder of all my estate, whether leasehold, real or personal, of what
nature, kind, or quality soever the same may be, and to her executors,
administrators and assigns. But if my said wife should die intestate,
then my will is, that the said remainder of my estate shall be be-
queathed to my nephew David Hughes (son of my brother William),
and to ^Margaret Evans (niece of my wife's first husband), share and
share alike, their heirs and executors." He appointed his wife sole
executrix.
Mary Hughes, the wife of the said testator, died intestate, on the
16th of September, 1854, in the lifetime of the said testator, and who
died on the 23d of October, 1854.
The plaintiff Margaret Hughes (formerly Margaret Evans) by this
bill claimed a moiety of- the testator's residuary estate, under the be-
quest over to her and David Hughes.
To this bill the defendants Mrs. Ellis and Mrs. Parry demurred.
The; Master oe the Rolls [Sir John Romilly]. My opinion of
this will is, that the testator intended to give his wife an absolute in-
terest in this propert}^, with the power of absolutely disposing of it
either in her lifetime or by will. If she did not dispose of it in her life
or by will, he then intended these gifts over to take effect. No doubt
the result is, that the gifts over could not take effect, for the wife
took an absolute interest, and if she died without a will, the residue
would go to her next of kin. She died, however, in the life of the tes-
tator, and I am of opinion that a lapse took place; the testator might
have said "intestate in my life," but the simple word "intestate" ex-
cludes the construction that the gift over was intended by the testator
11 Accord: Brookmau v. Smith, L. R. 6 Ex. 2'Jl ; L. R. 7 Ex. 271 (1&72).
Ch. 9) FAILURE OF PRECEDING INTEREST 297
to provide against a lapse, because if she had died in his lifetime, be-
ing a feme covert, she had no power to do any testamentary act, by
making a will, and she therefore must necessarily have died intestate.
I am of opinion that he intended to give her an absolute interest in
the property, and if she did not dispose of it by will, the gift over
was to take effect, and both upon principle and on the authorities which
have been cited, such a gift over could not take effect.
The difficulty has been created by the testator; his estate ought,
if possible, to bear the costs. ^^
12 In Greated v. Groated, 26 Beav. 621 (1859), there was a devise to the tes-
tator's children (nauiiug them) in fee. hut if any of them died before having
heirs of their body or (whicli the court construed "and") making a particular
disposition of his share, then to the survivors. Two children died in the
lifetime of the testator, but the gift over to tlie survivors did not take effect.
See. also. In re .Jenkins' Ti-usts, 2.3 L. R. (Ir.) 162 : Stretton v. Fitzgerald, 23
L. R. (Ir.) 310. But cf. Eaton v. Straw, IS N. H. 320, 333.
In In re Stringer's Estate, 6 Ch. D. 1, 14, 15 (1S7T) James, L. .J., said: "It
is settled by authority that if you give a man some property, real or person-
al, to l)e his absolutely, then you cannot by your will dispose of that proper-
ty which becomes his. You cannot say that, if he does not spend it, if he does
not give it away, if he does not Avill it. that which he happened to have in
his pos.session, or in his drawer, or in his pocket at the time of liis death,
shall not go to liis heir-at-law if it is realty, or to his next of kin if it is per-
sonalty, or to his creditors who may have a paramount claim to it. You can-
not do that if you once vest property absolutely in the first donee. That is
because that wliich is once vested in a man, and vested de facto in him. can-
not be taken from him out of the due course of devolution at his death by
any expression of wish on the part of the original testator. But that, I should
have thought, did not apply to a case where the original gift never did take
effect at all, because tlien there is no repugnance. There may be repugnance
between the gift over and the gift intended to be made, but I am not quite
sure that that ought to have applied to a case, supposing the point arose,
where there was simply the death of the person creating a lapse. True, there
are two authorities cited of the late Master of the Rolls, Hughes v. Ellis, 20
Beav. 192, and Created v. Created, 26 Beav. 621, one of which seems to me
very similar to this case. I think, if it were necessary for us to deal with
these cases, I should be slow to express my assent to them."
\Yhere personal proi)erty is bequeathed to A. and the heirs of his body
(which, as is well settled, is an absolute gift to A.) and in case of failure of
issue of A., then to B., if A. survive the testator, the gift over to B. is void for
remoteness, because on an indefinite failure of issue. But if A. die in the life
of the testator without issue, then the gift over is not void for remoteness,
and will take effect. In re Lo^^■man, L. R. [1S95] 2 Ch. 34S (overruling dicta
to the contrary in Harris v. Davis, 1 Coll. 418, and Hughes v. Ellis, supra, and
Greated v. Created, supra).
Theobald on Wills (7th Ed.) 648: "It would seem that a gift of consumable
articles to A. for life, remainder to B., would not lapse by A.'s death in the
testator's lifetime, notwithstanding Andrew v. Andrew, 1 Coll. 686, 690."
On the Effect of the Failure of a Preceding Interest for Remoteness
UPON THE Subsequent Limitations. — See Beard v. Westcott, 5 Taunt. 393, 5
B. & Aid. 801, T. & R. 25 (1813) ; Monypenny v. Bering, 2 De G., M. & G. 145
(1S52) ; Gray, Rule against Perpetuities, §§ 251-257.
298 CONSTRUCTION OF LIMITATIONS (Part 2
SECTION 3.— ACCELERATION
EAVESTAFF v. AUSTIN.
(Court of Chancery, 1854. 19 Beav. 591.)
The testatrix devised and bequeathed all her real and personal es-
tate to trustees, in trust to invest i4,50O, and pay the interest thereof
to her brother, William Johnson, during his life, and in case of his
wife, Harriet Johnson surviving him, she directed her trustees, im-
mediately thereupon, to set apart a sufficient sum out of the £4,500 to
pay Harriet Johnson, during her life, out of the dividends, &c., an
annuity of ilOO; and that the remainder of the sum of £4,500 should,
immediately upon her brother's decease, be equally divided between
her nieces, Elizabeth Austin and Mary Austin. She then proceeded
thus:
"And I also direct, that in case my said brother shall survive his
said wife [which happened], in that event, the same proportion of the
£4,500 as I have directed to be divided between my said nieces, Eliza-
beth Austin and Mary Austin, shall, in that event, immediately after
the decease of my brother, in the same way, be equally divided between
them. And I further direct, that such proportions of the £4,500 as
shall be set apart, in case my said brother shall die before his said wife,
for securing to his wife for her life the sum of £100 per annum, or
in case of his surviving his wife, so much of the £4,500 as would be
equal to the production of £100 per annum, from the dividends, &c.,
thereof, shall, by my said trustees, immediately upon my said brother's
decease, be set apart, and that my said trustees shall pay the said sum
of £100 per annum to my granddaughter, Adelaide Dalton, for life;
and I direct that after her death, the same shall be equally divided be-
tween the children of my nephew, John Austin."
By a codicil the testatrix revoked the £100 annuity given by her will
to her granddaughter, Adelaide Dalton, "she being otherwise provided
for."
The testatrix died in 1847; William Johnson survived his wife Har-
riet, and died in 1852 and Adelaide Dalton was still living.
The first question was, whether the bequest to the children of John
Austin, of so much of the £4,500 as would produce £100 a year, was
accelerated by the revocation of the bequest of the annuity of £100
to Adelaide Dalton for life, or whether its enjoyment by such chil-
dren w; postponed till the decease of Adelaide Dalton.
On the question of acceleration, the case of Lainson v. Eainson was
cited.
The Master of the Rolls reserved judgment.
Ch. 9) ACCELERATION 299
Tut Master of tiik Rolls [Sir John Romilly]. Though I think
t})at the same rules which relate to real estate do not apply to per-
sonalty, and that therefore this case is distinguishable from Lainson
V. Lainson/^ still I think that the decision here, on the construction of
this will, must be the same, and that it must be held that the interest
of the children of John is accelerated. Without that, I do not see how
I can avoid holding that it fell into the residue, which is given in an-
other way. The interest of the children takes effect at once, without
waiting for the death of Adelaide Dalton.^^ [The balance of the case,
relating to another point, is omitted.]
13 18 Beav. 1. A devise of land to A. for life and from and immediately
after his death to B. in tail. A codicil revoked the devise to A. Held, that
B.'s estate was accelerated. — Ed.
14 See also Jnll v. Jacobs. 3 Ch. D. 70.3 (1876) ; Slocum v. Hagaman, 176 111.
533, 52 N. E. 332 : Cook's Estate, 10 Pa. Co. Ct. Rep. 465.
In Craven v. Brady, L. R. 4 Eq. 200, L. R. 4 Ch. App. 206, where there was
both an appointment and a devise to A. for life, subject to a condition sub-
sequent of forfeiture on alienation, with a remainder to B., B.'s remainder
was accelerated upon the forfeiture of the life estate.
But where an appointment was made to a wife for life, "upon condition
that she should thereout maintain and educate his children, in such manner
as his executors should thinlv proper," with remainder to the eldest son, and
the appointment to the wife was void because in excess of the power, but the
gift in default of appointment was to the children equally, the remainder was
not accelerated, but the rents and profits went to the children equally during
the life of the wife. Crozier v. Crozier, 3 D., R. & W. 373.
Suppose, after a devise of real estate to the wife for life, the testator di-
rects that at the wife's death the executor shall sell and divide the proceeds
between A. and B. If the wife renounces, may the executor sell at once and
divide? See Dale, Adm'r, v. Bartley, 58 Ind. 101.
Now, suppose the executors are directed to sell at the wife's death and
divide the proceeds Into two shares, one to go to A. or his issue, the other
to r>. or his issue, with a gift over, if either dies without leaving issue before
the legacy becomes payable, to C. Suppose the widow renounces. Are A.
and B. entitled to have the property sold and divided at once? See Coover's
Appeal, 74 Pa. 143. If so, do A. and B. take indefeasible shares?
Suppose real estate be devised to the widow for life, or until her remar-
riage, with a gift "after her death to be equally divided between lawfully be-
gotten children of my brothers, John, David, Jacob and James." or such of
them as may be living at the time of her death. After the widow's remar-
riage, were the remaindermen who then survived entitled? See Augustus v.
Sea bolt, 3 INIetc. 155 (Ky. 1860).
Suppose a devise to trustees upon trust to make certain payments of in-
come to the wife during her life ; the remainder of the net income to be
divided lietween two daughters for life, with a gift over to their children, and
a further gift over upon the death of the children without leaving issue
[which happened], "then, immediately after the decease of my wife, if she
survive my said daughters, but if not, then immediately after the decease of
the last surviidng one of my daughters, my said trustees shall divide my es-
tate into two equal shares, * * * and shall at once proceed to distribute
one of such shares among the lawful surviving descendants of my own broth-
ers and sisters, such descendants taking per stirpes and not per capita." The
widow renounced. Both daughters died without issue. Then brothers and
sisters of the testator died, and their descendants during the life of the
widow seek a distribution. Are they entitled? See Blatchford v. Newberry,
99 111. 11.
Gray, Rule against Perpetuities (3d Ed.) § 251: "In former editions it was
said: 'Thus if an estate is given (1) to A. for life, (2) to A.'s unborn child for
life, (3) to the child of such unborn child for life, (4) to B. in fee, B.'s estate
300 CONSTRUCTION OF LIMITATIONS (Part 2
is good, althougli the remainder to the child of A.'s unborn child is too re-
mote. So although the later interest is not vested at its creation, yet if it
must become vested within the limits fixed by the Rule against Perpetuities, it
will be good.' But this is incorrect. A vested estate is an estate which is
subject to no condition precedent except the termination of the precedent es-
tates. [!Soe §§ S, 101, ante.] In the case put the estate to B. is subject to the
condition precedents of (1) the death of A., (2) the death of A.'s unborn child,
(3) the death of the child of A.'s unborn child. A. and A.'s unborn child have
estates for life, but the gift to the child of A.'s unborn child being remote,
said child has no estate; and therefore as B.'s estate is subject not only to
the termination of the life estates of A. and of A.'s unborn child, but also
to the contingency of the death of an unborn person who has no estate, the
estate given to B. is too remote, and so it was held in In re Mortimer [1905,
2 Ch. (0. A.) 502. A note by the author, 23 Law Quart. Rev. 127, is wrong.
See 1 Jarm. Wills (6th Ed.) 352-354]."
PART III
POWERS
CHAPTER I
OPERATION. CLASSIFICATION, RELEASE AND DIS-
CHARGE
SIR EDWARD CLERK'S CASE.
(Court of Queen's Bencli, 1599. 6 Coke, 17b.)
See ante, p. 36, for a report of the case.^
RELEASE AND DISCHARGE OE POWERS, by John Chipman
Gray, 24 H. L. R. 511 : The first distmction in powers rests on the na-
ture of the instrument by which the power is exercisable. It may be
exercisable by either deed or will, or by will alone. A power may be
made exercisable by deed and not by will, but the law as to releases
is the same in the case of powers of this description as it is in that of
powers exercisable by either deed or will. For the essential difference
is whether the power can be exercised at once, or only on the death of
the donee.
1 In Roach v. Wadham, 6 East, 289 (1805), the donor of the power con-
veyed in fee to the donee reserving rent and the donee agreeing to pay rent.
The donee then appointed the fee and tlie appointee covenanted to pay the
rent to tlie donor. Held, the donor could not sue the appointee for the rent.
Sugden on Towers (Sth Ed.) 314: "Moreton v. Lees, C. P. Lancaster, March
Ass. 1819. Case reserved and argued before Lord Chief Baron Richards and
Mr. Baron ^Yood, at Serjeants' Inn. The conveyance was by feoffment to
the purchaser and his heirs, habendum to him, his heirs and assigns, to such
uses as he should appoint by deed or will, and in default of and until ap-
poiutniont, to the use of the purchaser, his heirs and assigns. He exercised
the power by an appointment in fee, and his wife brought an action to re-
cover her dower. The objection was taken that the husband was in at the
common law, and the power was void ; but the contrary was decided, and
the wife was held to be barred of dower. This decision, therefore, sets the
point at rest. It has recently been followed by a case iu Ireland. Gorman
v. Byrne, 8 Ir. C. L. 391."
In Commonwealth v. Dufl3eld, 12 Pa. 277 (1849), the donor, residing in
Maryland, created by will a general testamentary power to appoint personal-
ty iu Maryland. The donee resided in Pennsylvania and appointed by wall
probated in that state. Held, the appointee was not liable for any col-
lateral inheritance tax under the laws of Pennsylvania.
4 Kales Prop. (301)
302 POWERS (Part 3
Again, powers are either g ptipfnl r>r ^pprigl Under a general power
an appointment can be made to any one, including the appointing donee.
Under a special power an appointment can be made only to certain per-
sons or objects, or to certain classes of persons or objects other than
the donee. Special powers are sometimes called limited powers.
Finally, tlie relation between the donee and the property over which
he has the power of appointment may be one of four kinds : First.
The donee may have an interest in the property from which the ex er-
c ise of the power will derogate , as wherTthe d onee of the power own s
tli eproperty in fe e. This is called a power appendant ^ Second. The
donee may have an interest in the property, b ut the exe rcise__ofthe
power wi ll not derogate from such interest , as when A. has a life es^
tate ^yith power to appoint by wi ll. This is called a power in gross or
collateral. Third. The donee has no interest in the property, but has
himself create d the pojv ver, as when a man conveying land in fee re-
sefves to himself a power of appointment. This is also called a power
in gross or collateral, to distinguish it from the power of the second
kind, it will be called here a reserved power in gross. Fourth. The
donee has no interest in the property and did not create t he power.
The power in tliis case is said to be si mply collatera l.
This somewhat clumsy nomenclature is derived from an opinion of
Hale, C. B., in Edwards v. Sleater [Harde. 410, 415, 416].
DOE ex dem. WIGAN v. JONES.
(Court of King's Bench, 1830. 10 Barn. & C. 459.)
Lord Te:nterde;n, C. J.^ This was a special case, argued during
the last term. It appeared by the case that in Michaelmas term 1822 a
jiujpnTierrt_was _entered UP against T. Ba ker at the suit of the defendant,
who, o n the 13tli of December. 182 7. sued out an elegit , under which
the lan ds in question were delivered to him by the sheriff . In the mean
time, bet ween the entering up of the judgment and the execution of th e
ele git, viz. m JNIovemb er, 1826, the then defendant. Baker, had arquiri^ d
the se lands by a conveyance to such uses as he might appoint, and in
the "mean time to the use of himself tor lite , and so forth. In Marc h,
1827, B aker mortgaged the estat e for £4000 to the lesso r_of t he plain-
til T^ and appointed the use to him for 500 year s ; and the question for
tITe court was, Whether this conveyance, under the power of appoint-
ment, defeated the judgment-creditor? It has been established ever
since the time of Lord Coke, that where a pow er is executed the j^^iaon
tak ing under it takes under him who created the power, and not unde r
hiin who executes it. The only exceptio ns are, whe re th e person exe-
cuting the power has granted a lease or any other interest whichTEe^may
2 See Maundrell, 10 Ves. 246, 254. « The opinion only is given.
Ch. 1) OFERATION, CLASSIFICATION, RELEASE AND DISCHARGE 303
d o by virtue of his estate, for then hejsj not allowed to defeat his own
act .but su ttenng a fud^ment is not within the exception as an ac t
done by t he party, for it is considered as a proceeding in inviturn ^_and
theretore falls within the rule. We are, therefore, of opinion that the
nonsuit must be set aside, and a verdict entered for the plaintiff.
Postea to the plaintiff.*
JONES V. WIN WOOD.
(Court of Exchequer, 1S38. 3 Mees. & W, 653.)
AldERSON, B.^ In this case we propose to give the reasons which
have induced us to send our certificate to the Lord Chancellor in favor
of the plaintiffs.
By the original conveyance, dated the 27th and 28th of December,
1819, certain l ands were sett led to such uses as Willi am T. Davies, and
Franc es his wife, should at any time or times, and from time to time,
du ring their joint l ives, by deed or other instrument in writing duly ex-
ec uted, direc t an d appoin t, and in_ detault ot and until such appointme nt,
to the use ot William T. Davies for l ite, with remainder to trustees to
preserve contingent remainders, then to the use of his w ife for life, then
in like manner to the us e of his sons in succession in tail gpnpml^ aiyl
th en to the use of the daughters in tail general, w ith cross remainders,
and with remainder in fee to William T. D ayies_himself.
In 18 24 Wi Uiam _T. Da vies took the be nefit of the In solvent Act , and
convey e3~ to the prm-isional assign ee, on the 5th ot* August, 1824, ah,
his interest m the premises, which was subsequently transferred by the
provisional assignee~to' Isaac Jones, the assignee of the estate in tlie
usual way.
Under these circumstances William T. Davies and his wife in execu-
tion of their joint power of appointment conveyed on the 16th and 17th
Ql.§ eptember, 1828, b y lease and release, the premis^iT o Fa trick Br6\vh
a nd Jen kyn Beynon in tee , upon trust for the creditors of W. T. Davie s.
And the point to be considered is, whether by this appointment any
estate passed, and what estate, to the trustees.
The first ques tion is, whether tlie powe r was revoked by the convey^
an c^to the provi = '''^"n1 n'l^'nf'-'^^ : anrl we are ot opinion that it was not .
Indeed, on this part of the case there seems to be little difficulty.
No authority was cited for the proposition contended for by the
defendant's counsel, that where by previous conveyance a party has
prevented himself from executing a power as fully as he could have
originally executed it, the power is at an end ; nor can any such propo-
sition be maintained. Even upon the authority of the decision of
* A power is not extinguished by a judgment against the donee. Leggett
V. Doremus, 25 N. J. Eq. 122.
6 The opinion only is given.
304 POWERS (Part 3
Badham v. Mee [7 Bing. 695; 1 Myl. & K. 32], as explained by Sir
John Leach, this question may be answered in the negative. For he
considered the power as not well executed in that case, because the
particular limitations made by the appointment under it could not have
been valid, if introduced into the original deed creating the power.
But if the previous conveyance had altogether put an end to the power,
such reasons would have been wholly unnecessary.
Now it is obvious, as was indeed pointed out by the court in the
course of the argument, that limitations might have been made subse-
quently to the conveyance in 1824, which would apply to the life estate
of the wife, and the estates tail of the children, and which might legally
have been introduced into the original deed, and- consequently, upon
the principles stated in Badham v. Mee, such an execution of the
power would have been valid ; and if any valid execution of the power
could have been made, the first of the Lord Chancellor's questions must
be answered in the negative.
But in truth, the whole case turns upon the answer to be given to the
s econd quest ion. For if the execution of this power by the deed of
September," 1&28, be invalid, then no estate passed by it, and the origi-
nal limitations contained in the deed of 1819 remain still in force.
We think, after full consideration, that this power was well executed,
so as to convey the estate for life of the wife, and the estates tail of die
ch ildren, to Llie lruijte(i:j under the deed of 18 28. ~~~
"We cannot adopt the principle laid down by Sir John Leach, in
affirming the certificate sent by the Court of Common Pleas in Badham
V. Mee. It is not clear that such was the ground on which that court
made their certificate, the reasons for which were not given by them.
We do not think that it is right to translate into words the effect of
the appointment under the power, taken in conjunction with the other
circumstances, and then to consider whether such limitations could,
according to the peculiar rules aft'ecting the transmission of landed
property, have been legally inserted in the original deed. The utmost
extent tO' which the principle could be carried (and looking at the prin-
ciples which govern the execution of these powers, which were origi-
nally mere modifications of equitable uses, taking effect as directions to
trustees, which bound their conscience, and which a court of equity
would compel them to perform, it may be questionable whether even
this ought to be done), would be to insert the limitations actually con-
tained in the appointment itself in the original deed, and then to ex-
amine whether such limitations would be repugnant to any known rule
of law. Now, if we do that in this case, no difficulty would be pro-
duced. Here, if the limitation of the estate made by the appointment
under this power had been inserted in the original deed, there would
have been no incongruity upon the face of that instrument. A fee
would have been given to Brown and Beynon, the trustees, and no more»
But then, in considering what operation such a deed, good in point of
form, will have, the court looks at the other circumstances ; and finding
Ch. 1) OPERATION, CLASSIFICATION, RELEASE AND DISCHARGE 305
that th e insolvent had previously, by an innocent conveyance (for such
the assignment under the Insolvent Act mu st, we think, be considered to
beT- conveyed away his lite estate and his remainder in fee^ it adjudges
that he cannot, by executing the power, dero.c^ate from his own previous
conveyance, and c oncludes therefore that the deed does not operate on
the estates previously assigned.
I'he result thereTore is, that by executing the power, the insolvent
conveys to the trustees all that had not been previously assigned under
the Insolvent Act to his assignees. In conformity with this opinion we
shall send our certificate to the Lord Chancellor."
In re RADCLIFFE.
(Court of Appeal, 1S91. L. R. [1892] 1 Ch. 227.) ^
LiNDLEY, L. J. This is an appeal from a decision of Mr. Justice
North. In order to understand the application, it will be necessary
that I should state the circumstances under which it is made. It ap-
pears that in 1852 a marriage settlement was made which gave the
intended husband a life interest in certain property both real and per-
sonal. It also gave a life interest to his wife in the same property.
She is dead. There was a power to appoint amongst the children of the
marriage, and subject to the life interests and to the power of appoint-
ment the property was vested in trustees in trust for the children of
the marriage, vesting in them on attaining twenty-one. One of them
died intestate without attaining a vested interest ; two others lived to
obtain vested interests. One died intestate having a vested interest,
and his father, the Appellant, is his legal personal representative. The
wife being dead, the father is equitable tenant for life of the whole
property, and he is entitled as legal personal representative of his son
to one half of the personal estate subject to the trusts of the settlement.
Under those circumstances, the father executed a deed by which he has
extinguished his power of appointment; and having extinguished his
power of appointment the result is this : that as regards the personal
estate, with which alone we have to deal now, he is equitable tenant for
life in his own right, and he is entitled as administrator of his son to
one half of the reversion in the same property. That being the case,
he has taken out a summons asking the Court to authorize or to di-
rect the surviving trustee to pay him over half the personal estate to
6 See Reid v. Gordon, 35 Md. 174.
Where the holder of a fee with a power appendant conveys the fee, the
power is extintruished. McFall v. Kirkpatrick, 236 111. 281, 290, 86 N. E. 139 ;
Brown and Wife v. Renshaw, 57 Md. 67, 78.
" Only the opinion of Lindley, L. J., is given. The concurring opinions ol
Bowen and Fry, L. J J., are omitted.
4 Kales Prop. — 20
306 POWERS (Part 3
which he is entitled in the way and to the extent I have mentioned.
The trustee very naturally declines to do it without the direction of the
Court, and Mr. Justice North has also declined to interfere, and this is
an appeal from his decision.
Now, before I refer to the authorities, I will say one or two words
about the principle applicable to the case. The exact position of affairs
being that which I have stated, it is obvious that at the present moment,
the life estate being vested in the father in one right and the reversion
in another right, the two have not merged. In order that there may
be a merger, the two estates which are supposed to coalesce must be
vested in the same person at the same time and in the same right.
Therefore, there is no merger as matters at present stand. The power
of appointment is effectually got rid of. Th ere was a time when it
A^^ac <jr||]]-»f-fi|| yrlipthe r such a power could be released; but all doub ton
that point was removed more th an fifty years ag.o ,--and no doubt can be
thrown or ought to be tHrovvn on the doctrine that was then establish-
ed, even independently of the 52d section of the Conveyancing Act,
1881. The power, therefore, having been got rid of, the only difficulty
in principle in assenting to the application of the father is that there is
as yet no merger. The difficulty could be got rid of at once by a sur-
render by the father of his life interest so as to extinguish it, the ef-
fect of which would be that the two interests would coalesce, and if
there are any creditors the two estates would coalesce for the benefit
of the creditors. The father, as the legal personal representative of
his son, would then have an estate in possession which could be dis-
tributable amongst the son's creditors if there were any, and subject
to their payment he would take the property as sole next of kin under
the statute. Now, although there has been no surrender, I apprehend
there will be no difficulty in the Appellant undertaking to surrender
his estate now by counsel at the Bar. If that were done, I cannot see
any principle whatever on which we should decline to act upon the state
of things which would then exist. It is said that mergers are odious
to the Court. I do not understand that. The saying only means that
mergers are odious if misapplied so as to do injustice; but there is.
n othin g odious in a merger if there is no injustice done. Therefore, I
confess, upon pi'iiictple-f~cannot see wlTyTheT!ourt stlould decline to
accede to the application of the tenant for life provided he removes
the technical difficulties which I have suggested by surrendering his
life estate.
Then, it is said that there are cases against this view, and that there
is an authority of Cunynghame v. Thurlow [1 Russ. & My. 436, n.],
which is inconsistent with it. Now, I am not sure that Cunynghame
V. Thurlow was inconsistent with it, because in Cunynghame v. Thur-
low itself there was no equitable merger by reason of there having been
in that case what there is here — an estate for life in one right, and
remainder in another right, and there was no suggestion in Cunynghame
v. Thurlow that the difficulty could be got rid of by a surrender. But
Ch. 1) OPERATION, CLASSIFICATION, RELEASE AND DISCHARGE 307
be that as it may, Cunynghame v. Thurlow has been recognized and
acted upon for a great number of years with one very striking excep-
tion. The exception to which I refer is the case before the late Master
of the Rolls (Sir John Romilly) of Smith v. Houblon [26 Beav. 482].
Some little ambiguity is thrown upon Smith v. Houblon by reason of
Mr. Beavan not having set out the order which was actually made ;
but Mr. Lawrence has been kind enough to supply us with a copy of
that order, and it shews that Lord Romilly 's order went much further
than Mr. Beavan understood it to go, and did declare that the plain-
tiff there was entitled to receive from the trustees that which he sought
to receive. Those two cases are, to my mind, directly in conflict; and
we are at liberty to act upon principle, and to say that notwithstanding
Cunynghame v. Thurlow the Plaintiff is entitled to' an order such as he
asks, I should hesitate long before I did that if I thought there was the
slightest danger of our present decision shaking any title. But, having
considered the matter as best I can, and having consulted with my learn-
ed Brethren, I am unable to see how any title can be affected or preju-
diced in any way whatever.
It appears to me, therefore, that the right order to make is this :
to discharge the order made by Mr. Justice North, who, I am bound to
say, had not his attention called to the mode of getting rid of the dif-
ficulty by surrendering the life estate; and, of course, until that sur-
render is made there is a difficulty and the Plaintiff will not be entitled
to the money. But if the Plaintiff has no objection — I do not suppose
he has — the order may be drawn up in t hi s form : The Plaintiff by hi s
counsel at the Bar undertaldng to surrender his life interest in one
moiety ot the personal estateTT ubject to the trviits of the settlemen t
of July 7T852,'to the end that the said life interest may merge j n the in-
tere^sTuTTemainder vested in the Plaintiff as the lega l perso n al repr e-
sentative ot his son gecia rethat the Plaititiff is en titled as^^egal per -
soi ial £ epi-esentative of his son to receive f rom the Defendant, the
surviving trustee, tlie said moiety of the said personal estate s ubiect~l o
the p ayment tnereout ot tiie costs'^ the order of the_ 14tlL-Qf April,
1891, ordered to be retained, and the costs of all parties to this appea l.
Tlie net result, therefore, of our decision I take to be this : that jn a
c ase of this kind the trustees cannot safelv pav the money to the tenant
f or life who simply extinguishes his power : He must do somethin g
mor e — he must s urrender his^ life estate as we ll, i do not think that
was done in Cunynghame y. Thurlow [1 Russ. & My. 436, n.]. I
can find no trace of it. But if the power is extinguished, and the life
estate is surrendered, then the tenant for life's two interests do co-
alesce, and are vested in the same person at the same time in the same
right; and trustees may safely act upon tliis view in future; and this
Court will act upon it now.^
8 See Atkinson v. Dowling, ?,?, S. C. 414, 12 S. E. 93 ; Thorington v. Thor-
ingtou, 82 Ala. 489, 1 Soutli. 716 ; Grosvenor v. Bo\yen, 15 R. I. 549, 551, 10
Atl. 589.
308 POWERS (Part 3
WEST V. BERNEY.
(Court of Chancery, 1819. 1 Russ. & M. 431.)
In this case the master had reported that a good title was shown;
and exceptions were taken to the report. The question arose on the
following instruments :
S ir Tohn E e rney, being seised in fe e under a settlement made in
1 789, c onveyed the estate to the_u se oT himself for lif e ; rem a inder to
suchone or more" of his sons as he~ shou ld appoint ; re mainder, in d e-
faul t of appointment, to his first and other sons in ta il^ remainderTo
hi inself in fe e.
In 1811, on the occasion of the marriage of his eldest son, Sir John
Beniey "was a party to a deed of settleme nt, to which the intended wife
was also a party, and to a fine and recover y levied and suffered in pur-
suance thereof, whereby the estate was limited t o the use of Sir John
Berney for lifejre mainder to the use of Hanson Berney, his eldest
son, lor lite; remainder to the jirst and other sons of Hanson Berne y
in TaiI7"with~ divers remaindersover. And in this deed a power was
given to tlie trustees, authorizing^ them, at the request of Sir John
Berney during his life, and, after his death, at the request of Hanson
Berney, to sell the estate ; and, after paying the encumbrances to which
it was at this time subject, to invest the produce in the purchase of
other estates to be settled to the same uses.
Sir John Berney had not previously executed any appointment in
favor of his eldest son ; and a doubt occurring whether he might^ not
still execute his appointment in favor o f any other son, and so defeat
the settlement, he, i n 1815, executed a deed of appo intment in iavor
ofJjie _eldest son in fee, reritinc r^ thnt it w a s for the purpose of- co nfirm-
in g the marriage settlement of 1811 .
Against the title, it was urged by Mr. Preston, that the power of
appointment in the deed of 1789 was merely collateral, and, being for
the benefit of particular objects, was ^-n inferpc;! in thf- m, and in the
iiatur e_of a trust in Sir John Berney ^_aiid^ierefcu-e, rnulrl nei tlier be
releas ed nor extinguished by him ; that the power of appointment re-
manied in him, therefore, notwithstanding the settlement of 1811 ; and
that it was not well executed by the deed of 1815, because the eldest
son was not capable of receiving an interest in the estate inconsistent
with the settlement of 1811. He cited Co. Lit. 237 a, 265 b, Albany's
Case, 1 Rep. HI, and Digges's Case, 1 Rep. 175.
Mr. Sugden, who was also against th e title , differed altogether in his
argumenTTrom Mr. i-'reston" He admrtted that the power was extiu -
guished by the settlement of 1811 ; but insisted upon the form of
tlTCTTicadings, that a good title could be made only for a certain term
of 500 years, under which the plaintiffs claimed. He relied upon Al-
bany's Case and Digges's Case ; and cited also Leigh v. Winter, Sir W.
Jones, 411; Bird v. Christopher, Stiles, 389; Edwards v. Sleater,
Ch. 1) OrERATION, CLASSIFICATION, RELEASE AND DISCHARGE 309
Hardres, 410; King v. Melling, 1 Vent. 225; Tomlinson v. Dighton, 1
P. Wms. 149 ; Saville v. Blacket, 1 P. Wms. 717 ; Morse v. Faulkner,
1 Anstr. 11, 3 Swanst. 429, n.
The Vice-Chancellor [Sir John Lkacii]. In Albany's Ca se it
was held, that the reserved powerof_thegrantor m ay be extinguished
by his release. He"tookTirthe settlenienT an e"state"for life.
In Digge£sjCase it was held, that the reseryedj jower of the gran tor,
who took by the deed also an estate for liTeTT^eing to be executed by
deed indented and enrolled, was extinguished by his fine levied after a
revocation, but before enrolment.
In Leigh v. Winter it was held that the grantor could release his
reserved power of revocation. He took by the settlement an estate for
life.'
In Bird v. Christopher it was held that, if A. enfeoff with power of
revocation, and afterwards levy a fine, the power is extinguished.
Edwards v. Sleater was cited for the able reasoning of Lord Hale
upon the distinctions of powers ; whose opinion seems to be, that
where the party to execute the power has or had an estate in the land,
it is not simply collateral ; and whether it be appendant to his estate, as
a leasing power, or unconnected with his particular estate, and there-
fore in gross, it may be destroyed by release, fine, or feofifment.
In King v. Melling, it was held that a power in the devisee for life
to jointure his wife was extinguished by a recovery.
In Tomlinson v. Dighton it seems to be admitted, that where there
is a devisee for life, with power to appoint to her children, the power
would be extinguished by fine.
In Saville v. Blacket it was held that a tenant for ninety-nine years,
if he should so long live, extinguished his power to charge the estate
\vith a sum of money by joining in a recovery and re-settlement of the
estate, because he would othervvise defeat his own grant.
In Morse v. Faulkner, A. sold a copyhold estate to which he had no
title. It afterwards descended upon him, and he died. On a bill by
the purchaser against his heir, the court was of opinion that the pur-
chaser would have had a personal equity, but doubted whether it could
reach his heir.
Upon the authorities and principle my opinion is, that a power simply
collateral, tUa t is, a power to a stranger, w ho has no interest in the
land, cannot be extinguished or sus pended" by any acT^ot liis own or
ot hers with respect to the lan d . It is clear, too, that it cannot be re-
leased, wher e it is to be exercised for the benefit of anoth er.
TTmust be equally clear that it may be released, where it is for his
own benefit, as a power to charge a sum of money for himself^ In"
sifch case, his joining in a conveyance of the land clear of the charge,
would be a release.
I think that every power reserved by the g rantor, whether he has
retained an interest in the estate as tenant tor lite or otherwise, is an
310 POWERS (Part 3
int erest in him , which may be released or extin guish ed. Bird v. Chris-
topher. It ditters^aTto gether from a naked authority given to a m ere
stranger. It is so m uch reserved by h im out of the es tate.
I think that every~power reserv ed to a grantee forjife j though not
appendant to his_o wn estate, as a leasin g power, but to^take effect aft er
the determi nation of his own estate, an d theref ore, in gross, may be
extm^msKed. In respect of his freeholdmterest he can act upon the
estate, and his dealing with the estate so as to create interests incon-
sistent with the exercise of his power, must extinguish his power. The
general principle is, that it is not permitted to a man to defeat his own
grant. Such a power in gross in tenant for life would not be defeated
by a conveyance of his life estate, as a power appendant or leasing
power would be defeated ; because the conveyance of his life estate is
not inconsistent with the exercise of his power.
Quaere. Could such a power in gross in a tenant for life be re-
leased? If he were grantor, it is decided by Albany's Case and
Leigh V. Winter that it could be released ; and I think it may equally
be released, if he is grantee; because his release must be to him who
takes subject to the power; and the exercise of the power would be
inconsistent with the release, which is a species of conveyance affect-
ing the land. Sed qusere.
Mr. Preston admits all this reasoning as applied to genera l powers,
but disputes it as to powers t o appoint to particular objects^ as chil-
dren. Here, he says, the power is not an interest in the appomtor but
irTtiie appointee, and is, therefore, in the nature of a trust, which the
trustee cannot release or extinguish.
It i s^not a tr ust, because the alleged cestui que tru st cannot call for
the execution of it^ It may beexercised ^ rjiot ; andjTdealing with
the estate, mconsistent "with the exercise of it, d eterminesjthe option to
e xercise I t In King v. Melling, the power was a particular power.
But this reasoning would apply to a power simply collateral. The
di fference^ how ever is, that no act in the latter case can aff'ect the
land ; whereas m tHe^other, the Tiiterest^of the person^ givel^him th'e
p ower to cr eate~an inconsistent es tate i n the fand, th o ugh^de fea slble . "
Mr. ir'reston urgeji^the^jielief^giyen^ against fr auds upon the power;
as mThe _ case'of an appKrm ^^^^t b y_a_ Jathe r subst antially to~himsel f.
This , however, does not prove the existence of a trust. It proves
onl^Tthat ajj ower given for a particu lar purpose shall not by circuity
be exercrsed for a different purpose. ""
It"does not, upon the whole, appear to me to be a proper case to
decide the general principle, that every p ower reserved by a grantor
m ay be rele ased or extinguished._ainimighl ie~rese rved no other inTefest
in jhe esta te, — or the other principle, that e very grant ee for life with
a pow er m gross may in Jike^manner rel^ea^e_or_ex^^ although
I was aiid am of opinion, that such two general principles are estab-
lished. But I decide the case upon the ground that the settlement of
Ch. 1) OPERATION, CLASSIFICATION, RELEASE AND DISCHARGE 311
1811 was substantially and equitably an appointment by Sir J. Berney
in favor of his eldest son, and that the limitations in the settlement were
to be considered as limitations made by him.®
SMITH V. PLUMMER.
(Court of Chancery, 1848. 17 Law J. Ch. [N. S.] 145.)
The bill stated that by a settlement made upon the marriage of
William Smith, since deceased, and Caroline, his wife, dated the 22d
of September, 1807, certain freehold estates were conveyed and settled
to the use of W. Smith and Caroline his wife for their res pective lives .
and after the de cease "ot the survivor, to the use ot all or any of the
chil d or children of the said marriage, as W. Smith and his wife shou ld
jointly appoi nt, and in default of joint appointment then as the su r-
vivor should appoint. The husband became the survivor. The power
was to be exercised by any d eed_ or deeds, writing or writings, with
or without power of revocation, to be by him sealed and delivered in
manner therein mentioned, or by his last will and testament in writ-
ing; and i n defa ult of suc h appomtment, to the use of all the said
child ren equally to be divided between them as tenants in common.
That Caroline Smith died in March, 1837, and there were issue of the
said marriage five children living, and also several other children, all
of whom died in infancy without leaving issue ; that W. Smith and
Caroline his wife never exercised the joint power of appointment
amongst the children ; that W. Smith executed a deed-poll bearing
date the 5th of February, 1842, which recited that the real estates had
been sold and converted into money under the powers in the settle-
ment ; that W. Smith had never in any manner exercised the power
of selection or distribution of or among the children of his marriage
with the said Caroline his wife, given or reserved to him by the in-
denture of the 22d of September, 1807, as aforesaid, and that he was
desirous of absolutely releasing and extinguishing such power ; that
by the said d eed-poll William Smith did absolutely and for ever re-
lea se and discharge the hereditaments comprised in the said recited
indenture of the 22d of September, 1807, and the proceeds of the sale
thereof, and the stocks, funds, and securities representing the same,
or any part thereof, and all lands and hereditaments, if any, purchas-
ed or to be purchased with such proceeds, stock, funds, and securities
respectively, or any parts thereof respectively, and all and every per-
son and persons who might become interested therein respectively,
fr om tli^ jjower, and all right and title to exercise the power of selec-
tion or distribution of or among the children of the marriage of Wil-
liam Smith with the said Caroline his late wife, given or reserved to
9 Accord: Smith v. Death, 5 Mad. 871 (1820); Bickley v. Guest, 1 Russ.
& M. 440 (1830).
:U2 POWERS (Part 3
him, William Smith, in and by the said indenture of the 22d of Sep-
tember, 1807, as aforesaid, to the intent that such power and all right
and title to exercise the same might thenceforth be absolutely releas-
ed and extinguished, and be of no efifect, in like manner as if such
power had never been given or reserved to William Smith.
The bill then stated that Wi ljiam Smith m acje^ his .will, dated the
22d of May, 1843, and thereby, after r eferring t othe power of ap:^-
pointment given him by the settlement of September, 1807, the testa-
tor in execution of the said power gave and bequeathed to his eldest
son William Haden Smith the sum of £4000 stock ; to his son Joseph
Smith £10,000 stock, and to his daughter Elizabeth Caroline £100
stock, which said several sums comprised nearly the whole of the
produce of the sales of the estates mentioned in and sold under the
said settlement.
The suit was instituted to carry the trusts of the deed of settlement
of 1807 into effect, and the bill prayed that in case the court should
be of opinion that the deed-poll of the 5th of February, 1842, was
inoperative, the same might be declared void and be delivered up to
be cancelled, and that the will and testamentary appointment of the
22d of May, 1843, might be established, and that the rights of all par-
ties under the deed of settlement, the deed of appointment and the
will, might be ascertained and declared by the court.
The; VicH-ChancELLOR decided that t he release of the power effert -
ed by the deed-poll of February, 1842, was valid and effectual,_and_
tliat the children of the testator were consequently entitled to~*shar e
t h e prope rty in equal proportions under the marriage settlement of
September, lc5U/, as in default of appointment, ^°
HORNER v. SWAN.
(Court of Chancery, 1823. Turn. & R. 430.)
W^illiam Horner being seised of the premises in question, subject to
a joint power of appointment by him and his father, which was not
exercised, devised to Mansfield and Holloway, and their heirs, all his
real and personal estate, to hold the same unto the use of them, their
heirs, &c. upon trust "to permit his wife , Elizabeth Horner, to use the
same fc2 rjier use^ and for the purpose o fjTi aintaining his childrenj.n>_
til they should attain the age of twenty-one , and durmg her life in
case she should so long continue his widow: and after heF decease,
then forsuc h or all of his children and their resp ecEyeTIaMllLissue,
anci tor sudTesta tes," &c., as his w ife b y lieFTasLAYJll, or by any wrTt^
ing purporting to be her will, &c., should give, devise, aiid bequeath
the same ; and i n default of such will, itT'trust for all and ev^ r }^ his
10 See Atkinson v. Bowling, 33 S. C. 414, 12 S. E. 93 (1890).
Ch. 1) OPERATION, CLASSIFICATION, RELEASE AND DISCHARGE 313
c hildren livin g at his decease, or born in due time afterwards, and their
hei rs. &"crrcspectively, share and share a like ; but if any of them died
under twenty-one, without leaving lawf uTTssue, tlien~in tr ust, as to
the share'o^r shares of sucn cnild or children, for the survivors or
survivor, and their respective heirs, &c., share and share alike. He
subsequently directed, that, in case his wife should marry again, the
trustees should convey and assign to each of his children successively,
upon their respectively attaining the age of twenty-one, so much of
the real and personal property as would amount to his or her equal
share thereof; and i n case anv of his children should die after his
w ife should marrv again, and leave lawful issue, he gave to thp it^p of
the ^aid issue, their heirs. Szc, the same proportion of his real an d
per,sonalproperty as their father or mother would havp been entitled
to, in case he or she had lived to attain twentv-oiie : but in case anv
of his children should die, after his wife should marry again, without
leaving lawful issue, he directed that the share of such child should go
to the survivor.
The testator left a widow an d four c hildren, all of whom a ttained
t wenty -one. Une of the m diecTsubseguentlv. leaving her eldest broth -
er^ her~heir atlaw^ "T lie widow" and the three surviving childr encon-
tracted to sell the devised estate; and the bill was filed by them for
the s pecific pertormance o f the contract.
The purchaser, by his answer, submitt ed that thp pIn infifFc; ron1d
not make a good title by reason of the widow's power of appointing
b^^_wilL-a nd of th e contingent interests given to the issue of the chil -
(iten.
Mr. Sugden and Mr. Sidebottom, for the plaintiffs.
The question is, whether the wife's power can be released or extin-
guished. It is not a power simplv collateral, but is a power in gross ,
an d is therefore capable of being destroyed by the ^donee ; and the
circumstance, that it is to be exercised in favor of a limited class of
objects, namely, the children or their issue, does not alter its nature.
The point, though once regarded as liable to doubt, must now be con-
sidered as settled ; for it was expressly decided in Smith v. Death, 5
Mad. 371.
Mr. Coop_er, contra.
It has hitherto been considered a very doubtful question, wheth er
such a power, as is here given to the widow, can be destroyed. "Law-
yers" cTgreat eminence," says a text-writer, "have been of opinion,
that a power to a tenant for life, to appoint the estate among his chil-
dren, is a mere right to nominate one or more of a certain number of
objects to take the estate ; and that, consequently, it is mer ely a pow-
e r of^selection. and cannot be barred bv fine." S ugden on Pow ers,
73, 5th edition. In Jesson v. Wright, 2 Bligh, 15, Lord Redesdale
says, "How can a man, having a power for the benefit of children, de-
stroy it?" Tomlinson v. Dighton, 1 P. Wms. 149, leans toward the
314 POWERS (Part 3
same conclusion. The solitar y decision in Smith v. Death cannot be_
considered as determini ng^j Hepoint so conclusively, t hat the cou rt
will rnmpol ajgurchaser_to^a.ccep t a title like th is.
Tni^MASTUR OF the; Rolls [Sir Thomas Plumer]. The Vice-
Chancellor has given a solemn opinion upon the point; and his de-
cision has been acquiesced in. I shall therefore follow it.
As to the second point raised by the answer, it was admitted, that,
upon the true construction of the will, none of the limitations over
could take effect, when all the children had attained twenty-one.
Decree for specific performance.^^
iiAccord: Barton v. Briscoe, Jae. 603; Davies v. Hiiguenin, 1 Hem. &
Mil. 730; Columbia Trust Co. v. Christopher, 133 Ky. 335, 343, 117 S. W.
943 ; Grosvenor v. Bowen, 15 E. I. 549, 10 Atl. 589 (semble) ; Thorington v.
Thorington, 82 Ala. 489, 1 South. 716 (semble). In Thomson's Executors v.
Norris, 20 N. J. Eq. 489, the r elease by the donee for bis own special ad-
vantage was set aside as a fraud upon rue power:
Ch. 2) APPOINTMENTS IN FRAUD CONTRACTS TO APPOINT 315
CHAPTER II
CONTRACTS TO APPOINT AND APPOINTMENTS IN
FRAUD OF THE POWER
LEAKE, DIGEST OF LAND LAW (2d Ed.) pp. 311-313:
" * * * If an appointment, though correct in point of form and
operative at law, be made for any indirect or ulterior purpose not_
warrant ed by the power, it will be set aside in equity as a fraud on
the power. (Portland [Duke] v. Topham. 11 H. L. C. 32; 34 L. J.
.C. 113 ; Topham v. Portland [Duke], L. R. 5 Ch. 40; 39 L. J. C. 259;
Sugden, Powers, 606; notes to Aleyn v. Belchier, 1 Eden, 132; 2
Wh. & T. L. C. Eq. 308.) * * * Where a father, having a power
of appointment amongst children, appointed to one who was a luna-
tic and likely to die, for the purpose of himself succeeding to the
appointed share as bis representative, the appointment was held to
be fraudulent against the other objects of the power and void. (Wel-
lesley v. Mornington [Earl], 2 K. & J. 143.)"
"If a paren t, having a powe r of appointnuent amongst his children,
execute it m consideration of some immediate benefit to be derived
to hmiselt trom the appointment, as upon an agreement with the ap-
pointee for a payment or advance of money, the appointment is void
as being in fraud of the power in regard to the other children ; and
as the appointee is a participator in the fraud and benefits by it, such
appointment will be set aside in toto, and not merely to the extent
of the sum (if any) diverted from the objects of the power. (Daubeny
V. Cockburn, 1 Mer. 626; Farmer v. IMartin, 2 Sim. 502; Arnold v.
Hardwick, 7 Sim. 343 ; Re Perkins, [1893] 1 Ch. 283 ; 62 L. J. Ch.
531 ; Jackson v. Jackson, Drury, 91. See Palmer v. Wheeler, 2 Ball
& B. 18 ; Hall v. Montague, 8 L. J. O. S. C. 167.)
"Where the consideration for the preference of one of the children
is given by another person, and not derived out of the property ap-
pointed, and though without the knowledge of the appointee, the ap-
pointment will be set aside ; for it is a fraud upon the power in regard
to the other objects who are thereby excluded from the property
appointed. (Rowley v. Rowley, 1 Kay, 242 ; 23 L. J. C. 275.)"
"An appointment made u pon any bargain or im dp^'^'^r'^""^i"^tT tliat tlip
app ointee shall dispose~ot the property to persons who are not object s
of the power is void and will be set aside. (Sugden, Powers, 615;
Sa!rFiiorrvrGiEBs7Tl)e G. & Sm. 343 ; 18 L. J. C. 177; Birley v. Bir-
ley, 25 Beav. 308 ; 27 L. J. C. 569 ; Pryor v. Pryor, 2 De G. J. & S.
33 ; 33 L. J. C. 441 ; Re Kirwan's Trusts, 25 Ch. D. 373 ; 52 L. J. C.
952.) An appointment made for the purpose and in the expectation
31G POWERS (Part 3
that the appointee would transfer the property to a person, not an
object of the power, was held void, though that purpose was not at
the time communicated to the appointee. (Re Marsden's Trust, 4
Drew. 594; 28 L. J. C. 906.)"
PALMER V. LOCKE.
(Chancery Division, Court of Appeal, 1880. 15 Ch. Div. 294.)
Judah Guedalla, by his will, dated the 21st of December, 1839, gave
his residuary personal estate to three trustees upon trust to sell and
convert the same and to hold the proceeds, as to one third part thereof,
upon the trusts therein declared during the life of his son Moses
Guedalla, and after his death upon trust for his wife during her life,
and after the death of the survivor in trust for such of the children
of his said son ]\Ioses by his present or any future wife, or the issue
born in his lifetime of such children, with such provisions for their
maintenance, and at such ages and lawful times, and upon such con-
ditions as his said son Moses by his last will or any codicil thereto
should direct or appoint ; and in default of such direction or appoint-
ment, and so far as the same, if incomplete, should not extend, in trust
for all the children of his said son Moses who should attain the age
of twenty-one years or marry under that age.
Judah Guedalla died in 1858.
INIoses Guedalla had six children, one of whom was Joseph Guedalla.
Moses Guedalla made his will, dated the 4th of January, 1873, and
thereby, after reciting the power of appointment given to him by his
father's will, in exercise of the said power directed that the trustees or
trustee for the time being of his father's will should out of the said
third part of the residuary estate pay to his son Joseph Guedalla £5000,
and appointed the remainder of the third part to his other children in
different proportions.
On the 19th of February, 18/3, Moses Guedalla executed a bond for
£5000 to his son Joseph Guedalla, in which he recited the power of
appointment contained in Judah Guedalla's will, and that he intended
to appoint or give, or had appointed or given, by will or codicil pur-
suant to the recited will or otherwise, the sum of £5000 at the least to
his said son Joseph Guedalla, either out of the property subject to the
recited will or the property of the said Moses Guedalla, and by way of
making the said Joseph Guedalla entitled in any event to that sum on
the death of the said Moses Guedalla, either in possession or in rever-
sion on the death of his present wife, the said Moses Guedalla, by
way of advancement for his son and to forward his prospects in life,
had determined and agreed to execute the above Avritten bond. The
condition of the bond was that it should be void if Moses Guedalla
should by his last will or any codicil thereto appoint or give the sum
of £5000 at the least to Joseph Guedalla absolutely, either under the
Ch. 2) APPOINTMENTS IN FRAUD CONTRACTS TO APPOINT 317
recited will of the said Judah Guedalla or out of the property of the
said Moses Guedalla, subject only to the life interest of his present
wife; and if such sum, or any part thereof, should be given out of
the property of the said Moses Guedalla, then if such property should
be sufficient to make good the same ; or if the said Joseph Guedalla
should on the decease of Moses Guedalla become entitled in default
of appointment or otherwise to such sum under the said recited will.
On the 23d of April, 1873, Joseph Guedalla mortgaged his interest
under Judah Guedalla's will to George Gilliam for £600, with a power
of sale in case of default of payment.
Moses Guedalla died on the 24th of September, 1875. His widow
was still living.
By subsequent assignments the reversionary interest of Joseph Gue-
dalla became vested in the plaintiffs, and they put it up for sale by
auction on the 1st of May, 1879, when it Avas purchased by the de-
fendants for £2000. Difficulties having arisen respecting the title to
the property sold, the plaintiffs brought the present action, claiming
specific performance of the contract for sale.
The court directed a reference as to the title, and the conveyancing
counsel of the court to wdiich it had been referred reported that a good
title could not be made, on the ground that the appointment made by
the will of Moses Guedalla was in discharge of his own personal lia-
bility under his bond, and w^as void on the authority of Sugden on
Powers, 8th ed. p. 615; Reid v. Reid, 25 Beav. 469; Duke of Port-
land v. Topham, 11 H. L. C. 54.
The Chief Clerk having certified in accordance with this opinion, the
plaintiffs took out a summons to vary the certificate, w^hich was ad-
journed into court.
The summons came on to be heard on the 19th of April, 18S0.
Jessel, M. R. I decide this case simply on authority ; and the most
singular part of it is that I concur so much in the reasoning of the
decision in Coffin v. Cooper, 2 Dr. & Sm. 365, which I am bound to
follow, that it makes it, if I may say so, more obligatory on me to fol-
low that authority, because that case, which was decided in the year
1865 by Vice-Chancellor Kindersley, lays down what appears to me
the true principle which should govern Courts of Equity in cases of
this kind so clearly and forcibly that I think I should only diminish
instead of adding to the weight of that judgment by any observations
of my own. But in that case, even in tli: then state of the authorities,
the Vice-Chancellor thought he was compelled to decide against his
own opinion of what the true principle was; and he actually decided
that a covenant by a lady to make an appointment in favor of her son
for the very purpose of enabling him to borrow money, although the
appointment was to be testamentary, was a valid covenant which would
render her estate liable in damages, and that if she made the appoint-
ment in pursuance of the covenant, so as to exonerate her estate from
that liability to damages, the appointment was a valid appointment.
318 POWERS (Part 3
Now there is no possible distinction worth considering between the
present case and the case of Coffin v. Cooper. Of course, it makes no
real difference whether the case is one of a bond or a covenant. You
can recover under the bond only the actual damages sustained ; though
if the amount of damages exceeds the amount of the penalty, you can
recover no more than the penalty.
Then it is suggested that the bond here was only defeasible in case
the obligor paid the amount out of his own property ; but so it would
have been if he had not said so. If it was only defeasible as it was
in Coffin v. Cooper you could only have got the amount of damages
sustained, and if the estate of the covenantor or obligor had paid dam-
ages the covenant or bond would have been got rid of. So that the
provision or condition that if the money is paid the covenant or bond
shall be void makes no difference, because in no case can you recover
under the covenant or bond more than the amount of the damages sus-
tained. The present case is, to my mind, utterly undistinguishable
from that of Coffin v. Cooper. It makes no difference whether or not
it is expressed in terms that the payment out of the obligor's own es-
tate shall or shall not satisfy the bond.
That being so, and finding the exact point decided by Vice-Chancel-
lor Kindersley, as I said before, so long ago as 1865, and that case not
having been disturbed since in any way, and finding that the decision
was based upon the then state of the authorities, — which it is unneces-
sary for me to examine again, — I think it is impossible for a court of
first instance to say that that decision was erroneous. But I must also
mention that the matter came before the Court of Appeal in 1870 in
Bulteel V. Plummer, Law Rep. 6 Ch. 160, where Lord Hatherley, who
was then Lord Chancellor, states most distinctly his concurrence in
the decision of Vice-Chancellor Kindersley ; and I concur in his opin-
ion. In fact. Lord Hatherley says this (Law Rep. 6 Ch. 163) : "To
hold such an appointment bad as a device would be to strain the doc-
trine as to improper appointments too far." If the decision of the
Vice-Chancellor needed confirmation or approval, we have it in this
dictum of the Lord Chancellor in Bulteel v. Plummer.
Therefore I must decide in favor of the plaintiff's, and hold that the
appointment was valid.
From this decision the defendants appealed. The appeal came on
to be heard on the 26th of July.
James, L. J. I am of opinion that the decision of the Master of the
Rolls must be affirmed. He found himself bound by the decision of
Vice-Chancellor Kindersley in Coffin v. Cooper, 2 Dr. & Sm. 365, and
Vice-Chancellor Kindersley was rightly bound by what he considered
to be, and what I consider to be, the common course of decision, which
really prevented this point from being successfully raised. It had been
decided in various cases that such a power as this could be released,
because, although in some sense it is fiduciary, it is fiduciary only to
this extent, that the donee of the power cannot use it for any corrupt
Ch. 2) APPOINTMENTS IN FRAUD CONTRACTS TO APPOINT 319
purpose, cannot use it for any purpose of benefiting himself or op-
pressing anybody else. This was so decided in the case of the Duke
of Portland v. Topham ; and it is sufficient to say that I agree with
what Lord Chancellor Hatherley said, that to hold that such an ap-
pointment as this is void because there has been a deed of covenant
executed previously, would be to strain the doctrine of improper ap-
pointment beyond anything which the cases require. In my opinion,
it would be to strain it most improperly, and in effect to shake a great
number of appointments which I have not the slightest doubt have been
considered sound both before and since the decision of Vice-Chancellor
Kindersley.
With regard to the other point, it seems to me that you cannot act
upon suspicion. It is said the will made in January was void by rea-
son of a bond made six weeks afterwards, and it is supposed there
was some corrupt bargain between father and son, of which there is
not the slightest trace, and which you may as well suppose in every
case where there is a testamentary appointment made. It may be said,
"How do you know he was not bribed ? How do you know that there
was not some corrupt object?" In the absence of some ground for
supposing it, we must assume everything was done rightly, otherwise
the result would be that every disposition made under a power, whether
testamentary or otherwise, -given to a father for his children would be
laid under suspicion when the father is dead, for it would be almost
impossible to prove that there was not some bargain between them.
I am of opinion the decision ought to be affirmed, and the appeal must
be dismissed with costs.
Brett, L. J. I should have thought it very dangerous, unless there
were some principle very clearly outraged, to overrule the decision of
Coffin V. Cooper, 2 Dr. & Sm. 365, which was decided so long ago,
and which has probably been acted upon ; but I confess that it seems
to me that, according to principle, the case of Coffin v. Cooper was
right. To my mind it does not make any difference whether the cov-
enant in this case was entered into before or after the will was ex-
ecuted. If I thought that the covenant was binding upon the person
who entered into it, I should have felt some difficulty, because then it
might be said, and truly said, as it seems to me, that the exercise of
the appointment would be an exercise made to the advantage of the
person making it, that is to say, that the effect of it would be to re-
lieve his estate from an obligation into which he had entered. But I
must confess that I agree entirely with the view which was taken by
Lord Justice James in Thacker v. Key, Law Rep. 8 Eq. 408, that such
a covenant as is here in question, and as was in question in Coffin v.
Cooper is a wholly void covenant, and that no remedy could be had
upon that covenant against the covenantor. If a consideration was
given for the covenant, then it is admitted by everybody that it would
be absolutely fraudulent, and, if fraudulent, it would be of course void,
because both parties are parties to the fraud. It seems to me that al-
320 POWERS (Part 3
though there is no consideration given for the covenant it is not a
bhiding covenant, because it would be contrary to pubhc poHcy to al-
low a person in the position of a trustee to enter into such a covenant
so as to bind himself. And if the covenant is a void covenant, then
what is the fetter which is put upon the exercise of the power of ap-
pointment which has been delegated to the donee of the power? Un-
der those circumstances there is no fetter at all, unless it be said that
a bare promise which cannot be enforced, a moral obligation, as it is
called, to keep a bare promise, is such a fetter. Now the law, at all
events, does not recognise that there is any fetter in a bare promise,
and I can see none really ; and if you take it to be a bare promise and
not an effective covenant, then I should absolutely agree with what
Lord Justice James has before said, and which was adopted by Lord
Hatherley, namely, that it would be far too great a strain to say that a
mere bare promise is to be considered a fetter upon the power of ap-
pointment, because there is a kind of moral obligation to keep the
promise. I confess myself I do not think there is any such moral ob-
ligation as is asserted; I think the morality cf the thing is in favor
of the breach of such a promise rather than in favor of keeping it.
Therefore, for these reasons, both upon principle and authority, it
seems to me that there is no objection to the exercise of the appoint-
ment because of the existence of the void covenant. It was suggested
that by so holding we should destroy the effect of these powers of ap-
pointment. It seems to me absolutely the contrary. We give them the
greatest possible effect, because we say that no such covenant as this
can prevent the exercise of the power of appointment, that is to say,
that the person who has entered into such a covenant may, without any
risk, exercise his discretion up to the last day of his life. If such a
covenant as this were held to be a release, then the former decisions
with regard to release might be a considerable difficulty in the way, but
it seems to me that it cannot possibly be said that such a covenant as
this is a release. As to the case of Davies v. Huguenin, 1 H. & M.
730, which is referred to in the judgment of Vice-Chancellor Kinders-
ley, I confess that as stated by him I have some difficulty in saying
that I could entirely agree with what was held in Davies v. Huguenin ;
but it seems to me that even if Davies v. Huguenin were held to be
wrong that would have no effect upon the decision in this case.
With regard to the second point in this case, taken at a late moment,
I think there can be no doubt the suggestion, if true, would show that
the covenant was a fraudulent agreement between both parties to it,
and fraud is never presumed by the court; those who suggest it have
to prove it.
Cotton, L. J. I am of opinion that the decision of the Master of the
Rolls is correct; and from the judgment of the Master of the Rolls
which has been read to us, I think that our decision is also in accord-
ance with the views of the Master of the Rolls; but whether that is so
or not, I think that, both on authority and principle, the judgment that
Ch. 2) APPOINTMENTS IN FRAUD CONTRACTS TO APPOINT 321
was given was right. It was said that this was a fiduciary power, and
that therefore the donee of the power was in the position of a trustee,
and must be so down to the time of his death, absohitely unfettered.
Now I asked Mr. Davey, during the course of his argument, how he
could develop and define a fiduciary power, and I leave out entirely
that kind of fiduciary power, if it is so called, where from the form
of the power given there is an implied gift in default of an express
gift. Cut a fiduciary power in this case one must consider as a power
which is sometimes said to be given to the person as a trustee. Now I
think a great deal of inaccurate argument arises from expressions un-
developed and not explained which may bear two senses. How can
you say that a man is properly a trustee of a power? As I under-
stand it, it means this, in the words of Lord St. Leonards, that it
must be fairly and honestly executed. A donee of such a power can-
not carry into execution any indirect object or acquire any benefit for
himself directly or indirectly. That is, it is something given to him
from which he is to derive no beneficial interest. In that sense he is
a trustee, and he is liable to all the obligations of a trustee in this sense,
that he must not attempt to gain any indirect object by the execution
of the power in a way which in form is good, but which is a mere
mask for something that is bad. Now it is not here suggested, or
barely suggested, that the appointment was a mask to do something
which could not be done. It was an absolute gift to his son in effect,
with a covenant or bond that he would not revoke the appointment in
favor of the son, but there was no possible suggestion, with one ex-
ception, that the intention was in any way to benefit himself. It was
done for his son ; taking the whole transaction, it was what he thought
would be best for the interests of the son, and it is clearly the duty
of a father, who has such a power, to do what on the whole he con-
siders to be the best for the family amongst whom the property is un-
der the powxr to be distributed.
There are two matters, no doubt, which I must deal with. It was
said that the execution of the power by the will was to relieve the
father from the obligation which he contracted under the bond. I do
not go so far as to give an opinion that the bond is absohitely bad. The
question may hereafter arise, but I give no opinion upon that point at
present. In one sense it is clearly bad, namely, that it cannot be con-
strued as an exercise of a power of appointment, nor is it one that a
Court of Equity would specifically perform; but I do not give any
opinion that it is one under which no relief could be sought by way of
damages from the father's estate. But in reality the will was not ex-
ecuted in order to relieve the father from the obligation. The obliga-
tion began after the will was executed, and the whole was one trans-
action, and if anything, it was a contract not to revoke the will which
he had made. But it is not every possible benefit to the donee of a
power from the exercise of it which will make the execution of the
4 Kales Prop. — 21
322 POWERS (Part 3
power bad. Mr. Davey went so far as to say — I think his argument
necessitated it — that a moral obHgation on the part of a donee of a
power would be sufficient to vitiate the exercise of a power, and I put
to him such a point as this, than which I can conceive no stronger
moral obligation. A man has no property of his own, but has a daugh-
ter who is going to marry. He says : "I cannot make you any pres-
ent allowance, or give you any present fortune, but I will see that you
are provided for by my will." He has nothing but a power of ap-
pointment by will. Can it be said, without straining to an excess, which
makes it almost absurd, the doctrine of this court, that a will executed
under those circumstances in favor of that daughter or her husband
would not be a good execution of a power? To say so would be to
defeat the very object of the power. No doubt it is in the power of
the father at the time of his death to make or not to make the will,
and to distribute in such proportions as he thinks fit, but there is a
moral obligation of the strongest kind to make a provision for the
daughter in consequence of the circumstances under which the mar-
riage takes place. Then suppose this furtt^er case. Suppose a father
is surety for his son ; if the son has got no money, the father will be
called upon to pay: but can it be said that an appointment to the
son under those circumstances is bad? The result indirectly will be
that, instead of the father's own estate paying that debt, the son will
pay out of money which he gets from the appointment, and, as has been
said already by Lord Justice James, and as was said by Lord Hath-
erley, one really must not strain too far the doctrine of this court in
order to avoid execution of powers which are done honestly and for
the benefit of the objects of the power according to the best judgment
of the donee, without any indirect motive to secure a benefit to him-
self. Of course if there is anything of that sort — anything corrupt —
no appointment can possibly stand. So, if there is any attempt to do
what cannot be done by means of the power, that is bad. In the pres-
ent case, by the mere exercise of the power no indefeasible interest
could have been given to the son at the time, and it may be said that
this therefore is attempting to do indirectly what cannot be done di-
rectly. But there i^ the absolute appointment to the son as far as it
can be made absolute, leaving him to deal with it as he thinks fit for
his benefit, and it is not that the father deals with it by way of rais-
ing money, or deals with it under any contract or engagement that he
makes, but as far as he can, leaving it by will to the son, he puts the
son in the position of doing what the son thinks most for his interest
and what the father does not think for his disadvantage. It is to the
appointee, and to him only, that the father looks, so as to enable him,
as far as he can, having regard to the nature of the power, to do what
is most for his benefit.
I have dealt with the case without reference to the authorities, but
when we look at the authorities, it is clear that it is settled that such
a covenant as this does not vitiate an appointment made in accordance
Ch. 2) APPOINTMENTS IN FRAUD CONTRACTS TO APPOINT 323
with it. We have the decision of Coffin v. Cooper, 2 Dr. & Sm. 365, be-
fore the Vice-Chancellor Kindersley, carefully considered, where,
throwing aside what would be pushing the doctrine to an extreme, he
gave effect to the appointment, and held it not to be bad. We have
also the same point decided in the Court of Appeal in the case of Bul-
teel V. Plummer, Law Rep. 6 Ch. 160.^
I must add one word more to explain why I hesitate to say that such
a bond as this is entirely void. It has been held that under certain cir-
cumstances such a bond, or one very like it, can be held to be a release
of the power. If it is bad, it must be bad in toto, and I am not satis-
fied that it can be good as a release of a power and yet bad altogether
as a covenant. But at the present time I give no opinion whether this
covenant is in law bad, and whether, under those circumstances, it
could be enforced against the assets, if there were any, of the donee.
In re BRADSHAW.
BRADSHAW v. BRADSHAW.
(Chancery Division, 1902. L. R. 1 Cli. 436.)
Adjourned Summons.
William Bradshaw by his will, dated January 22, 1853, devised and
bequeathed a portion of his residuary real and personal estate to a
trustee upon trust to pay the yearly rents and profits thereof to his
son Arthur Bradshaw during his life, and after his decease in trust
for all and every or such one or more exclusively of the other or oth-
ers of the children or other issue of his said son Arthur Bradshaw
(such other issue to be born within the limits allowed by law), for
such estate or estates, and if more than one in such proportions and
with such limitations over for the benefit of the said children or other
issue or some or one of them, and with such restrictions and in all
respects in such manner as his said son Arthur Bradshaw should by
his will or any testamentary writing appoint, and in default of such
appointment in trust for all and every the children and child of his
said son Arthur Bradshaw, who being a male or males should attain
1 In Bulteel v. Plummer, L. R. 6 Ch. 160, a testatrix, having power to ap-
point by will a certain fund amongst all and every of her children and their
children, covenanted to appoint a certain sum to one child. She then by her
will appointed that sum. Tx)rd Hatherley. L. C., in considering whether this
appointment was void, said: "But I think it would be a very forced appli-
cation of the doctrine as to appointments if this were held bad. It is true
that there is something like an improper exercise of the power, as, of course,
she tries to exonerate her own estate. A question further arises, "whether
this was a good covenant on which damages could be recovered, as to which
I desire to say nothing; but I think that to hold such an appointment bad
as a device would be to strain the doctrine as to impro]>er appointments too
far. The testatrix did not wish to get any benefit for herself, and I think
jthat she was not prevented from appointing the £2500."
324 POWERS (Part 3
the age of twenty-one years, and who being a female or females should
attain that age or marry, equally to be divided between such children,
if more than one, as tenants in common, their respective heirs, execu-
tors, administrators, and assigns respectively, and if there should be
but one such child, then the whole for that one, his or her heirs, execu-
tors, administrators, and assigns respectively.
William Bradshaw died on July 12, 1855, and his will was proved on
September 26, 1855.
Arthur Bradshaw was twice married. By his first marriage he
had two children, Arthur Evelyn Bradshaw and jNIargaret Beatrice
Good. By his second marriage had two children ]\Ioe}- Violet Fran-
ces Bradshaw and William Pat Arthur Bradshaw, who were both in-
fants.
Previously to the second marriage two deeds of covenant were ex-
ecuted by Arthur Bradshaw. By the first of these deeds, dated Feb-
ruary 7, 1893, and made between himself of the first part, Arthur
Evelyn Bradshaw of the second part, Margaret Beatrice Good of
the third part, and William Graham Bradshaw of the fourth part, he
in eftect covenanted to appoint to his son and daughter not less than
one-third part of the property subject to the power of appointment
given to him by the will of William Bradshaw. In the result no ques-
tion arose r.3 to the effect of this covenant.
By the second of these deeds, dated February 8, 1893, and made
between Arthur Bradshaw of the first part, Alaud Annette Letitia
Elizabeth, his then intended wife, of the second part, and Francis
Cooper Dumville Smythe, Dudley Ferrars Loftus, and William Gra-
ham Bradshaw of the third part (being the settlement made on Ar-
thur Bradshaw's second marriage), Arthur Bradshaw covenanted
with the parties of the third part that if the said intended marriage
should take place, he would, in exercise of the power reserved to him
by the will of William Bradshaw, by will appoint and direct that if
any issue of the said marriage should survive him, Arthur Bradshaw,
a part or share of the several trust real and personal estate by the
will of William Bradshaw directed to be held in trust for Arthur
Bradshaw and his children, not being of less value at the time of the
decease of Arthur Bradshaw than £6000, should from " his death be
held by the trustees or trustee for the time being of the wall of Wil-
liam Bradshaw upon trust for the child or children or issue of the said
marriage (such issue to be born within twenty-one years from the
death of Arthur Bradshaw) in such shares and proportions as Arthur
Bradshaw should appoint ; and Arthur Bradshaw further covenanted
with the parties of the third part that, in case there should be issue
pf the marriage living at his death, he would not exercise the power
of testamentary appointment given to him by the will of William
Bradshaw over the trust premises thereby settled in favour of his
children or issue by any other marriage, so as by any means to reduce
the part or share of the same trust premises which he had thereby
Ch. 2) APPOINTMENTS IN FRAUD CONTRACTS TO APPOINT 325
covenanted to appoint in favour of the child or children of the then
intended marriage to a less amount than the sum of £6000., or to
postpone the vesting of that part or share beyond the period of the
death of him, Arthur Bradshaw.
Arthur Bradshaw by his will dated April 9, 1896, made before the
birth of his youngest child, in execution of the power of appointment
conferred by the will of William Bradshaw, appointed certain free-
holds to Alargaret Beatrice Good for her Hfe, and after her death to
her children "then living" ; but if no child should attain a vested in-
terest, then in the same manner as the remainder of the property
thereby appointed. The testator then directed and appointed that
the remaining property subject to the power of appointment and all
other his real and personal estate should be held in trust as to three
equal fifth parts for the benefit of his son Arthur Evelyn Bradshaw
as thereinafter declared, and as to the remaining two equal fifth parts
for the benefit of his daughter Moey Violet Frances Bradshaw. As
to the three-fifths, the testator declared that it should be held upon
trust for A. E. Bradshaw for Hfe, and after his death upon certain
trusts in favour of his children or issue "then living," and in the event
of his son leaving no child who should live to attain a vested interest,
then upon the trusts declared concerning the two-fifths. As to the
two-fifths the testator directed that the same should be held upon
certain trusts for the benefit of his daughter M. V. F. Bradshaw dur-
ing her life, and after her death upon certain trusts in favour of
her children "then living," and in the event of his said daughter
leaving no child who should attain a vested interest, then upon the
trusts declared concerning the three-fifths. The testator appointed
his son A. E. Bradshaw and another executors of his will.
The testator Arthur Bradshaw died on March 22, 1900, and his
will was proved by A. E. Bradshaw alone on June 23, 1900.
It was not disputed that the appointments made by the will of
Arthur Bradshaw subsequent to the life interests of Mrs. Good, A. E.
Bradshaw, and M. V. F. Bradshaw were respectively void for remote-
ness. The gifts in favour of A. E. Bradshaw and M. V. F. Bradshaw
and their children or issue extended to and comprised property of the
testator Arthur Bradshaw in addition to the property settled by the
will of William Bradshaw ; and accordingly the question arose wheth-
er A. E. Bradshaw and M. V. F. Bradshaw were bound to elect be-
tween the interests they took in Arthur Bradshaw's property and
their interest in default of appointment under the will of William
Bradshaw.
Arthur Evelyn Bradshaw had four children, all of whom were in-
fants. Mrs. Good had one child, who was an infant.
This summons was taken out by Arthur Evelyn Bradshaw, as plain-
tiflf against the trustees of the indentures of February 7 and 8, 1893,
Maud A. L. E. Bradshaw, Margaret B. Good, Moey Violet F. Brad-
326 POWERS (Part 3
shaw, William Pat Arthur Bradshaw, the four infant children of the
plaintifif, and the infant child of Mrs. Good as defendants, for the
determination of numerous questions arising in the administration of
the estate of Arthur Bradshaw, and in particular (a) whether any case
of election was raised by the will of Arthur Bradshaw, and (b) for the
direction of the Court as to whether any and what provision ought to
be made out of the estate of Arthur Bradshaw for the purpose of sat-
isfying the covenants contained in the indenture of February 8, 1893,
in case the Court should be of opinion that such covenants remained
unsatisfied.
The question of election was first argued. [The opinion on the
question of election is omitted.]
KekEwich, J. A general power of appointment is broadly distin-
guishable from property, but in its practical results, and in what I
may call its market value, it is really equivalent to property. The
donee may deal with it as he pleases. He may not only release it,
but may sell it, or bind himself to exercise it in any way he pleases.
This is equally true whether the power is to be exercised by deed, by
deed or will, or by will only. In the last case, of course, there is
more practical risk, because a man cannot make a will which will
operate previously to his death. But no legal difficulty arises, and
cases frequently occur where a man has a general power of appoint-
ment and deals with it, either by covenant or otherwise, as property —
that is to say, he treats the subject of the power as property over
which he has control. But when the power is a special one you
have a different subject altogether. What is a special power? The
most familiar instance (for there are many others) is a power of ap-
pointment amongst children. Such a power as commonly given
to parents is intended not to make a provision for the children, for
that is done by the gift in default of appointment, but to confide to the
parents the determination in what shares and proportions the children
shall take — whether, for example, if women, they shall take for their
separate use with or without restraint on anticipation, or, if men,
shall take life interests determinable on bankruptcy. It is a discre-
tion vested in the parent for determining what the particular provi-
sion shall be. That, as it seems to me, is nearly akin to a trust, and
might well be described as a trust, but at all events it is a fiduciary
power. Is it right that a man having that fiduciary power should
bind himself to deal with it in any particular manner? If it were
by deed or by deed or will, the case might be more difificult ; but
where it is aj^p^f^r tn appoini- by will, it seems_ to^ me to be clear that
the intent ion of the person creating such a power,'~wlTether by settle-
ment or by will, is th at the~donee ot the po wer shall keep t he exerc ise
or It under" his contro l until the time of his death^^ ATwiiTbeing rev-
ocable maybe altered from time to time, and it is common knowl-
edge that the exercise of powers is continually altered with reference
Ch. 2) AI'POINTMENTS IN FRAUD CONTRACTS TO APrOINT 327
to the different events of family life. It seems to me that to say tha t
a person having a power to appointjjy^all may bmcLJiimself to-ex-
ercise' Tt in a^ particular way is to defeat the object nf the creation of
the po\yei\_an d to put the donee in a position t o do the very thing
which the settlement m ust be taken to say he sh al l not do . There is
no rear autlTority upon the point, and therefore I have stated what I
conceive to be the principle. But there are certain guides. The first
case bearing on it is the case of Bulteel v. Plummer, L. R. 6 Ch. 160,
where there had been a covenant to exercise a special power which
was aptly described as a power of distribution, and it was held that,
notwithstanding that the appointment was made in pursuance of a
covenant to appoint, the power might be well exercised. Lord Hath-
erly, Id. 163, said this : "A question further arises, \yhether this was
a good covenant on which damages could be recovered, as to which
I desire to say nothing ; but I think that to hold such an appointment
bad as a device would be to strain the doctrine as to improper ap-
pointments too far." All we have, therefore, is that the point oc-
curred to a learned judge of great eminence and experience, and that
he held that it was not necessary for him to dispose of it. James, L.
J., was a. party to the judgment, but I do not see that he noticed this
point. But it had come before him in Thacker v. Key, L. R. 8 Eq.
408, and there he expressed a distinct opinion. He says (Id. 414) :
"Now, if it had been necessary to determine that point, I think I
should have had very little difficulty in holding such a cove-
nant to be illegal and void. The testator is the donee of a testamen-
tary power, which was to be exercised by him as a trustee. It was a
fiduciary power in him to be exercised by his will, and by his will
only ; so that, up to the last moment of his life, he was to have the
power of dealing with the fund as he should think it his duty to deal
with it, having regard to the then wants, position, merits, and neces-
sities of his children." James, V. C, there stated in cogent language
what I have attempted to say. The only other case is Palmer v.
Locke, 15 Ch. D. 294, before the Court of Appeal, and there Brett, L.
J., made a more direct statement, of his opinion, though again it was
not necessary to decide the point judicially. He says, 15 Ch. D.
301 : "It seems to me that although there is no consideration given
for the covenant it is not a binding covenant, because it would be
contrary to public policy to allow a person in the position of a trus-
tee to enter into such a covenant so as to bind himself." That is in
support of the view that the covenant is wholly void, and that no
remedy is available for the breach of it. Cotton, L. J., did not con-
cur, but he did not differ ; he merely reserved his opmion. It is to
be remarked that James, L. J., was a party to the decision, and that
he said nothing upon that view of the case. The explanation may be
that he had already had the point before him and that delivering the
first judgment he did not notice a point which did not directly arise.
328 POWERS (Part 3
It seems to me that I have a substantial amount of opuiion or incHna-
tion of opinion in favour of the view I take, and that t he safe and
rig ht thing- is t o say that a covenant of this kind is bad and cannot
be sued on.
""HrT'Lawrence makes two remarks which ought to be noticed.
First, he says that this is a family arrangement. The Court has gone
far in upholding family arrangements, and the doctrine goes so far
back that I think it would be difficult to find when it was first intro-
duced. But Air. Lawrence has not cited any decision in which the
doctrine has been applied to a case such as the present one. Then
again, he called my attention to the case of Coffin v. Cooper, 2 Dr. &
Sm. 365. It is quite true that it is possible to get rid of a good deal
of the doctrine of fiduciary power. It has been held, and usefully
held, that a power of this kind can be released. A man can say in a
proper, solemn manner, "I will not exercise the power at all," with
the result that he does then and there confer upon every one of his
children an equal portion of the settled property. He does in effect
covenant that the power shall not be exercised. But the answer is
that the release of a power depends on a foundation of its own. There
was a time when it was a question how far a power of this kind can
be released. The question has now been decided, and the decision is
found convenient, but I do not think it ought to be carried further.
It would be carrying it a long way to say that because a man may
releas5[^aIpoWer^ therefore^ he may covenant to exercise iMn a p ar-
ticular way. * * * [The balance of the opinion relating to the sub-
ject of costs is omitted.]
In re PARKIN.
HILL V. SCHWARZ.
(Chancery Division, 1892. L. R. 3 Ch. 510.)
Adjourned Summons.
Hugh Parkin, by his will dated the 13th of December, 1860, be-
queathed all the 21/2 per cent, stock which at the time of his death he
should hold or be possessed of to trustees upon trust for his daughter
Mary Creighton (afterwards Mrs. Tetens), during her life without
power of anticipation, and after her death, as to the sum of £5000
part thereof, upon trust for such persons or purposes as Mrs. Tetens
should, notwithstanding her then present or any future coverture,
by will appoint, and in default of, and subject to, any such appoint-
ment, upon trust for the benefit of two others of his daughters and
their issue as therein mentioned.
The testator died on the 16th of ]\Iarch, 1871, possessed of £7000
21/2 per cent, stock.
By an indenture dated the 20th of December, 1867, being the set-
tlement made on the marriage of Mary Creighton with the Defendant,
Ch. 2) APPOINTMENTS IN FRAUD CONTRACTS TO APPOINT 329
Emil Tetens, after a recital that by an indenture of settlement made
in 1848 Mrs. Tetens then stood possessed of certain powers of ap-
pointment over divers sums of money, stocks, funds, and securities,
and the annual produce thereof respectively, subject to a life interest
therein of her father, Hugh Parkin, it was witnessed that Mrs. Tetens,
by virtue and in execution of the power for that purpose given by the
recited indenture of settlement and of all other powers and authori-
ties enabling her in that behalf, appointed certain funds to the trus-
tees of the settlement of 1867, upon trusts (after the intended mar-
riage) for Mrs. Tetens during her life, for her separate use without
power of anticipation, and after her death out of the income to pay
an annuity of ilOO to Jules Creighton, her son by her first marriage,
and subject thereto to pay the income to Mr. Tetens during his life,
determinable as therein mentioned, and subject thereto upon trust
for the child or children of ]\Irs. Tetens (including her said son by her
first marriage) who should be living at the death of the survivor of
Mr. and Mrs. Tetens, and for the issue then living of any and every
of I\Irs. Tetens' then deceased child or children (including her said
son by her first marriage) who, being males, should attain twenty-
one, or, being females, should attain that age or marry, to take, if
more than one, in equal shares as tenants in common per stirpes ;
and in the case of the decease of Mrs. Tetens without leaving any
such child or issue, who should live to attain a vested interest in the
premises, then upon trusts for a sister of Mrs. Tetens and her issue.
The settlement contained the following covenants, upon which the
question in this case arose:
The said Emil Tetens and Mary Creighton severally covenanted
that all the estate, property, and efifects whatsoever which the said
Mary Creighton, or the said E. Tetens in her right, should at any time
during the coverture become possessed of or entitled to at law or in
equity in any manner whatsoever should be settled ; and also that
any other powers or power of appointment over any estate, propcrtv,
and effects whatsoever of which she might then or at any time there-
after during such coverture be the donee under any settlement, will,
or other instrument whatsoever, should, if executed by her, be execut-
ed only in favour of the trustees or trustee for the time being, of the
settlement, in order that all such estate, property, and effects should
be effectually vested in and be held by them or him upon the trusts
declared by the settlement.
There was no issue of the marriage between ]\Ir. and ^Irs. Tetens.
Mrs. Tetens, by her will dated the 29th of March, 1889, appointed
her husband and Mr. Frank ]\Iilner Russell her executors, and, after
bequeathing ilOOto Mr. Russell and reciting the power conferred on
her by the will of her father of appointing by will £5000 2i4 per cent,
stock, she directed and appointed that from and after her death the
trustees of her father's will should stand possessed of the said sum of
£5000 upon the trusts following, viz., as to the clear sum of
330 POWERS (Part 3
£1000, part thereof in trust for her nephew Hugh Campbell Rowley,
to whom she bequeathed the same accordingly free of legacy duty;
and as to the residue thereof (subject to the payment thereout of her
just debts, funeral and testamentary expenses, and the legacy be-
queathed to H. C. Rowley and the legacy duty thereon) in trust for
her husband absolutely.
She made a codicil dated the 5th of December, 1889, by which she
revoked the appointment and bequest in her said will contained of
ilOOO to Hugh Campbell Rowley, and directed and appointed that
trom and after her death the trustees of her father's will should out
of the sum of £5000 21/0 per cent, stock referred to in her will, raise
and pay certain legacies amounting to £700 and, subject to the afore-
said legacies, should stand possessed of the residue of the said stock
upon the trusts by her said will declared with reference to the residue
of the same after payment to the said H. C. Rowley of the legacy
thereby revoked.
Mrs. Tetens died on the 19th of January, 1892, leaving Mr. Tetens
and her son by her first marriage her surviving. Her will and codicil
were proved on the 8th of March, 1892, by both executors.
Questions having arisen as to the effect of the covenants on the
part of Mr. and Mrs. Tetens contained in the settlement of the 20th
of September, 1867, and the testamentary dispositions made by Mrs,
Tetens, an originating summons was taken out by the trustees of
Hugh Parkin's will for the purpose of obtaining the decision of the
Court upon them. This summons was intituled in the matter of the
estate of Hugh Parkin, in the matter of the trusts of the settlement
of the 20th of December, 1867, and in the matter of the trusts of
the will of Mrs. Tetens. The questions for the determination of the
Court were (inter alia) —
(1) Whether the £5000 2i/^ per cent, stock ought to be paid to the
trustees of the settlement or to the executors of Mrs. Tetens' will;
(2) Whether under the terms" of the settlement Mrs. Tetens was under
any and what Hability to exercise the power of appointment conferred
upon her by the will of the testator in favour of the trustees of the
settlement; (3) Whether by reason of the exercise of the power of
Mrs. Tetens, as in her will and codicil mentioned, her estate had be-
come liable to the trustees of the settlement, and to what extent ; (4)
What interest the Defendant Emil Tetens was entitled to under the ap-
pointment contained in the will and codicil of Mrs. Tetens; (5)
Whether the Defendant Emil Tetens was liable in respect of such in-
terest or otherwise to the trustees of the settlement to any and what
extent.
The summons came on for hearing on the 19th of May, 1892.
Stirling, J. [stated the facts and continued :]
It was contended, on behalf of Jules Creighton, that inasmuch as
Mrs. Tetens had made a will executing the power contained in the
will of her father, the property which she had power so to dispose of
Ch. 2) APPOINTMENTS IN FRAUD CONTRACTS TO APPOINT 331
was, as against volunteers claiming under her, bound by the covenant
contained in her settlement. It was not disputed that if Mrs. Tetens
had not made a will, the £5000 stock must have gone to the persons
entitled under Hugh Parkin's will in default of appointment by her;
but it was said that the persons claiming under her will, being mere
volunteers, could not set up a title to the appointed property against
persons claiming it for valuable consideration ; and in support of this
contention the following cases, amongst others, were cited : Goylmer
V. Paddiston, 2 Vent. 353 ; s. c. sub nom. Goilmere v. Battison, 1
Vern. 48 ; and Fortescue v. Hennah, 19 Ves. 67.
Unquestionably these cases shew that the Court has gone a long
way in enforcing, by way of specific performance, contracts to leave
property by will ; but not one of them is a case of a contract to leave
by will on the part of one who was merely donee of a testamentary
power of appointment. In my judgment, s pecifi c perf ormance ough t
not to be decreed in such a case.
''It is not, I apprehend, to be doubted," says Rolt, L. J., in Cooper
V. Martin, Law Rep. 3 Ch. 47, 58, "that equity * * * will never
uphold an act which will defeat what the person creating the power
has declared, by expression or necessary implication, to be a material
part of his intention." In Reid v. Shergold, 10 Ves. 370, 380, Lord
Eldon, speaking of a claim by a purchaser from the donee of a testa-
mentary power to the assistance of the Court, says : "The testator
did not mean, that she should so execute her power. He intended,
that she should give by will, or not at all ; and it is impossible to hold,
that the execution of an instrument, or deed, which, if it availed to
any purpose, must avail to the destruction of that power the testator
meant to remain capable of execution to the moment of her death, can
be considered in equity an attempt in or towards the execution of the
power."
These remarks were made in a case in which the contest was be-
tween the purchaser and a person claiming in default of appointment.
I think that in principle they apply where the question arises between
persons claiming under a contract for value on the one hand, and
those claiming under the will on the other. I think, therefore, that
this contention fails. ^
1 have next to consider what are the legal rights of the trustees of
the settlement in respects of the covenants. Can they recover for
breach of the covenant on the part of the wife contained in the settle-
ment, and if so what amount of damages, and against whom? First,
has Mrs. Teten? broken her covenant? She covenanted that "any
other power or powers of appointment over any estate, property, or
effects whatsoever, over which the said Mary Creighton may now, or
2 See, also, Wilks v. Burns, 60 Md. 64.
Nor will equity aid as a defective appointment tlie covenant to appoint
by will to a particular individual, where the donee has died without exer-
cising a testamentary power. Tost, p. .''>rM, note 2.
332 POWERS (Part 3
at any time hereafter, during such coverture as aforesaid, be the donee
under any settlement, will, or other instrument whatsoever, shall, if
executed by her, be executed only in favour of" the trustees of the
settlement. During the coverture she became the donee of a general
testamentary power of appointment, which she might have exercised
in favour of the trustees. The power was executed by her, but not
in favour of the trustees. It seems to me that this constituted a,
breach o f the covenant . Next, what is the a mount of dama ges to be
recovered in respect of such breach? It is said that the damages
ought to be nominal only because the trustees are in no worse posi-
tion than if the wife had declined to exercise the power (which, no
doubt, she was at Hberty to do), with the result that the fund had
gone as in default of appointment. It seems to me, however, that as
the wife might have exercised the power in favour of the trustees,
and she did exercise it, but not in their favour, the covenantees ought
to be placed, as nearly as may be, in the same position as if the covenant
had been duly performed ; and, consequently, that the trustees are en-
titled to recover by way of damages the value of the stock whi ch wouTd"
have come to their han ds if the appointment actually made had been
in the ir fav our.
TTien comes the question, Who is liable in respect of the breach?
* * * [The court then held that the legal personal r epresentativ es_
o f the wife were liable on t he_ wife's covenant lo the ex tent_ of asset s
iS<*^ coming to €»fch«i hands. The court abstained from expressing any
opinion as t^l:he etfect of the husband's personal covenant.]
BEYFUS V. LAWLEY.
(House of Lords, 1903. L. R. App. Cas. 411.)
See post, p. 361, for a report of the case.
On Noxexci-usive Powers axd Illusory Appointments — See Wilson v.
Pi^gott, 2 Ves. Jr. 351 (1794): Young v. Waterpark. 13 Sim. 199 (1S42) ;
Rieketts v. Loftus, 4 Y. & C. 519 (1S41) ; Gainsford v. Dunn, L. R. 17 Eq. 405
(1874).
Gray, Powers in Trust. 25 H. L. R. 26: "But the rule as to illusory ap-
pointments is unique in tlie la\A-. Other rules of doubtful character have
found defenders or apologists, but no one has had a good word for this. It
has l^een condemned in the most unmeasured terms by judge after judge — ■
by Sir Richard Pepper Arden (afterwards Lord Alvanley), M. R., in Spencer
V. Spencer, 5 Ves. 302 (ISOO), and Kemp v. Kemp, Id. 849 (1801) ; by Sir
William Grant, M. R., in Butcher v. Butcher, 9 Ves. 382 (1804); and by
Lord Eldon, C, in Bax v. Whitbread, 16 A'es. 15 (1809), and Butcher v.
Butcher, 1 Ves. & B. 79, 94, 90 (1812)."
In this country the doctrine of illusory appointments has been repudiated,
without the assistance of legislation, in Graeff and Wife v. De Turk, 44 Pa.
527 ; Hawthorn v. Ulrich, 207 111. 430, 69 N. E. 885.
St. 11 Geo. IV and 1 Wm. IV, c. 46 (IS^O), provided that no appointment
could be disregarded because it was illusory ; i. e., because of the smallness of
the share appointed.
St. 37-38 Vict. c. 37 (1874), made every power exclusive, unless the donor ex-
pressly provided otherwise.
Ch. 3) SURVIVAL OP POWERS 333
CHAPTER III
SURVIVAL OF POWERS
ST. 21 HEX. VIII, c. 4: * * * For remedy whereof, be it en-
acted, ordained, and established by the authority of this present
Parliament, That where part of the executors named in any such
testament of any such person so making or declaring any such will
of any lands, tenements, or other hereditaments to be sold by his
executors, after the death of any such testator, do refuse to take
upon him or them the administration and charge of the same tes-
tament and last will wherein they be so named to be executors, and
the residue of the same executors do accept and take upon them the
cure and charge of the same testament and last will ; that then all
bargains and sales of such lands, tenements, or other hereditaments,
so willed to be sold by the executors of any such testator, as well
heretofore made, as hereafter to be made by him or them only of the
said executors that so doth accept, or that heretofore hath accepted
and taken upon him or them any such cure or charge of administra-
tion of any such will or testament, shall be as good and as effectual in
tlie law, as if all the residue of the same executors named in the said
testament, so refusing the administration of the same testament, had
joined with him or them in the making of the bargain and sale of
such lands, tenements, or other hereditaments so willed to be sold by
the executors of any such testator, which heretofore hath made or
declared, or that hereafter shall make or declare any such will, of any
such lands, tenements, or other hereditaments after his decease, to
be sold by his executors.
II. Provided alway, That this Act shall not extend to give power
or authority to any executor or executors at any time hereafter to
bargain or put to sale any lands, tenements, or hereditaments, by vir-
tue and authority of any will or testament heretofore made, otherwise
than they might do by the course of the common law afore the making
this Act.^
1 Woemer, American Law of Administration, § 341: "The American stat-
utes mostly extend the power to the survivor or survivors of several ex-
ecutors who have qualified, of whom one or more may die, resign, or be re-
moved, as well as to one or more who may qualify of a larger number to
whom the power is given, of whom one or more may refuse to act, and to
the administrator with the will annexed."
334 POWEES (Parts
ATWATERS v. BIRT.
(Court of Queen's Bench, 43^4 Eliz., 1603. 2 Cro. Eliz. 856.)
Ejectione firmse. Upon a special verdict the case was, one Robert
Stanton, seised in fee of the land in question, infeoffed thereof Thom-
as Molyns and three others, to the use of himself for life, and after to
the use of Richard his second son in tail, remainder to George his
eldest son in tail, remainder to his right heirs ; with a proviso, "that
if he paid twelve pence at any time to the said Thomas Molyns, and
the three others, and good and sufficient cause was shewed unto themi
by the said Robert Stanton the father of the abuses by Richard the
son, and that so by the said Thomas Molyns and three others (re-
citing their names), shall be thought convenient, that then the afore-
said uses shall cease, and then to be to the use of him and his heirs."
One of the four feoffees died ; Robert Stanton paid the twelve pence
to the other three, and shewed cause of abuse by Richard his son,
which was approved by the three. He then declares by a new deed,
that the said Thomas Molyns and the other two feoffees, for good
consideration expressed in the deed, should stand seised of the said
land, to the use of himself for life, and after to new uses, etc. and,
whether these uses should take effect or not? was the question.
First, whether this be a good revocation of the first uses, one of the
feoffees being dead?
Secondly, admitting that they are revoked, whether it be a good i
new limitation of the last uses ?
As to the first, all the Court resolved, that it was not a good revo-
cation ; for it is but an authority which is given to revoke, and it is
to be done by the assent of the four ; and any of them being dead, the
authority is determined, and shall not survive. And for this reason,
as Popham said, the common law before the statute of 21 Hen. 8, c.
4, was, that if one devised his land to four to sell, and one of them
dies, the survivors, because they have an interest, may sell ; but if he
had devised that three should sell his land, and one of them dies, the
survivors, because they have but a mere authority, cannot sell.' Vide
49 Edw. 3, pi. 16; 2 Eliz. Dyer, 177, 189, 217.
Secondly, admitting that the first uses are well revoked ; yet they
held, that this second indenture is not a sufficient limitation of the
new uses, and raising of them : for although the consideration there-
in be sufficient, viz. bipod and affection, yet he doth not covenant
to raise them out of his own possession ; but that his feoffees shall be
seised, &c. and none other but them shall stand seised ; and he hath
not any feoffees, and therefore no use can rise. And although it were
said, that it shall be expounded as a will, according to the intent of
2 See, also, Montefiore v. Browne, 7 H. L. C. 241 ; Hawkins v. Kemp, 3
East, 410.
Ch. 3) SURVIVAL OF POWERS 335
the parties, forasmuch as he hath not feofifees, that he himself shall
be seised, &c. it shall not be so in construction of deeds ; and so there
did not any uses arise, and therefore the lessor of the plaintiff hath
not any title. Whereupon it was adjudged for the defendant.
HOUELL V. BARNES.
(Court of King's Bench, 1G34. Cro. Car. 382.)
Upon a suit in chancery, a case was agreed by the counsel of both
parties and referred to Jones, Berkli^y, and myself. Justices, to con-
sider and certify our opinions.
The case was, One Francis Barnes, seised of land in fee, deviseth it
to his wife for her life, and afterwards orders the same to be sold by
his executors hereunder named, and the moneys thereof coming to
be divided amongst his nephews ; and of the said will made William
Clerk and Robert Chesly his executors. William Clerk dies ; the
wife is yet alive.
Two questions were made :
First, whether the said William Clerk and Robert Chesly had an
interest by this devise, or but an authority ?
Secondly, whether the surviving executor hath any authority to
sell?
We all resolved, that they have not any interest by this devise, but
only an authority, and that thfe surviving executor, notwithstanding
the death of his companion, may sell ; and so we certified our opin-
ions. But whether he might sell the reversion immediately, or ought
to stay until the death of the wife, was a doubt. Vide 30 Hen. 8,
Br. "Devise," 31; 9 Edw. 3, pi. 16; Co. Lit. 112, 113, 136, 181; 8
Ass. 26.3
3 Accord: Brassey v. Chalmers, 4 De G., M. & G. 528, 536, reversing 16
Beav. 223, 231; Forbes v. Peacocli, 11 M. & W. 630; Peter v. Beverly, 10
Pet. (U. S.) 532, 5(>4, 9 L. Ed. 522; Osgood v. Franklin. 2 Johns. Ch. (N. Y.)
1, 7 Am. Dec. 513; Id., 14 Johns. (N. Y.) 527; Wardwell v. McDowell, 31 111.
364; Warden v. Richards, 11 Gray (Mass.) 277; Muldrow's Heirs v. Fox's
Heirs, 2 Dana (Kv.) 78 ; Berrien v. Beri'ien, 4 N. J. E(i. 37 ; White v. Taylor,
1 Yeates (Pa.) 422; BredenUurg v. Bardin, 36 S. C. 197, 15 S. E. 372; Dick v.
Harhy, 48 S. C. 516. 26 S. E. 900; Fitzgerald v. Standish, 102 Tenn. 383, 52
S. W. 294; Robertson v. Gaines, 2 Humph. (Tenn.) 367; Davis v. Christian,
15 Grat. (Va.) 11, 38 ; Wolfe v. Hines, 93 Ga. 329, 20 S. E. 322.
Where the power is conferred upon executors to sell, not, however, to pay
debts and legacies, but to hold the proceeds for the benefit of those entitled
to the land, in place of the land, it has been held that the power does- not
survive. Clinfelter v. Ayres, 16 111. 329 ; Wooldridge's Heirs v. Watkins, 3
Bibb (Ky.) 349 ; Shelton v. Homer, 5 Mete. (Mass.) 462 ; Chambers v. Tulane,
9 N. J. Eq. 146, 156; Clay v. Hart, 7 Dana (Ky.) 7; Tarver v. Haines, 55 Ala.
503 ; Robinson v. Allison, 74 Ala. 254. Ei^pecially where the language creat-
ing the power reposes a personal confidence and discretion in the executors.
Tarver v. Haines, 55 Ala. 503; Chambers v. Tulane, 9 N. J. Eq. 146; Clay v.
336 POWERS (Part 3
YATES V. COMPTON.
(Court of Chancery, 1725. 2 P. Wins. 308.)
A. devised that his executors should sell his land in Dale, and with
the money arising by that sale and the surplus of his personal estate,
should purchase an annuity of £100 for the life of Jane Styles, and
should allow to her so much thereof as would maintain her and her
children, and gave £30 to each child to be raised out of the said an-
nuity and the personal estate he should die possessed of, and the over-
plus of his personal estate he gave to Jane Styles, and made B. and C.
executors.
The testator died, and Jane Styles, the intended annuitant died
within three months after him ; B. and C. the executors renouncing,
administration with the will annexed was granted to the plaintifif who
was also the administrator of Jane Styles (the intended annuitant)
and with the children of Jane brought this bill against the heir of the
testator, to compel him to join in a sale of these lands in Dale.
For the defendant it was objected, that there wanted parties, in
regard the executors ought to have been made defendants, for not-
withstanding they had renounced yet the power of sale continued in
them, and was altogether collateral to their executorship.
But there being only a power and no estate devised to the execu-
tors, this objection was over-ruled, (tamen Q.)
The plaintiff's counsel then proceeding upon the merits, it was con
tended on behalf of the heir, that as nothing but a bare power of salf;
was given to the executors, so such power was for a particular pur-
pose, to buy an annuity for Jane Styles, and forasmuch as that pur-
pose could not now be answered, Jane Styles being dead, there ough<
not to be any sale.
That this was within the reason of the case where one devises land.i
for the raising portions for daughters, and the daughters die before
thev are marriageable, the lands ought not to be sold, but go to the
heir at law ; so where lands are devised for payment of debts, and
the testator himself lives to pay his debts, in such case there shall be
no sale ; and here it was the same as if the intended annuitant had
died in the life of the testator, in which case there should have been
no sale, and by the same reason there ought to be no sale now.
That neither Jane Styles or her children would be any sufferers by
this construction, since if there had been a sale of the lands, and out
of the money arising thereby an annuity had been purchased for Jane
Styles, the same had determined by her death ; and the children could
be no sufferers, because they were to have their maintenance only out
Hart, 7 Dana (Ky.) 7; Robinson v. Allison, 74 Ala. 254. In the following
cases, however, it was held that the power did survive: Farrar v. McCue, 89
K X. 139, 144 ; Dick v. Ilarby, 48 S. C. 51G, 518, 2G S. E. 900.
Ch. 3) SURVIVAL OF POWERS 337
of the said annuity, which would now have been at an end had it been
bought.
That out of a very large estate of the testator, this farm in ques-
tion, which was not above £20 per annum, was all that was left for the
heir, and if any act of chance or providence should have thrown any
pittance upon the heir, it would be hard for the Court to interpose to
the prejudice of him who is the favourite of all Courts both of Law
and Equity.
But by Lord Chancellor [King]. The intention of the will was
to give away all from the heir, to turn this land in question into per-
sonal estate, and this must be taken as it was at the death of the tes-
tator, and ought not to be altered by any subsequent accident.
Then it was insisted, that the estate in question descended to the
heir at law, for which reason he ought to have the rents till the sale.
But THE Court denied this, it being by the will changed into per-
sonal estate ; and said that if the executors had sold the land within
three months after the testator's death, and before the death of Jane
Styles the intended annuitant, then (probably) the executor of Jane
Styles, should on her death have had the money, or (perhaps) she
might in her life time have come into equity, and have prayed that at
least part of the money should have been kept for the children, and
not invested in the annuity ; nor ought the delay of the executors in
not selling the land in question within the said three months to hurt
Jane Styles the intended annuitant, or her children. So decreed the
land to be sold,* and the money arising by the sale as personal estate
to be paid to the plaintiff, he paying the children's legacies.^
But the heir at law was ordered his costs."
* "And the heir to join in the sale." Reg. Lib. B. 172."). fol. 242.
5 Co. Lit. ll.^a. Hargraves' Note : "But whether Lord Coke's notion of the
power not surviving, or the opposite one, most conforms to strictness of law,
is not now of any great importance; as such a power, though extinct at
law, would certainly be enforced in equity. This has long been the prac-
tice of our courts of equity ; these rightly deeming the pui*pose for which
the testator directs the money arising from the sale to be applied, to the
substantial part of the devise, and the persons named to execute the power
of selling to l>e mere trustees ; which brings the case within the general rule
of ecpiity, that a trust shall never fail of execution for want of a trustee,
and that if one is wanting the court shall execute the office. The relief is
administered by considering the land, in whatever person vested, as bound
by the trust, and compelling the heir, or other person having the legal es-
tate, to perform it. There are many printed precedents of thus executing
not only powers actually extinct at law, or supposed to be so, but also such
as, in point of law. either for want of the will's naming by whom they
should be executed, or because those named had died before the testator, nev-
er could exist or take effect. Some of these precedents are as early as the reign
of Charles the first. See Locton and Locton, 2 Freem. 1.36, and 1 Cha. Cas.
179. Garfoot and Garfoot, 1 Cha. Cas. 35. Gwilliam and Kowel, Ilardr. 204.
Pitt and Pelham, 2 Freem. 134. 1 Cha. Rep. 283. and 1 Cha. Cas. 176. T. Jo.
G Though by the Regist(>r's book the decree appears to have been as here
stated, yet it is not mentioned in what right the Court took the plaintiff to
bo entitled. — Rep.
4 Kales Prop. — 22
338 POWERS (Part 3
LANE V. DEBENHAM.
(Court of Chancery, 1853. 11 Hare, ISS.)
Daniel Foster, by his will, dated in 1843, gave and devised unto J.
E. Lane and E. Powell, their executors and administrators, his free-
hold house and premises, known as the Georg-e Inn, and the appurte-
nances, a piece of freehold meadow land called Holywell, two free-
hold cottag-es situated in Spicer-street, and a plot of ground at the
corner of Dagnal-lane, all in Saint Albans ; and also all or any sum
or sums of money which might be due or coming to him on the se-
curity of any bill or bills, note or notes of hand or other memoran-
dums, a schedule or list of which was therewith enclosed, all book or
other contract debts, "and all other his (my) real and personal estate
and effects whatsoever and wheresoever," and declared the trusts as
follows : "That the sum of £2000 shall, as soon as convenient after
my decease, be raised out of my said estates by sale or otherwise, at
the discretion of my said trustees, and that the said sum of £2000 shall
be invested in some good and safe security in the names of my said
trustees, and the interest and dividends arising therefrom shall be
appropriated to the maintenance, support, and education of my daugh-
ter Sarah Ann, until she shall attain the age of twenty-one years, after
which the said interest or dividends shall be duly paid to my said
daughter half yearly for her separate use," for her life, or until the
trusts thereof particularly created were otherwise determined. The
testator then directed that the residue of his personal and real estate
and effects should be invested or secured at the discretion of his trus-
tees, and the rents, issues, and profits paid over to his wife for her
life, subject to certain legacies to legatees therein named, to be paid
25. 1 Lev. 304. See also Max. of Eq. 57, and Vin. Abr. Devise, Q. e. and S.
e. Nor do the courts of equity appear ever to have confined this relief, as
they certainly do many kinds of aid, to persons of particular and favoured
descriptions, such as wife, children, or creditors ; for though in some of the
old cases, the persons relieved were of one or other of these descriptions, yet
in others nearly of the same time the parties are not stated to have fallen
within either of them ; and we have not heard of any case, in which relief
has been refused on that account. See Locton and Locton already cited, and
the case of Tenant and Browne cited in 1 Cha. Cas. ISO. Tlie reason of not
favouring particular persons in this instance will api^ear evident, when it is
considered that testamentary powers to sell are deemed to be in the nature
of trusts, and trusts are executed in equity for all persons indiscriminately."
See the following cases in support of the same rule: Tainter v. Clark, 13
Mete. (Mass.) 220, 230 ; Greenough and Wife v. Welles, 10 Cush. (Mass.) 571,
578, 579; Compton v. McMahan, 19 Mo. App. 494, 510.
A power in executors does not usually survive, so that it may be exercised
by an administrator with the will annexed. Conklin v. Egerton's Adm'r, 21
Wend. (N. Y.) 430; Wills v. Cowper & Parker, 2 Ohio, 124-132; In re Clay
and Tetley, 16 Ch. Div. 3-7.
See, however, the following cases, where the power seems to have been ex-
ercisable by such an administrator : Putnam v. Story, 132 Mass. 205. 212 ;
Mott V. Ackerman, 92 N. Y. 539-541 ; Wilcoxon, Adm'r, v. Reese, 63 Md. 542,
546.
Ch. 3) SURVIVAL OF POWERS 339
at their respective ages of twenty-one. And the testator directed
that, at the decease of his wife, all such rents, issues, and profits
should thenceforth be paid to his daughter, her executors, adminis-
trators, or assigns ; and in case his daughter should die leaving law-
ful issue, then he directed that all the said real and personal estate and
efifects should become the absolute property of such issue ; and in
case his daughter should die before his wife, and leave no issue, he
directed that all his said real and personal estate should be divided
between certain nephews and nieces of himself and his wife therein
named. By the usual trustee clauses, the testator declared, that his
said trustee and trustees of that his will should be charged and
chargeable only with such moneys as they should actually receive by
virtue of the trusts thereby reposed in them, «S:c. ; and that it should
be lawful for his said trustees respectively, by and out of the moneys
which should come to their or his hands, to retain or allow to each
other all costs, &c. ; but there was no clause declaring that the re-
ceipts of the trustees or trustee should be an indemnity to purchasers
of the testator's estate for the moneys therein expressed to be re-
ceived. The testator thereby appointed his wife executrix, and Lane
and Powell trustees and executors of his will ; and he died in 1845.
Lane and Powell and the widow proved the will, and the two former
accepted and acted in the trusts of the devise. Powell died in 1851,
the £2000 not having been raised.
Lane, for the purpose of raising the £2000, caused certain of the
devised premises to be offered for sale by public auction on the 19th
May, 1852. The ninth condition of sale was as follows : — The whole
of the property is sold by the vendor under the trusts of the will of
Mr. Daniel Foster, deceased, the produce of which is to be invested
upon the trusts of such will, and the purchaser shall be satisfied with
the investment by the vendor, or, in case of his death, by his personal
representatives, of the purchase-money for each lot (after deducting
the costs incident to the sale of the property) within twenty-one days
after the receipt of such purchase-money, in the name of the vendor
or his personal representatives, in such of the public funds as he or
they may elect ; and he or they will, if required by any purchaser, sign
a declaration, that such investment is made on the trusts of the will
of the said Daniel Foster, every such declaration to be prepared and
executed at the expense of every purchaser requiring the same ; and
the respective purchasers are hereby excluded from making any ol>-
jection to the title on account of the omission from the said will of a
clause authorizing his trustees or the vendor to give discharges for
the purchase-money of the property to be sold under the trusts of the
will.
The defendant G. Debenham became, at the sale, the purchaser of
Lot 1. He subsequently objected to the title, on the ground that the
trust in the will for raising the sum of £2000 could not be exercised bv
340 POWERS (Part 3
the plaintiff as the surviving trustee. This question the parties agreed
to submit to the court in the form of a special case.
Vice-Chancellor [Sir William Page Wood]. The devise in
this case to Lane and Powell, their executors and administrators, of
the specific freehold estate and other property, "and all other his real
and personal estate and effects whatsoever and wheresoever," upon
the trusts subsequently declared, is a devise which clearly passes the
whole fee to the trustees, although the words executors and adminis-
trators are inapt words as to the realty. The question as to the mode
of raising the £2000 will not arise, unless the legatee for whose bene-
fit it was intended is alive, a fact which is not stated in the special case.
Looking at the question, which, it appears by a letter stated in the
case, was asked by the purchaser, whether that person were alive, —
to the fact that the abstract was then sent, and that the objection
taken was that the discretion as to sale cannot be exercised by one
trustee alone, and that the sum might be raised otherwise, I think I
may assume the fact of the existence of the party interested at the
time of the sale. It will be proper that the declaration of the court
should be prefaced by reciting that it proceeds upon that assumption.
The main cjuestion is, whether or not, there being a direct trust to
raise £2000 by sale or otherwise,^ — and thus a discretion to be exercis-
ed, and one of the trustees being dead, — it is thereby rendered impos-
sible for the surviving trustee to execute this trust without the direc-
tion of the court. The money, it is clear, must be raised; can the
surviving trustee raise it by means of a sale, or is it necessary to
come to the court in order that the court may exercise its discretion
whether it is to be by sale, by mortgage, or by some other appropria-
tion?
Air. Walker has argued, that, whether the case be one of a power
or a trust, if it be confided to two persons, or if it be a mere trust for
sale, if it be said that the sale is to be made by two persons, a sur-
vivor of the two can never execute it. The argument proceeds, as it
appears to me, upon an entire disregard of the distinction between
powers and trusts. No doubt, where it is a naked power given to
two persons, that will not survive to one of them, unless there be ex-
press words, or a necessary implication upon the whole will, showing
it to be the intention that it should do so. But the ground of that
rule is, that, where the testator has disposed of his property in one
direction, subject to a power in two or more persons enabling them
to divert it in another direction, the property will go as the testator
has first directed, unless the persons to whom he has given the power
of controlling the disposition exercise that power. He, therefore, to
whom the testator has given the property, subject to having it taken
from him by the exercise of the power, has a right to say that it must
be exercised modo et forma. It is therefore a rule of law, that, in all
cases of powers, the previous estate is not to be defeated unless the
Ch. 3) -' SURVIVAL OF POWERS 341
power be exercised in the manner specifically directed. When, on the
other hand, a testator gives his property, not to one party subject to
a power in others, but to trustees, upon special trusts, with a direc-
tion to carry his purposes into effect, it is the duty of the trustees to
execute the trust ; thus, if the direction be to raise a certain sum of
money, the estate is thereby at once charged, and it becomes the duty
of the trustees to raise the charge so created. If an estate be devised
to A. and B. upon trust to sell, and thereby raise such a sum, it is I
think a novel argument, that, after A.'s death, B. cannot sell the es-
tate and execute the trust.
In Nicloson v. Wordsworth, 2 Swanst. 365, and Crewe v. Dicken, 4
Ves. 97, and that class of cases, the question was a different one, —
whether, under a devise to several persons, upon trust to sell, — where
the sale takes place in the lifetime of one who has released or dis-
claimed the trust, the other trustees, in whom the estate is vested by
such release, can execute the trust. In Crewe v. Dicken, there was a
gift to A. and B., in trust that they and the survivor of them should
sell. One disclaimed, so that in fact the sale was not made by the
survivor, and the question was whether the other trustee could sell.
Mr. Walker said, that that class of cases turned on the construction
given to the word survivor ; but it was not only that — it was a ques-
tion whether, in an event not contemplated by the testator, a person
who was acting in the trusts, and in whom the devised estate was
vested, could make a good title. In Nicloson v. Wordsworth, Lord
Eldon said, he had not much doubt, and that in his own case, if he
were himself the purchaser, he would not reject the title on that
ground alone. Where there is a power given to A. and B., and no
estate given to them, if A. dies or renounces, B. alone cannot make
a title. Lord St. Leonards thus states the rule : — "It is regularly true
at common law, that a naked authority given to several cannot sur-
vive" (1 Sugd. Pow. 143); and he adds, "the same doctrine applies
to powers operating under the Statute of Uses ;" and he cites the
case from Dyer, "where cestui que use in fee, before the Statute of
Uses, willed that his feoffees A., B., and C. should suffer his wife to
take the profits for her life, and that after her decease the premises
should be sold by his said feoffees, — one of the feoffees died, and then
the wife died ;" and it was ruled that the survivors could not sell.
But if an estate be given to two persons, upon trust to sell, there is no
doubt the survivor may sell. The case is then within the rule put bv
Lord Coke, and which I am not aware has ever been disputed, that
"as the estate, so the trust shall survive."
The case of Cooke v. Crawford, 13 Sim. 91, and others, which were
relied upon, turned upon the question, whether the trustee could dele-
gate his authority. The parties to whom the estate had been devised
for sale had attempted to transfer or devise it to others ; and it was
held, that the parties thus irregularly constituted trustees of the estate
342 POWERS (Part 3
could not exercise the powers, or sell or give discharges to the pur-
chasers.
The case before the Master of the Rolls, :M'Donald v. Walker, 14
Beav. 556, was of the same description. The estate and powers were
given to two trustees and the survivor of them ; and the question
was, whether the survivor could hand over to a devisee of the estate
the performance of the powers also ; and the Master of the Rolls
held that to be so doubtful, that he could not force it upon an unwill-
ing purchaser. Here the estate has not been transferred or devised
to other persons, but remains in the survivor of the trustees, in whom
the testator placed it.
The real difficulty, if it be one, is in the second point ; upon which
the argument for the defendant proceeded, — the trust to raise "by sale
or otherwise." I do not think the words, "at their discretion," are im-
portant. It is said, that the sum might be raised by mortgage or ap-
propriation ; and that this is a species of authority which the court
will not permit one person to exercise, where it was given originally
to two. If, it was asked, the authority follows the estate, — when, on
the decease of the trustee, the real and personal estate is separated, —
with which estate does it go ? Is the heir or the executor to have it ?
I do not say that a difficulty might not arise upon this point, but it
has not arisen. There might be some question whether the authority
had come to an end if the real and personal estate had fallen into
different hands ; but one trustee still alive ; and I apprehend, that
where you have an absolute trust to raise out of a common fund a
sum of money, either by sale or otherwise, in clear terms, as in this
case, there is no such difficulty as has been suggested. The sum be-
ing necessary to be raised, it is clear, that, if the case were brought
here, the court would direct the surviving trustee to raise the money,
he having the whole legal estate, and being subject to the obligation
to execute the trust. He has the same power as was given to the two
trustees, — a power arising from the combined circumstances of the
absolute duty which is imposed upon him, accompanied by an estate
which enables him to perform it.
The trustee has, in this case, executed the duty which the trust has
cast upon him ; and I am asked by the defendant to say, that, in doing
so, he has committed a breach of trust, because he has proceeded to
raise the money after the death of his co-trustee. If I were to lay
down such a rule, where is it to stop? It would follow, that, when-
ever an estate is vested in two or more trustees to raise a sum by
sale or mortgage, or even to sell by auction or private contract, the
parties must, after the death of one of the trustees, come to this court
for directions before they can execute the trust. The court has not
better means of exercising the option than the party against whom
the objection is taken, nor are its means so good. I think, as I have
Ch. 3) SURVIVAL OF POWERS 343
observed, that the fallacy of the argument on behalf of the defendant
is in mixing together the rules applicable to bare powers or authori-
ties, and those applying to interests. '^
'Accord: In re Bacon [1907] 1 Cli. 475; Faulkner v. Lowe, 2 Exch. 581,
594 ; Hind v. Poole, 1 Kay & J. 883 ; Eaton v. Smith, 2 Beav. 2:3(5 ; Reid v.
Reid, 8 Jur. 499; Attorney (ieneral v. Gleg, 1 Atk. o5G; In re Cookes' Con-
tract, 4 Ch. Div. 454; Golder v. Bressler, 105 111. 419; Gray v. Lynch, 8
Gill (Md.) 403; Gutman v. Buckler, 69 Md. 7, 13 Atl. 635; Bradford v.
Monks, 132 Mass. 405; Putnam v. Fisher, 30 Me. 523; Gaines v. Fender, 82
Mo. 497, 506.
It has been held that it made no difference that the instrument creating
the trust provided for the filling of vacancies among the trustees and that
the new trustees were given all the powers of the old trustees. In such case,
therefore, the sole surviving trustee could exercise the power of sale though
the vacancies had not been filled. Belmont v. O'Brien. 12 N. Y. 394; Parker
v. Sears, 117 Mass. 513. But see O'Brien v. Battle, 98 Ga. 766, 25 S. E. 780.
If the iK>wer in trustees is to appoint in a manner different from that pre-
scribed by the settlor, it has been held that the power, though given, pro-
ceeds generally, was exercisable only by those named, so that upon the death
of one, the power could not be exercised. See Cole v. Wade, 16 Ves. Jr. 27 ;
Hadlev v. Hadley, 147 Ind. 423, 46 N. E. 823 ; Dillard v. Dillard, 97 Va. 434,
34 S. E. 60.
But in In re Smith [1904] 1 Ch. 139, where the power was given to my
"said trustees" to sell and apply the principal for the wife, who took a life
estate, it was held that the power could be exercised by any trustee for the
time being.
In Pennsylvania Co. v. Bauerle, 143 111. 459, 33 N. E. 166, where the power
of sale was given to four trustees, all of whom qualified in Pennsylvania, the
domicile of the testator, but one of whom was a Pennsylvania corporation
which did not comply with the laws of Illinois, and therefore could not act
in the sale of Illinois land with the other trustees, it was held that the
power could not be exercised by the three trustees who were competent to
act in the sale of Illinois real estate, and that specific performance would
not be decreed for the trustees against a purchaser.
34i POWERS (Part 3
CHAPTER IV
POWERS IN TRUST AND GIFTS IMPLIED IN DEFAULT
OF APPOINTMENT .
HARDING V. GLYN.
(Court of Chancery, 1739. 1 Atk. 4G9.)
Nicholas Harding in 1701 made his will, and thereby gave "To Eliza-
beth his wife all liis estate, leases, and intere st in his house in Hatton
Garden, ancTall the goods, furniture, and chattels therein at the time
of his death, and also all his plate, linen, jewels, and other wearing
apparel, but did desire her at or before her deat h , to giv e such leases,
house, furniture, p^oods and chattels, plate and jewels, u nto and amon g
s uch of his own relations, as she should th ink_m ost deserving and ap -
prove of," and made his w-ife executrix, and died the 23d of January,
1736. without issue.
Elizabeth his widow made her will on the 12th of June, 1737, "and
thereby gave a ll her estate, right. "litle. and interest to Henry Swin-
dell in the hous e in Hatton G arden, which her husband had bequeathed
to her in manner aforesaid ; and after giving several legacies, be-
queathed the residue of her personal estate to the defendant Glyn
and two other persons, and made them executors," and soon after
died, w ithout having given nt_pr before hercTeat hthegoods in the said
house, or without having disposed of any of her husband's jewels^to
hirTelations^ "
I'he pfaint ififs insisting that Elizabeth Harding hacl _ji o property in
the said furniture and jewels b ut for life , with a limited power of
disposing of t he" same to her hu sband's rel ations^which s he has JlTDt
done^ brouglrttheir bill in ordoF thatThey might be dist. ibute d
amongst his relations, accorclmg to the rule ot distribution of intes-
tate's ettects. '
Master 5F the Rolls [Hox. Johx Verney]. The first question
is, if this is vested absolutely in the w'ife? And the second, if it is to
be considered as undisposed of, after her death, vvdio are entitled to it?
As to the first, it is clear the wife w as intended to take only benefi-
cially during her life ; there are lio technical words in a will, but the
manifest intent of the testator is to take place, and the words willing
or desiring have been _f requentlv constru ed to amount to a trust, Kacles"
& ux. v.lSngland & ux., 2 Vern. 466, and the only doubt arises upon the
persons who are to take after her.
Where the uncertainty is such, that it is impossible for the court to
determine what persons are meant, it is very strong for the court to
Ch. 4) POWERS IN TRUST AND GIFTS IMPLIED * 345
construe it only as a recommendation to the first devisee, and make it
absolute as to him ; but here t he word r el ations is a legj^a l descrip tion ,
and this is a devise to such relations, and operates as a trust in the
wife by way of power of naming and apportioning, and her non-p er-
fo rmance ' of the power shall not ma ke the devise void, but the pow er
s hall de volve on the c ourt ; and though this is not to pass by virtue of
the Statute ot Uistnbution s, yet that i s a good rule for the court to g o
by\ ^^nd therefore 1 think it ought to be divided among such of the
relations of the test ator Nicholas Harding, who were his next of ki n
at her death; and~do order, that so much of the said household goods
in Hatton Garden, and other personal estate of the said testator Nich-
olas Harding, devised by his will to the said Elizabeth Harding his
wife, which she did not dispose of according to the power given her
thereby, in case the same remains in specie, or the value thereof, be
delivered to the next of kin of the said testator Nicholas Harding, to be
divided equally amongst them, to take place from the time of the death
of the said Elizabeth Harding.^ *
In re PHENE'S TRUSTS.
(Court of Chancery, ISCS. L. R. 5 Eq. 346.)
Edward Phene, by his will, dated the 2nd of November, 1836, be-
queathed to his executo rs the sum of £3000 £3 per cent Reduced An-
nuities, up on trus ts for the benefit of his s ifter rha rlnffe ]\Iill during
h er life ; and from and immediately after her death "in trust for the
benefit of her children, to do that whicTTThey, m y execut ors, may think
most to their advantage?"
Cha rlotte M ill die^Tbn the 28thof^ Mav, 1867, having had issue five
ch ildren , two of~whom died m tier jl fetime. Of the other three, one
h ad n ^t bee n heard~of for many years , another ^l ed ^iTjan iiary, 1868,
and_the third was still living.
The~executors named in the will died in the lifetime of Charlotte
Mill, and theTund was after her death transferred into court by the le-
gal personal representatives of the surviving executor.
A petition was now presented by the surviving child of Charlotte Mill
for payment or transfer to him of such share of the fund as he was
entitled to under the will of the testator.
Two questions were raised: 1. Whether the children who prede-
ceased the tenant for life took any interest in the fund ; and 2. If they
did not, whether the children who survived the tenant for life took as
tenants in common or as joint tenants.
1 See. also. Doyley v. Atty. Heneral, 4 Yin. Abr. 48.5. pi. 16 (1735) ; Brown
▼. Higgs, 4 Ves. 708 (1799), 5 Yes. 49.5 (1800), 8 Yes. 561 (1803).
346
POWERS
(Part 3
Lord Romilly, M. R. I think itjs_very clear that only_t he chi l-
dren who survived t heir mother take, and tliat they^take a s tenants in
common;
TITe~case of Brow n v. Higg- s. 8 Ves. 561, shows that a Je stator ma y
give tohis ^ executors a n_ar bitrary power of determi ning to whom a
fund shall go ; and t hat if he jdoes_so, this arb itrary discretio ij^can
be'exercisedjonl y bylhe person s_to_who m it is given : _everi_the^court
ca nnot_ exercise^ it . The testator mayalso say that the discretion shall
be exercised at a particular time ; and I think he does so here by
fixing the time when the fund is to become divisible. Again, you must
consider who are the objects of the discretion; they must be persons
in existence at the time when the discretion is exercised ; the discretion
cannot be exercised for the benefit of a dead person.
Now, the gift here is from and after the death of the tenant for life,
for the benefit of her children, to do that which the executors might
think most to their advantage. I t hink that gi ves the fund to the exec-
utors to divide among the class oF childre n who siirvive t he t enanTTor
lifL-JIlie. cOUfris"perfonnin£jt he"'oHrce oTthe execut o rs, and rn ust^ve
the same
iLjjtX Uie same _2ersons.
Then the testator says to his executors, "You may give it amongst
that class as you think fit." That does not create a joint tenancy,
because his meaning clearly is, that the executors are to divide the_
and the^ court
fundj and the^courtT'standing in~their place, must also divide it,
that is, give it to the objects of the testator's bounty as tenants in
common.^
CASTERTON v. SUTHERLAND.
(Court of Chancery, 1804, 9 Ves. 445.)
Thomas Fowler, by his will, dated the 30th of January, 1766, de-
vised all his freehold lands, &c., in Chelsea, or elsewhere, to his wife
Lucy for her life, and from and af ter her deceas e to \i\'^ ybi1drptr-in
the following manner : "Unto and a mongst all and every our children ,
in such manner and in such proportions as my said ^vvife _shall either
in her lifetime or by her last will and testame nt direc t_an^^P£Qiflt-_"
He~empowefed his wife to sell the estates, and to lay out the money,
and receive the interest for her life ; and after her decease he di-
rected and appointed the same, both principal and interest, to be paid
and applied "to and among our children in such proportions as afore-
said." He appointed his wife executrix. The testator l^f t his w jje
surviving him, ajid five children : John, Thomas, William, Henry, and
Lucy. T ohrL_ Thomas, and William d ied inf ants and unmarrie d in
the life of their mother. Henry attained 21, and married; but die3
2 Accord: In re White's Trusts, H. R. V. Johns. 656 (1860); Carthew v,
Euraght, 20 W. R. 743.
Ch. 4) POWERS IN TRUST AND GIFTS IMPLIED 347
in the life of his mother; leaving iss ue one daughter. Sar ah Caster-
toiTI Luc y, the daug hter, survTveH^U her brothers; but die3~also in
the life ofli er mother; having married the defendant Thoniaj^ S u th-
erla nd the~e lder ; byjwhom she had issue the othei^de f endant, Thomas
S' uther landthe younger. Th e widow died: not having ex ecuted ^ny
appo intment. The bill was filed by James Casterton and Sarah, his
wife; claiming in her right under the will.
The Master of the Rolls [Sir William Grant] was clearly of
opinion, upon Reade v. Reade [5 Ves. 744], that this was a tenancy
in common among the children in fifths, subject to the power of ap-
pointment; and that though in the devise of the lands in the first
part of the will there were no words of inheritance, yet in the sub-
sequent part the testator giving his wife power to sell the estate, and
appointing the money, both principal and interest, among the chil-
dren, as the testator could not be supposed to intend to give them a
larger interest in that part than in the former, they took several estates
of inheritance.
The decree declared, that the children of the testator, living at his
decease, became entitled equally as tenants in_c ommon to the Freehgld
estates^ of whichTie (Iied^ seTsed, subject to the^sta te for life and powe r
6 i appomt ment oftTie widow; and, the widow having made no appoint-
ment, the pTamtiff Sarah Casterton, as only child and heiress at law of
her father H enry Fowler, who Avas heir at law of his brothers Wi l-
liam, Tho mas, and John , who survived the testator, and died unmar-
ried, and without issue, is in the events, that have happened, entitled
to four fift hs ; and the testator's daughter Lucy, the deceased wife of
Thomas Sutherland the elder, was entitled to t he remaining fifth ; and
th^defe ndant Thomas Sutherland the younger is entitled, as her oiily"
son, to that fifth.^
KENNEDY v. KINGSTON.
(Court of Chancery, 1S21. 2 Jac. & W. 431.)
Ann Ashby, by her will, dated the 3d of August 1785, bequeathed
as follows : After the decease of my sister Charlotte Williams, I give
£500 to my cousin Ann Rawlins for her life, and at her decease to
divide it in portions as"~^he shall chuse "to her children ; and i n case"
she "dies before meT"! leave the sum to be equally divided amongst
8 Accord : Faulkner v. Wynford, 15 L. J. N. S. 8 (1845) (devise to trustees
■with active duties in trust for the daughter for life, at her decease to "re-
ceive the same to and for the use and benefit of all such child and children
as she might leave, equally between them, share and share alike, at his and
their ages of twenty-five years, in such manner and form as his [the testa-
tor's] said daughter should by deed or w-ill direct" ; in case he left no child,
or her children should die before 25, then over).
See, also, Burrough v. Philcox, 5 Myl. & C. 72 (1840) ; Lambert v. Thwaites,
L. R. 2 Eq. 151 (1866) ; Wilson v. Duguid, 24 Ch. Div. 244 (1883).
348 POWERS (Part 3
her children, after the decease of my sister Charlotte Williams." She
appointed her sister sole executrix; who survived her, and died in
the year 1795.
Ann Rawlins had four children, William Rawlins, Charlotte Hawkes-
worth, Jane Walsh and Elizabeth Ann Rainsford. W. Rawlins died in
the year 1807; and after his death, Ann Rawlins made a will, by
which she appointed i250, part of the sum of i500, to her daughter,
E. A. Rainsford; £100 to C. Hawkesworth, and the remaining £150
to Jane Walsh. She survived her daughter E. A. Rainsford, and made
a codicil to her will, which however did not affect the sum of £250 ap-
pointed to her. She died in November 1812, leaving her two daugh-
ters C. Hawkesworth and Jane Walsh surviving her. C. Hawkesworth
died in the year 1809 [1819?]. A suit had been instituted, having
for one of its objects, to secure the legacy of £500, and a petition was
now presented, praying that the rights of the parties to it might be
declared.
The INIaster of the Rolls [Sir Thomas Plumer]. This ques-
tion arises on a very short clause in a will ; the sum is given to Ann
Rawlins for her life, "and at her decease to divide it in portions as she
shall choose to her children." It is first to be considered what is the
import of these words, taken alone, without reference to those which
follow. Two out of the four children died in the lifetime of the donee
of the power, one before and the other after the execution of the ap-
pointment. The question will be, whether it is not to be construed as
pointing out as the objects of bounty those only who should survive
the mother; for the power given is, to divide at her decease. Then,
could it be executed in favour of one who died in her lifetime? The
term children is general, but a s the power is t o be ex ecuted at her de-
cease, it must be for the benefit of those then capaBTe oTTalangT Tt
is, therefore, necessarily confined to children in existence ail the" time
of her death. Therefore none but the two who have survived can take
under the power; they are clearly entitled to the sums appointed'Tb
them.
The difficulty is with respect to the part as to which there is, in the
events that have happened, a non-execution. There is no gift over in
default of appointment in express terms ; but if the mother had died
without making any appointment, would not the children surviving her
have been entitled? would they, though certainly objects of the tes-
ta!inx^ bounty, have taken nothing? Upon that question the case be-
comes one of that class where the objects of the power are definite,
and the power is only to appoint the proportions in which they are to
take, without excluding any ; for here the mother must have given a
share to each ; she could not have made an exclusive or an illusory ap-
pointment. The power, therefore, must be understood as tacitly in-
cluding a provision for "ari" equal division of the fund amongst the xrb-
jects, in the event of no appointment being made The two who sur-
Ch, 4) POWERS IN TRUST AND GIFTS IMPLIED 34^
vived would, therefore, be the only persons to take ; they only could
take under an appointment, and if no appointment were made, they
would t ake by necessary implicati on.
Supposing that to be the construction, if the bequest were confined
to the first clause, the next question is whether the other part makes
any difiference? In case of Ann Rawlins dying before the testatrix,
tHe~suniTs to be equally divided amongst the children; and it is said
that the mention of one event upon which they were to take in de-
fault of appointment, is an exclusion of any other ; and that it was,
therefore, not meant to go to them except upon an event that has not
happened. But this does not appear to me to be a necessary conse-
quence. She might die in the lifetime of the testatrix ; she might sur-
vive and make a complete appointment ; or she might survive and make
an incomplete appointment. There is no provision in express terms
for the event which has actually happened of her surviving and mak-
i n g an i iTc ci m pi e t e appointment or for her making no appointment. at
all : liut that is quite consistent with the express provision for her dy-
ing before the testatrix, as in that event the fund was not disposed of
by tBFprevious part of the will.
It does not, therefore, seem to me that this provision annihilates the
implication arising from the previous part of the sentence^ which I
consi(rer as embracing a power to appoint to the children who should
survive, with" a gift to them in default of appointment. The t wo sur -
vivors, therefore, arc entitled alone to the whole sum.*
4 See, also, Walsh v. Wallinger (1830) 2 R. & Myl, 78 (devise to trustees
upon trust to sell, and, after paying expenses, encumbruEces and debts, to
pay the residue "'unto his said 3ifei_ia_and for her own use and benetit. und
di.sposal, trusting that she would thereout provide for and maintain his
family, and particularly his only son ; and at her decease, give and be(lu^'ath
the same to her children by him in such "milliner as she should appoint")
Fr o?1and v. Tearson (1SG7) L. R. 3 Eq. G5S (testator appoints wife execntrix
and gives her for her sole u se du ring her life all his property, both person-
al and real, and then proceeded,"! |ilso direct her, my dear wife aforesaid,
to pay my funeral expenses, and all my just debts, and at her decease to
m^ke s uch a distribution and disposal of all my then remaining property""
aiiiong Tny~chlldren as may seem just and equitable, according to her best
discretion arrd consideration'").
■3ToOTFT.Tfolliot, 19 L. R. Ir. 499 (1SS7): Devise to three nieces for their
joint and several lives subject to the following: "In leaving my property to'
rny three nieces as~co-heirs, it is my wish that if mj' nephew James Wil-
liam Chaine conducts himself to their satisfaction the (sic) shall leave him
the property I now leave to them." In the absence of any appointment and
the nephew having predeceased the nieces, thus claiming that the nephew
was not entitled, but the heirs at law of the testator were entitled, The Mas-
ter of Rolls said:
"There are several classes of cases in which the question arises wt\gtJiei:_
a power to appoint is a mere power, so that its noii-execution defeats the
objects, or whether it is to be regarded as in the nature of a trust l;o wUTclf
thrsTTourt will give effect, even when the power is not executed, """^
**FtTg^2^n est ate of inher itance, w ith power of appointnunit. If the lan-
guagF'Qsed ih fte execulion of the power amounts to a precatory trust, the
trust will fasten itself on the inheritance: the donee of the poWfifWill be
350 POWERS (Part 3
In re WEEKES' SETTLEMENT.
(Chancery Division, 1897. L. R, 1 Cli. 2S9.)
Summons for payment out of court of a sum of Consols standing
to the credit of ex parte the London, Brighton and South Coast Rail-
way Company, the account of the persons interested in Brookside Farm
under the settlement referred to in the summons.
By a settlement dated April 27, 1857, made on the marriage of Emily
Maiy W'eekes with James Slade, certain real prop erty_to which Emily
Alary Weekes was entitled, which included the remainder in fee of
Brookside Farm expectant on the death of her mother, was se ttled t o
uses in favour of the intended wife for life, and upon her death_as_she
should, whether covert or sole, by will appoint, and in default of ap-
pointment to the use of the person or persons who at the decease of
E. M. Weekes would have been entitled thereto by descent in case she
had died seised thereof by purchase intestate and a widow.
By a settlement of even date certain pe rsonal pro perty therein de-
scribed was settled in favour of James Slade and his wife during their
lives and the life of the survivor, and afte£ the decease of the sur-
vivor in trust for the issue of the marriage as the. husband and wife
should by deed jointly appoint, and in default as the survivor should
by deed or will appoint, and in default of appointment for all the chil-
bound to execute it, and if lie fail to do so the court will carry it into effect
as if he had. This is the case of Brown v. Higgs, 4 Ves. 708, 5 Yes. 495,
499, 8 Ves. 561, IS Ves. 192, and the like. In Bruwn v. Higgs stress is laid
on the circumstances that the testator had given the donee of the power 'an
interest extensive enough to enable him to discharge it.'
"O n the o ther hand, if the words used indicate a mere power, and do not
impose an obligation, or even amount to a request, then the court will treat
the power to appoint as mere surplusage — such a power being involved in
the nature of the estate already conferred on the donee. In such a case, if
the power be not exercised, the court will of course not interfere. * * »-
"There is however, a distinct class of cases where the donee of the power
takes not more than a life estate. In these, however clear the expression
of desire on the part of the donor in favor of a particular person or class
of persons may be, yet, as the donee has no estate, or none beyond his life,
the trust to exercise the power is as such personal, and does not directly
attach upon the inheritance, save in so far as the court finds in the lan-
guage an implication in favor of the objects of the power in default of ap-
pointment. In this case, if they take the estate they take it by implication,
and thus by way of limitation under the instrument creating the power. In
the former class of cases the court acts by executing the power in lieu of the
donee; in the latter by simply giving effect to the estate implied in the
words of the deed or will.
"That such an implication may arise from the language in which the pow-
er to appoint is itself couched, without anj'thing else, is well settled ; and
in the case now before me it is not disputed that an implication is to be dis-
covered in favor of James W. Chaine. The question in dispute is, what is
the estate or interest to be implied, and in what event? I am of opinion
that in cases where the implication is to be gathered from the words of the
power to appoint, and from them alone, the estate cannot be greater than the
greatest estate which the object would have taken under the power, and
that no estate can lie implied when the exercise of the power by the donee, if
living, would have been impossible."
Ch. 4) POWERS IX TRUST AND GIFTS IMPLIED 351
dren who being a son or sons should attain twenty-one, or being a
daiighler or daughters should attain that age or marry, and if more
than one in equal shares.
Pursuant to the powers given to them by their Acts the London,
Brighton and South Coast Railway Company took certain parts of the
Brookside farm and paid the purchase money into Court, and the Coh-
sol?-*ft-€o«rt represented such purchase-money.
"Hmily Alary Slade died in Alay, 1885, having made her will, dated
April 15, 1885, which so far as is material was in the following words:
"I bequeath to my husband James Slade a_2ife interest in all property
real or personal which may come to me in accordance with the will of
myTate father Richard Weekes and also in the house which I took
under the will of my late cousin George Weekes and I give to him
power to dispose of all such property by will amongst our children in
accordance witli the_|)ower granted to him as regards the other prop-
erty which I have under my marriage settlements. I also bequeath
unto him the said James Slade all my effects clothes jewellry and other
articles to be at his entire will and disposal." The will contained nq^
gift over in default of appointment.
Jarnes Slade died in February, 1893, intestate and without having
exercised the power of disposition given him by the will of his wife,
Emily ]\Iary Slade.
There were fourteen children of the marriage, eight of whom sur-
vived their mother and were living.
"The tenant for lif 2 having recently died, this was an application for
payment out of the Consols in court in eighths on the ground that the
win of Emily Mary Slade gave to James Slade a life interest in the
Brookside Farm with a power to appoint among the children of tlie
marriage, and that this power not having been exercised the children
were entitled equally. The respondent, the eldest son, claimed _the
Consols as heir-at-law oL Kmily.MaryJ^^eek^s.
Romer7J. By the settlement of April 27, 1857, the property now
represented by the Consols in court was settled on Emily Mary Slade
for life with remainder as she should by will appoint, and with a gift
over in default of appointment.
By her will, dated April 15, 1885, j\Irs. Slade bequeathed the prop-
erty in the following terms: [His Lordship read the will as above set
out.]
The husband did not exercise the power of appointment, and the
question is whether the children take in default of appointment.
Now, apart from the authorities, I should gather from the ternis__gf
the will that it was a mere power that was conferred on tlie husband,
and not^qn^ coupled_iYith a trust tb.at hejvvas bound to exercise. I
see tiq w.CUlds. in the will to justify me in holding that the testatrix in-
tended that tlie children should take if her husband did not execute
the power. ~ ~~
:^53 POWERS (Part 3
This is not a case of a gift to the children with power to the hus-
band to seTect,"or to such of the children as the husband should," se-
lecl'by exercising the power.
If in this case the testatrix really intended to give a life interest to
her husband and a mere power to appoint if he chose, and intended if
he did not think fit to appoint that the property should go as in de-
fault of appointment according to the settlement, why should she be
bound to say more than she has said in this will ?
I come to the conclusion on the words of this will that the testatrix
only intended to give a life interest and a power to her husband — cer-
tainly she has not said more than that.
Am I then bound by the authorities to hold otherwise? I think I
am not. The authorities do not shew, in my opinion, that there is a
hard and fast rule that a gift to A. for life with a power to A. to~ap-
point among a class and nothing more must, if there is no gift over
in the will, be held a gift by implication to the class in default of the
power being exercised. In my opinion the cases shew (though there
may be found here and there certain remarks of a few learned judges
which, if not interpreted by the facts of the particular case before
them, might seem to have a more extended operation) that you must
find in the will an indication that the testatrix did intend the class or
some of the class to take — intended in fact that the power should be
regarded in the nature of a trust — only a power of selection being
given, as, for example, a gift to A. for life with a gift over to such
of a class as A. shall appoint.
I will now examine the authorities which have been cited, and shew
that this is so, though I may remark that the case before me is pe-
culiar in this, that there is a gift over in default of appointment by
the husband by force of the settlement, so that this will need not in
aiiycase come within the general proposition above stated.
N"ow do the authorities bear out what I have stated ? One of them,
an Irish case, Healy v. Donnery, 3 Ir. C. L. Rep. 213, clearly tells
against the proposition contended for. In that case there was a gift
of a freehold interest to a daughter for life, with power by deed or
will to dispose of the same to and among her children, with no gift
over in default of appointment. There was indeed a residuary gift,
but that, as pointed out by the Court of Appeal in In re Brierley, 43
W. R. 36, is not equivalent to a gift over in default of appointment for
the purposes of the above proposition. The case, therefore, was mere-
ly a devise for life with power by deed or will to appoint the remain-
der to and among the children, and that was held not to give an es-
tate~by implication to the children. The proposition now contended
for was then urged also by the party who failed, and was thus dealt
with by Pennefather, B. in his judgment, 3 Ir. C. L. Rep. 216: "It is
argued that the power to appoint among the children' is tantamount to
a trust created for them. I have always considered that there was a
Ch. 4) POWERS IN TRUST AND GIFTS IMPLIED 353
distinction between a mere power and one coupled with a trust; and
though I called on counsel for an authority to the contrary, no such
case has been cited. But particular cases have been cited, in which
Courts have thought that they collected from the peculiar words of
the power an intention of the testator to give to children in default of
appointment. The general position" (quaere proposition) "contended
for by the defendant's counsel has never been laid down ; and I cannot
say that this case falls within the authority of any of the cases cited."
But other cases have been cited to me, so I will refer to them also,
and shew that this statement of the law by Pennefather, B., is cor-
rect.
In Brown v. Higgs, 4 Ves. 708, the gift was as follows : [His Lord-
ship stated" the gift.] In other w^ords, it was a gift of the kind I
have before indicated — a gift to such of the children as a certain^^er-
son should appoint, that is to say, there was a mere power, oi.jsslec-
tiotTgrven. The will on its wording sufficiently set forth the inten-
tio*!! that the class or some of the class should take. That this was
really the ground of the decision of the Master of the Rolls (Lord
Alvanley) is apparent from his judgment, for he says, 4 Ves. 719:
"Upon the true construction of this will I am of opinion, it is equiv-
alent to saying, he gives to the children of Samuel Brown or of
William Augustus Brown, with a power to John Brown to select any
he thinks fit and to exclude the others ; and it is too much to contend
that nothing is intended for them exclusive of the appointment of John
Brown. The fair construction is, that at all events the testator meant
it to go to the children ; and these words of appointment he used only
to give a power to John Brown to select some and exclude the oth-
ers." That is to say, where you can find that the power is only a
power to select, the gift being to a class, of course, if the power is
not executed the class take. That case came before the Court again.
5 Ves. 495. The particular point that I am considering is dealt with,
5 Ves. 500, and Lord Alvanley, again considering the case, says this,
after referring to the words of the will: "Upon this disposition and
the facts, that have taken place, the question is, whether this sentence
in the will, upon which the question arises, is to be considered as mere-
ly giving John Brown a power if he thinks fit, to give the profits of
the farm, of which he was the trustee, to the children of Samuel Brown
or William Augustus Brown, or whether upon the true construction it
is anything more or less than a mere trust in him, with a power to
single out any he m'ght think more deserving, but a gift to him in
trust for these children at all events; and I am of the same opinion,
upon very full consideration, and after the very able arguments I have
heard to shake that opinion, that it is a trust, and not a power in John
Brown ; and that his nonexercise of that power, or the circumstances
of TTis being incapable of exercising it, will not prevent the objects of
the testator's bounty from taking in some manner ; though the power
4 Kales Prop. — 23
3.'j4 powers (Part 3
of distribution on account of the death of the trustee cannot now be
exercised."
The case finally came on appeal before Lord Eldon, 8 Ves. 561. and
he dealt with the precise point, Ibid. 570, as follows : "I t is perfectly
clear, that, where there is a mere power of disposing, and that power
is not executed, this Court cannot execute it. It is equally clear, that,
wherever a trust is created, and the execution of that trust fails by
the death of the trustee, or by accident, this Court will execute the
trust. One question therefore is, whether John Brown had a trust to
execute, or a power, and a mere power." And under the wording of
that will he held that it was a trust. That case, therefore, obviously,
is no authority for the general proposition contended for before me.
Next comes the case of Burrough v. Philcox, 5 My. & Cr. JZ. In
that case the will was very peculiar. The testator directed that cer-
tain stock and real estate should remain unalienated until certain con-
tingencies were completed, and, after giving life interests in such stock
and estates to his two children with remainder to their issue, he de-
clared that in case his two children should both die without leaving
lawful issue, the same should be disposed of as after mentioned, that
was to say, the survivor of his two children should have power to dis-
pose by will of his^re'al and personal estate "amongst my nephews and
nieces, or their children, either all to one of them or to as many of
them" as his surviving child should think proper. This was held to
create a trust in favour of the class subject to a power of selection and
distributibiTTn the surviving child. And why? Because by the terms
of his will the testator intended and purported to dispose of the prop-
erty absolutely, seeing that on the contingencies being completed he de-
clared that the property should be "disposed of as after mentioned."
The ground of the decision is stated in the judgment. Ibid. 92, thus:
"These and other cases shew that when there appears a general inten-
tion in favour of a class, and a particular intention in favour of indi-
viduals of a class to be selected by another person, and the particular
intention fails, from that selection not being made the Court will can-y
into effect the general intention in favour of the class." This case,
therefore, is equally no authority in favour of the proposition.
With regard to the case of Witts v. Boddington, 3 Bro. C. C. 95,
that, again, was on a peculiar will, the decision being that the power as
between the testator and the donee of the power was in the nature of
a trust.
Forbes v. Ball, 3 Mer. 437, is very shortly reported. It was held
that the power had been exercised, and there is only a short statement
that, 3 Mer. 440, "the Court was of opinion that the words in the tes-
tator's will raised a trust for the wife's relations, subject to her ap-
pointment." That is all that is stated on that point; but if that was
decided, then it is clear at least to my mind that it is a decision upon
the particular wording of the will, which was as follows: "I give to
A. C. £500., and it is my will and desire that A. C. may dispose of the
Ch. 4) POWERS IN TRUST AND GIFTS IMPLIED 355
same amongst her relations, as she by will may think proper." The
Court must have held, I have no doubt, that by force of the words
"my will and desire" there was a sufficient indication of the intention
of the testator that A. C. should dispose of it. The words "my will
and desire" might be said (especially as the authorities on precatory
trusts then stood) to be incompatible with the idea that a mere power
was given to A. C. which she might or might not exercise at her op-
tion. That case is no authority for the general proposition.
It is clear, in my opinion, from the judgment in Birch v. Wade, 3
V. & B. 198, that the true ground of the decision there was that the
power was in the nature of a trust by force of the w^ords that had
been used by the testator of his "will and desire."
In Re Caplin's Will, 2 Dr. & Sm. 527, the testator, after giving a
fund to his wife for life, directed that after her death it should be
paid to such and so many of the relatives or friends of the wife as
she should by will appoint — in other words, it was a case of the kind
I have before referred to, a gift to a class or such of a class as should
be selected by the donee of the power. In that case there was a gen-
eral statement, 2 Dr. & Sm. 531, which went beyond the case; but
that statement of the judge should, I think, be considered with refer-
ence to the case that the A^ice-Chancellor had before him.
Re White's Trusts, Job. 656, 659, was like Re Caplin's Will. 2 Dr.
& Sm. 527. It w^as a trust "for A. for life, and if he should die
childless, upon trust to apply the sum to the benefit of such of tes-
tator's children, or their issue, as the trustees should think fit, for the
interest and good of testator's family." There, again, there was a gen-
eral statement made by the learned judge, and in my opinion, unless
checked by reference to the case before him. that statement was too
large. The Vice-Chancellor said : "It is settled by Brown v. Higgs,
4 Ves. 708, and Burrough v. Philcox, 5 My. & Cr. 71, that, where there
is a power to appoint among certain objects, and no gift in default of
appointment, the court will imply a gift to the objects of the power
equally." I have pointed out that those two cases did not decide that.
I have no doubt Wood, V.-C, in making that statement, meant it to be
considered with reference to cases where the facts were similar or
somewhat similar to those in Brown v. Higgs, 4 Ves. 708, and Bur-
rough V. Philcox, 5 ?ily. & Cr. IZ, — that is to say, cases where vou
can gather from the will that the class are intended to take, and a se-
lection only is given to the person having the power of appointment,
as was shewn by the observation in Burrough v. Philcox, Ibid. 92, to
which I have already referred.
Butler V. Gray, L. R. 5 Ch. 26, was a case where there was a suffi-
cient indication that the class was to take; and lastly. In re Brierley,
43 W. R. 36, was a decision not in point on the proposition contend-
ed for.
I have now shewn that none of the cases relied on by the applicants
establish the general proposition ; and I hold that in this case there
356 POWERS (Part 3
was no gift by implication to the children of Emily Mary Slade in de-
fault of appointment by her husband.^
B See Rogers v. Rogers, 2 Head (Teun.) 660 (1850) ; McGaughey's Adm'r v.
Henry, 15 B. Mon. (Ky.) 383 (1854) ; Smith v. Floyd, 140 N. Y. 337, 35 N. E. 606
(1893) ; Milhollen's Adm'r v. Rice, 13 W. Va. 510, 543, 566 (1878).
On Lapsed Appointments. — See Chamberlain v. Hutchinson. 22 Beav. 444
(1856) ; Brickenden v. Williams, L. R. 7 Eq. 310 (1S69) ; In re A'an Hagan, L.
R. 16 Ch. Dlv. 18 (1880); In re Marten, [1902] 1 Ch. 314; In re Thurston,
32 Ch. Div. 508 (1886) ; In re Davies' Trusts, L. R. 13 Eq. 163 (1871).
On Effect of a Residuary Appointment upon the Subject-Matter of a
Lapsed Appointment. — See In re Harrie's Trusts, H. R. V. Johns. 199 (1859),
where out of a fund slightly exceeding £5,000 the donee appointed £1,000 to
each of four daughters, and the residue to five sons equally, the sons took
any amount which lapsed by the death of a daughter in the life time of the
donee.
In Eales v. Drake. L, R. 1 Ch. D. 217, Jessel, M. R., said: "The case is
this. A testator, having power to appoint £7,000 by will, thinks he has power
to appoint £10,000 ; and accordingly makes a will appointing sums of £1,995,
£4.000, £4,000, and £5. If nothing more had happened it is quite clear that
all these gifts must have abated, because there is not enough to pay the be-
quests in full. But one of the appointees has died, which augments the
fund, exactly in the same way as if the testator had given pecuniary leg-
acies of greater amount than his whole personal estatei and then one of
these legatees had died. In that case the personal estate would have been
augmented for the benefit of the other legatees, and the appointees here are
in the same position."
Ch. 5) APPOINTED PROPERTY AS ASSETS 357
CHAPTER V
APPOINTED PROPERTY AS ASSETS
CLAPP V. INGRAHAM.
(Supreme Judicial Court of Massachusetts, 1879. 126 Mass. 200.)
Bill in equity, filed April 21, 1876, by the executor of the will of
Caroline A. Ingraham, against the children of the testatrix, and
her creditors, for instructions, alleging that on Januar}^ 1, 1828, the
IMassachusetts Hospital Life Insurance Company received from Jos-
eph Head, trustee of Caroline A. Ingraham, wife of Daniel G. Ingra-
ham, the sum of $3000, and executed to him an instrument in writ-
ing, whereby they promised and agreed with him, his executors and
adfninistrators, to invest the same, and to pay the income thereof quar-
terly to Mrs. Ingraham, "during the natural life of the said Caroline,
upon her separate order and receipt, to~Be date'd'^on or subsequent to
the several days on which the said several payments shall fall due ;
for her separate use, free from the debts, control or interference of
any husband she now has, or may hereafter have ; which annuity
and principal sum are both hereby declared to be inalienable by the
respective grantees thereof;" and further agreed with the said trus-
tee, his executors and administrators, "that, in sixty days after proof
of the decease of the said Caroline, they will assign, transfer and
pay the amount of the aforesaid principal sum (or such part thereof
as shall not have been lost by bad debts or otherwise, without the
actual fault of said company or their serv-ants), and all interest then
due thereon at the time of her death, in real estate, stocks, notes, bonds
and mortgages, belonging to said company, all, any or either of them,
at the pleasure and discretion of the directors, at the prices at which
the same respectively shall stand charged in the books of the com-
pany a t the dece ase of said Caroline, in the way and manner pro-
vided in said extract from said article, to her executors or admin-
istrators in trust, and for the special use and benefit of such persQii
or"^efsons as the said Caroline by her last will and testament, or any
revocable appointment in nature thereof, may direct; and if no such
willand appointment be made, then to such person or persons as may
be her heirs at lavy."
The bill further alleged, that Caroline A. Ingraham died on lan-
uary 20, 1876, leaving a will, dated October 16, 1871, which was duly
admitted to probate, appointing the plaintiff her executor, and con-
taining the following clause: "Indirect my said executor to receive
from the Massachusetts Hospital Life Insurance Company the sum
358 POWERS (Part 3
of three thousand dollars and all interest and accumulations thereon, or
the^'real estate, stocks, notes, bonds, and mortgages in lieu of said sum
with interest and accumulations, which by the terms of a contract in
writing between said company and Joseph Head, trustee, executed
the first day of January, one thousand eight hundred and twenty-
eight, the said company agrees to assign, transfer and pay to my ex-
ecutors or administrators in sixty days after proof of my decease ;
and out of the money or other property received from said company,
I direct my said executor to have and keep, for his own use and bene-
fit, the sum of four hundred dollars ; and t o assign, transfer and pay
over all the remainder of the money, or other property received from
sai3~company, after deducting said sum for his own use and benefit,
to my children and the issue of any deceased child or children by right
of representation in equal shares."
The bill further alleged, that the plaintiff had received from said
company the sum of $3000, and that, after dihgent search and in-
quiry, no other property of the testatrix had come to his possession or
knowledge ; that the testatrix left two children surviving her, who
contended that they were entitled to receive the whole of the sum
remaining in the plaintiff's hands after deducting the sum of $400;
that the testatrix left debts to a large amount, and that the creditors
contended that said sum was liable, in the plaintiff's hands, as exec-
utor, for the payment of such debts.
The children of the testatrix and certain of the creditors filed an-
swers, admitting the allegations of the bill, and setting up their respec-
tive claims ; and the case was heard by ]\Iorton, J., upon the bill and
answers, and reserved for the consideration of the full court.
Gray, C. J. It was settled in the English Court of Chancery, before
the middle of the last century, that w here a person has a general
power of appointment, either by deed or by will, and 'execute5_this
power, the property appointed is deemed in equity part of his assets,
and"suTDject to the demands of his creditors in preference to the claims
of his voluntary appointees or legatees. The rule perhaps had its
origin in a decree of Lord Somers, affirmed by the House of Lords,
in a case in which the person executing the power had in effect re^
served the power to himself in granting away the estate. Thompson
V. Towne^ Prec. Ch. 52; s. c. 2 Vern. 319. But Lord Hardwicke re-
peatedly applied it to cases of the execution of a geiieral power of ap-
pointment by will of property of which the donee had never had ^n y
ownership" or control during his life; and, while recognizing the log-
ical difficulty that the power, when executed, took effect as an ap-
pointment, not of the testator's own assets, but of the estate of the
doner of the power, said that the previous cases before Lord Talbot
and himself (of which very meagre and imperfect reports have come
down to us) had established the doctrine, that when there was a gen-
eral power of appointment, which it was absolutely in the donee's
Ch. 5) APrOINTED PROPERTY AS ASSETS 359
pleasure to execute or not, he might do it for any purpose whatever,
and might appoint the money to be paid to his executors if he pleased,
and, if he executed it voluntarily and without consideration, for the
benefit of third persons, the money should be considered part of his
assets, and his creditors should have the benefit of it. Townshend v.
Windham, 2 Ves. Sen. 1, 9, 10; Ex parte Caswell, 1 Atk. 559. 560;
Bainton v. Ward, 7 Ves. 503, note ; s. c. cited 2 Ves. Sen. 2, and Belt's
Supplt. 243; 2 Atk. 172; Pack v. Bathurst. 3 Atk. 269. The doc-
trine has been upheld to the full extent in England ever since. Chance
on Powers, c. 15, § 2; 2 Sugden on Powers (7th Ed.) 27; Fleming
v. Buchanan, 3 De G., M. & G. 976.^
Although the soundness of the reasons on which the doctrine rests
has been impugned iJy Chief "Justice Gibson, arguendo, and doubte-d
by~Mr. Justice Story in his Commentaries,- the doctrine is stated both
by Judge Story and by Chancellor Kent as well ^ settled ; and it has
been ahirmed by the liigliest court of New' Hampshire, in a very able
judgment, delivered by Chief Justice Parker, and applied to a case
in which a testator devised property in trust to pay such part of the
income as the trustees should think proper to his son for life, and,
after the son's death, to make over the principal, with any accumulated
income, to such persons as the son should by will direct. Common-
wealth V. Duffield, 12 Pa. 277, 279-281 ; Story, Eq. Jur. § 176, and
note; 4 Kent, Com. 339, 340; Johnson v. Gushing, 15 N. H. 298, 41
Am. Dec. 694.
A doctrine so just and equitable in its operation, clearly established
by tKe laws of England before uur Revolution, and supported by such
a weight of authority, cannot be set aside by a court of chancery, be-
cause of doubts of the technical soundness of the reasons on which it
was*^originally established. It is true that, as the rights of the cred-
itors could only be enforced in a court of chancery, they were rem-
ediless so long as no adequate equity jurisdiction existed in this Com-
monwealth. Prescott V. Tarbell, 1 Mass. 204. But such a considera-
tion affects the remedy only, and not the right, and affords no reason
for denying the right now that this court, sitting in equity, has been
,1 Accord: Edie v. Babiii^on, .3 Tr. Ch. 5GS.
The property appointed by will is not assets for the creditors of the de-
ceased until tile property to which the deceased was entitled has been. ex-
hausted. "T*t^mtirsrTr*nphnTinr!. :', IV (t.. M. &i 0. OTG; Patterson v. Law-
rence, bfli Ga. 703, 70.^. 10 S. i:. :;.".-, 7 I.. U. A. 14:j.
Nor does the aiiiii>iiitnipnt iiinii r a ltciu lal testamentary pqwer_j.bate_witli
l egates payab le <ml i>f tlic cstntc nf tlir testator. "White v. 5Ijiss. Tnsf. of
T^ech., 171 ^fass. .^4, 0(i, .jO X. E. .^l•_^
If no npptiintnient is made, the proptM-ty siili.iccr to tlic ]i(i\vcr is not
asse^!rTiT III.' donee tor his cTprtltors. even where the power is Lrt'iM-ral to ap-
poiiimv'aeen or will. TToInies v. Couhill, 7 Ves. 40!); lli V.s. I'rx;. iM | ; (Oilman
V. i^Whrtlff m. 144, 140; .Tones v. Clifton, 101 U. S. 2L'5, L'.". L. Kd. '.mis; Ryan
V. Mahan, 20 R. I. 417, 39 Atl. 893,
- See, also, Humphrey v. Cami)l)ell. 59 S. C. 39. 45, 37 S. E. 20 ; ^YaIes*
Adm'r v. Bowdish's Ex'r, 01 Vt. 23, 33, 17 Atl. 1000, 4 L. R. A. 819.
3G0 POWERS (Part 3
vested by the Legislature with ample powers to maintain and protect
it. Gen. Sts. c. 113, § 2; Rogers v. Ward, 8 Allen, 387, 390, 85 Am.
Dec. 710.
By the instrument of trust in the case before us, an annuity was
payable quarterly to Mrs. Ingraham during her life, and the principal
after her death to her executor or administrator in trust and for the
special use and benefit of such persons as she by her last will, or by
any revocable appointment in the nature thereof, might direct, and if
no such will or appointment should be made, then to her heirs at
law. The only restrictions expressed are, that the annuity during her
life is to her separate use, free from debts or control of her husband,
and each instalment tliereof is to be paid upon her order when or
after it has fallen due, so that she would have no right to assign it by
way of anticipation, Perkins v. Hays, 3 Gray, 405 ; and that the an-
nuity and the principal are both declared to be "inalienable by the
respective grantees thereof," — which clearly has no application to the
general power of appointment, conferred upon her by the express
terms of the trust, to dispose of the principal, after her death, by
will or testamentary instrument in the nature thereof ; and, she hav-
ing exercised the dominion so granted to her, the property is thus
brought within the equitable doctrine which makes it subject to her
debts.
We are aware that it has been held by Vice Chancellor Kindersley,
and by Lord Romilly, M. R., that the doctrine does not extend to the
case of the execution of a general power by a married woman, without
fraud. Vaughn v. Vanderstegen, 2 Drew. 165, 363 ; ^ Blatchford
V. WooUey, 2 Dr. & Sm. 204; Hobday v. Peters, 28 Beav. 354; Shat-
tock V. Shattock, L. R. 2 Eq. 182; s. c. 35 Beav. 489. We need not
consider whether those cases were well decided, or are applicable 'in
this Commonwealth, where, by statute, every married woman has
long been liable to be sued, and her property taken on execution, upon
contracts made by her for her own benefit, and, since 1874, upon all
her contracts with any person but her husband. Gen. Sts. c. 108, §§ 1,
3; St. 1874, c. 184; Willard v. Eastham, 15 Gray, 328, 334, 77 Am.
Dec. 366 ; Major v. Holmes, 124 Mass. 108. It is quite clear that, even
in England, all restrictions on her capacity and liability would terminate
with her coverture. Tullett v. Armstrong, 1 Beav. 1, 32, and 4 Myl. &
Cr. 377, 395 et seq. And in the present case it does not appear, and
has not been contended, that Mrs. Ingraham continued to be a mar-
ried woman at the time of contracting the debts in question, or of exer-
cising the power.
In Nichols V. Eaton, 91 U. S. 716, 23 L. Ed. 254, and in Durant
v. Massachusetts Hospital Life Ins. Co., 2 Low. 575, Fed. Cas. No.
4,188, the settlement differed from that before us in expressly provid-
ing that the property should not be subject to the debts of the cestui
3 Contra, Godfrey v. Harben, 13 Cli. Div. 21G, 221.
Ch. 5) APPOINTED PROPERTY AS ASSETS 3G1
que trust, and in giving no general power of appointment ; and there
is nothing in the decision or opinion, in either of those cases, that is
adverse to the claims of creditors in the case at bar.
Decree for the creditors.
BEYFUS V. LAWLEY.
(House of Lords. L. R. [190:^] App. Gas. 411.)
The Hon. F. C. Lawley under the will of Lady A\^enlock had a gen-
e ral pow er_tg_appoint by will £10,000 w-hich in default of appointixient
was to go as part of her residuary estate. By a mortgage of April
7, 1892, to secure a loan of ilOOO and interest he covenanted that he
would immediately after the execution thereof sign his will of even
date already prepared, whereby in exercise of the general power under
Lady Wenlock's will he appointed that the trustees of her will should
stand possessed of the £10,000 and the investments representing it, upon
trust to~pay"tb the mortgagee thereout, in preference and priority to all
other payments, the £1000 and interest, and that he would not revoke
or alter his will without the consent of the mortgagee. The same day
he executed his will containing the above provisions and stating that it
was his wish that the loan should be a first charge on the £10,000. On
his death in 1901 the £1000 with interest was still due. The question
then arose in an administration action whether the executors of the de-
ceased mortgagee were entitled to priority as to the trust fund over
other creditors of I\Ir. Lawley. Joyce, J., held that they had not pri-
ority, and this decision was affirmed by the Court of Appeal (Vaughan
Wifliams, Stirling, and Cozens-Hardy, L. ]].). [1902] 2 Ch. 799.
The mortgagee's executors appealed.
Earl of Halsbury, L. C. I\Iy Lords, your Lordships have listened
to a very protracted argument in this case, and the only answer I have
to give to that argument is that whatever'merits it might have had half
a century ago, it is too late now. The language which was used by
Knight Bruce, L. J., in Fleming v. Buchanan, 3 D. M. & G. 976, 980,"'
is in accordance with the opinions delivered by each of the tliree learned
Lords Justices of Appeal, and beyond some abstract reasoning which,
as it appears to me, would get rid of the rule altogether, I have seen
no reason to think that the judgment of the Court of Appeal is wrong.
I content myself with saying tliat in view of that language of Knight
4 This language is as follows : "On whatever grounds it was originally
so held, it is and has for a long time been the settled law of the country,
that if a man having a power, and a power only, over personal estate to
appoint it as he will, exercises the power by a testamentary appointment, the
property becomes subject in a certain order and manner to the payment of
his debts, whatever may be the intention or absence of intention upon his
part. Not only in point of principle and reason, but of precedent and au-
thority, I apprehend that the same rule applies to real estate where it is
subject to a general power exercised by will."
362 POWERS (Part 3
Bruce, L. J., which has not been challenged for half a century, this ap-
peal against the decision of the Court of Appeal is hopelessly unargu-
able, and therefore I invite your Lordships to dismiss the appeal with
costs.
Lord Macnaghten. My Lords, I agree. I am of opinion that tlie
passage from the judgment of Knight Bruce, L. J., in Fleming v.
Buchanan, 3 D. M. & G. 976, 980, which has been so often quoted in
this case, is an accurate statement of the law on the subject, and that
it does not require any qualification as Vaughan Williams L. J. seems
to suggest. Whatever the origin of the rule may have been, it is in my
opinion much too late to question it now or to attempt to cut it down.
Lord LindlEy. My Lords, I am of the same opinion. The doctrine
that an appointee under a power derives title from the instrument con-
ferring the power and not from the appointment is well established ;
but a qualification or exception has been long grafted upon it and is
equally well established. For it cannot now be denied that property
appointed by will under a general power is assets for payment of the
debts of the appointor, and is not regarded as property of the donor of
the power distributable by the donee thereof.
The property appointed is in such a case treated as assets of the
testator exercising the power, and the assets so appointed are regard-
ed as property bequeathed by him.^ When I say assets I do not mean
5 In O'Qxa-dy v. ^Yilulot, L.JR. [1916] A. C. 2;]1, tlie donee had a general
testamentary power and exerci>?ed it. The property, su'EjecrTo the' power,
was not, howe\ er, neoded for the payment of debts. If the property sub-
ject to the power passed to the donee's "executors as siich," the death ditty
was to be paid by the donee's residuary legatee out of the general assets
belonging to the donee. If, on the other hand, the property subject to the
power did not so pass, the death duty was payable out of the property ap-
pointed. Held: The appointed property did not pass to the donee's "ex-
ecutor as such:" Lord Buclrrtram-er, L. C, said (p;'24S): " Property subject
to a' general power of appointment exercised by deed or will could be made
available for payment of the testator's debts by proceedings instituted in
chancery. It was considered contrary to good faith to permit a power to
he exercised in favour of volunteers so as to defeat the creditors of the
donee of the power. The court therefore intercepted the fund — to use the
language of Lord Hardwicke, 'stopped it in transitu" — and either by regard-
ing the appointee as trustee for the creditors, or by virtue of saying that
in the circumstances the creditors had an equity against the fund, caused
it to be applied for payment of the debts; but the fund was not any part
of the estate of the donee of the power, nor was it anywhere decided that
it passed to the executor."
Lord Sumner said (p. 270): "* * * How and in what sense does the
subject of a general testamentary power pass to an executor on the ef-
fectual exercise of the power? The rule first appears in the seventeenth
century. It takes shape in the middle of the eighteenth. In Lord Town-
shend v. "Windham [2 Yes. Sen. 1, 11] Lord Hardwicke says that the Courts
'stop in transitu, as it is called,' and he ai)pears to have accepted in Trough-
ton V. Troughton [li Atk. (;.'>(>] the expi-ession 'the Court ought to intercept
it for the l)enefit of a creditor.' The rule arose out of tenderness for credi-
tors. 'It would be a strange thing if volunteers * * * should run away
with the whole, and that creditors for a valuable consideration should sit
down by the loss without any relief in this court.' I?ainton v. Ward [2 Atk.
172], afterwards affirmed in the House of Lords. See Lassells v. Lord Corn-
Ch. 5) APPOINTED PROPERTY AS ASSETS 363
general assets, but assets nevertheless applicable to the payment of the
appointor's debts after all bis" 6\vh' property has been exbausteH^.'"
Again, personal property appointed by will under a general power
although not a legacy for all purposes is treated as personal estate be-
queathed by him.
It is settled that, except by making a creditor an executor, a person
disposing of his own property by will cannot by his will prefer one
wallis [2 Tern. 4(55]. Since the rijiht to exercise a power is not property.
e<iuity, regardless of the facts, assumed that a man in debt, who miglit have
used the power to pay his debts, couhl not really mean to exercise it so as
to benefit a volunteer and leave his debts unpaid. Fundamentally this has
nothing to do with executorship, for, provided a court of equity sees that
the creditors are paid out of the subject of the jiower, if need be, the ex-
ecutor's position is at most ministerial. He may be no more than a neces-
sary party. The theory of the executor's position has been developed in
various ways since Lord Hardwicke's time, but the theories are so discordant
that, with all humility, I think them confusing. The rule now is that tne
trustees of the fund are bound to pay it over to the executor whether the
appointor's estate is indebted or not, and by doing so they discharge them-
selves (Hayes v. Oatley [L. R. 14 Eq. 1] ; In re Hoskiu's Trusts [5 Ch. D.
2-2Q; 6 Ch. D. 281]). This is said (In re Hadley, f(1909) 1 Ch. 20. 30J) to
be by reason of the probate and liecause the payee is executor. By exer-
cising the power the testator has been thought to make the sulilect of the
power his own and part of his assets ; hence the executor is entitled. Hav-
ing received the fund, the executor is, no doubt, accountable, and this con-
sideration apparently led to the opinion, expressed in Hadley's Case [(11)09)
1 Ch. 20, 30]. that a fund of personalty appointed by will under a general
power must be classed as legal assets. The authorities do not seem to have
been cited on that occasion, and the point is one which has long been of
diminishing importance. In the proper sense of the words I do not think
that this opinion can be regarded as correct. I cannot find that evidence
of receipt of such a fund has ever been admitte<l where, in an action at law
by a creditor, an executor has pleaded plene administravit. and issue has
been joined thereon, or that an executor has ever been allowed to exercise liis
right of retainer against it. The rule is a rule of equity and applies to realty
as well as to personalty, while an executor holds a common law office and at
common law did not take the realty of his testator. Mr. Joshua Williams
thought that the fund vested in the executor, which is inconsistent with
the decision in Drake v. Attorney-General [10 CI. & F. 257]. Again it was
contended (per Wilde, S.-G., arguendo) in Piatt v. Routh [G M. & W. 75(5 1
that e(|uity by implication makes the donee of the power a trustee for his
creditors, if he exercises the power at all. This suggestion seems to have
gone no further. Leach, A'.-C. in Jenuey v. Andicws L<j Madd. 264], said
that the apiiointee was trustee for the creditors. What in the report of that
case seems to have been only a dictum is converted by Roniilly, M. R., into
a decision in Williams v. Lomas [16 Beav. 1]. Nevertheless it is the execu-
tor who gets the money and pays the creditors. The appointee does not :
he takes what the executor has left, and keeps it. The now appellant's
argument is. following the view which Kekewich. J. (In re Treasure [(1!K)0)
2 Ch. 64S]), took of In re Philbrick's Settlement [34 L. J. (Ch.) 36n1, as
extended by the language of James, L. J., in In re Hoskins Tru.sts [c'ch.
D. 2S1, 283], that the executor becomes a trustee of the fund for the creditors^
but, as Buckley, J., points out (In re :\loore [(1901) 1 Ch. 691, 695|), he
only becomes trustee, in the sense of trustee of the fund for the appointees,
subject to "another duty which the trustee of the fund had not, namely, the
duty before he hands anything to the appointees to take the whole fund,
or as nmch as is necessary to satisfy the debts of his testator.' In truth]
as nobody appointed the executor a trustee, as the original tru.stees of the
settlement remain su(h till they have got rid of the money by jiaying it to
him, and as the whole intention of the appointor was toaiipoiut so as to
364 POWERS (Part 3
creditor to another or make a gift by will payable before a debt. ^
covenant to bequeath property by will does not alter the character of
the^ property bequeathed in accordance with the covenant. What is so
bequeathed is still a gift by will and not a preferential debt. The at-
tempt to confine the rule to volunteers cannot, I think, now be sup-
ported when speaking of powers to appoint by will.®
The order of the Court of Appeals affirmed and appeal dismissed
with costs.
pass his creditors by, I tliink this theory is only an attempt to state the
worlving rule of administration in terms of a particular and inapplicable
category of equity. On the other hand the executor has been said to be an
appointee of the fund himself. Here, too, I think the same observation may
be made. His relation to the appointed fund has become defined in a series
of cases, sometimes casually and sometimes anomalously. He is the proper
person to receive it ; he ought to apply it, so far as may be necessary, in
due order of administration, and in a court of equity is accountable and com-
pellable to do so. Clearly he is entitled to possession of it and is bound
to administer it in the course of his executorship. I think that is really
all. Be the theory what it may, surely this relation to the appointed fund
cannot be correctly described as a passing to the executor as such. It ne ver
became bona testatoris in any real sense ; before the will spoke the testaTor
was dead, and till the will spoke there was no appointment. The distinc-
tion between a will as a testamentary disposition of property naming an
executor as the legal personal representative of the deceased, on the one
hand, and a will as a prescTibed mode of exercising a power with an ex-
ecutor named therein only to effectuate the appointment, on the other, is il-
lustrated by Tugman v. Hopkins [4 Man. & G. 389] ; and see In re Tom-
linson [(18S1) 6 P. D. 209]. What makes him executor, entitled to what had
belonged to the testator in his lifetime, is the testamentary disposition,
which appoints him. What makes him recijoient of the appointed fund and
administrator of it is the control which courts of equity have exercised over .
funds which did not belong to the testator in his lifetime, and to which the
will gives the executor no title at all. I think that Lord Hai'dwicke's lan-
guage, that equity intercepts the fund or stops it in transitu, is much the
clearest guide, and sufficiently explains what is a rule rather than a prin-
ciple. There is high authority for this view. 'In favour of creditors,' says
Ix)rd Thurlow (Harrington v. Harte [1 Cox, lol]). 'this court would arrest
the fund in transitu.' 'A rule of equity,' says Lord Abiuger, 'subjects a
fund so appointed to the debts of the appointor.' Piatt v. Routh [6 M. & W.
756, 7S9]. It is 'considered as part of the estate of the testator at the time
of his death.' Lord Townshend v. Windham [2 Yes. Sen. 1, 11]. It is
'considered as assets, if wanted.' Grant, M. R., In Daubeney v. Cockburn
[1 ]\Ier. 626, 639]. And 'the court will for creditors lay hold of the money
when it is appointed for a volunteer.' Holmes v. Coghill [7 Ves. 499. .508].
'Such property is not the personal or real estate of the testator,' 'Sp;yiier,
L. J.; it is resorted to in aid of 'the testator's estate in a moi'c accurate
sense of the word,' Knight Bruce, L. J. (both in Fleming v. Buchanan 13
D. M. & G. 970, 979, 9S1]). It is 'treated as personal estate bequeathed by
the testator.' Lord Lindley in Beyfus v. Lawley [(1903) A. C. 411, 413]. By
thus 'considering' and 'treating' it as what, 'in a more accurate sense,' it is
not, the executor is made the recipient of the fund. It is only by the will
that property passes to the*executor as such."
Tjord Parmoor dissented.
See, also. Commonwealth v. Duffield, 12 Pa. 277 (1849).
6 Patterson v. Lawrence, 83 Ga. 703, 10 S. E. 355, 7 L. R. A. 143, semble,
that the execution of a testamentary power to validate a title attempted to
be conveyed inter vivos is an execution for value, and hence the appointed
property was not assets for creditors.
Ch. 6) DEFECTIVE EXECUTION 365
CHAPTER VI
DEFECTIVE EXECUTION
SMITH V. ASHTON.
(Court of Chancery, 1675. 1 Ch. Cas. 263.)
J. S., seised of lands in two counties, conveyed part to the use of
himself for life, with remainder, and power to charge the lands so con-
veyed, with £500 by deed or wilHn writing under his hand and seal.
This conveyance was voluntary, and without valuable consideration,
and after bvj iis la st will in writ ing, not s e_al£d, devised the £500 to his^
y ounger ch ildren, in whose right the bill is exliibited against his son
and~heir to have the £500.
Against which the counsel for the defendant insisted, that the law
was against the plaintiff; and both parties claiming under a voluntar}'
settlement, and the same consideration, (viz.) natural affection, there-
fore he that hath the law on his side ought not to be charged to the
younger children.
The Lord Keeper took time to deliberate, and now de creed the
£500 though the will was not under seal, and the _power not legally^
pursued. He cited Prince and Chandler's Case, decreed by the Lord
Egerton, where there was a power to make leases on a covenant to
stand seised to uses, on consideration of natural affection, and the
lease was for provision for younger children.
Decreed good against the heir, for two reasons, 1st, for that the
law was not then adjudged in jMildmay's Case. 2d. Because the son
did claim by the same conveyance by which the power was limited.
So 17 June, 8 Car, the jointure of the Countess of Oxford decreed
good, where the power was not pursued; yet only part of her jointure
depended on the question.
For he that reserveth such a power under circumstances, they are
but cautions that another might not be imposed, or made without hint.
The substantial part is to do the thing, and therefore where it is clear
and indubitable, the neglect of the circumstances shall not avoid the
act in equity; possibly when from home or sick he remembered not
the circumstance of his power; and the powers of this kind have a
favorable construction in law, and not resembled to conditions, which
are strictly expounded ; for a power of this kind may be executed
by part, and extinct in part, and stand for the rest; but a purchaser
shall defend himself in such case, but with difference, though not exe-
366 POWERS (Part 3
cuted according to the circumstances ; for if he hath notice (quaere if
he meant of the original conveyance only, or of the ill executed es-
taFe) he purchaseth at his own peril. ^
TOLLET V. TOLLET.
(Court of Chancery, 1728. 2 P. Wms. 489.)
The husband by virtue of a settlement made upon him by an ances-
tor, was tenant for life, with remainder to his first. Sec. son in tail
male, with a power to the husband to make a jointure on his wdfe by
deed under his hand and seal.
The husband having a wife, for whom he had made no provision,
and being in the Isle of Man, by his last vyill under his hand and
seal, devised part of his lands within his power to_hiswife for her life.
Object. This conveyance being by a will, is not warranted by
the power which directs that it sho uld be by deed , and a will is a vol-
untary conveyance,~an3~therefore not to be aided in a court of equity.
Master of the; Rolls [Sir Joseiti Jekyll]. This is a provision
for a wife w ho had n one before , and within the same reason as a pro-
vision for a child not before provided for; and as a court of equity
1 Sugden on Powers (8th Ed.) , said:
"Thus, then, the jurisdiction stands, and we may inquire what amounts
to such a consideration as will enable equity to interpose its aid in favor of
a d efective 'execution of a powe r. "^ ~
"ine aid ot equity tnen will be afforded to a purchaser wh i ch fpnn v n-
cludes^jUPaortgagee imLL_aJl£saee. And even where an estate was, by a mis-
take in law, sold under a power by a stranger, the rule was supported, in
consequence of acquiescence and acts by the cestuis que trast.
"And to a credit or.
'The like aid will be afforded to a wife , and to a leg i timate child ; for
wives and children are in some degree considered as creditors by nature ;
and although to constitute a valuable consideration for a settlement on a
wife or child, it must be made before marriage, yet the marriage and blood
are meritorious consider ations, and claim the aid of a court of equity in
support ot a defective execution of a power in their favour, although the
power was executed after the marriage. * * *
"The like equity is extended to a charity. Lord Northington laid it down
that the uniform rule of the court before, at. and after the statute of lOliza-
beth, was, where the uses are chai'itable and the person has in himself full
power to convey, to aid a defective conveyance to such uses.
"But it has been decided that a de fective exec u tion of a power by a wife
c annot be ai de d in favour of her husband ; nor can a disposition by^ji jiar-
rie d woiBainir~conjun ctioh \vlfh her Tiusband, without the solemnit ies re-
qi iTi-ed by the pow er, although the trustees of the fund act upon it, he sup-
ported" on tne ground of the intention and the power to do the act ; for the
ceremonies in such a case are introduced for the express purpose of pro-
tecting the wife against the husband, and are matters of substance and
not of form.
"Nor is the equity extended to a natur al chiUl.
"Nor, as it has at length been deternnnen, to a grandchild.
"Neither will it extend to a f ather or motheTUxui brptfi ^ or siste r even
of the whole blood, much less o f the haTT b lood, uoL to jij oeiShew, or cOtrslfi ".
"And u foiliori, it cannot be afforded to a mere volunteer."
Ch. 6) DEFECTIVE EXECUTION 367
would, had this been the case of a copyhold devised, have supplied the
want of a surrender, so where there is a defective execution of the
power, be it either for payment of debts or provision for a wife, or
children unprovided for, I shall equally supply any defect of this
nature : the di fference betwixt a non-execution an d a defec tiv e execu -
tion of a power; the la tter wilFa lways be ai ded in equity under the
circumstances mentioned, it being the duty of every man to pay his
debts, and a husband or father to provide for his wife or child. But
this court w ill not help t he non-exec u tion of a power, since it is
against the nature of a power, which is left to the free will and elec-
tion of the party whether to execute or not, for which reason equity
will not say he shall execute it, or do that for him which he does not
think fit to do himself.
And in this case, the legal estate being in trustees, they were de-
creed to convey an estate to the widow for life in the lands devised to
her by her husband's will.^
2 Accord: Sneed v. Sneed, Auibl. G4 (1747).
In Cooper v. Martin, 3 Ch. 47. 58, Sir .John Rolt, L. J., said: "Now, was
it not a material part of the testators intention, as declared in this case,
tliat the power shonld be exercised, as he has said by deed or sealed instru-
ment in writing, and not by will? In tlie same will, in creating a power over
otlier subjects, the £70,000 and the Regent's Park gi'ound rents, the testator
has said tliat it might be exercised by deed or instrument in writing (omit-
ting here tlie word "sealed") or by will ; {>nd again, if there should be no
children, the general iwwer given to the widow over the same properties was
to be exercised by will only. Why these distinctions? It could not have
been accidental, the proviso also that the power should be exercised before
the youngest child attained twenty-five pointing in the same direction. On
the whole of the will, it appears to me plain that the distinction was adopted
because the testator thought it material that the power over the Pain's Hill
estate, and over the residue, should not be exercised either by will or by an
unsealed instrument."
In Reid v. Shergold, 10 Ves. Jr. 370, the devisee having a life estate in
copyhold with the power of appointment by will sold and surrendered the
estate to a purchaser and then died without appointing. Lord Eldon deter-
mined that equity could give no aid to the purchaser as on a defective ap-
pointment. He said: "The testator did not mean, that she should so ex-
ecute her power. He intended, that she should give by will, or not at all ;
and it is imi)ossible to hold, that the execution of an instrument, or deivl,
which, if it availed to any purpose, must avail to the destruction of that
power the testator meant to remain capable of execution to the moment of
her death, can be considered in equity an attempt in or towards the ex-
ecution of the power. That therefore will not do."
368 POWERS (Part 3
SERGESON V. SEALEY.
(Court of Chancery, 1742. 2 Atk. 412.)
William Pitt,^ the son of Samuel Pitt, married Mrs. Speke, and by
the marriage articles it was covenanted that if th ere s hould be one son
only, and no younger childre n, and the wife should survive the hus-
bandT^at s he sho uld have the power of disposing of £4000 by deed
o r will execu ted in t hejresenc£ of three wifnp9':;ps tn^anj pprc;nn she
sh ould app oint,_and this sum was to be a charge upon the real es-
tate of the husband.
Mr. William Pitt died, leaving only one son, Samuel Pitt the young-
er, who lived to be only nineteen, and dying before he came of age,
his real estate descended upon Mr. Sergeson, the plaintiff's wife, who
is great-niece of Samuel the elder, and heir-at-law to him, and to
William Pitt his son, and to the infant Samuel the younger, the grand-
son of Samuel the elder.
After the death of Mr. William Pitt, Mr. Speke marries the wid-
ow; but before her second marriage, she, by ^rticles e xecuted in the
prpgpnre nf two witnp5;sp'; nn1y_t__ajpprQt<; the cnm of £2000 OUt of
the £4000 to be jor th e use and ben efit o f her intended husband, dur-
ing the coverture^ and after her d eath to her son _Samuel Fitt.
"Th e othe r_£2000 jh e makes a^Yolmitary -disposition of by will, but
did no^t^xecute it injh^ jpresence j)fjthree witnesses.
Lord ChancELIvOR [HardwickD]. The question is, whether the
articles entered into upon Mrs. Speke's marriage with Mr. Speke
amount to an appointment within the power?
I am of opinion, that it is a good appointment of £2000 for the
benefit of Mr. Speke ; and notwithstanding it is insisted that it is a
defective appointment, because there are only two witnesses,* yet this
c ourt will supply the defect, w here it is executed fo r a valuable con-
sideration, much more where it i s an executi on of a trust only; and
though the appointment is macciirately expressed, and in an^informal
manner, it shall still amount to a grant of the £2000 to Mr. Speke ; and
if it amounts to a grant, what is the effect? Why, that Mr. Speke
shall have the whole use and benefit of it during the coverture ; and
falls exactly within the reason of Lady Coventry's Case [2 P. Wms.
222] ; where a tenant for life, with a power to make a jointure, cove-
nants, for a valuable consideration, to execute his power, this court
3 Part of tlie case, relating to different points, is omitted.
4 So wliere the power is to appoint by will attested by three witnesses,
and the appointment is by will attested by two witnesses, there is a sub-
stantial execution, and equity will, if the other requirements are fullilled,
aid it. Wilkes v. Holmes, 9 Mod. 4S5 (1752) ; Morse v. Martin, 34 Beav. 500
(1SG5). (Appointment attested by one witness instead of two.)
But by the Wills Act. St. 7 Wm. IV and 1 Vict. c. 20, § 10, no_appoint-
me nt ma de by will in the exercise of ttny p ower is valid^ unless executei3Tn
the^manner requlfed^r the-executtoiiiofa. wTIL ~ "
Ch. 6) DEFECTIVE EXECUTION 369
will supply a defective execution, or a non-execution against the re-
mainder-man.^
The next question is, as to the^ rem aining £2000.
This was n£t__a n appointment | ^or_a v aluable co nsideration, but only
a voluntary disposition, and therefore as the will under which the
£2000 is given was not executed in the presence of three witnesses, it
has not pursued the power, and consequently was a void appointment,
so that this £2000 sunk in the infant's real estate.
BLORE V. SUTTON.
(Court of Chancery, 1817. 3 Mer. 237.)
The Master of the Rolls [Sir William Grant].® This is a
bill for the s£ecific perforrn a nce of an a gree ment to grant a lease .
The ag reement is alleged to have been entered into with the agent of
the late Countes s of Bath, who was tenant for life, wi th a power of
grkntingJgaSlilmJthe ^ manner and on tli eterms specifiedlh the power;
and thequestion is, whether there be ally such agfeEiiieiiL in this case
as is binding upon the remainder-man, the defendant Sir Richard Sut-
ton.
It appears to me that there is no suffi cient agreement in writing;
first, because Charles Noble, who signs his mitials to the memorarr-
dum written on the plan, is ne ither allege d by the bill, nor proved by
the evidence, to have been the authorized agent of Lady Bath ; sec-
ondly, because the memorandum does not contain some of the ma-
terial terms of a building lease, which this was. It merely specifies flie
rent, and~the number of years. It does not even specify the com-
mencement of the lease. By the parol evidence, indeed, it is said, that
it was to be from the expiration of a subsisting lease. But then the
whole agreement is not in writing.
It was insisted, however, that there is a parol agreement, in part
executed ; for the plaintiff has expended large sums in building upon
the premises, partly in Lady Bath's lifetime, but principally since her
death. The agreement, it is said, is therefore binding on the remain-
derman. It is rather difficultto _sav , that there is even a parol agree -
ment bv_^jl ^uthorized agen Lof Lady Bath. For the evidence is, that
N\^i)le, by the direction and with the privity of Mr. Cockerell, who
was Lady Bath's agent, did make a verbal agreement with the plain-
tiff. This seems rather a delegation of Cockerell's authority, than the
5 So in the following cases a covenant to appoint in the exercise of a power
to appoint inter vivos was enforced in equity as a defective appointment:
Clifford V. Clifford. 2 Tern. 379 (17001 : Fothergill v. Fothergill, 1 E<i. Cas.
Ab. 222, pi. 9 (1702) ; Jackson v. Jackson, 4 B. C. C. 462 (1793) ; Shannon
v. Bradstreet, 1 Sch. & L. 52 (1803). (Covenant to exercise a power to lease.)
6 The opinion onlj' is here given.
4 Kales Pbop. — ^24
370 POWERS (Part 3
personal exercise of it. He does not appear to have had any commu-
nication with the plaintiff. He does not say, I ratify the terms agreed
upon by Noble, but, I authorize Noble to make the agreement. Sup-
posing, however, that, by the effect of Cockerell's direction to Noble,
this can be construed to be the parol agreement of Cockerell himself,
and that, subsequently to such agreement, and on the faith of it, an
expenditure has been made by the plaintiff, there is no authority for
holding that the remainder-man is bound by such an agreement.
It is considered as a fraud in a party permitting an expenditure on
the faith of his parol agreement, to attempt to take advantage of its
not being in writing. But of what fraud is a remainder-man guil ty,
who has entered into no agreement, written or parol, and has don e no
actToritlie faith of \vhi ch" the' otherjj arty £Ould have reljsdj The
only wayTn which he could be affected with fraud, would be by show-
ing, that an expenditure had been permitted by him, with a knowledge
that the party had only a parol agreement from the tenant for life.
Without that knowledge, there is nothing in the mere circumstance of
expenditure. For the prima facie presumption is, that he who is
making it has a valid lease under the power, or at least a binding
agreement for a lease. That the remainder-man in this case, or those
acting on his behalf, had any such knowledge, is neither alleged, nor
proved. The reason, therefore, fails, on which the case of a parol
agreement, in part performed, is taken out of the Statute of Frauds.
On the strict co nstruction of t he power, the remain der-man wotdd
only be bound by^sTniea^se executed conformabl y tcT jt But Lord
Redesclale has, I think, in the case ot Shahnoh v. Bradstreet, 1 Sch.
& Lef. 52, given satisfactory reasons, why a clear, explicrt^ written
agreement ought, in equity, to be held equivalentjt o a lease^ and as
bin^dihg on "fhe remainder-man as a formal lease conceived in the
same terms would have been. But, to go farther, and say, that a man
shall be bound, not by his own parol agreement, but by the uncom-
municated and unknown parol agreement of another person, would
be to break in upon the Statute of Frauds, without the existence of
any of the pretexts on which it has been already too much infringed.
On the supposition that the plaintiff cannot obtain specific per-
formance, he pravs_tliat he may be ^eimliLirs ed for his e^q^gmlilure
o ut of Lady Bath's asse ts. This would be, as against her represent-
atives, a decree merely for damages, and not a compensation for the
benefit her estate has received. It is the estate of the remaindeiMTian
tha t is benefite d by the houses bunFTijoonlrr The competency of a
court of equity to'givetfamages'for the noh^performance of an agree-
ment, has, notwithstanding the case of Denton v. Stewart, 1 Cox, 258,
been questioned by very high authorities. In that case, however, the
party was guilty of a fraud, in voluntarily disabling himself to per-
form his agreement, and had an immediate benefit from the breach of
it. But La dy Bath never refused to perform the agreement. On the^
contrary, the plaintiff aTIegel, "that, if she had lived, she would have
Ch. G) DEFECTIVE EXECUTION 371
granted hi m a l ease. Then the case is only that he himself has been
soTniprovident as not to get from Lady Bath that which, he says, she
would have given him ; namely, a lease that would have been binding
on the remainder-man. That, surely, is not a case in which a court of
equity will exercise a doubtful jurisdiction, by awarding damages for
a loss, which, if it shall ever be sustained, will have been occasioned,
more by the plaintiff's negligence, than by Lady Bath's fault. I say,
if it shall be ever sustained ; for it does not appear that the plaintiff
has been yet evicted ; and I cannot believe that Sir Ric hard^SuLlun,
wH en abfeT oJtidge and act for Hmiserf , will t hink of taking the ben e-
fit of the plamtiffVlmprovements^wit hout makmg him a compensa-
tionl^r'them. ButJBe that as Tt may, 1 should not be warranted in
strainmg general princii)les in order to obviate the hardship of a par-
ticular case.
The bill must be dismissed, but without costs. '^
SAYER V. SAYER.
INNES V. SAYER.
(Court of Chancery, 1848. 7 Hare, 377.)
The testatrix. Judith Junes, was, at the date of her will, entitled,
imder three different instruments, to the dividends on several sums of
stock for her life, with general powers of appointment as to part of
the funds under two of the instruments. 1. Under a settlement made
in February. 1800, on the marriage of herself and Thomas Innes, her
deceased husband, she was entitled for her life to £1826 8s. lid., £3
per cent. Consols, standing in the names of the trustees of that settle-
ment, with a power of appointment of £1000, like stock, part thereof,
by her last will and testament, in writing, or any writing purporting
to be her last will and testament, to be by her signed, sealed, and pub-
lished, i nthe pres enc e of and atteste d by two or more witnesses, and,
in default of appointment, in trust for her next ofnkm living at the
tirne of her decease. 2. The testatrix was entitled for her life to a
sum of £559 4s. 9d., New £31/2 per Cents., produced by property ac-
quired after her marriage, standing in the names of the trustees of an
indenture of August, 1823, limited in remainder to the sisters of the
testatrix and their issue. 3. And, under the will of her deceased hus-
band, Thomas Innes, dated in February, 1824, the several sums of
£10,000, £3 per cent. Consols; £5000, New £3V2 per Cents.; £300,
Long Annuities; and £1500 14s. 5d., £3 per cent. Reduced Annuities,
constituting his residuary personal estate, stood in the names of the
executors and executrix of such will, of whom the testatrix was one,
to the dividends of which sums she was entitled for her life, with re-
7 Cf, Morgan v. Miluian, 3 De G. M. & G. 24 (1853).
ka t-frit^ -ts^ t^---^ — >
372 POWERS (Part 3
mainder as to a third part of the same sums unto such person or
persons, at such time or times, and in such parts, shares, and propor-
tions, manner and form, as she, by any deed or deeds, writing or writ-
ings, to be by her duly executed, according to law, or by her last will
and testament in writing, or any writing purporting to be or in the
nature of her last will and testament, or codicil, to be by her signed
and p ublished in the p resen ce o f, and attested by two or more wit-
nesses, should give, bequeath, direct, limit, or appointThe same ; and,
in'default of such gift or appointment, the testator, Thomas Innes,
bequeathed the same to his brother, Alexander Innes, and his children,
as therein mentioned.
The testatrix had also, at the date of her will, iSOO, New iSYo per
Cents., standing in her own name, to which she was absolutely enti-
tled, and which, by the additions she subsequently made, was aug-
mented at the time of her death to £12,909 19s., like stock.
The testatrix, by her will, dated in January, 1833, unattested__and
not referring to the powerT^ave to the treasurer for the time being of
the S ailors' Ho me "ilOOO, in the £3 per cent. Consols ;" to the treas-
urer of the Strangers' Friend Society "ilOOO, in the £3 per cent.
Consols ;" to the British and Foreign Bibj^e Society £500, in the £3
per cent. Consols, aiiH^e like sum to the Church Missionary Sodety,
to be paid within six months after her decease; and to Harriet Ker
I nnes £500, in the £3 per cent. Consols, free of legacy duty, to be paid
within such six months. The testatrix then proceeded : "The re-
mainder in the £3 per Cents., and three separate sums in the New
£314 per Cents., with £100 a year. Long Annuities, and any other
property I may die possessed of, of what nature or kind soever, I
leave to my brothers," upon the trusts thereinafter named. The tes-
tatrix made eighLotherjinjittested_testjL^^^ giving lega-
cies or revoking legacies previously inserted, the last of which papers
was dated the 1st of September, 1836. A t the foot o f thee ighth tes-
tamentary paper, the testatrix had writ ten, "Th is will h as not been
witn essecCas rn rtendTTf I am spare^^ to write JtOLit^fainll The tes-
tatrix made no appointment in exercise of her powers, unless such
testamentary papers could be so considered.
The testatrix died in June, 1844, and the will and other testamen-
tary papers or codicils were admitted to probate. There was no issue
of the testatrix and her husband.
The suit of Sayer v. Sayer was instituted for the administration of
the estate of the testatrix ; and in that suit the treasurers of the sev-
eral charities claimed to be allowed their several legacies as general
legacies payable out of the personal estate. The master allowed their
respective claims. The report was excepted to by the residuary lega-
tees under the will of the testatrix.
The principal question argued was whether the gifts of Consols, in
the will of 1833, were to be treated as a disposition or an intended
disposition of that species of stock over which the testatrix had pow-
Ch. G) DEFECTIVE EXECUTION 373
ers of appointment under her marriage settlement and the will of her
husband.
[The opinion of Sir James Wigram, V. C, on this question is
omitted.]
The suit Innes v. Sayer was instituted by one of the four children
of Alexander Innes, who were the residuary legatees under the will
of the testator Thomas Innes, against his surviving executor, (the
other children and residuary legatees being defendants,) praying that
the plaintiff's fourth share of the third part of the four sums "of stock
might, as on default of appointment by the testatrix Judith Innes, be
transferred to the plaintiff. After the judgment had been given on the
exceptions in Sayer v. Sayer, the treasurers of the several charities
were made parties to the suit Innes v. Sayer, by amendment, as ad-
verse claimants on the third part of the £10,000, £3 per cent. Consols
one of such four sums. At the hearing,
Vice-Chancullor [Sir James Wigram]. The E c clesia stical Court
has decided, that, notwiths tand ing the clause at the foot of the codicil
orTS3i5, the will is a complete testamentary paper in this sense, that
the testatn3c~niea ns iiFt o operate" TFthe testatrnT meant tlie wilT of
1833 to operate, I have only to take the paper and inquire into its
construction. The question of construction was the point I had to
consider in the case of Sayer v. Sayer. I thought the language did
necessarily refer to the property the subject of the power; and, re-
ferring to that property and intending the paper to operate as her
will, (which I now assume to be the case,) I must conclude that the
testatrix has declared her intention to execute the power. The only-
point, then, which has to be considered, is, what the effect of the will
is to be.
It is on ly;jnjdi&-case-ai-th£_leogj:ies to the cha rit^ies that the claim
which I have now to consi der c an be made; and it appears fo meytliat
the only ^lesfionls, whether the authorities ought to bind me. I
must attend to the decisions to ascertain whether they cover a given
point, and when I have done so, and find that there are decisions in
analogous cases, and that there are also dicta of learned judges point-
ing to the same conclusion, consider whether I ought, by any decision
of mine, to shake that which is considered to have been the settled
law, if not before the Statute of Elizabeth, certainly ever since. It
cannot be denied that there are express decisions of the highest au-
thority, that the court will supply the want of a surrender of a copy-
hold in favor of a charity. The supplying the surrender of a copy-
hold, and the supplying the execution of a power which is defective
in form, go hand in hand. It appears to me, that wherever you find
a decision that the court will supply the surrender, it follows (unless
this case be an exception) that the court will also supply the defective
execution of a power. Such a case is, by analogy at least, a strong
authority for the proposition contended for.
With regard to a tenancy in tail, the distinction is palpable. No
374 POWERS (Part 3
doubt the tenant in tail has the whole interest. It is not the case of a
mere execution of a power. At the same time, if he does not acquire
the dominion of the estate in the form which the law requires, it goes
to the issue in tail as a quasi purchaser. The issue take, not under the
immediate ancestor, but under the author of the estate tail. Yet,
even in this case, we find that, although the court will not perfect any
intention which the testator may have manifested to bar the estate
tail in favor of his creditor, wife, or child, that object not having been
efifected, the court will give effect to the intended disposition of the
estate in favor of a charity — carrying it therefore in the case of a
charity, for some reason or other, beyond the case of the creditor,
wife, or child. The existence of such a class of cases certainly fur-
nishes a second ground for following what has hitherto been consid-
ered the rule of the court.
The third ground is the dicta which unquestionably are to be found
in favor of the proposition, that a charity is entitled, notwithstanding
the power is not well exercised. The case of Piggot v. Penrice, Pre.
in Ch. 471, with the note, Id. 473, appears to be an authority for the
proposition in question. As the case is reported in Comyns, page 250,
it would appear to be a direct authority on the point. At all events, I
cannot disregard it as a decision, unless those who ask me to do so can
show me that the case is materially distinguishable from the present
case.
So much of analogy and dicta being found, I may refer to the opin-
ion of text writers ; and when text writers of great experience treat
it as a settled principle of law, that the court will supply the execu-
tion, — so much, as I have said, being found to justify their opinion, —
that is also a reason why I ought not to take upon myself to unsettle
what hitherto has been considered the rule of the court.
The principle upon which the court appears to go is this, that, if a
person has power by his own act to give property, and has by some
paper or instrument clearly shown that he intended to give it, al-
though that paper, by reason of some informality, is ineffectual for
the purpose, yet the party having the power of doing it by an effectual
instrument, and having shown his intention to do it, the court will, in
the case of a charity, by its decree make the instrument effectual to
do that which was intended to be done. It is not for me to give any
opinion, whether the principle is right or not. There appears' to be
very high authority for the application of the principle, independently
of the Statute of Elizabeth ; and it has been applied since the Statute.
I think, therefore, I ought not to entertain any question upon the
point. If the point is to be hereafter considered and treated differ-
ently, it ought to be ruled by a higher authority than the judge who
presides in this court.
There is another question, with reference to the different sums of
Consols, which I must consider. It is, no doubt, the intention of the
testatrix that the persons who would take in default of appointment
Ch. G) DEFECTIVE EXECUTION 375
under her husband's will, should not take the residue of the stock.
It is clear she meant to intrench on the £1000 stock under the settle-
ment ; for by her will she disposes of more than the third of the
Consols to which the power under her husband's will extends. There
is nothing upon the will to intimate that she intended the fund to
come out of one of those sums of stock, rather than the other. I
must take the will as saying, "There are two sums of Consols over
which I have a power of appointment : with respect to that stock, I
give so much to the charity, and the residue to certain persons nam-
ed." Those persons cannot take under that appointment, although
the charity can. I do not see my way to marshalling the claims on the
different funds. If I attempted to do so, I might to some extent be
giving effect to the appointment in favor of those persons who are
excluded by the circumstance of its informality.
The case was afterwards spoken to on minutes. The £1000 Con-
sols, standing in the names of the trustees of the settlement of Feb-
ruary, 1800, not being a subject of this suit, it was suggested that the
charities should in this suit take no more than an apportioned part of
their legacies out of the Consols which formed part of the residuary
estate of Thomas Innes to be administered in this suit.^
JOHNSON V. TOUCHET.
(Court of Chancery, 1S67. 37 Law J. Ch. [N. S.] 25.)
Bill ^ against John Hastings Touchet, Richard Burgass, and Mary
Dennis, the trustees and executors of the will of James Dennis, pray-
ing a declaration that a covenant in the marriage settlement of the
plaintiff with Ann Dennis ought, in equity, to be deemed a sufficient
execution of a power given to her by the will of James Dennis.
James Dennis, who died in 1855, devised and bequeathed the residue
of his real and personal estate to the defendants upon trust, as to one
8 The minute of decree was: "Declare that the testatrix intended by her
unattested will, dated the 1.3th of January, 18.33, to execute the general
power of apijointmeut given or reserved to her by the will of her late hus-
band Thomas Innes, deceased, over one-third part of his residuary estate ;
and that t he defective gxec ution of the said ix>we r, by reason of the non-
attestation of the will of~tbe said testatrix, ou ght to be supplied in favor
o f the four charitab le institutions therein mentioned . Dn-ections for trans-
fer of the stock, and payment of the accrued dividends to the several treas-
urers accordingly. Such transfer and payment to be without prejudice to the
right (if any) of the plaintiff and the other residuary legatees of Thomas
Innes to enforce contribution in respect of the said sums, .stocks, and cash,
against the £1000. £3 per cent. Consols, standing in the names of the trus-
tees of the settlement of February, ISOO, on which the testatrix had a gen-
eral power of appointment."
The judgment of the Vice-Chancellor was affirmed. Innes v. Sayer, 3 Mac.
& G. 606, 620-622 (1S51) ; and was followed in Pepper's Will, 1 Pars. Eq. 436
(1850).
» The following statement is substituted for that iu the rei)ort.
376 POWERS (Part 3
undivided fifth part thereof, "i gr s uch perso n and p ersons, for such
estate or estates, interest and interests, intents and purposes, and al-
together in such manner and form" as Ann Dennis, after she should
"attaiiithe age of twenty-five years an3~notjbefofe^shgul(l by de^ or.
deeds from time to time and at any time appoint, and in default of such
appointment to pay the income to Ann Dennis during her life, and
after her decease "for such person or persons, for such estate or es-
tates, interest or interests, intents and purposes, and altogether in such
manner and form" as Ann De nnis after she sh ould "attain the age of
twent y-five years and noT'hef ore^' should, by her last will, appoint;
andTmdefault of such appointment for her children, who beTng males
should attain twenty- one, or being females should attain that age or
marry.
In 1859, by an indenture between the plaintiff, Ann Dennis, and the
defendant, John Hastings Touchet, and one James Dennis, after a re-
cital that Ann Dennis was then about twenty-three years old, that a
marriage was contemplated between her and the plaintiff, and that upon
the treaty for the marriage it was agreed that Ann Dennis should en-
ter into the covenant therein contained, it was witnessed that in pur-
suance of said agreement, and in consideration of said contemplated
marriage, Ann Dennis and the plaintiff covenanted with said Touchet
and James Dennis that in case the marriage should take effect and
Ann Dennis should attain the age of twenty-five, she wo uld appoint the
property ovejiyvhich she should, on attaining twenty-five, have a power
of appointment to said ToucTiet and James Dennis, "in trust to pay the
income To~Ann DentiTs d^uring her life, and orrtrer death to the plain-
tiff, and on the death of the survivor, to hold the principal for such
one or more of her children, as she should appoint, and in default of
such appointment for her children who being sons should attain twen-
ty-one, or being daughters should attain twenty-one or marry, with
gifts over.
After the making of this indenture the marriage between the plain-
tiff and Ann Dennis took effect. Ann John son attained the age o f
t wenty-five in 1861. S he died in 1864, leaving a husband and _t wo
chil dren, and not havin g e xercis ed the power_o|_appoijTtment.
Stuart, V. C. The principles on which cases of this description
depend are well settled. A covenant to exercise a power, if it has any
operation at all, has it from the time of the execution of the covenant.
If the covenant be one in favor of the children, or of persons who ac-
quire rights recognized by the court, such as purchasers under a mar-
riage settlement, it becomes particularly the object of the court's at-
tention. The main argument against the alleged ope ration o f the cov-
enant in the presentTase \vas7tliat there was an express provision in
t he creation oT^ie power that i t should n ot be exercised unt il the do nee
of iL^shouH^^^HayF aUalne^lhe age of twenty- five years. It appears,
however, that the donee, at the age of twenty2three_years, executed
Ch. 6) DEFECTIVE EXECUTION 377
the covenant wh^ich is now asked to be declar ed a valid exercise of the
powen The object of the donor of the power, in providing that the
donee should not exercise it until twenty-five years of age, is fully at-
tained by the circumstance that, from the nature of the covenant itself,
it could have had no operation if the donee had died before attaining
the age of twenty-five years. There cannot, I think, be a doubt, where
there is a covenant of this kind, that, if the donee, having executed the
covenant, survives the prescribed age, but refuses to perform the cove-
nant by executing a formal appointment, this court will compel him
to do so. Had that been the case here, it would have been one of a
person called upon to perform a covenant entered into for a valuable
consideration, contemplating the execution of an appointment at a fu-
ture time. The effect of such a covenant is to bind the property by
an equitable execution of the power. I abide by all that is stated in
the report of my judgment in the case of Affleck v. Affleck.^" The
decision arrived at in that case was founded on the accurate statement
of the principles laid down by Lord Redesdale in Shannon v. Brad-
street, 1 Sch. & Lef. 52. There, Lord Redesdale, in speaking of pow-
ers to jointure, said : "It has been determined that a covenant is a suf-
ficient declaration of intent to execute, even when made before the
power arose, as where a power is limited to be exercised by a tenant
for life in possession, and he covenants that when he conies into pos-
session he will execute. In all these cases courts of equity have re-
lieved." There, as in other cases, the covenant was made before the
strict right to execute the power had, according to the terms of it,
arisen; but it was decided that that was no substantial reason why
the court should refuse to treat the covenant as a sufficient execution
of the power. The other argument put forward in the present case
to induce the court to treat this covenant as an invalid execution was,
that the children, who are the objects of the original power as well
as of the marriage settlement, will, if the covenant in it is not held to
be an execution of the power, take immediately, under the limitation
in the will, in default of appointment. But then the question still re-
mains the same. If the covenant is a valid execution of the power, it
cuts off the limitation in default of appointment. The case of the chil-
dren might have been better if the covenant had not been executed ;
but as it is, they do not suffer much. Then, again, there is the interest
of the husband to be considered. He is clearly entitled, under the mar-
riage settlement, to the benefit of the covenant. Its execution formed
part of the consideration for the marriage contract; and the court is
bound to regard that. T here mu st, therefore, be a declaration that the
10 3 Sm. & G. 394 (1S57). In this case A. on his marriage covenanted that
if he came into possession he would exercise a power of jointuring wliich
could be exercised only by tenant for life in possession. Before coming in-
to possession G. became lunatic. Stuart, V. C, held, that the covenant was
a defective execution of the power, and should be enforced after G. came
into possession against the remainderman.
378 POWERS (Part S
covenant binds the_p roperty. The costs of all parties as between so-
licTtoFand client, must be paid out of the share of the trust property
to which the suit relates. ^^
11 In Coo per v. Martin , L. R. 3 Ch. 47, the widow was given a power to
appo int rrr-Ueetl or instrument sea led and deiiverea oerore the yonniiest
<-hiTd attai iiedThe age of twen ty-th-e. I K'ld._ [haFTier\viTI executed LefoT-e
the'younge'st child attained twenty-five, by Jajdng effect by^ ' her deat h, after
tbTrrjTeriocr. was not an^ppomlmentl aii J Ivlis noF such a defective execu-
tio n-fts^vvrmM-ije Relieved jyjMMtJiieq Cairns, L. J., said: "The
power giveiFto the Widow was to be exercised by her before the youngest
son attained twenty-five. The reason for this appears obvious on the face
of the will. The residuary personal estate was to be distributed at the time,
and although the life estate of the widow in Pain's Hill might as to it post-
pone the sale and distribution to a later periotl it was clearly in the highest
degree desirable that at the period when the residuary estate should become
divisible the children of the testator should know definitely what were their
vested and transmissible rights in all his property. The time within which
an appcintnient was to be made by the widow was therefore, in my opinion,
not a matter of form, but of the substance and essence of the power."
Ch. 7) WHAT WORDS EXERCISE A POWER 879
CHAPTER VII
WHAT WORDS EXERCISE A POWER
SIR EDWARD CLERK'S CASE.
(Court of Queen's Bench, 1599. G Coke, 17b.)
See ante, p. 36, for a report of the case.
STANDEN V. STANDEN.
(Court of Cbancery, 1795. 2 Yes. .Jr. 5^0.)
Charles Millar by his will gave the sum of £200 to trustees upon trust
to place "Cliarles Millar Standen and Caroline Elizabeth Standen, legit-
imate son and daughter of Charles Standen now residing with a com-
pany of players," apprentices, as the trustees should think fit. The
testator then directed his real estate to be sold; and gave the money
arising from the sale and the residue of his personal estate in trust for
his wife for life ; and after her decease as to one moiety for such per-
son or persons as she should by any deed or writing or by will with
two or more witnesses appoint, and for want of appointment, for "all
the legitimate children of Charles Standen living at his decease, share
and share aUke;" and if but one, then for that one; "and if it should
happen, that there should be no legitimate child of Charles Standen
living at his decease," then for William Seward, one of the trustees, his
executors and administrators. The testator gave the other moiety in
trust for "Charles Millar Standen and Caroline Elizabeth Standen,
legitimate son and daughter of Charles Standen," equally between them,
share and share alike ; with survivorship between them in case of the
death of either before the age of twenty-one or marriage; and if it
should happen, that both of them should die before the age of twenty-
one or marriage, then he gave it in trust for "such legitimate children
of Charles Standen" as should be living at the decease of the survivor
of those two, share and share alike; if but one, for that one; and if
there should be no such child living at the decease of the survivor, or
all should die before the age of twenty-one or marriage, then for Wil-
liam Seward, his executors and administrators ; and he appointed his
trustees with his wife to be his executors.
The real estate was not sold. The testator's widow received the rents
and profits and the produce of the personal estate for her life ; and by
380 POWERS (Part 3
her will, after disposing of some specific articles and a gold watch
and some jewels, which she described to have been her husband's she
gave the residue thus : "All the rest, residue and remainder of my es-
tate and effects of what nature or kind soever and whether real or
personal, and all my plate, china, linen and other utensils, which I shall
be possessed of interested in or entitled to at the time of my decease,
subject to and after payment of all m.y just debts, funeral expenses
and charges of proving my will and specific legacies, I give to my
worthy friend Samuel Howard for his own use and benefit ; and I do
appoint him my executor."
This will was attested by three witnesses. The testatrix had no other
real estate than that directed by her husband's will to be sold. Charles
Standen in 1755 married Anne Lewis. The defendant Charles Standen,
the only issue of that marriage, was born in 1758. There was an objec-
tion to the validity of the marriage ; and the parties after cohabitation
for six or seven years separated under articles of agreement; and Anne
Lewis went by her maiden name. In 1769 Charles Standen the father
married Anne Gooch; who lived with him as his wife till her death.
Charles Millar Standen, Caroline Elizabeth Standen, and others, chil-
dren by the second marriage, were the plaintiffs.
Under a reference to the master, Charles Standen the defendant was
reported the only legitimate child. Afterwards an issue was directed;
and the verdict was in his favor. Lord Thurlow being much dissatis-
fied with the verdict directed another trial ; in which there was also a
verdict for the defendant Charles Standen. Upon the equity reserved
the questions were, first, whether the plaintiffs Charles Millar Standen
and Caroline Elizabeth Standen were entitled to the interests under the
will of Charles Millar given to them by name, but under the wrong
description of legitimate children ; secondly, whether the residuary
clause in the will of Mrs. Millar was a good execution of her power of
appointment under the will of her husband ; if not, thirdly, whether
the plaintiffs were entitled to share with the defendant Charles Standen
under the trust, for want of appointment of that moiety, for all the
legitimate children of Charles Standen. Evidence of conversations
with the person, who drew Mrs. Millar's will, to show she had no other
real estate than that directed by her husband's will to be sold, was
rejected.
June 9. Lord Chancellor [Loughborough]. As to Charles
Millar Standen and Caroline Elizabeth Standen the question is not very
great; for a wrong description certainly will not take away their leg-
acies. The argument is a strong one, that if he meant those two as
legitimate children, he must mean all subsequent children of the same
marriage to be legitimate ; and yet I do not know how to bring them
in as legitimate children when they are not so.
June 10. Lord Chancellor. The point as to legitimacy does not
arise; for after the best consideration I am clearly of opinion, that the
Ch. 7) WHAT WORDS EXERCISE A POWER 381
disposition made by Mrs. Millar affects that interest given to her by
the will of her husband; and therefore no part of the estate belongs
to the defendant Charles Standen. I have looked into the two cases
cited against this construction ; and those determinations are perfectly
right.
In Andrews v. Emmot the will upon the view of it could not give
to any person an idea, that the testator had the least relation to any
interest he took, limited as that interest was, by the settlement upon
his marriage. By that settlement a sum of £3000 stock was conveyed
to trustees in trust for the husband for life ; and after his decease, if
his wife should survive him, to pay £500 to her for her own use and
the interest of the residue to her for life; and after the decease of both
to distribute such residue among the children of the marriage ; and if
there should be no child, to transfer the same as the husband should
by deed or will appoint. Three months after the marriage the husband
made his will ; and at that time it was not natural to suppose, his ob-
ject was to dispose of that interest; for he had no disposable interest
in the property; he had a mere contingency in default of issue, that
would give him a right to appoint. The will was a plain will, giving
after the death of his wife some legacies, and the residue in general
terms to Emmot. He lived three years afterwards; and at his death
there was no issue. The claim was set up to £2500 part of the £3000
as passing under that will ; and it was set up solely upon this ground,
(for there were no words at all relating to it) that he had left such
legacies, as could not otherwise be paid than by taking in this fund.
The argument was perfectly weak : first, he was not to be in receipt of
that sum till after the death of his wife and in the event of there being
no children ; therefore it was not to be relied upon for payment of the
legacies ; but independent of that the amount of the legacies could not
be an indication of the state of his personal property. An inquiry as
to the amount of his propert>' at the time of making the will was re-
fused very properly both by Lord Kenyon and Lord Thurlow ; for it is
too vague to calculate, that a man must be supposed to attach a con-
tingent interest, not fairly to be deemed a property, merely because his
calculation as to what he might die possessed of had eventually failed.
Then put that out of the case : it would be harsh enough as against a
wife to suppose him to execute this power, where prima facie no inten-
tion to execute is indicated.
The case in the Common Pleas is still more distinct. The money
was not at all the property of the testatrix. It was to be paid not to
her executor, but to such person as she should appoint. It was claimed
by the same person, executor and residuary legatee. Nothing can go
as part of the residue, that would not go to the executor ; and clearly
there the executor was not entitled ; it was made payable to her ap-
pointee purposely to exclude the executor. How does this case stand?
It is material to consider, what the interest was, that she took under
382 POAVERS (Part 3
her husband's will, and what has she done. She was entitled for life
to the income of all the residue of his real and personal estate ; and a
moiety was given to her absolute disposal by any deed or writing or by
her will attested by two witnesses. She was not limited as to objects;
and as to the mode it was as ample a latitude, as any one could have.
It is a little hard to attempt to explain, that it was not her estate. How
could she have had it more than by the eiijoyment during life and the
power of disposing to whatever person and in whatever manner she
pleased with the small addition of two witnesses. By her will she gives
all her estate and effects. It is hard to say, that using that expression
she meant to distinguish, and not to include, this ; which is as absolutely
hers as any other part of her property. But the person, who drew
the will, goes on with augmentative phrases "of what nature or kind
soever, and whether real or personal :" these words do not add much to
the force of it : "which I shall be possessed of interested in or entitled
to." It is admitted there would be no doubt, if she had said, "of which
I have power to dispose." Those last words would not add much after
what she said before. But take it according to the strict technical rule
in Sir Edward Clere's Case, that a general disposition will not dispose
of what the party has only a power to dispose of, unless it is necessary
to satisfy the words of the disposition. Mrs. Millar had no other real
estate. I am bound to satisfy all these words upon the technical rule.
I can satisfy them no other way. I cannot avoid supposing what every
one must be convinced she meant, that she made no difference between
what she had from her husband and her other property. Therefore
there is no difficulty as to this moiety ; and the other belongs to Charles
Millar Standen and Caroline Elizabeth Standen.^
JONES V. TUCKER.
(Court of Chancery, 1817. 2 Mer. 533.)
Mary Mones, by her will, gave and devised all her freehold and copy-
hold estates to the use of the defendant Tucker, his heirs and assigns,
upon trust to permit Elizabeth Smith, widow, to receive the rents, &c.
for her life, for her own use and benefit ; and, after her death, upon
trust to sell and dispose of the same, and out of the produce thereof
(among other things) to pay, and the testatrix thereby bequeathed,
ilOO, "to such person or persons as the said Elizabeth Smith should
by her last will appoint;" and, subject to the payment thereof, and of
certain other sums thereby given, the testatrix gave and devised the
said estates to the defendant, his heirs and assigns, and appointed him
sole executor.
1 The decree was affirmed in the House of Lords, 6 Bro. P. C. (Tonil. ed.)
193.
Ch. 7) WHAT WORDS EXERCISE A POWER 383
Elizabeth Smith survived the testatrix Mary Mones, and made her
will as follows : "I will and bequeath to Mrs. Mary Jones (the plain-
tiff) the sum of ilOO, likewise the whole of my household furniture,
plate, and linen, &c. Whatever remains to me for rent from Mr.
Tucker, is to discharge my rent and funeral. I likewise appoint the
aforesaid Mary Jones to be my sole executor. And if the said Mary
Jones should decease, her husband Mr. Richard Jones to execute in-
stead."
Elizabeth Smith died on the 7th of March, 1814, and the plaintiff
Mary Jones proved the will.
The bill, charging that Elizabeth Smith, at the time of her death, was
not possessed of, or entitled to any personal estate whatever, except
a few articles of household furniture, which were shortly afterwards
sold by the plaintiffs for £13, and the produce applied in payment of
her funeral expenses ; and that she had often, before she made her will,
expressed and declared it to be her intention to give to the plaintiff
Mary Jones the sum of ilOO, over which the power of appointment was
given her by the will of Mary Mones ; and that, in making her will, she
particularly instructed the person who prepared it, that the said sum
of £100, so charged on the freehold and copyhold estates, should be
thereby disposed of and given to the plaintiff ; prayed that the defend-
ant might be decreed to pay the same accordingly ; or that so much
of the three per cents, (wherein the produce of the estates sold had
been invested) as was necessary, should be sold, and the ilOO paid
thereout.
The defendant, by his answer, submitted that the ilOO given by the
will of Elizabeth Smith was not an appointment of the £100 under the
will of Mary Mones, but a general legacy ; and said that, so far from
having made (in the defendant's presence, or to his knowledge) any
such declarations of intention as in the bill stated, Mrs. Smith had,
since the date of her will, expressed a wish to sell the reserved sum of
£100, and had even offered the same for sale accordingly.
No evidence was gone into; and the bill not having put in issue
the fact that Mrs. Smith had no other property but the furniture,
which was sold, at the time of making her will, a motion had been
made before the Lord Chancellor, for liberty to amend, by inserting a
charge to that effect; but which was refused, the cause being already
set down for hearing; and it now came on to be heard upon bill and
answer.
The Master of the Rolls [Sir William Grant]. Although the
property in dispute, in this case, is of little value, the question is of
considerable importance. With reference to the general rule, to which
it is sought to make it an exception, it is, assuming the statement to be
true, perhaps as strong a case as can be brought before the court. If
a person, having no property at all, and only a power over a certain
sum of money, gives that single sum, little doubt can arise as to the in-
384 POWERS (Part 3
tention. But the question is, how we can get at the fact, and whether
there can be an inquiry for the purpose of ascertaining it. In Andrews
V. Emmott, 2 Bro. 297, in the first instance, the court did direct an
inquiry into the state of the property, at the time of the will being made,
as well as at the time of the death. But, when the cause came on for
further directions, the Master of the Rolls seems to have been of opin-
ion, that the quantum of property was not a fit subject for inquiry. I
agree that that was a weaker case than the present. It was not asserted
that the testator there had no personal property, but only that he had not
enough to pay all he had given ; which is but a slight circumstance as
an indication of intention. Here it is alleged, that the testatrix had no
property, except a few articles of household furniture, which she has
specifically bequeathed. Some property, however, she had. She
speaks of rent due to her, as well as household furniture, plate, and
linen. Then, what is to be the quantum of property that shall furnish
the criterion for deciding whether a testator, making a bequest, is or is
not exercising a power? It is not like an inquiry whether there be any-
thing but copyhold to answer a devise of land. The question there is,
whether there was anything for the will to operate upon at the time
when it was made? A will of personalty speaks at the death. The
state of that description of property at the time of the will, does not
furnish the same evidence as to the intention.
In the case of Nannock v. Horton, 7 Ves. 398, the Lord Chancellor,
referring to Andrews v. Emmott, and other cases of that class, takes
it to be settled "that you are not to inquire into the circumstances of
the testator's property at the date of the will, to determine whether he
was executing the power or not."
In my own private opinion, I think the intention was to give the f 100,
which the testatrix had a power to dispose of ; but I do not conceive
that I could judicially declare the power to have been executed, even
if the result of an inquiry should verify the representation that is made
as to the state of her property.
Bill dismissed.^
2 Accord : Webb v. Honnor, 1 Jac. & W. '352 (1820) ; Davies v. Thorns, 3
De G. & Sm. .347 (1849).
Contra: White v. Hicks, 33 N. Y. 383 (1865). And see Munson v. Berdan,
35 N. J. Eq. 376 (1882).
Ch. 7) WHAT WORDS EXERCISE A POWER 385
WALKER V. MACKIE.
(Court of Chancery, 1827. 4 Russ. 76.)
The testatrix in this case had power to appoint by will a certain
leasehold estate, and certain sums of 3 per cent, stock, which were
standing- in the name of the Accountant-General of the Court of Chan-
cery. She was entitled to both for her life ; and the stock had been
transferred to the accountant-general upon a bill filed by her.
The testatrix began her will by giving certain pecuniary legacies,
and then gave "all the rest and residue of her bank stock to her god-
daughter, Mary Ann Wood, with her wearing apparel, goods, and
chattels of every kind whatsoever, and all other property she possessed
at the time of her decease, excepting i50 of her bank stock, which
she gave thereout to her executors." It was proved, that she had no
bank stock, nor any stock whatsoever, except the stock in court, over
which she had a power of appointment.
The question was, whether the will was a good execution of the
power, so as to pass the stock.
The Master of the Rolls [Sir John Leach] was of opinion that
the will was a good execution of the testatrix's power as to the 3 per
cent, stock in court ; that her pecuniary legacies were payable out of
it ; and that the will was also a good execution of her power as to the
leasehold estate ; it being plain that she meant to describe the prop-
erty, over which her power extended, under the words — "all other
property which she possessed," — by excepting out of it £50 of her
bank stock, which she gave to her executors.^
3 Siisd. Pow. (Sth ed.) .'^21: "But it has been since said that Walker v.
Mackie does not appear to be reroncilenltle with other cases, particularly
that of Webb v. Iloniior. ?> IMyl. &: Kee. tl9T. But Webb v. Hounor, it is sub-
mitted, is not an authority against Walker v. Mackie, nor is it entitled to
more weight than the latter case, and the writer is not aware of any other
case not reconrileuLlo with Walker and Mackie. The observatiou alluded to
was made in the case of Huslies v. Turner, in which Sir John Leach at the
Rolls followed the doctrine in Walker v. Mackie, Hughes v. Turner, 3 Myi.
& Kee. ()GG ; but when upon the rehearing in Hughes v. Turner, it was de-
cided that the testatrix was seised in fee of estates in the counties she
mentioned in her will, the main prop of his argument was removed, and
it would have been dillicult to hold that the mere gift of two or three tritliug
articles which were in effect couii)rised in the power, the testatrix's posses-
sion of which was not accounted for without reference to the power, could
give to a general residuary gift and devise the operation of an execution
of tlie power."'
Per Wood, Y. C, In re Davids' Trusts, H. R. V. Johns. 40.5. 499: "The
testatrix describes the subject of the gift as 'my property to be found in the
Three and a Half per Cent. Reduced Bank Annuities now reduced to Three
and a Quarter per Cent., and all other property whatsoever and wheresoever,'
which wou^d. to say the least, be a very fanciful way of describing the prop-
erty of which she might die possessed. At the date of the will the stock
had for many years ceased to bear the old name, and it would be a strange
thing for a testatrix, intending to describe her possible future acquisitions;
4 Kales Prop. — 25
386 POWERS (Part 3
GRANT V. LYMAN.
(Court of Chancery, 1828. 4 Russ. 292.)
The testator, John Veal, made his will, inter alia, in the following
words : "I give and bequeath my present dwelling-house, garden,
premises, and land adjoining, now in the occupation of Mr. Charles
Baker, to Elizabeth, my dearly beloved wife, for her use and benefit
during her life, and with a power of giving and disposing of the said
house and premises after her decease, with the limitation and condi-
tion of her bequeathing the same to any one of my own family she may
think proper. Item, I give and bequeath to my said wife all my
household furniture, plate, linen, books, and other utensils ; and, after
her decease, to any one or more of my own family she may wish or
direct."
Elizabeth Veal, the testator's wife, survived him, and by her will
"gave and bequeathed all her leasehold property, her moneys and
securities for money, goods, furniture, chattels, personal estate and
effects whatsoever, subject to the payment of her just debts, funeral
and testamentary expenses and legacies, to trustees upon trust to con-
vert the same into money, and to stand possessed of the same, for the
only use and benefit of John Grant, when he should attain twenty-one ;
and if he should die before twenty-one, then to the only use and benefit
of the brothers and sisters of the said John Grant who should be living
at the time of his decease, with benefit of survivorship between them."
It was proved in the cause, that the testatrix, at the making of her
will and her death, had no other leasehold property than the dwelling-
house bequeathed to her by her husband. John Grant, the legatee,
was nearly related to the testator John Veal, but was one degree more
remote than his next of kin.
It was not contended that John Grant could claim any part of the
personal chattels of the testator John Veal, which might be in the pos-
session of his widow at her death, under the general description of
"her moneys, &c. ;" but it was insisted, that, inasmuch as the testa-
trix had no other leasehold estate than the dwelling-house specifically
to designate them by a name which had long been obsolete. This alone seems
to show that she was referring to specitic stock, which liad once been linown
as a sum in the Three and a Half per Cents., and was at the date of the
will converted into Three and a Quarter stock. This view is confirmed by
an additional circumstance. The power did not authorize an exclusive gift,
and accordingly we find two gifts of £10 each to the only two other objects
of the power, followed by the gift of all the residue of the stock and all other
property to Charlotte Elizabeth Dixon. The question which I have to decide
is whether, under these circumstances, I must not treat this as a gift of two
sums of £10 out of specific stock, and a specific gift of the residue of such
stock, together witli all other property of the testatrix, to the petitioner.
The distinction is a very nice one; but I am of opinion that I am justified
in holding the terms to be suffit>ient to constitute a specific disposition of an
existing fund."
Ch. 7) WHAT WORDS EXERCISE A POWER 387
described in the testator's will, the bequest of all her leasehold prop-
erty amounted to evidence of her intention to exercise her power in
that respect ; and further, that John Grant, being one of the testator's
family, was capable of taking, although not one of his next of kin.
The Master of the Rolls [Sir John Leach]. It is well settled,
that, if the donee of a power has no freehold estate, except that which
is the subject of the power, the will of the donee, giving freehold
estate, will be so far deemed an execution of the power ; for otherwise
the will, as to that property, would wholly fail. There is no distinc-
tion between freeholds and leaseholds in the nature of the subjects ;
the difference is only in the quantity of interest : and there does not
appear to me to be any solid ground, upon which it is to be maintained
that a gift of leasehold, where the donee of the power has no other
leasehold than the subject of the power, is not equally to manifest an
intention to execute the power, as a gift of freehold under the same
circumstances. A general gift of moneys, securities for moneys, and
other personal chattels, which are in their nature subject to constant
change and fluctuation, stands upon very different principles ; and as
to them, the will must refer to them as the subjects of the power, or
they will not pass.*
[The Master of the Rolls then considered the question whether
appointment of that moiety of the tenements in Surrey, of which she
the gift to John Grant was good, and determined that it was.]
DENN d. NOWELL v. ROAKE.
(House of Lords, 1830. 6 Bing. 475.)
This cause having been removed by a writ of error from the Court
of Common Pleas to the Court of King's Bench, and thence to the
House (pi Lords, the opinion of all the judges was now delivered by
Alexander, C. B. My Lords, — there is no difference of opinion
among the judges in this cause.
The question which they have had to consider in pursuance of your
Lordships' order, is expressed in these words :
Whether, upon the facts stated in the special verdict in this case, the
will of Sarah Trymmer operated as an execution of the power of
was tenant for life, with the power of appointment stated in the special
verdict.
The facts stated in the special verdict, which it is material to recol-
lect, are these: In the year 1749, estates, one moiety of which is
now in question, upon the death of their father. Miles Poole, descend-
ed upon Sarah the wife of Thomas Scott, and Elizabeth the wife of
Henry Roake, who were his daughters and co-heirs, validly settled to
■t But cf. Webb v. Honnor, 1 Jac. & W. 352 (1820).
3SS POWERS (Part 3
the following- uses : one full undivided moiety to the use of Thomas
Scott for life ; the remainder to the use of Sarah Scott his wife for
life ; remainder to the use of such person or persons, and for such es-
tate and estates, as the said Sarah Scott, whether covert or sole, should
bv any deed or writing under her hand and seal, to be sealed and
executed in the presence of three or more credible witnesses, with or
without power of revocation, or by her last will and testament in writ-
ing, or any writing purporting to be her last will and testament, to be
by her subscribed and published in the presence of three or more cred-
ible witnesses, from time to time limit, direct, or appoint; and for
want of appointment, to the use of the children of that marriage;
and in default of issue, this moiety was limited to Elizabeth Roake for
her life, with limitations to her family analogous to those which I have
mentioned respecting Sarah Scott and her family.
The other undivided moiety was limited for the use of Elizabeth
Roake for life, subject to limitations exactly of the same nature and
description with those I have already mentioned as to the preceding
moiety. It is unnecessary to detail them. Sarah Scott survived her
first husband, Thomas Scott, and afterwards intermarried with one
John Trymmer, whom she also survived.
She feecame a widow the second time in 1766. In 1775 she pur-
chased the other undivided moiety from the family of Roake. By
deeds dated in that year, that moiety was conveyed to make a tenant
to praecipe, in order to the sufifering of a common recovery, which
recovery it was declared should inure to the use of Henry Roake for
life, with remainder to Sarah Trymmer, the widow, in fee. Henry
Roake died in 1777, and by his death Sarah Trymmer came into the
possession of that undivided moiety. From this time, therefore, to
the time of her death, she had the absolute and entire interest in that
undivided moiety of the estate which had been originally by the deeds
of 1750 limited to the family of Roake; and as to her own moiety,
her first husband, Thomas Scott, being dead, she was tenant for life
of it, with power of appointment or authority before particularly stat-
ed, and in default of appointment the estates stood limited to the sev-
eral uses I have also before stated.
Such were the rights, interests, and authorities which were vested in
Sarah Trymmer when she made the will to which the question put by
your Lordships refers.
That will is dated on the 6th of June 1783, has all the solemnities
required by the deed of 1750, creating the power, and is, so far as
respects this subject, in the following words : "I hereby give and
devise all my freehold estates in the city of London and county of
Surrey, or elsewhere, to my nephew John Roake, for his life, on condi-
tion that out of the rents thereof, he do from time to time keep such
estates in proper and tenantable repair ; and on the decease of my said
nephew John Roake, I devise all my estates, subject to and chargeable
Ch. 7) WITAT WORDS EXERCISE A POWER 389
with the payment of £30 a year to Ann, the wife of the said John
Roake, for her life, by even quarterly payments to and among his chil-
dren lawfully begotten, equally, at the age of twenty-one, and their
heirs as tenants in common ; but if only one child should live to attain
such age, to him or her, or his or her heirs, at his or her age of twen-
ty-one. And in case my said nephew John Roake, should die without
issue, or such lawful issue should die before twenty-one, then I devise
all the said estates, chargeable with such annuity of £30 a year to the
said Ann Roake for her life in manner aforesaid, to and among my
nephews and nieces Miles, Thomas, John, James, and Sarah Pinfold,
and Susannah Longman, or such of them as shall be then living, and
their heirs and assigns forever.''
My Lords, we are of opinion that this devise is not an execution of
the authority given to Sarah Trymmer by the settlement of 1750.
There are many cases upon this subject, and there is hardly any sub-
ject upon which the principles appear to have been stated with more
uniformity, or acted upon with more constancy. They begin with Sir
Edward Clere's case in the reign of Queen Elizabeth, to be found in
the Sixth Report, and are continued down to the present time ; and I
may venture to say, that in no instance has a power or authority been
considered as executed unless by some reference to the power or au-
thority, or to the property which was the subject of it, or unless iht
provision made by the person intrusted with the power would have
been ineffectual — would have had nothing to operate upon, except it
were considered as an execution of such power or authority.
In this case there is no reference to the power, there is no reference
to the subject of the power, and there is sufficient estate to answer the
devise without calling in the aid of the undivided moiety now in ques-
tion. All the words are satisfied by the undivided moiety of which she
was the owner in fee.
It is said that the present is a question of intention, and so perhaps
it is. But there are many cases of intention, where the rules by which
the intention is to be ascertained are fixed and settled.
It would be extremely dangerous to depart from these rules, in fa-
vor of loose speculation respecting intention in the particular case.
It is, therefore, that the wisest judges have thought proper to adhere
to the rules I have mentioned, in opposition to what they evidently
thought the probable intention in the particular case before them.
I will refer to one only, to Jones v. Tucker, 2 Mer. 533, before Sir
William Grant. In that case a person had power to appoint ilOO by
her will; she bequeathed £100 to the plaintiff, and, it is said, had
nothing but a few articles of furniture of her own to answer the
bequest.
The language, which, according to the reporter. Sir W. Grant used
was this, "In my own private opinion, I think the intention was to
390 POWERS (Part 3
give the ilOO which the testatrix had a power to dispose of, but I do
not conceive that I can judicially declare it to have been executed."
The only circumstance that has been pointed out as furnishing evi-
dence of the testatrix's intending to execute the power in question, is
the condition annexed to the devise to John Roake the devisee for life,
viz., that he should, out of the rents and profits of the devised prem-
ises, keep them in tenantable repair.
I say this is the only circumstance, because it has been fixed by
many cases, that using the words "my estates," although the sub-
ject of the power might have been at one period the property of the
person to exercise it, will not be considered as an execution of the
power.
We are of opinion that the direction respecting the repairs has no
efifect in proving, according to the authorities, that this testatrix
meant to execute her authority over the undivided moiety of this es-
tate.
It appears to us that this would be to contradict that long list of
decisions to which I have referred, and would be to indulge an uncer-
tain speculation in opposition to positive rules.
There is no incongruity in directing a tenant for life of an undivided
moiety to keep his share of the premises in repair. A person with
such an interest is not without remedies for enforcing repairs, and at
the worst the devise would make him liable as against the remainder-
man for dilapidation.
It seems, therefore, to my brothers as well as to myself that the
question which your Lordships have been pleased to put to us should
be answered in the negative, and that the will of Sarah Trymmer did
not operate as an execution of her power.
Judgment of the Court of King's Bench affirmed.^
5 In tlie Common Pleas the defendant had judgment. Doe d. Nowell v.
Roake, 2 Bins;. 497 (lS2o) : but this was reversed in the King's Bench on
writ of error, Denn d. Nowell v. Roake, 5 B. & C. 720 (1S2G). The ease In
the House of L(yds, where the judgment of the King's Bench was affirmed in
accordance with the opinion of the judges, is reported fully, sub. nom. Roake
V. Denn, in 4 f>ligh N. S. 1.
In the following cases a residuary clause of general words of devise were
held not to amount to an execution of the power. Nannock v. Horton, 7 Ves.
Jr. 391, 400; Hollister v. Shaw, 40 Conn. 248; Harvard College v. Balch,
171 111. 275, 2S3, 49 N. E. 543; Md. Mut. Ben. Soc. v. Clcndinen. 44 Md. 429,
431, 22 Am. Rep. 52; Burleigh v. Clough, 52 N. H. 207, 13 Am. Rep. 23;
Meeker v. Breintnall, 38 N. J. Eq. 345; Bingham's Appeal, 64 Pa. 345; Mason
V. Wheeler, 19 R. I. 21, 31 Atl. 420, 01 Am. St. Rep. 734; Bilderback v.
Boyce, 14 S. C. 528.
In In re AVait, 30 Ch. 617, 621, tlie testator having a special jwwer to
appoint by will two estates at B. and S. respectively and also a power to
appoint some shares in the B. Colliery by his will made gifts of "my estate
at B." and of "my estate at S." and another gift of "all my share and intei--
est in the B. H. & W. Colliery Cos." He had no property of his own at
either B. or S., but he had some shares of his own in the B. Colliery. Held,
that the power was exercised not only as regarded the estates at B. and S.,
Ch. 7) WHAT WORDS EXERCISE A TOWER 391
In re MILLS.
(Chancery Division, 1886. L. R. ,34 Ch. Div. ISG.)
Thomas Mills, who died in 1865, by his will dated in 1860, devised
certain real estate to trustees upon trust for his widow for life, and
then for his son William Braithwaite Mills for life, and after his death
for such one or more of his children or other issue born in his life-
time as he, the son, should by deed or will appoint ; and, in default,
upon trust for the son's children equally.
The widow died in 1880.
William Braithwaite Mills, by his will, dated the 13th of November,
1884, after appointinp;- trustees and executors, and giving his furniture
and other household effects to his wife absolutely, proceeded as fol-
lows : "I devise and bequeath all my real and personal estate not
hereby otherwise disposed of unto my trustees upon trust," to sell
and convert and out of the proceeds to pay his funeral and testamenta-
ry expenses, debts and legacies, and to pay the income of a sum of
£7,000, part of such proceeds, to his widow while she remained unmar-
ried, with remainder, as to the capital, in trust for his children by her,
or their issue, as his wife should appoint, and, in default, in trust for
his children by her who being sons should attain twenty-one or daugh-
ters attain that age or marry, in equal shares. And the testator fur-
ther directed his trustees to hold the sum of £3,500 in trust for his
daughter Helena, and the remainder of the residuary trust funds in
trust for his son John Harker Mills, but if he should die before at-
taining twenty-five, then for such child or children of John H. Mills
as should survive him and being sons attain twenty-one or daughters
attain that age or marry, and if no such child then for the testator's
other children in equal shares. Then followed a direction settling the
shares and interests of his daughters, including the £3,500, for their
separate use without power of anticipation, with remainders to their
children as they should appoint, and in default, to such children.
W. B. Mills died on the 9th of January, 1886, leaving surviving
him his widow and four children, namely, his son John Harker Mills
and daughter Helena Mills, both by a former wife, and two daughters
by his present widow. Neither at the date of his will nor at his death
had he any real estate of his own.
but also as to the shares in the B. Colliery. Contra: Lewis v. Lewellyn, 1
T. & It. 104 : Napier v. Napier, 1 Sim. 2S.
Such words in tlie instriinieut of appointment as "tlie residue of my es-
tate belonjiinj; to me at the time of my decease or over wliich I may have
any power of disposition or control," or "1 bequeath all my property over
which I Iiave any disposing jiower," have been lield sullicient to exercise
tlie power. In re Teape's Trust, L. It. IG E(i. 442 ; Thornton v. Thornton,
L. R. 20 E(i. ,599. But the words "all my real and personal estate to which
I may be possessed or entitled or over which I may liave 'any bcneticial
power of disposition' " has been held insuthcient to execute a special power.
Ames V. Cadogan, L. R. 12 Ch. Div. 868.
392 POWERS (Part 3
The question was whether the general devise in W. B. ]Mills' will
operated as an exercise of the special power of appointment given him
by the will of his father, Thomas Mills.
To have this question decided, the trustees of the will of Thomas
Mills took out an originating stmimons against the widow, children,
and trustees of the will of W. B. Mills, for a declaration whether the
latter will did or did not execute to any and what extent the power
given to W. B. Mills by the former will, and who were now beneficially
entitled to the property the subject of the power ; and how the costs of
the application should be provided for.
Kay, J. The short question in this case is whether a special power
of appointing real estate among children or issue is exercised, since
the Wills Act, by a general devise of real estate where the appointor
at the date of his will had no real estate of his own?
[His Lordship then stated the facts and continued:]
There is no reference in the son's will to the power of appointment
or to the property comprised in it ; but at the date of the will, and also
at the time of his death, he had no real estate of his own. He left
children by a former wife, besides children of the wife mentioned in
his will.
It is argued that before the Wills Act, 1 Vict. c. 26, this wovtld have
been an exercise of the power, because at the date of the will he had
no other real estate, and the general devise in the will under the old
law must therefore be treated as if it had been a devise of the particu-
lar real estate which was the subject of the power.
But it is said, on the other hand, that the reason for this was because
otherwise that devise could have no possible operation, whereas, this
will being since the W'ills Act, the testator might have acquired real
estate of his own after the date of the will which would pass by such a
devise.
The case of personal estate under the old law, it is suggested, could
never be precisely analogous, because it could hardly happen that a
testator could at the time of his will be without some personal estate.
However, it is certain that under the old law a general bequest of per-
sonal estate would not operate as the exercise of a power of appoint-
ment of personal property, even where it was clear that at the date of
the will the bequests in it could not be satisfied out of the testator's
own personal estate. Parol evidence of that fact was not admissible.
Jones V. Tucker, 2 Mer. 533 ; Jones v. Curry, 1 Sw. 66.
In Nannock v. Horton, 7 Ves. 391, 399, where the testator had
power to appoint £4,000 stock by will, he, by his will, gave various
sums of stock. Lord Eldon in his judgment contrasts the case of per-
sonal estate thus : "Every gift of land, even a general residuary devise,
is specific. Only that, to which the party is entitled at the time, can
pass. But, as to personal estate, he may give that, which he has not,
and never may have ; and at all events whatever he may happen to
Ch. 7) wnAT WORDS exercise a power 393
have at his death will pass. He might have had stock, before he died;
though he might have had none at the date of the codicil."
It is strange that the question should not have been determined, but
counsel have not cited, nor can I find, any decision precisely in point.
It is purely a question of intention. Did the testator intend to
exercise his power? Bennett v. Aburrow, 8 Ves. 609, 615; Denn v.
Roake, 6 Bing. 475.
The intention of a testator can only be inferred from the words of
his will, and from the circumstances which at the time of executing it
were known to him, and which the court, putting itself in his place,
is bound to regard.
Here, at the date of his will, the testator had no real estate. By his
will he in general words gives "all my real and personal estate."
Power and property are completely distinct ; and if he had at that
time any real estate it is clear the power would not have been exer-
cised. The other principal facts bearing upon the question of his in-
tention are these. The will contains a gift out of the bulk of the pro-
ceeds of his real and personal estate to his wife, who was not an ob-
ject of the power, and a direction out of the same fund to pay funeral
an(} testamentary expenses and debts, which could not be done out of
the property subject to this special power. The provisions for issue
of children are not confined to issue bom in his lifetime, to whom
alone under the terms of the power he could make a valid appoint-
ment. All these are indications which tend to prove that it was not
his intention to exercise this special power. Doe v. Bird, 11 East, 49,
shows that such indications ought to be regarded.
Besides, I must suppose him acquainted with the law which enabled
him by a general devise to pass real estate he might acquire after the
date of his will : in fact most people, I suppose, are now aware of this.
It is the intention at the date of his will which must be considered.
If the power was exercised by this general devise, any real estate
acquired by the testator afterwards would also pass, unless that gen-
eral devise could be read as referring exclusively to the property sub-
ject to the power, which, since the Wills Act, seems impossible.®
<-' In Wooster v. Cooper, 59 N. J. Eq. 204, 224. 45 Atl. 3S1. aso. Gray, Y. C.
says: "It is not so clear, as the learned counsel for the defendant contends,
that a general devi.se of lands by the donee of a power, who owns no lauds
at the date of the will, nuist, in New Jersey, be held to have been made in
view of the power and with an intention to execute it. The theory upon
which the alx)ve-recited cases go, is, that the testatrix must liave contem-
plated the execution of the power, because when she made her will devising
real estate she had no land of her own, and that within the power was the
only land which she had at her disposal, and therefore she intended by
the devise to execute the power. This theory had support as indicative of
the testator's intent at the time of making his will, so long as the state of
the law was such that a devise passed only those lauds (whereof the testa-
tor died seized) which he owned at the time of the making of his will. Smith
v. Curtis, 29 N. J. Law. 352. This condition of the law was, however, chang-
ed by the statute of 1851 (Gen. Stat. p. 37(51, § 24), which declared that
lands whereof the testator died seized, though acquired after the making of
394 POWERS (Part 3
But the cases under the old law show plainly that, if the devise did
operate upon property belonging to the testator, general words such
as these would not exercise a power. The reason for holding that
such words did exercise the power was, that otherwise they could not
have any operation. Under the old law a general devise never both
passed property of the testator and also exercised a power, unless
that was shown to be the intention by some other indication.
The language of Chief Baron Alexander in the House of Lords in
Denn v. Roake, 6 Bing. 478, is this : 'T may venture to say, that in
no instance has a power or authority been considered as executed
unless by some reference to the power or authority, or to the property
which was the subject of it, or unless the provision made by the person
entrusted with the power would have been ineffectual — would have
had nothing to operate upon, except it were considered an execution
of such power or authority.''
Sir William Grant in Bennett v. Aburrow says that the intention
may be collected from other circumstances than an express reference
to the power, "as, that the will includes something the party had not
otherwise than under the power of appointment ; that a part of the
will would be wholly inoperative, unless applied to the power." ,
It is impossible to say that a general devise is wholly inoperative if
it passes real estate acquired afterwards ; and if it might have that
operation when made, it is difificult to treat it as wholly ineffectual
because the testator at the date of his will had no real estate. Cer-
tainly it would at least be potentially operative. You could not say it
"would be wholly inoperative."
A testator well-advised, though he had no real estate at the time
of making his will, and though he desired not to exercise a special
power, might still wish to insert in his will a general devise of real
estate.
Perhaps the case which most nearly touches the point is Matting-
ley's Trusts, 2 J. & H. 426, in which it was'decided that under the new
law a special power to appoint stock among children was not exercised
by appointment of "my money in the funds," although the testator at
a will, should pass by a general devise unless a contrary intention was ex-
pressed. This statute destroys the hypothesis upon which the above-stated
theory depends, for since a general devise will now pass not only the lands
left by the testator, which he owned at the date of his will, but also those
which he acquired after that date, it is no longer true that the will of a
donee of a power having, at the time of making his will, no lands other
than those disposable within the power, would be inoperative unless applied
to the power. The will may now operate at the time of the testator's death
upon lands not within the power, which he acquired after the making of
the will. The testator by his general devise may have intended to devise
such after acquired lands, and as this possibility satisfies all the provisions
of the will, without applying it to the power, it can no longer be main-
tained that a testator, who is the donee of a power, must, ex necessitate,
be held to have intended to execute the power when making a general de-
vise of land."
Ch. 7) WHAT WORDS EXERCISE A POWER 395
the date of the will had no stock of his own ; because, as the Vice-
Chancellor said, if it were held that those words pointed to a specific
fund, it would follow that they would not pass any after-acquired prop-
erty of that description.
That is to say, the words which are read as exercising the power in
the case of personal estate must be such as refer to the property com-
prised in the power exclusively, and would not be operative upon aft-
er-acquired personal estate.
This was precisely the reason why a general devise of real estate
under the old law effected the execution of a power where the testator
had no real estate at the time. The will was read as though it con-
tained a specific devise Of the real estate which was the subject of the
power, and that specific devise of course could not, under any circum-
stances, pass any other estate.
Speaking for myself, I have the strongest objection to anything like
a general rule for discovering intention. To say that, wherever a tes-
tator making a will since the Wills Act has no real esiate at the date
of his will, that testator shall be taken to have intended by a general
devise to exercise a special power over real estate, would to my mind
be so unreasonable as to be irrational. I believe that such a rule
would defeat the intention at least as often as it would effectuate it.
There being no such decision upon a will made since the Wills Act,
the former authorities are not precisely in point ; and I feel emanci-
pated from any restriction they might put upon my judgment.
The far better and safer rule, in my opinion, is in each case to con-
sider and weigh the words of the particular will and the surrounding
circumstances at the date of it, amongst which the enlarged operation
of a general devise is a most important one.
It has been suggested that the Wills Act shows an intention rather
to extend the operation of wills in exercising powers — at least as to
general powers, which by sect. 27 are to be considered as exercised by
a general devise or bequest unless a contrary intention appear by the
will — and that therefore a special power should be still treated as ex-
ercised in all cases where it would have been so treated under the old
law. The argument involves a fallacy. If the reason for presuming
the intention of the testator to exercise the special power is taken
away by other provisions in the Act, the presumption ceases ; and the
fact that general powers are specially provided for affords no indica-
tion that the Act intended to preserve the presumption as to the exer-
cise of special powers when it destroyed the reason for that presump-
tion.
On the best consideration I can give in this case, to the words of the
will, and to the circumstances of the testator at the time, I do not
believe he intended to exercise this special power. If not exercised
the property would go in default amongst all his children: it is rea-
sonable to suppose he desired not to disturb that provision. I believe
396 POWERS _ (Part 3
either that he forc^ot all about the power or that he desired not to ex-
ercise it. If he forgot the power but intended to pass the property
subject to it, possibly that might be sufficient ; but I cannot find any-
thing to satisfy me that this was his intention.
The burden of proof is on those who assert affirmatively that the
power was exercised: the court must be satisfied of this by sufficient
evidence. I am not so satisfied. The inclination of my opinion is
that the testator did not intend to exercise this special power. '^
The costs will come out of the general residue of the testator's
estate.
AMORY V. MEREDITH.
(Supreme Judicial Court of Massachusetts, 1863. 7 Allen, 397.)
Hoar, J. The testatrix, Miss Elizabeth Amory, being in feeble
health, conveyed all her real and personal estate to trustees, upon the
trust to manage the property and pay the income of it to her during
her life ; to reconvey the whole to her whenever she and the trustees
should think it expedient to terminate the trust ; or, upon her decease
before its termination, to convey it to such persons as she should by
her last will designate; or, upon her death intestate, to her heirs at
law. She afterward inherited a small amount of real and personal
estate which was not included in the trust, and the trust was not termi-
nated during her life. By her last will she gave and devised one half
of all the estate, real, personal and mixed, of which she should die
seised or possessed, to trustees, for the benefit of the family of a
brother; one tenth in trust for a sister and her children; and the
residue of her said estate to four brothers and sisters named in the
will. This suit is brought by her executors and trustees to obtain the
direction of the court in the execution of their trusts, on account of
the conflicting claims of the heirs at law and the devisees under the
will. And the question is, whether the real and personal estate em-
braced in the deed of trust will pass under the will ?
The answer to this question is to be sought by ascertaining the in-
tent of the testatrix as manifested by the will ; and this intention be-
ing once ascertained, effect is to be given to it accordingly.
We are therefore to decide whether the language of Miss Amory's
will, construed in reference to all the property in wdiich she had a
legal or equitable interest at the time it was made, and at the time of
her death, shall be held to include in its disposition the property of
which she had a power of appointment.
Without reviewing in detail the numerous English cases, it is per-
haps sufficient to say that, according co the doctrine of the English
courts of chancery, the will would certainly not be a good execution
7 Accord : In re Williams, 42 Ch. Div. 93.
Ch. 7) WHAT WORDS EXERCISE A POWER 397
of the power. The cases are summed up and reviewed in Doe v.
Roake, 2 Bin.c:. 497, and in Hlagj^e v. Miles, 1 Story R. 426, Fed. Cas.
No. 1479. The distinction between "power" and "property" is care-
fully preserved throus^h all of them ; and the refinements and subtle-
ties to which this distinction leads are great and perplexing. The
general rule is thus stated by Chancellor Kent, in his Commentaries :
"In the case of wills, it has been repeatedly declared, and is now the
settled rule, that in respect to the execution of a power, there must be
a reference to the subject of it, or to the power itself ; unless it be in
a case in which the will would be inoperative without the aid of the
power, and the intention to execute the power became clear and mani-
fest." "The intent must be so clear that no other reasonable intent
can be imputed to the will ; and if the will does not refer to a power,
or the subject of it, and if the words of the will may be satisfied with-
out supposing an intention to execute the power, then, unless the in-
tent to execute the power be clearly expressed, it is no execution of
it." 4 Kent Com. (6th ed.) 335. And Mr. Justice Story, in Blagge v.
Miles, gives three classes which "have been held to be sufficient dem-
onstrations of an intended execution of a power: (1) Where there
has been some reference in tne will, or other instrument, to the pow-
er; (2) or a reference to the property which is the subject on which
it is to be executed ; (3) or where the provision in the will or other
instrument, executed by the donee of the power, would otherwise be
ineffectual, or a m.ere nullity; in other words, it w^ould have no opera-
tion, except as an execution of the power." He adds that these are
not all the cases, and that it was ahvays open to inquire into the in-
tention under all the circumstances ; while he agrees that "the inten-
tion to execute the power must be apparent and clear, so that the
transaction is not fairly susceptible of any other interpretation." And
it has uniformly been held that a mere residuary clause gave no suffi-
cient indication of intention to execute a power.
But the inconvenience and injustice to which the English doctrine
gave rise have been a constant subject of remark by the judges who
applied it. Thus in Jones v. Tucker, 2 Meriv. 533, a case wdiich per-
haps illustrates as well as any how far the rigid application of a rule
can go in misconstruction, where a woman had a power to appoint
£100 by her will, and bequeathed to the plaintiff ilOO, having no prop-
erty of her own to answer the bequest except a few articles of furni-
ture. Sir William Grant said : "In my owm private opinion, I think the
intention was to give the £100 which the testatrix had a power to dis-
pose of, but I do not conceive that I can judicially declare it to have
been executed."
So in Hughes v. Turner, 3 Myl. & K. 688, Sir John Leach remark-
ed: "The question in this case arises from the distinction which has
been adopted and settled in courts of equity between the power of
disposing of property, and the technical right of property ; a distinc-
398 POAVERS (Part 3
tion which has been regretted by eminent judges, and which as Lord
Eldon has observed, although professed to be adopted in order to
further the intention of the testator, in nine cases out of ten defeats
that object." He held the power executed. But after his death, the
case was reheard by his successor as blaster of the Rolls, who re-
versed the judgment with the remark, "I fear that the intention of the
testatrix may be defeated by my decision."
Lord St. Leonards, the highest authority on any question relating
to this branch of the law, says that, "in reviewing the cases, it is im-
possible not to be struck with the number of instances where the in-
tention has been defeated by the rule distinguishing power from prop-
erty." Sugden on Powers (8th Ed.) 338.
It is not surprising that a course of decisions obnoxious to such
criticisms should be at length controlled by legislation. By St. 7
Will. IV and 1 Vict. c. 26, § 27, it was declared that a general devise
of real or personal estate, in wills thereafter made, should operate as
an execution of a power of the testator over the same, unless a con-
trary intention should appear on the will. Upon this English Statute
Judge Story observes, in a note to Blagge v. Miles : "The doctrine,
therefore, has at last settled down in that country to what would
seem to be the dictate of common sense, unaffected by technical nice-
ties." 1 Story R. 458, note.
We are aware of no decisions in this commonwealth, binding on us
as an authority, which should compel us to adopt a rule of construc-
tion likely, in a majority of cases, to defeat the intention it is designed
to ascertain and efifectuate. Seeking for the intention of the testator,
the rule of the English Statute appears to us the wiser and safer rule ;
certainly when applied to cases like the one now under consideration,
where the testatrix is dealing with property which had been her own,
and of which she had the beneficial use, as well as the power of dis-
posal.
The point to be determined is simply this : Did Aliss Aniory mean
to dispose of the property held under the deed of trust, by the terms
of her will, in devising all the estate of which she should be possessed
at her death ? We can have no doubt that she did. It was originally
her property by inheritance. She received the income of it during
her life. She had the complete power of disposal over it by will ; and
it constituted the great bulk of the property over which she had testa-
mentary control. If she died intestate, like the rest of her property,
it was to go to her heirs. The trust had been created merely with a
view to relieve her, when in feeble health, from the trouble of man-
aging and investing her estate, and with a provision that the trust
should be terminated whenever, in her opinion and that of the trus-
tees, it might be expedient. The rest of her property had been trans-
ferred, though not to the legal ownership, yet to the care and custody
of the sarne trustees ; had been treated in precisely the same manner
Ch. 7) U'lIAT WORDS EXERCISE A POWER 399
with that inchided in the trust; and we can see no reason to believe
that it was regarded by her in any different light.
The decree wnll therefore direct the trustees to convey the property
held by them in accordance with the devises and bequests of the will.®
8 In the following cases it was held, on the special context of the ap-
pointing instnunont and the surrounding circumstances, that the power was
well exorcised: Funk v. Eggleston. !)2 111. Slo, 84 Am. Kep. 130; Warner
V. Connecticut Mut. Life Ins. Co., 109 U. S. 357, 3G7, 3 Sup. Ct. 221, 27 L.
Ed. 9tJ2 ; Lee v. Simpson. 134 T. S. 572. 10 Sup. Ct. 031, 33 L. Ed. 103S.
In Stone v. Forbes, 189 Mass. 1G3, 1G9, 75 N. E. 141, 142, the court, by
Morton, J., said:
"It is settled in this commonwealth that a general power of appointment
is well executed, in the absence of anything to show a contrarj- intention,
by a geiun-al residuary clause in the will of the donee of the power. Amcu'y
V. Meredith. 7 Allen, 397; Willard v. Ware, 10 Allen. 2<!3 ; Bangs v. Smith,
98 Mass. 270; Sewall v. Wijmer. 1.32 Mass. 131: Cumston v. P.artlett. 149
Mass. 243 [21 N. E. 373] ; Hassam v. Hazen, 156 Mass. 93 [30 N. E. 409].
And, whatever mav have been the case formerly, that is now the law in
England. Airey v. Bower, 12 App. Cas. 263; Boyes v. Cook, 14 Ch. D. 53.
And bo th in this com monwealt h an d in England the fact that the po wer is
create ^after the exec ution l)f the will does not prevent the will from op-
eraniig ~as an execution~of the power. WilUird v. Ware7'TirXnen,~263 ; Os-
good TrBliss. 141 Mass. 474 [6 >.'. E.i;27, 55 Am. Rep. 488] ; Airey v. Bower,
ubi supra. In England these results have been arrived at by means of
statutory enactments. But in this commonwealth they have been reached
by the application of general principles. Inthis__caae,_lao_weA'erj^ the power
is a sp ecial one, and it is contended that cTIfferentrules apply . It is con-
ceded rnat. in regard to special as well as in regard to general powers, the
question is one of intention on the part of the donee of the power. But it is
contended that those claiming under a si^ecial power must show athrmative-
ly that the donee intended to execute it. that it is doubtful whether a special
power can be exercised by a will executed before the power was created, and
that there is nothing in the case before us which fairly warrants the con-
clusion that the donee of the power intended to execute it.
"On principle there would seem to be no just ground for a distinction
between general and special powers so far as relates to the execution of the
power before or after it is created. It may be that by reason of its condi-
tions or limitations the reasons are stronger for holding that a special
power cannot be executed by anticipation than for holding that a general
power cannot; but they do not seem to us enough stronger to warrant lis in
saying that in one case the power can be executed by anticipation and in
the other that it cannot. A general power of appointment is hardly Jess
within the range of expectation than a special power. Before the MUlflnct
so called, 1 Yict. c. 26, § 27, it was the law of England that a party claim-
ing iinder a power must show that the donee intended to execute it. the
presumption being that he had not executed it iniless the contrary plainly
appeared. Amorv v. Meredith, 7 Allen, 397; Mills v. Mills, 34 Ch. D. 180,
194; Foulkes v. Williams, 42 Ch. D. 93.
"The wills act changed this with regard to general iX)wers, but, in con-
sequence of the construction given to the act by the courts, left special
powers unaffected. Turnbull v. Hayes, [1900] 2 Ch. 332; s. c. on appeal,
[1901] 2 Ch. 529; Foulkes v. Williams, ubi supra:
"In regard to general powers the rule now is that a general devise of
property real or personal is presumed to include a general power of appoint-
ment unless the contrary appears from the will. Jarm. Wills (0th Ed.) 6.34,
635. In regard to special powers the riile remains the same as laid down
before the passage of the wills act respecting powers generally. If it were
necessary to determine the question we should hesitate to follow the rule
laid down by the English cases in regard to special powers of appointment
There is certainly less reason for doing so since Amory v. Meredith than
400 POWERS (Part 3
before. There would seem to be no good r eason why tlie Question whether
a special power of appointment had b een exercised should not be determmed
by The same rules tliat are ^' Ptl^d^in o r ner cases to tne construction or
irifefT5TCtatiOTrj)r_wiils. oT~wfiy the distinction between a power and prop-
erTy, wlntli"lias resulted in many instances, as courts have been compelled
to admit, in defeating the intention of the testator should \^e adhered to in
cases where as in the present the donee of the power has the use of the
property for his life and may, not unnaturally or unreasonably, have failed
to distinguish between propei'ty strictly and technically belonging to him and
that of which he has the use. But we do not think that it is necessary to
detennine whether the rule laid down by the English cases in regard to
special powers should or should not be followed in this Commonwealth.
For we think that it clearly appears that J. Malcolm Forbes intended to
exercise the power and that he has done so."
Note. — On the mode of executing a power of sale on a mortgage deed, see
HaU V. Bliss, 118 Mass. 551, 19 Am. Rep. 476 (1875).
Ch. 8) POWERS IN LIFE TENANTS TO DISPOSE OF THE FEE 401
CHAPTER VIII
POWERS IN LIFE TENANTS TO DISPOSE OF THE FEE
BRANT V. VIRGINIA COAL & IRON CO.
(Supreme Court of United States, 1876. 93 U. S. 326, 23 L. Ed. 927.)
Appeal from the Circuit Court of the United States for the District
of West Virginia.
In April, 1831, Robert Sinclair, of Hampshire County, Va., died,
leavino- a widow and eight surviving children. He was, at the time of
his death, possessed of some personal property, and the real property
in controversy, consisting of one hundred and ten acres. By his last
will and testament he made the following devise : "I give and be-
queath to my beloved wife, Nancy Sinclair, all my estate, both real
and personal ; that is to say, all my lands, cattle, horses, sheep, farm-
ing utensils, household and kitchen furniture, with every thing that I
possess, to have and to hold during her life, and to do with as she
sees proper before her death." The will was duly probated in the
proper county.
In July, 1839, the widow, for the consideration of $1,100, executed
a deed to the Union Potomac Company, a corporation created under
the laws of Virginia, of the real property thus devised to her, describ-
ing it as the tract or parcel on which she then resided, and the same
which was conveyed to her "by the last will and testament of her late
husband." As security for the payment of the consideration, she took
at the time from the company its bond and a mortgage upon the
property. The mortgage described the property as the tract of land
which had on that day been conveyed by her to the Union Potomac
Company.
In 1854 this bond and mortgage were assigned to the complainant
and Hector Sinclair, the latter a son of the widow, in consideration
of $100 cash, and the yearly payment of. the like sum during her life.
Previous to this time. Brant and Hector Sinclair had purchased the
interest of all the other heirs, except Jane Sinclair, who was at the
time, and still is, an idiot, or an insane person ; and such purchase is
recited in the assignment, as is also the previous conveyance of a life-
interest to the company.
In July, 1857, these parties instituted suit for the foreclosure of the
mortgage and sale of the property. The bill described the property
4 Kales Peop. — 26
102 POWERS (Part 3
as a tract of valuable coal land which the company had purchased of
the widow, and prayed for the sale of the estate purchased. Copies
of the deed of the wadow and of the mortgage of the company were
annexed to the bill. In due course of proceedings a decree was ob-
tained directing a sale, by commissioners appointed for that purpose,
of the property, describing it as "the lands in the bill and proceedings
mentioned," if certain payments were not made within a designated
period. The payments not being made, the commissioners, in De-
cember, 1858, sold the mortgaged property to one Patrick Hammill,
who thus succeeded to all the rights of the Union Potomac Company.
The defendant corporation, the Virginia Coal and Iron Company,
derive their title and interest in the premises by sundry mesne con-
veyances from Hammill, and in 1867 went into their possession. Since
then it has cut down a large amount of valuable timber, and has en-
gaged in mining and extracting coal from the land, and disposing
of it.
Brant, having acquired the interest of Hector Sinclair, brought the
present suit to restrain the company from mining and extracting coal
from the land, and to compel an accounting for the timber cut and
the coal taken and converted to its use.
The court below^ dismissed the bill, whereupon Brant brought the
case here.
Fie;ld, J. The disposition of the case depends upon the construction
given to the devise of Robert Sinclair to his widow, and the opera-
tion of the foreclosure proceedings as an estoppel upon the complain-
ant from asserting title to the property.
The complainant contends that the widow took a life-estate in the
property, wath only such power as a life-tenant can have, and that
her conveyance, therefore, carried no greater interest to the Union
Potomac Company. The defendant corporation, on the other hand,
insists that, with the life-estate, the widow took full power to dispose
of the property absolutely, and that her conveyance accordingly pass-
ed the fee.
We are of opinion that the position taken by the complainant is the
correct one. The interest conveyed by the devise to the widow was
only a life-estate. The language used admits of no other conclusion ;
and the accompanying words, "to do with as she sees proper before
her death," only conferred power to deal with the property in such
manner as she might choose, consistently with that estate, and, per-
haps, without liability for waste committed. These words, used in
connection with a conveyance of a leasehold estate, would never be
understood as conferring a power to sell the property so as to pass a
greater estate. Whatever power of disposal the words confer is lim-
ited by the estate with which they are connected.
In the case of Bradley v. Westcott, reported in the 13th of Vesey,
Ch. 8) POWERS IN LIFE TENANTS TO DISPOSE OF THE FEE 403
the testator gave all his personal estate to his wife for her sole use
for life, to be at her full, free, and absolute disposal and disposition
during life ; and the court held, that, as the testator had given in
express terms an interest for life, the ambiguous words afterwards
thrown in could not extend that interest to the absolute property. "I
must construe," said the ^Master of the Rolls, "the subsequent words
with reference to the express interest for life previously given, that
she is to have as full, free, and absolute disposition as a tenant for life
can have."
In Smith v. Bell, reported in 6 Pet. 68, 8 L. Ed. 322, the testator
gave all his personal estate, after certain payments, to his wife, "to
and for her own use and disposal absolutely," with a provision that
the remainder after her decease should go to his son. The court held
that the latter clause qualified the former, and showed that the wife
only took a life-estate. In construing the language of the devise.
Chief Justice Marshall, after observing that the operation of the words
"to and for her own use and benefit and disposal absolutely," annexed
to the bequest, standing alone, could not be questioned, said, "But
suppose the testator had added the words 'during her natural life,'
these words would have restrained those which preceded them, and
have limited the use and benefit, and the absolute disposal given by
the prior words, to the use and benefit and to a disposal for the life
of the wife. The words, then, are susceptible of such limitation. It
may be imposed on them by other words. Even the words 'disposal
absolutely' may have their character qualified by restraining words
connected with and explaining them, to mean such absolute disposal
as a tenant for life may make."
The Chief Justice then proceeded to show that other equivalent
words might be used, equally manifesting the intent of the testator to
restrain the estate of the wife to her life, and that the words, "devis-
ing a remainder to the son," were thus equivalent.
In Boyd v. Strahan, 36 111. 355, there was a bequest to the wife of
all the personal property of the testator not otherwise disposed of,
"to be at her own disposal, and for her own proper use and benefit
during her natural life ;" and the court held that the words "during
her natural life" so qualified the power of disposal, as to make it
mean such disposal as a tenant for life could make.
Numerous other cases to the same purport might be cited. They
all show, that where a power of disposal accompanies a bequest or
devise of a life-estate, the power is limited to such disposition as a
tenant for life can make, unless there are other words clearly indicat-
ing that a larger power was intended.
The position that the complainant is estopped, by the proceedings
for the foreclosure of the mortgage, from asserting title to the prop-
erty, has less plausibility than the one already considered. [The bal-
ance of the opinion on this point is omitted.]
404 POWERS (Part 3
The decree of the Circuit Court must be reversed and the case re-
manded for further proceedings in accordance with this opinion; and
it is so ordered.
SwAYNi: and Davis, JJ., dissented.
WOODBRTDGE v. JONES.
(Supreme Juflicial Court of Massachusetts, 1903. 183 Mass. 549, 67 N. E. S7S.)
Petition, filed February 25, 1901, for registration of title under the
land registration act, St. 1898, c. 562, R. L. c. 128, to a parcel of land
on the corner of Denver and Central Streets in the town of Saugus,
known as the Salmon Snow place and being a portion of the real es-
tate formerly owned by William H. Twiss, late of Saugus, deceased.
The respondents in their answer denied that the petitioners were seis-
ed in fee simple of the premises described in the petition, for the rea-
son that as a matter of law the second clause of the will of William
H. Twiss did not empower vSarepta Twiss, grantor of the petitioners,
to give a good and valid deed of the premises.
The case was tried before Davis, J. The second clause of the will
of William H. Twiss is quoted by the court.
The property in question, together with other land, had been con-
veyed to the testator in January, 1881, by Nancy Snow, the mother
of the testator's first wife, and the great grandmother of the defend-
ant Dora S. Jones. The testator and his second wife, Sarepta Twiss,
were married in 1858. In 1878 Nancy Snow, then a widow, who had
for some years lived alone and had received much care from the tes-
tator and Sarepta, having become old and feeble was brought by the
testator to his own home and there cared for by the testator and
Sarepta until 1887, when she died at the age of eighty-seven years,
devising all her property, to the appraised value of $1,526, to William
H. Twiss, with the exception of a legacy of $50 to her grandson, the
father of Dora S. Jones.
The probate inventory of the estate of William II. Twiss showed
real estate to an appraised value of $5,985, and personal estate to an
appraised value of $12,793, the premises in question being appraised
at $1,900.
On January 30, 1901, the premises were conveyed to the petitioners
by Sarepta Twiss by a full warranty deed in common form.
On the foregoing facts the judge ruled as matter of law, first, that
under the second clause of the will of William H. Twiss, his widow,
Sarepta Twiss, took a life estate in the premises in suit, with a power
of disposing of the same in fee simple; and second, that the deed
from her to the petitioners of January 30, 1901, was a valid exercise
of such power; and filed a decision ordering a decree for the petition-
Ch. 8) POWERS IN LIFE TENANTS TO DISPOSE OF THE FEE 405
ers. At the request of the respondents, he reported the case upon the
foregoing facts, ruHngs, and decision, for determination by this court.
If the ruHngs were right, a final decree was to be entered for the
petitioners as ordered. If the ruhngs were wrong, a final decree was
to be entered dismissing the petition.
Hammond, J. Before proceeding to the consideration of this case,
we desire to comment upon the form of the report. The report calls
for the interpretation of a clause in a will. In such a case, for rea-
sons too obvious to be stated, not only the clause itself, but the whole
will, should be placed before us; and, where that is not done, we
cannot be entirely free from apprehension that something which, if
placed before us, would have thrown light upon the question involved,
may have been omitted, and, in a close case, that the thing omitted
might have led us to a different conclusion. In the report before us,
no part of the will is contained in the report, except the clause upon
which the question before us has arisen, and we therefore enter upon
the consideration of it with reluctance.
The clause is as follows : "I devise and bequeath all the rest and
residue of my estate, both real and personal, to my wife, Sarepta
Twiss, during her life, to use and dispose of the same as she may
think proper, with remainder thereof on her decease, one-third to the
heirs of my brother Isaac Twiss, one-third to the heirs of my brother
John G. Twiss, and the balance to Dora S. Jones above mentioned."
And the question is whether the life tenant had the power to dispose
of any portion of the real estate in fee. It is a narrow and difficult
question. If the writer of this will had studied the decisions made in
this state and elsewhere, with a view to frame a clause which in that
respect should be as ambiguous and obscure as possible, it is doubtful
if he could have selected language more appropriate for his purpose
than that which he actually used. As to a student in geometry it
sometimes happens that a solid angle in a particular figure before
him will seem at one moment to point up, and at another moment
down, so the interpretation of this clause seems to change according
as emphasis is placed on the word "dispose," on the one hand, or on
the technical meaning of the word "remainder," on the other. On the
one hand, it is urged that by the express language of the will there is
devised to the wife a life estate only, with the remainder to the other
devisees named in the clause ; that the word "remainder" is used in its
proper technical sense, namely, as describing an estate limited to take
effect and to be enjoyed after the determination of another estate
which is created with it, and that in this case the previous estate is a
life estate; that, if the testator had meant by the word to indicate
only such property as remained undisposed of at the decease of the
life tenant, he would have avoided this technical word, and would
have used some such phrase as "whatever remains"; that, as against
the technical meaning of the word "remainder," the testator, by the
406 POWERS (Part 3
phrase "to use and dispose of the same as she may think proper,"
meant simply to emphasize in express languag-e the powers over the
property which are conferred by law upon the life tenant as such, just
as sometimes similar language following a devise in fee has been held
to describe expressly only what the law would have implied, and
therefore to be of no real legal effect. See Veeder v. Header, 157
Mass. 413, 32 N. E. 358.
On the other hand, it is urged that the word "dispose" is broad
enough to include a conveyance in fee, and that to Umit its operation
to only such power as the law gives to a life tenant strictly as such is
to give to it no meaning at all ; that the word "same" clearly refers
to the property itself, and not merely to the estate in it (see the lan-
guage of Chapman, C. J., in Cummings v. Shaw, 108 Mass. 159, in
which case, however, there was no devise over), and that the word
"remainder" is not used in its technical sense, but simply means what-
ever property shall remain undisposed of at the time of the decease of
the life tenant (see Ford v. Ticknor, 169 Mass. 276, 47 N. E. 877).
While we are not aware of any case where the language of the will is
precisely like this, still authorities may be found which in their gener-
al effect would fairly seem to sustain either of these views ; and, as we
have said, the question, though narrow, is dilBcult. The facts re-
specting the circumstances of the testator and his relation to the ob-
jects of his bounty, as set forth in the report, bear some in favor of
one interpretation, and some in favor of the other. The testator had
no children, and the life tenant was his second wife. His property
was not large, and he may have felt that the income would be insuf-
ficient for her support. On the whole, we are inclined to the view
that the word "same" refers to the property, and not to the life es-
tate ; that the word "dispose" includes a conveyance absolute and in
fee simple, and that therefore the life tenant had the power during
her life to make such a conveyance of a part or the whole of the
property; and that the word "remainder," while used in a technical
sense, must still be held as subordinate to the power given as above
stated to the Hfe tenant, and liable to be defeated as to any part of
the estate over which the power was exercised. This construction
gives effect to the clause conferring the right to dispose, and is not in-
consistent wath the technical meaning of the word "remainder," but
simply makes the estate described by it, while vesting upon the de-
cease of the testator, yet defeasible by the exercise of the power con-
ferred upon the life tenant. In a word, it gives effect to every clause,
and is not inconsistent with what might reasonably be supposed to be
the intention of the testator.
For cases where language somewhat similar to that used in this will
has been construed in this state, see Cummings v. Shaw, ubi supra;
Ford v. Ticknor, ubi supra; Knight v. Knight, 162 Mass. 460, 38 N.
E. 1131, and cases cited; Collins v. Wickwire. 162 Mass. 143. 38 N. F.
Ch. 8) POWERS IN LIFE TENANTS TO DISPOSE OF THE FEE 407
365 ; Sawin v. Cormier, 179 Mass. 420, 60 X. E. 936; Roberts v. Lew-
is, 153 U. S. 367, 14 Sup. Ct. 945, 38 L. Ed. 747; Lewis v. Shattuck,
173 Mass. 486, 53 N. E. 912; Burbank v. Sweeney, 161 Mass. 490, Z7
.N. E. 669. And for cases decided elsewhere, and which seem some-
what in conflict with each other, see Giles v. Little, 104 U. S. 291, 26
L. Ed. 745; Little v. Giles, 25 Xeb. 313, 41 X. W. 186; Brant v. Vir-
ginia Coal & Iron Co., 93 U. S. 326, 23 L. Ed. 927; Pattv v. Goolsbv,
51 Ark. 61, 9 S. W. 846; Whittemore v. Russell, 80 ^le' 297, 14 At'l.
197, 6 Am. St. Rep. 200.
Decree for the petitioners as ordered.^
1 Lewis V. Palmer, 46 Conn. 454 ; Glover v. Stillson, 56 Conn. 316, 15
Atl. 752 ; Security Co. v. Pratt, 65 Conn. 101. 180, 32 Atl. 31)0 ; Giles v. Little
(C. C.) 13 Fed. 100 : Moyston v. Bacon, 75 Tenn. (7 Lea) 230.
See, also. In re Cashman'.s Estate, 134 111. 88, 24 N. Y.. 963 (1890) ; Yanatta
V. Carr. 223 111. 160. 79 N. E. SO (1906) ; Clark v. Middlesworth, 82 Ind. 240;
Ramsdell v. Ramsdell, 21 Me. 288.
PART IV
RULE AGAINST PERPETUITIES
CHAPTER I
THE RULE AND ITS COROLLARIES
CHILD V. BAYLIE.
(King's Bench and Exchequer Chamber, 161S. Cro. Jac. 459.)
See ante, p. 150, for a report of the case.
DUKE OF NORFOLK'S CASE.
(Court of Chancery, 16S2. 3 Ch. Cas. 1.)
See ante, p. 153, for a report of the case.
LLOYD V. CAREW.
(House of Lords, 1697. Show. Pari. Cas. 137.)
Appeal from a decree of dismission in chancery. The case was thus :
Rice Tannott died seised in fee of several lands in the several counties
of Salop, Denbigh and Montgomery, leaving three daughters and co-
heirs, Mary, Penelope, and Susan. Susan married Sidney Godolphin,
one of the present appellants. In July, 1674, Mary and Penelope, in
consideration of £4000 paid to the said Mary by Richard Carew, Esq. ;
and in consideration of a marriage to be had, and which was afterwards
had, between Penelope and the said Richard Carew, by lease and re-
lease, convey all those their two parts of the said lands in Denbigh, Sa-
lop, and Montgomery, to trustees and their heirs, to the use of Richard
Carew for life, then to Penelope for life for her jointure, then to the
said trustees and their heirs, during the lives of Richard and Penelope,
to preserve contingent remainders ; then to the first and other sons of
4 Kales Prop. (408)
Ch. 1) THE RULE AND ITS COROLLARIES 409
Richard and Penelope in tail male successively : and in default of issue
male, to the daughters of Richard and Penelope in tail : and in de-
fault of such issue, as to one moiety of the said two parts, to the first
and other sons of the said Penelope by any other husband in tail, the
remainder of all and singul ar the prem is es to the s a id Richa rd Carew
ancHiis heirTTor^vef^ subject to this proviso, "that ij it should happen
that no issue ot tlTe^aid Richard, upon the body of the said Penelope,
should be living at the decease of the survivor of them, and the heirs
of the said Penelope should within tw elvejnonths^fte r the de cease^f_
the survivor of the said Richard and Penelope dying without issue as
a foresaT^p pay Lu IJ Tgjgirs;W~^5gigirg::gf The'sa id Richa rd Carev\^~~nTg~
sum~ot £40UU. that then the remainder in fee-simple so limited , to the
said-^jchard Carew and hi?^eirl' should _cea?e T~and~tKaFllien, and
from tlifenceiorth, the premises should remain to the use of the right
heirs of the said Penelope forever."
After this Mary intermarried with the appellant Sir Evan Lloyd, and
a partition was made of the premises, and the same had been enjoyed
accordingly ever since, and IVIr. Carew and his lady levied a fine to Mr.
Godolphin and his lady of his part ; who did thereupon by their deed
dated 23 Sept. 1676, covenant to levy a fine of ]\Ir. Carew's two parts,
to such uses as he and his lady should limit and appoint, but have not
yet levied the said fine.
Richard Carew and Penelope his wife, to avoid all controversies that
might happen, whereby the estate of the said Richard Carew, or his
heirs, might be questioned or encumbered by the heirs of Penelope ;
and to the end to extinguish and destroy and bar all such estate, right,
title, equitable or other interest, as the said Penelope then had, or her
issue and heirs might have or claim to the same, by any pow'er, settle-
ment, or condition, on payment of £4000 or otherwise, to the heirs of
Richard Carew, by the heirs of the said Penelope; and for the settling
of the same on the said Richard Carew and his heirs, did in ISIichaelmas
Term, 1681, levy a fine of the share and part allotted to them, and by
deed of 10 Dec. 1681, declare that the said fine should be to the use
of the said Richard for life, remainder to Penelope for life, the remain-
der to the said Richard Carew, his heirs and assigns forever: and do
further declare, that the fine agreed to be levied by the appellants Sid-
ney Godolphin and Susan his wife, by their deed dated the 23 Sept.
1676, should be to the same uses, and then direct the trustees by the
first settlement to convey to those uses.
Penelope died without issue in 1690. Richard Carew made his will-
in August, 1691, and devised the said lands to Sir John Carew, Baro-
net, his brother, subject to pay all his debts and legacies, and made Sir
John Carew his executor.
In December, 1691, Richard Carew died without issue, and Sir John
Carew entered, and was seised and possessed of the premises, and paid
£4855 for tlie debts of Richard Carew.
410 RULE AGAINST PERPETUITIES (Part 4
Sir John Carew died, and the respondent, Sir Richard Carew, an in-
fant, is his son, heir, and executor.
The appellants, INIary and Susan claimrngjlTeJands as heirs to Pen-
elope, by virtue ot_th e said proviso in t he first settleme nt, upon payment
of'tUe i4u0u exhibited thei? bill in~Chan^eixtg_compeI~tTie trustees to
com^ey the estate to them upon such payment. ' ^
L'pon hearing of this cause^onTbill and answer, the court ordered
a state of the case to be drawn, which was as above ; and afterwards
the court [Sir John Somers, C], assisted by the Chief Justice of
the Common Pleas [Sir Guorgb TrEby] and Mr. Justice Rooksby,
seeing no cause to relieve the plaintiffs, dismissed their bill.
And now it was argued on behalf of the appellants, that such dismis-
sion ought to be set aside; and amongst other things, it was insisted
on in favor of the appeal, that this proviso was not void ; that it was
within the reason of the contingent limitations allowed by the late Lord
Chancellor Nottingham in the case of the Duke of Norfolk, and there
were quoted several paragraphs in the argument made by the said Lord
Chancellor, as that future interests, springing trusts, or trusts execu-
tory, remainders that are to emerge or arise upon contingency, are cjuite
out of the rules and reasons of perpetuities; nay, out of the reason,
upon which the policy of the law is founded in those cases, especially
if they be not of remote or long consideration, but such as by a nat-
ural and easy interpretation will speedily wear out, and so things come
to the right channel again: that though there can be no remainders
limited after afe e-simple, y e t t here jiiay^ be a con tmgenPTee^siniple
arise out~of the first fee ; that the ultimum quod sit^onihe utmost lim-
itation of a fee~upon a tee^ is not ye t plainly^ detemiined: thaTlKough
it be impossible to limit a remainder of a fee upon a fee, yet 't is not
impossible to limit a contingent fee upon a fee ; that no conveyance is
ever to be set aside in Chancery, where it can be supported by a rea-
sonable construction, especially where 't is a family settlement. Then
these paragraphs were applied ; and further urged, that there could not
in reason be any dj^fference between a contingency to happeiTHurmgli f e
o r lives, or within one year a fterwards ; that the true reason of such
opinions which allowed~them, if happening within the time of the par-
ties' lives, or upon their deceases, was because no inconvenience could
be apprehended thereby ; and the same reason will hold to one year aft-
erwards ; and the true rule is to fix limits and boundaries to such limi-
tations, when so made, as that they prove inconvenient, and not oth-
erwise : that this limitation upon this contingency happening, was the
considerate intention of the family, the circumstances whereof required
consideration, and this settlement was the result of it, and made by
good advice : that the fine could not bar the benefit of this proviso ;
for that the same never was, nor ever could be in Penelope, who levied
the fine.
Ch. 1) THE RULE AND ITS COROLLARIES 411
As to the pretence, that if the appellants were relieved, Richard
Carevv who married Penelope, would have no portion with her. 'T was
answered, that that could not alter the case ; the agreement and inten-
tion of the parties being the most considerable matter; and besides,
Richard enjoyed the estate during his life without impeachment of
waste. And as to the debts, 't was answered, that those were no ingre-
dients in the question ; however there would be £4000 paid towards it,
and the personal estate was more than enough to pay the residue. For
which, and other reasons, 't was prayed that the dismission might be
reversed.
On the other side it was insisted on with the decree, 1, that the lim-
itation byTheTettlement in July, 1674, to the heirs of Penelope, upon
payment of i4000 by them to the heirs of Richard Carew, within twelve
months after the death of Richard and Penelope, without issue, at the
time of the decease of the survivor of them, is a void jimitation, the
fee-s jmple being befor ejig iited to R ich ard and his heirs, and_so not
capable of a further limitation, unless upon a contingency to h appen in
the liTe of mie or more~pers on s m bemg7at the time ot the settlement ;
which is the furthest that the judges have ever yet gone, in allowing
these contingent limitations upon a fee; and which were the bounds
set to these limitations by the late Lord Chancellor Nottingham, in the
case of the Duke of Norfolk; that though there were such expressions
as had been read on the other side, yet the bounds set by him to these
limitations, were only dependent upon life or lives in being, and never
as yet went any further : and if they should be extended, and allowed
to be good upon contingencies to happen within Tvvelve months after
the deaIh~of one or more personsTThey'may be as welfliTfowed r^po n'
contingencies to "happerT \vithiir"a"fhousaLnd years; J^yJ^^d^ich__alL_the
mi^rblefs^hat are the necessary consequents^f^ perpetuities^ which
1iavp2^ppri_';n iT-| r]n9triru j>ay^-aA-oid£dJn all ages, will be let i n: and the
owner of a fee-simple thus clogged, would be no more capable of pro-
viding for the necessities and accidents of his family, than a bare ten-
ant for life.
2. If this limitation were good, 't wa£_urged, that the estate limited
to the heirs of Penelope was virtually in her, and her heirs must claim
by descent from her, and not as purchasers ; and by consequence this
est ate is effectually barred by the fine of Penelope : the design of lim-
iting this power to the heirs, not being to exclude the ancestor ; but
because the power could not in its nature be executed until after the
decease of the ancestor, it being to take effect upon a contingency, that
could not happen till after that time ; and this bill and appeal was not
only to have the said Richard Carew, who married Penelope, to have
not one farthing portion with his wife, but to make the now respondent
Sir Richard Carew, to lose the £4855 which his father Sir John Carew
paid, as charged on the lands in question. For which reasons, and
412
RLXE AGAINST PERPETUITIES
(Part 4
many others well urged about the mischief and danger of perpetuities,
and their increase of late years, to the entangling and ruin of many
families, it was prayed that the de cree of di smission might be affirmed,
but the sanie^was reversed. ^
LOW V. BURRON.
(Court of Chaucery, 1734. 3 P. Wms. 262.)
The bill was for an account of the rents and profits of divers mes-
suages and lands in Warrington, in Lancashire, on this case : John
Casson, seised of an estate^ O£three lives in the premises, by his will
dated the 12th of January, 1684^ de yised them to his daughter Mary
Mollinejix^r life^^remainde r to her issue male, and for want of such,
remaindeiLJ;o_one_Liiaiv,_under whom the plaintiff claimed. Mary Mol^
lineux, by lease and r e lease, conveyed the premis s, in consideration of
her marriage with Edward Burron, to the use of herself and her in-
tended husband, and the heirs of their bodies, remainder to the heirs of
her husband Burron. In 1705, Mary died without issue, and the plain-
tiff claiming under the person in remainder, now brought this bill for
an account of the rents and profits.
The questions were, first. One ha ving an estate for three lives, and
de vising it to A. in ta il^-Xem ainder to B . , ^letherlthJs.X ^mainder was
g ood ? 2dly, supposing it to be good, whethe r A. b y such lease a nd
release could bar it ? '
As to the~firs t it was said, and so agreed by the court, that the limi-
tation of an estate pur autre vie to A. and the heirs of his bodyT^iTaTces
no e state-taiT in A. for all es tates-tail are estates ot mhentance, to
which dower is incident, and must be withintli e Statute De Donrs ;
whereas in this kind of estate, which is in no inheritance, there can be
no dower, neither is it within the Statute, but a descendible freehold
only.
Also the Lord ChancelIvOR [Lord Taecot] held plainly, that this
was a good remainder to B. on A.'s death without issue, it being no
more than a descrip tion, who s hould take as specia Poccupants durmg
the~tiv es~ofthese three cestui que v ies. As if the grantor ha3~saM,
"ifistead of a wandering right of general occupancy, I do appoint, that
after the death of' A. the grantee, they who shall happen to be heirs of
the body of A. shall be special occupants of the premises; and if there
shall be no issue of the body of A. then B. and his heirs shall be the
special occupants thereof." And that here_canjbe n o danger of_ a^er-
petuity ; for all thes ^estates w ilL de termine o ri the expiration of th e
thfeeTTves! So, if instead of three, there had been twenty lives, all
spending at the same tirnej^^all tHe~candles~!jghted^j. ip afbrTce ^tJyvould
hav^
_ J^BeeiTgo^j^Tor^Tn eltect, it is onlyTor one hfe, (viz
shall happen to be the survivor.
thatjwhich
T^of^wHich reason, it were very im-
Ch. 1) THE RULE AND ITS COROLLARIES 413
proper to call this an estate-tail, since at that rate it would not be liable
to a forfeiture, or punishable for waste, the contrary whereof is
true.
2dly, the Lord Chancellor said, that though by a lease, or by a
lease and release, A. might bar the heirs of his body, as in some re-
spects claiming under him, yet he inclined to think A. could not bar the
remainder over to B. who was i n the nature of a purchaser^ an^ would
be no way subjecTfo the encumbrances of A. any more than if the estate
pur autre vie had been limited to A. for Hfe, remainder to B. for life;
in which case plainly A. could not bar B. especially by this conveyance
of lease and release, which never transfers more than may lawfully
pass : whereas the conveying away or barring the remainder limited to
B. (admitting it to have been a good remainder) is doing a wrong to
B. and depriving him of an estate, which w^as before lawfully vested in
him. Nay, indeed, il_seerned Jyj^ Ji^im^^ j; if no act which A._ could do,
would be capable of barrin g this limitation over to B. in regard ther e
could be no commonTecovery suffered thereof, it bein g only an estat e
f oflfves ;~~and TTis~t70Tdship saHTthaF this" (as he remembered) w^as
determined in the case of Sir Hardolph Wasteneys in the House of
Lords, upon an appeal from this court.
But notwithstanding all this, yet, it appearing that the right of the
plaintiff, and of those under whom he claimed, had accrued so long
since as the year 1705, now near thirty years ago, during all which
time the defendant's possession had been unmolested, and the Siatute
of_L™itations being pleaded, (though it was urged, that the plaintiff
had not the lease in his possession, and that the defendant in his plea
had set forth, that the lease had been renewed : and though it was
moreover insisted, that however the plaintiff might be disabled from
bringing an ejectment, he might yet bring a bill in equity ;) the
Lord Chancellor declared, he would grant no relief in the case of
so stale a demand, and therefore allowed the plea.
JEE V. AUDLEY.
(Court of Chancery, 1787. 1 Cox, 324.)
Edward Audley, by his will, bequeathed as follows, "Also my will is
that ilOOO shall be placed out at interest during the life of my wife,
which interest I give her during her life, and at her death I give the
said £1000 untgji]iy_Jii£ce_Mary Hall and the issue of her body law-
fu Uy begotten, and to be begott en, and in default of such issue I giv e
th e said £1000 to be equally divided between the daughters then livin g
of my kinsman John Jee and his wife Elizabeth Jee."
It appeared that John.Jee_ and Eliza bet h Jee wer"e living at the t ime
of the death of the testator, had four daughters and no son, and were
414 RULE AGAINST PERPETUITIES (Pait 4
of a very adva nce d age. Mary Hall was unmarried and of the age of
about 40; the wife was dead. The present bill was filed by the four
daughters of_ John a nd Elizabeth^Jee to have' the^TTOOO secured for
tli eTr b en"eSru pon the e vent oTThe sauOIary HaH dying without leav-
ing children . And the question was, w hethej the limitation to the
daughters^fjolinand^lizabeth Jee was not void as beingToo reniote;
and to prove it so, itwas said that this was to take effect on a general
failure of issue of Mary Hall ; and thou gh it was t o the daughters of
John and Elizabeth Jee, yet it was not co nfined t o the daugRtersniving
at the death of the ^testator ^nd consequently it might extend~to after-
bo rn dau ghters, in which ca se it would not be wi thin theji mit oT a life
or Hve sTn being and Zl y ears aft er wards^ beyond whic h time_an execu-
t ory devise isjv 'oid .
On the other side i t was said, that though the late cases had decided
that on a gift to children generally, such children as should be living
at the time of the distribution of the fund should be let in, yet itwould
b e very hard to adhere to such a rule of con struction so rigidly, as to
defeat tHe^ evident iiifentlon of the test ator in this ca se, especially ^i~^
there was no real possijjilityjjfjohn and Elizabeth Jee having child ren
after the te statoFs deajh^ they being Mthen 70^ears old; that if there
were two ways of construing words, that should be adopted which
would give effect to the disposition made by the testator; that the
cases, which had decided that after-born children should take, pro-
ceeded on the implied intention of the testator, and never meant to give
an effect to words which would totally defeat such intention.
The cases mentioned were Pleydell v. Pleydell, 1 P. \V. 748. Forth
V. Chapman, 1 P. W. 663. Lamb v. Archer, Salk. 225. Rachel's Case,
cited 2 Vern. 60. Smith v. Cleaver, 2 Vern. 38, 59. Pollex. 38. At-
kinson V. Hutchinson, 3 P. W. 258. Wood v. Saunders, Pollex. 35.
Hughes V. S'ayer, 1 P. W. 534. Cook v. Cook, 2 Vern. 545. Horsley
V. Chaloner, 2 Vez. 83. Coleman v, Seymour, 1 Vez. 209. Ellison v.
Airy, 1 Vez. 111.
Master of the Rolls [Sir Lloyd Kenyon]. Several cases deter-
mined by Lord Northington, Lord Camden, and the present Chancel-
lor, have settled that children born after the death of the testator shall
take a share in these cases ; the difference is, where there is an imme-
diate dex^ise, and where there is an interest in remainder : in the for-
mer case the children living at the testator's death only shall take:
in the latter those who are living at the time the interest vests in pos-
session; and this being now a settled principle, I shall not strain to
serve an intention at the expense of removing the landmarks of the
law ; it is of infinite importance to abide by decided cases, and perhaps
more so on this subject than any other. The general principles which
apply to this case are not disputed : tlie hmkations of ^personal estate
are void^ unless they necessarily vest, if at all^ within a life^oFTives
iiTBeing and 2ryeafs~oF'9''or 10 months afterwards. This has fjeen
Ch. 1) THE RULE AND ITS COROLLARIES 415
sanctioned by the opinion of judges of all times, from the time of the
Duke of Norfolk's Case to the present: it is grown reverend by age,
and is not now to be broken in upon ; I am desired to do in this case
something which I do not feel my^elf_aliib£f£yItQl3aL najnely to sup-
pose~ It impossiUIe for pe^rso ns in so advanc ed a n age as John and
Elizabeth Jee to have^ childr en ; but if this can be done in one case
it may in loiotherT^nd it is a very dangerous experiment, and intro-
ductive of the greatest inconvenience to give a latitude to such sort
of conjecture. Another thing pressed upon me, is to decide on the
events whic h have jiappenedX T^t" I~cannordo this "without o verturn-
ing very many cases. The single qu estion before me is, not w hether
the limitation is^ood in the events which h ave happened, b u t whethe r
it "was p-nnA iri its crenTiony""arKT "if it were not. I cannot mak e it so.
Then must this limitation, if at all, necessarily take place within the
limits prescribed by law? The words are "in default of such issue I
give the said £1000 to be equally divided between the daughters then
li ving of John Jee and Elizabeth his wife." If it had been to "dauglv
ters now living," or "who should be living at the time of my death,"
it would have been very good; but as it stands, this limitation may
take in after-born daughters; this point is clearly settled by Ellison
V. Airy, and the effect of law on such limitation cannot make any
difference in construing such intention. If then this will extended
to afte r-born daughters, is it within the rules of law? Most certamly
n ot, because loh n and^ Elizabeth Jee mi g ht have children born te n
years_a fter JJMjeg tator's death, and then Alary Hall might die witho ut
issue 50 years afterwards ; in which ca se it w oj.ild ev idently tra ns-
gress the rules p resc ribedT I am of opinion therefore, though the
testStcrrmTght possibly mean to restrain the limitation to the children
who should be living at the time of the death, I cannot, consistently
with decided cases, construe it in such restrained sense, but must
intend it to take in after-born children. This therefore not being
within the rules of law, and as I cannot judge upon subsequent events,
I think the limitation void. Therefore dismiss the bill, but without
costs. ^
1 Observe, however, that in I^iig v. Hodges, Jac. 5S.5 (1822), M. was en-
titled to tlie dividends of the sum "standing in tlie name of the Accountant
General, which in the event of her dying without leaving any child or chil-
dren who should arrive at the age of twenty-one was to devolve upon the
plaintiffs. M., having no children and being of the age of sixty-nine years,
agreed to sell her interest to the plaintiffs, who now petitioned for a trans-
fer of the fund in question to them. Held, the prayer of the petition was
granted upon the recognizance of the plaintiffs.
416 RULE AGAINST PERPETUITIES (Part 4
LONG V. BLACKALU
(Court of King's Beuch, 1797. 7 T. R. 100.)
A case sent from the Court of Chancery for the opinion of the jnd^£^es
of this court stated that George Blackall being possessed of a certain
messuage and premises in Great Hiizeley in the county of Oxford, held
by lease for years under the Dean and Canons of Windsor, by will
dated 23d April 1709 directed that his wife should possess the mansion
house during her widowhood, and receive the rents and profits of the
residue of the premises until she should marry or die, or until one of
his sons should attain the age of twenty-one years, which should first
happen; and from and after the death or marriage of his said wife,
which should first happen, as for and concerning the said mansion
house, and as for and concerning the residue of the premises from and
after the death or marriage of his said wife, or the time that one of his
sons should attain the age of twenty-one, which should first happen, he
bequeathed the same to his son Thomas for life, and after his decease
then to such issue male or the descendants of such issue male of Thom-
as as at the time of his death should be his heir at law ; and in case at
the time of the death of Thomas there should be no such issue male nor
any descendants of such issue male then living, then he bequeathed the
same in trust to his (the testator's) son George Sawbridge for life,
and after his decease then to such issue male or the descendants of
such issue male of his said son as at the time of his death should be his
heir at law ; and in case at the time of the death of the said George
Sawbridge there should be no such issue male nor any descendants of
such issue male then living, then he bequeathed the said premises, &c.
to the child with which his (the testator's) wife was then ensient, in
c ase^ilr-s iTcrald be a son; during^ hisjife, an dnTTter his dec ease tlien to
such issue male or the descendants of such issue rnale of such child as
aTthe time of TTis~death^hoirnn3eTns herr at Taw ; and in ca se at the
ti me of thelfeath of such child there s liould be no such is sue ma Telior
any descendants~of~such issue male then living, or in case sucK _chila
should not Tje^'son, th en heljequeathed the same to Philippa Long^ her
executors, &c. The testator died on the 1st of June 1709, leaving Tifs
wife ]\iartha and two sons, Thomas and George Sawbridge Blackall,
him surviving ; the executors named in the will proved the same in the
proper Ecclesiastical Court and assented to the above bequest. Mar-
tha Blackall, the wife of the testator, at the time of making his will
and of his death, was ensient with a son, who was afterwards born
and called John Blackall ; and Martha Blackall afterwards died on the
16th September 1768. George Sawbridge Blackall died on the 14th
of April 1753, without issue. John Blackall died on the 5th March
1754, without issue; and Thomas Blackall died on the 2d March 1786,
without issue.
Ch. 1) THE RULE AND ITS COROLLARIES 417
The question directed to be made by the Lord Chancellor for the
opinion of the Court of King's Bench was, "Whether the hmitation to
Phihppa Long were good in the events that have happened?"
Lord Kenyon, C. J. The rules respecting exec utory devi ses have
conformed to the rules laid down in the construction of legal limita-
tions, and the courts h ave said that the es tate shall not b e unaliena ble
by executorydevises for a longerti me than is allow ed by th e limitations
ot a common Taw conveyance! In marriage settlements the estate may
be limited to tlTe first and'other sons of the marriage in tail, and until
the person to whom the last remainder is limited is of age the estate is
unalienable. In conformity to that rule the courts have said so far we
will allow executory devises to be good. To support this position I
could refer to many decisions : but it is sufficient to refer to the Duke
of Norfolk's Case, 3 Ch. Cas. 1 ; Pollexf. 223, in which all the learning
on this head was gone into ; and from that time to the present every
judge has acquiesced in that decision. It is an established rule that an
executory devise is good if it must necessarily happen within a life o r
livggjn ^eing'an d twenty-one yeaTs, and the fraction of another y ear,
allowing for the time of gest ation .
Lawrence, J. The de\'Tse over in this case must take effect, if at
all, after a life which^iiisinDe'TirljemglTirie^months after the devisor's
dealE! ~~~~'
'Fhe following certificate was afterwards sent to the Lord Chancellor.
This case has been argued before us by counsel. We have considered
it, and are of opinion that the limitation to Philippa Long is good in the
events that have happened.' ~ — " - ■
Kenyon, N. Grose.
W. H. AsHHURST, S. Lawrence.
February 27, 1797.2
2 In Goodtitle d. Giirnall v. Wood, 23d of June, 1740, C. B., Ld. Ch. J.
Willes, in delivering the opinion of the court, said, "they (namely, execu-
tory devises) have not been considered as bare possibilities, but as certain
interests and estates, and have been resembled to contingent remainders in
all other respects, only they have been put under some restraints to prevent
perpetuities ; as, first, it was held that the contingency must happen within
the compass of a life or lives in being or a reasonable nuanber of years ; at
length it was extended a little farther, namely, to a child in ventre sa mere
at the time of the father's death, because as that contingency must neces-
sarily happen within less than nine months after the death of a person in
being, that construction would introduce no inconvenience ; and the rule has
in many instances been extended to twenty-one years after the death of a
person in being, as in that case likewise there is no danger of a perpetuity."
MS.— Sep.
See, also. In re Wilmer's Tru sts. [1903] 2 Ch. 411, where the child in
ve ntre s amereJ3 rris' treate d as i\ lifp in imping iii applyin g the rule~agaihijt
p eri)etuiries, although it was in that child's interest when bor n not to~^
B fltrea tgd. "^
4^Ai.Es Prop. — 27
418
BULE AGAINST TEUPETUITIES
(Part 4
THELLUSSON v. WOODFORD.
(House of Lords, 1805. 11 Yes. 112.) 3
This case was argued on several days at the bar of the House by
Mr. Mansfield and Mr. Romilly, for the appellants, and by the Attor-
ney-General [Hon. Spencer Perceval], the Solicitor-General [Sir T.
M. Sutton], Mr. Piggott, Mr. Richards, Mr. Alexander, and Mr. Cox,
for the respondents. After the argument the following questions
were proposed to the judges on the motion of the Lord ChancelTcjr
[Eldon] r
1st, A testator by his will, being seised in fee of the real estate,
therein mentioned, made the following devise : "I give and devise all
my manors, messuages, tenements, and hereditaments, at Brodsvvorth
in the county of York after the death of my sons Peter Isaac Thellus-
son George Woodford Thellusson and"'Charles TheniTssoiT~a Tid"'ot jny
grandsonjohn Thellusson son of my son Peter Isaac Thellusson and
o f suc h other sons as my said son Peter Isaac Thellusson may have
a nd oTiu c^^sons'as my said sons George Woodford iTiellussdn'and'
Charles Thellusson m.av Tiave a "hJ of suchiss ue as^ ch sons may Tiave
as shal Tbe livin"g"arthe time o f my decease or b orn in^due time after-
wards and aft^ the deat hs oTTH e^surYivnrs and_s urvivor^ fjthe^everal
perso n"s~aTo resai^to such person_as_ at the time of_the_ death ol^ e
surYi3£Q£ _pf the _s^ai3 ^everaTpef sons sh all then be the eldest male
li neal des cendant of my so nJPeter Isa ac Tlie nussorfand hisTieifsToi-
ever.'' At the tifRe of theHFestator's Tieath There~were seven persons
a ctuaJly^jDornT^iTswen i^^
will ; and~tliere were two en ventre sa mere answering the descrip-
tJQU-Ljf ^jiiT5ren' en ventre sa mere do ans^yerTHST'descriptioti. All _
the said several person s, so describe dn[rrthe testator's wTU'lDeing dead,
and, at the d eath of the~survivgr~qrsuc"irseveral pgrgofi&-Lli£r£L,bej n^^
living one male lineal descendant^oFTHe^tesjatoFsr'sUTr'Pgtg^
The llusso n^_aildL-Qlie onTy^ Is~suc h pe rson entitled by law, underjthe
le gal e ffect of the devise above stated, and the TegaFc oh st ruction of
the severarwbrdsTiTrwhich the same is expressed, to the sai3~manors,
messuages, tenerrreiifs7 and hefe^anientSj^ at Brodswortli ?
2d, JLat2a£ldeaiIxj^l.the sur vivor of_ sucli several persons as afore-
said, such only male lineal descendant was not actually born^Jbutjvvas
en ventre^ sa mere, would such lineal descendant, when actuall y bor n,
be so entitled?
June~25Fh. The unanimous opinion of the judges was pronounced
by the Lord Ciiie;f Baron Macdonald. The other judges present
were Lord Elle.vborough, Grose;, L^ Blanc, Heath, Rooke,
Chambri:; Barons Thomson and Graham. Since the argument
Lord Alvanley had died ; and Baron Hotham resigned ; the former
3 Statement of facts omitted.
Ch. 1) THE RULE AND ITS COROLLARIES 419
being succeeded by Sir James j\lANsr'iE;LD ; the latter by Sir T. M.
Sutton.
Sir a. Macdonald, Chief Baron. The first objection to the will is,
that the testator has exceeded that portion of time, within which the
contingency must happen, upon which an executory devise is per-
mitted to be limited by the rules of law; for three reasons : First, be-
'cause so great a number of lives cannot be taken as in the present
instance, to protract the time, during which the vesting is suspended,
and consequently the power of alienation is suspended : Secondly,
that the testator has added to the lives of persons, who should be
born at the time of his death, the lives of persons who might not be
born : Thirdly, that after enumerating dififerent classes of lives, dur-
ing the continuance of which the vesting is suspended, the testator
has concluded with these restrictive words, "as shall be living at the
time of my decease or born in due time afterwards ;" and that, as
these words appertain only to the last class in the enumeration, the
words, which are used in the preceding classes being unrestricted,
they will extend to grandchildren and great-grandchildren, and their
issue ; and so make this executory devise void in its creation, as being
too remote. With respect to the first ground, namely, the number of
lives taken, which in the present instance is nine, I apprehend, that no
case or dictum has drawn any line as to this point, which a testator is
forbidden to pass. On the contrary, in the cases, in which this subject
has been considered, by the ablest judges, they have for a great length
of time expressed themselves as to the number of lives, not merely
without any qualification or circumscription, but have treated the
number of co-existing lives as matter of no moment ; the ground of
that opinion being, that n^o jublic inconvenience can arise J rom a sus-
pensio n of the vesting, and thereby placing land out of circulation
during any one life ; and that in fact the life of the survivor of many
persOtiriiamed or "5escribegns~ 5"ut the life~of~STJTrre^ one. Thfsnfva^-
held without dissent by Twisden in Love v. Wyndham, 1 Mod. 50,
twenty years before the determination of the Duke of Norfolk's Case ;
who says, that the devise of a farm may be for twenty lives, one after
another, if all be in existence at once. By this expression he must
be understood to mean any number of lives, the extinction of which
could be proved without difiiculty. When this subject of executory
trusts came to be examined by the great powers of Lord Nottingham
as to the time, within which the contingency must happen, he thus ex-
presses himself : "If a term be devised, or the trust of a term limited,
to one for life with twenty remainders for life successively, and all the
persons are in existence and alive at the time of the limitation of their
estates, these, though they look like a possibility upon a possibility,
are all good, because they produce no inconvenience ; they wear out
in a little time." With an easy interpretation we find from Lord Not-
tingham, what that tendency to a perpetuity is, which the policy of
420 RULE AGAINST PERrETUiTiES (Part 4
the law has considered as a public inconvenience ; namely, where an
executory devise would have the effect of making- lands unalienable
beyond the time, which is allowed in legal limitations ; that is, be-
yond the time, at which one in remainder would attain his age of
twenty-one ; if he were not born, when the limitations were executed.
\\'hen he declares, that he will stop, where he finds an inconvenience,
he cannot, consistently with sound construction of the context, be
understood to mean, where judges arbitrarily imagine, they perceive
an inconvenience ; for he has himself stated, where inconvenience be-
gins ; namely, by an attempt to suspend the vesting longer than can
be done by legal limitation. I understand him to mean, that, where-
ever courts perceive, that such would be the effect, whatever may be
the mode attempted, that effect must be prevented ; and he gives the
same, but no greater, latitude to executory devises and executory
trusts as to estates tail. This has been ever since adopted. In Scat-
terwo od v. Edge, 1 Salk. 229, the court held, that an executoix^at^_
to arise within the com pass of a reasonable tinie, is good ; as twenty
or thirty years: so is the" corhipass of a life or lives7~for let the lives
be never sO' many, there must be a sur\'ivor; and so it is but the
length of that life. In Humberston v. Humberston, 1 P. Wms. 332,
where an attempt was made to create a vast number of estates for life
in succession, as well to persons unborn as to persons in existence,
Lord Cowper restrained that devise within the limits assigned to
common law conveyances, by giving estates for life to all those, who
were living (at the death of the testator), and estates tail to those,
who were unborn ; considering all the co-existing lives (a vast many
in number) as amounting in the end to no more than one life. His
lordship was in the situation alluded to by Lord Nottingham, where
a visible inconvenience appeared. The bounds prescribed to Hniita-
tions in common law conveyances were exceeded: the excess was
cut off ; and the devise confined within those limits. Lord Hardwicke
repeats the same doctrine in Sheffield v. Lord Orrery, 3 Atk. 282;
using the words "life or lives" without any restriction as to number.
Many other cases might be cited to the like effect : but I shall only
add what is laid down in two very modern cases. In Gurnall v.
Wood, Willes, 211, Lord Chief Justice Willes speaks of a life or lives
without any qualification ; and Lord Thurlow, in Robinson v. Hard-
castle, 2 Bro. C. C. 30, says, that a man may appoint 100 or 1000 trus-
tees, and that the survivor of them shall appoint a Hfe estate. It
appears then, that the co-existing lives, at the expiration of which the
contingency must happen, are not confined to any definite number.
But it is asked, shall lands be renderedunalienal3l£_dut^^
jvy large societies or bodies of
Ch. 1) THE RULE AND ITS COROLLARIES 421
may be answered, that, when such cases occur, tliej^ will, according
to their respective circumsTalTcesrt)e"~plTt to t He usu al tesj:, whether
they^wirTor will not tend to a perpetuity, by rendering it almost, if
not qiTTfe^Trnpracticable to ascertain the extinction oT the lives describ-
ed ;~andrwiinDe supported or avoided accordingly. But It is contend^
ed, that irTtHese and other cases the persons, during whose lives the
susp ension was to continue, were persons immediately connected with
or immed iatelyjeading to the perso n, in whom tTie property was first
to vest, when the suspension should be at an end. I am unable to
find 'sny'^autTibr ity^fdr considering this as a sinequa rion in the crea^
tioTToFa good~executof ylrust. It is true that this will almost always
be the case and mode of disposing of property, introduced and en-
couraged up to a certain extent, for the convenience of families ; in
almost all instances looking at the existing members of the family of
the testator and its connections. But when the true reason for cir-
cumscribing the period, during which alienation may be suspended,
is adverted to, the re seems to be no ground or principle, that renders
such an ingredient necessary. The principle is the avoiding of a pub-
lic'evil by placing property for too great a length of time out of com-
merce. The length of time will not be greater or less, whether the
lives taken have any interest, vested or contingent, or have not ; nor,
whether the Hves are those of persons immediately connected with, or
immediately leading to that person in whom the property is first to
vest : terms, to which it is difficult to annex any precise meaning.
The policy of the law, which, I apprehend, looks merely to duration
of time, can in no way be affected by those circumstances. This could
not be the opinion of Lord Thurlow in Robinson v. Hardcastle : nor
is any such opinion to be found in any case or book upon this subject.
The result of all the cases upon this point is thus summed up by
Lord Chief Justice Willes, (Willes, 215,) with his usual accuracy and
perspicuity :
"Executory devises have not been considered as mere possibilities,
but as certain interests and estates ; and have been resembled to con-
tingent remainders in all other respects": only they have been put
under some restraints, to prevent perpetuities. As at first it was held,
that the contingency must happen within the compass of a life or lives
in being, or a reasonable number of years ; at length it was extended
a little farther, namely, to a child en ventre sa mere at the time of the
father's de^th ; because, as that contingency must necessarily happen
within less than nine months after the death of a person in being, that
construction would introduce no inconvenience ; and the rule has in
many instances been extended to twenty-one years after the death of
a person in being; as in that case likewise there is no danger of a
perpetuity."
422
RULE AGAINST PERPETUITIES
(Part 4
Comparing what the testator has done in the present case with what
is above cited, it will appear, that he lia s not postponed the ves ting
even sojon g as he might h avedone.*
THe'second objection, whiclTTias been made in this case is, that the
testator has added to the lives of persons in being at the time of his
decease those of persons not then born. It becomes, therefore, neces^
sary to discover, i n what sense the testator meant to use the w ords.
*l3ofrnirdue time afterwards." Such word s, in the case of a man's
WHaFis to be intended by
rfen7i-neaTrttre time of gestation.
)eTolTecte3 from the will itself.
It may
own chT
tliese"words in his will, musT
be collected from the will itself, th at by t hose word ^the testator
riTeantJo^escfib£3liE=5iEriD^^
born^ during^vhose lives the trust might leg ally con tinue ; or in other^
wordiT^v vTTomThTi^rv^rwOiitd^^ born at_tlie _time of his de-
cease^ These could only be such chilclren ofTHe several persons nam-
ed"^ their respective mothers were enceinte wdth at the time of his
death. He _may hav e mean t to use Jhe_word_ "due" as d_e iiQtin g t ha t
pe riod of tune, wh i ch would be thejiecessary period for^ effectingjiis
purpose. This is probable from his using the same word, as applied
to the time, during which the presentation to the living of Marr might
be suspended without incurring a lapse. That a child en ventre sa
mere was considered as in existence, so as to be capable of taking by
executory devise, was maintained by Powell in the case of Lodding-
ton V, Kime, 1 Lord Raym. 207, upon this ground ; that the space of
time between the death of the father and the birth of the posthumous
son was so short, that no inconvenience could ensue. So in Northey
V. Strange, 1 P. Wms. 340, Sir J. Trevor held, that by a devise to
4 In Pownall v. Graham, 33 Beav. 242,. there was a devise iu trust for
the testator's brothers for life, and on t he death of th e survivo r, to apply ing
the income for the benefit nL-Sueh of t heir chlTd ren sis^'glnruTa-'appe ar lo jhe
trusT^£ jo "'^sniTn t'Tnosr3njaeed_ijLj^ie--saffiet_^ ^ f fgm~yeai'
to" yearNas the law 15~s u£EIcaaes^admitg,'/^indr"'^^ ^ mentlongd :
befoi-e, admits of no f urt her divTsi^ITaniong S'Ugh' oTmy brothers' ch ildrenT'.
thelTaveE — Held, that the trus t tor div ision amongi tne cnudre n of~nie broth -"
er s cea jaitl— twenty-one yggrgigTIeFTtTe" decease of the strrviiring brother:
l^'l^^MooreTTT'lirTfeQl] 1 CKT ^oO, a t e stator berfaeattigd personal prop-
erty in trust to apply the income in keeping in repaiiM ier bro ther' s tonib in
Africa, "for tlTe noii!?e'?t~l^ff6cl'TrTroWgTt''l?rTaw ^ that is to^iiyZ ^iTil the pe-
riod of twenty-one years iro m^ tne de ath of tTJ g'Tast^siTrv Tvor of~all persons
who-^niallbe liviiis_atjQy death." Held, thelegacy was ^-o td-ftrr-H ttcerLaluly.
IiTFittMrTTBrownrSTri:. S. 321, 29 Sup. Ct. 106, ST L. Ed. 2U2r^ie
testator directed that the residue of his estate should be "placed in trust
for as long a period as is legally possible, the termination or ending of said
trust to take place when the law requires it." He appointed a trustee and
directed the payment of annuities to a considerable number of named per-
sons for life, and on their death, to their heirs (with the exception of three
who were given only life interests). "On the final ending and distribution
of the tnist, the trust fund to be divided eriually among those persons enti-
tled at that time to the aforementioned annuities." Held, that the trust
continued for tv/enty-one years after the death of all the persons named as
annuitants and that the gift for distribution at the end of the trust was
valid.
Ch. 1) THE RULE AND ITS COROLLAPJES 423
children and grandchildren an unborn grandchild should take. Two
years after, Lord ^Macclesfield in Burdet v. Hopegood, 1 P. Wms.
486, held, that, where a devise was to a cousin if the testator should
leave no son at the time of his death, a posthumous son should take,
as being left at the testator's death. In Wallace v. Hodgson, 2 Atk.
117, Lord Hardwicke, held, that a posthumous child was entitled under
the Statute of Distributions; and his reason deserves notice. "The
principal reason (says he) that I go upon is, that the plaintiff was en
ventre sa mere at the time of her brother's death, and consequently a
person in rerum natura : so that by the rules of the common and civil
law she was, to all intents and purposes, a child, as much as if born
in the father's lifetime." Such a child, in charging for the portions
of other children living at the death of the father, is included as then
living: Beale v. Beale, 1 P. Wms. 244, and so in a variety of other
cases. In Basset v. Basset, 3 Atk. 203, Lord Hardwicke decreed rents
and profits, which had accrued at a rent-day preceding his birth, to a
posthumous child; and since the Stat. 10 and 11 W. Ill, c. 16, such
children seem to be considered in all cases of devise, and marriage or
other settlement, to be living at the death of their father, although not
born till after his decease. It is otherwise considered in the case of
descent. In Roe v. Quartlcy, 1 Term Rep. 634, the devise was to Hes-
ter Read for life, daughter of Walter Read, and to the heirs of her
body ; and for default of such issue to such child as the wife of Walter
Read is now enceinte with, and the heirs of the body of such child,
then to the right heirs of Walter Read and ]Mary his wife. It was
contended, that the last limitation was too remote ; as coming after
a devise to one not in being, and his issue. But the court said, that
since the Statute of King William, wdiicli puts posthumous children
on the same footing with children born in the lifetime of their ances-
tor, this objection seemed to be removed, whatever was the case be-
fore. In Gulliver v. Wickett, 1 Wils. 105, the devise was to the wife
or life, then to the child, with which she was supposed to be enceinte,
in fee, provided, that, if such child should die before twenty-one leav-
ing no issue, the reversion should go to other persons named. The
court said, if there had been no devise to the wife for life, which made
the ulterior estate a contingent remainder, the devise to the child en
ventre sa mere, being in futuro, would have been a good executory
devise. In Doe v. Lancashire, 5 Term Rep. 49, the Court of King's
Bench has held, that marriage and the birth of a posthumous child
revoke a will, in like manner as if the child had been born in the life-
time of the father. In Doe v. Clarke, 2 H. Black. 399, Lord Chief
Justice Eyre holds, that independent of intention an infant en ventre
sa mere by the course and order of nature is then living; and comes
clearly within the description of a child living at the parent's decease ;
and he professes not to accede to the distinction between the cases, in
which a provision has been made for children generally, and where
424 RULE AGAINST TERPETUITIES (Part 4
the testator has been supposed to mark a personal affection for chil-
dren, who happened to be actually born at the time of his death. The
most recent case is that of Long v. Blackall, 3 Ves. Jr. 486 ; 7 Term
Rep. 100. There the Court of King's Bench had no doubt, that a
devise to a child en ventre sa mere in the first instance was good, and
a limitation over was good also, on the contingency of there being no
issue male or descendant of issue male living at the death of such
posthumous child. It seems then, jthat if estates for life had been
given to the several ce stlus que vie in this wiTF, and after their deaTlis
to t!T eir^child ren^eiUieFl5orh~of~en'v"e"nfre sa mere^aObe testator's
death, they w ould haA^e been "good, l^o Tendency lo perpetuity Then
can arise in the case oFsuclritves being taken, not to confer on them
a measure of the beneficial interest, but to fix the time, during which
the vesting of the property, which is the subject of this devise, shall
be protracted ; inasmuch as the circulation of real property is no more
fettered in one case than in the other. It j^Jioweyer^observable,
that this question may never arise, if it shall so happenTthatTlie chiP'
drenJix-^intrellglgtris at the~deatlrof~tIienLestator^hall not survive
those, who were t hen bor n.
The third~ground of objection depends upon the application of the
restrictive words, which are added to the enumeration of the different
classes of persons, during whose lives the restriction is suspended.
This objection, I conceive, will be removed by the application of the
usual rules in construing wills to the present case. First, where the
intention of the testator is clear, and is consistent with the rules of
law, that shall prevail. His intention evidently was to prevent aliena-
tion as long as by law he could. If then it is to be supposed, that the
restrictive words are to be confined to the last of seven different de-
scriptions of persons, and that the testator intended to leave the four
descriptions of persons which immediately preceded this 7th class,
without the benefit of such restriction, although they equally stand in
need of it, we must do the utmost violence to all established rules on
this head. That construction is to be adopted, which will support the
general intent. The grammatical rule of referring qualifying words
to the last of the several antecedents, is not even supposed by gram-
marians themselves to apply, when the general intent of a writer or
speaker would be defeated by such a confined application of them.
Reason and common sense revolt at the idea of overlooking the plain
intent, which is disclosed in the context ; namely, that they should be
applicable tO' such classes as require them, and as to the others to
consider them as surplusage. If words admit of more constructions
than one, that, which will support the legal intention of the testator,
is in all cases to be adopted. I do not trouble your Lordships with
any observation upon the objections arising from the magnitude of
the property in question ; either as it now stands, or may hereafter
stand ; or as to the motives, which may have influenced this testator.
Ch. 1) THE RULE AND ITS COROLLARIES 425
or his neglect of those considerations, by which I or any other in-
dividual may or ought to have been moved. That would be to sup-
pose, that such topics can in any way affect the judicial mind. For
these imperfect reasons I concur with the rest of the judges in offer-
ing this answ^er to your Lordships' first question.
With respect to your Lordships' second question , the objection to
such child being entitled must arise from an allowance having been
made for the time of g^station_at the end of the e xecutory tru sts. It
seems to be settled, that an estate may be limited in the first instance
to a child unborn, and, I apprehend, to the first and other sons in fee,
as purchasers. The case of Long v. Blackall, 3 Ves. Jr. 486; 7 Term
Rep. 100, seems to have decided, that an infant in ventre matris is a
life in being. The established length of time, during which the vesting
mav be suspended, is during a life or lives in being, the period of
gestation, and the infancy of such posthumous child. If then this
time has been allowed in some cases at the beginning, and in others
at the termination, of the suspension, and if such children are consid-
ered by the construction of the Statute of 10 & 11 W. Ill, c. 16, as
being born to such purposes, w^hat should prevent the period of gesta-
tion being allowed both at the commencement and termination of the
suspensionj_jOE^hoiiIO)eIialIIOQILL In tliose cases, wherFlTTTas"
been allowed at the commencement and particularly in Long v. Black-
all, it must have been obvious to the court, that it might be wanting
at the termination: yet that was never made an objection. In Gulli-
ver V. Wickett, 1 Wils. 105, the child, who was supposed to be en
ventre sa mere, might have married and died before twenty-one, and
have left his wife enceinte. In that case a double allowance would have
been required : yet that possibility w'as never made an objection ; al-
though it was obvious. In Long v. Blackall, according to the printed
report, the precise point w^as not gone into. But it is plain, that the
intention of the court must have been drawn to it ; for the learned
judge, ^ who argued that case in support of the devise, expressly stat-
ed, that every common case of a limitation over, after a devise for a
life in being, with remainder in trust to his unborn issue, includes the
same contingency as was then in question ; for the devisee for life
may die leaving his wife enceinte : and the only difference is, that the
period of gestation occurs at the beginning instead of the end of the
first legal estate. It must have been palpable, that it might possibly
occur at both ends. Every reason then for allowing the period of
gestation in the one case, seems to apply with equal force to the oth-
er; and leads the mind to this conclusion, that it ought to be allowed
in both cases, or in neither case. But natural justice, in several cases,
having considered children en ventre sa mere as living at the death of
the father, it should seem, that no distinction can properly be made;
6 Mr. Justice Chambre, then at the bar.
426 RULE AGAINST PERrETuiTiES (Part 4
but that in the singular event of both periods being required they
should be allowed ; as there can be no tendency to a perpetuity.
JliiEjLoRD^CHANCgLLORjXoRD Eldon]. The learned judges hav-
ing given their opinion upon tHe^^oi'irfs of law, referred to them, no
question remains, to which the attention of the House should be par-
ticularly called, except the point, arising out of this will, and which
could not be referred to the judges ; with regard to t he ac c umulatio n
of the rents and profit s. When this cause was decided hi the Courtof
Chancery, it w^as decided by Lord Rosslyn, with the assistance of
Lord Alvanley, Mr. Justice Buller, and Mr. Justice Lawrence ; and
it is well known, that the late Chief Justice [Lord Kenyon] of the
Court of King's Bench could hardly be brought to think any of the
questions in this case fit for argument ; conceiving it dangerous to
give so much of serious agitation to them, as has been had ; consider-
ing what had been settled with respect to executory devise and ac-
cumulation. Some of your Lordships have had the advantage of
hearing the opinion of Lord Thurlow ; which cannot be doubted upon
this point ; after his Lordship has laid down, in Robinson v.. Hard-
c'astle, 2 Bro. C. C. 22 (see page 30), what is u nquestiona Me law, that
it i s compete nt to_a testatorjbo givea life-estate, t o be appointed by
th e survivor of 1000 pe rsons. ThaFestate'wouT3T)^e to~comiTience at
the death of the last of those 1000 persons. Upon the questions of
law your Lordships have had the unanimous opinion of the several
learned judges. As far as judicial opinion can be collected, there is,
therefore, the testimony of all the judicial opinion I have detailed,
concurrent upon this great case : great, with reference, not to the
questions arising out of it, but to that circumstance, of which, what-
ever attention your Lordships may think proper to give it in your
legislative capacity, you cannot, exercising the function of judges,
take notice ; for the question of law is the same upon a property of
£100 or a million. If it were possible, speaking judicially, to say, you
entertain a wish upon the subject, your Lordships may all concur in
the regret, that such a will should be maintained. But that goes no
farther than as a motive to see, whether it contains anything, resting
upon which we may as judges say it is an attempt to make an illegal
disposition.
When this was put originally as a case, representing, that it was
monstrous to tie up property for nine lives, it seemed to me a propo-
sition, that is incapable of argument as lawyers ; for the length of
time must depend, not upon the number, but upon the nature of the
lives. If we are to argue upon probability, two lives may be selected,
affording much more probability of accumulation and postponement
of the time of vesting, than nine or ninety-nine lives. Look at the
obituary^oLtMs-lIouse sin ce the y ea r 1796; w hen this wTTTwas made.
Suppose, the testator had taken tTie^hves of so" many of the peers as
have died since that time : that would have been between twenty and
Ch. 1) THE RULE AND ITS COROLLARIES 427
thirty lives ; and yet that number lias expired in a very short period.
It cannot therefore depend upon the magnitude of the property, or the
numBer of lives j^but the question always^ is^ ^'l^Ul^i" there is a rule
of lawT^Txing a period, during which property may be unalienable.
The language ^f all the cases is, that property may be "so'ITmited'^s
to make it unalienable during any number of lives, not exceeding
that, to which testimony can be applied, to determine, when the sur-
vivor of them drops.
If the law is so as to postponing alienation, another question arises
out of this will ; which is a pure question of equity : whether a tes-
tator can direct the rents aiKT^oTrt s~to~l3e accumula tecT for that penocl,
during whicirhFrnay direct, that the title shall iiot vest, and^e prop-
erty slTatt'raimln "unali enab le j ^HH^TlTa nie" catTdo so, is most clear
law"^ A fanTiliar ca¥e may be put" If this testator had given the
resiHue of his personal estate to such persoiT^as" should be tlie^eM^st
male descendant of Peter isaa^ThellussonTaFtlie death of tlie survivor
o f all the lives, mentioned in this~will7 wTtHout rnore^ that simpIe~Be-
quesT would in efi'ect have directecTaccumulation, uirtil it^hould~be
seen, what individual would answer the description of tliat male de-
scemJaiit ; and 1jr e~efifect o J_tlie or^iary rule of Taw7~as~apTTtTed- in
equity, woiild_ have s upplied everything, thaF is contained in this wl Tl,
as~to accumulation ; ToFlhe first question would be, is the executory
devise ot the personal estate to the future individual, so described,
good? If it is, wherever a residue of personal estate is given, the in-
terest goes with the bulk; and there is no more objection to giving
that person, that, which is only forming another capital, than to giv-
ing the capital itself. But the constant course of a court of equitv is
to accumulate interest from tim e~To~time "without a djrecTion^^gnS' to
haiid over the' accumulation to that person, whois to tak e the cap ital?
Ta^e~anbther instance uf accurrratalion : suppose, ^e nine persons,
named in this will, had been lunatics: without any direction there
would have been an accumulation of the interest and profits of all
these estates. In truth there is no objection to accumulation upon the
policy of the law, applying to perpetuities; for the rents and profits
are not to be locked up, and made no use of, for the individuals, or
the public. The effect is only to invest them from time to time in land :
so that the fund is, not only in a constant course of accumulation, but
also in a constant course of circulation. To that application what pos-
sible objection can there be in law?
But this is not new ; for in the case upon Lady Denison's will "
Lord Kenyon, who saw great danger in permitting argument to go
too far against settled rules, held most clearly, that the testatrix had
well given her property to such second son of her infant niece as
should first attain the age of twenty-one; and directed accumulation
6 Harrison v. Harrison, 21st July, 17S6,. stated from the Register's Book, 4
Ves. 338. — Rep. ■
428 RULE AGAINST PERPETriTiES (Part 4
through the whole of that period ; following Lord Hardwlcke and
his predecessors ; and taking the rule to be perfectly clear, that, so
long as the property may be rendered unalienable, so long there may
be accumulation ; that in common sense it is only giving the ac-
cumulation to the person, who is to take the fund itself ; if it could
be foreseen, who that person would be. Therefore, as to giving the
property at the expiration of nine lives and the accumulation, I never
could doubt upon these points. The latter could not be a subject of
dispute before the lat e Act of Pa rliament (Stat. 39 & 40 Geo. Ill, c.
9 3) ; j vlii ch has bee n sometmies^ lioiL{gH~w ttliout f oundaTTon, attributed
to me; and which m^some Teipects I wmjTd have correctecT, if it had
not come upon me rather by surprise. That Act however expressly
alters what it takes to have been the former law upon the subject;
admitting the right to direct accumulation ; and reducing that right in
given cases to the period of twenty-one years. The amount of ac-
cumulation, even through the provisions of that Act, though only to
endure for twenty-one years, might in many instances, by giving the
son a scanty allowance, be enormous. I do not think, it was intended :
but the accumulation directed by this will must under that Act have
gone on for twenty-one years. In the construction of that Act it has
been held, that it only makes void so much of the disposition as exceeds
twenty-one years ; leaving it good for that period. Upon the old rule
also accumulation for particular purposes might have gone on for nine
lives, or more.
The only points, that appear to me fairly to bear argument, are the
critical discussion upon the word "as," as a relative term, and that
with reference to the double period of gestation. As to the former, if
your Lordships could from dislike to such a will refuse that construc-
tion, which will consider that word as a word of reference to each
preceding description of persons, grounding that construction upon the
manifest intention of the testator upon the whole will to make the
property unalienable, as long as he could, you would gratify that in-
clination at the expense of overturning all the rules of construction,
that have been settled, and applied for ages to support wills. If your
Lordships will give any relief by legislative interference against this
will, that, is a very bold proposition ; but not so bold as, that, because
you dislike the effect of the will, you will give a judgment wrong in
point of law.
As to the other point, upon the words "born in due time afterwards,"
I observe in the report, the Judges Lawrence and Duller afford each
a construction of these words : the one, that they mean children en
ventre sa mere : the other held them a declaration of the testator's
will, that the property shall be unalienable, and the accumulation go
on, during the lives of all the persons, born or unborn, whom the
law would authorize him to take as the lives for restraint of alienation,
and for the purpose of accumulation. In my opinion either of those
constructions may be taken to be the intention consistently with the
Ch. 1) THE RULE AND ITS COROLLARIES 429
rules of law : but consistently with the rules of law your Lordships
cannot reject both; but must give the words such a construction as
will support the manifest intention of the testator. It is therefore be-
side the point to ask, what child shall take, or, when a child shall
take; for the testator is describing, not the object to take, but the
lives of persons ; in order to define the period, during which the pow-
er of alienation shall not exist, and the accumulation shall go on. But,
if it is necessary, I have no difficulty in stating, as a lawyer, that the rule
o f law has be en pr operly laid down, t hat the time of jge^tatipn may be
ta ken both at the beginning a.nd the end ; and that is what was meant
in Gulliver v. Wickett, 1 Wils. 105, in which case the devise was to a
child en ventre sa mere; and to go over, if that child should die un-
der the age of twenty-one, leaving no issue. In the construction of
that limitation, expressly to a child en ventre sa mere, suppose that
child had at the age of twenty married, and died six months after-
wards leaving his wife enceinte : that property, absolutely given to
him, would not be devested, merely because the child was not born
till three months after his death. In fair reasoning therefore that is
the construction of the words.
Of the case of Long v. Blackal l, 3 Ves. 486; 7 Term Rep. 100, in
w hich I was counsel , I can give a faithful history. It was my duty to
submit to the Lord Chancellor the point, that the allowance was
claimed at both ends of the period. His Lordship treated the point
not with much respect : but I prevailed with him against his inclina-
tion to send it to the Court of King's Bench. Upon the report of the
case in that court the point did not appear to have been discussed. I
therefore pressed the Lord Chancellor to send the case back. His
answer was as rough, as his nature, which was very gentle, would
permit : and shows the clear opinion he had upon the point. He said
distinctly, he was ashamed of having once sent it to a court of law;
and v/ould not send it there again. I know. Lord Kenyon's opinion
upon the subject was clear: so were those of Mr. Justice Buller and
Mr. Justice Lawrence; as may be collected from the report of these
causes. (4 Ves. 314, 315, 321.) This case therefore comes to this,
and this only. The legal and equitable doctrine is clear ; and then the
question is, with whatever regret we may come to the determination,
is it not our duty to determine according to the rules of law and equi-
ty? Upon the question, whether this judgment ought to be reversed,
I am bound to say, it ought not ; but that it ought to be affirmed.
Upon the motion of the Lord Chancellor the decree was affirmed.^
1 See Pownall v. Graham, 33 Beav. 242 (1S63) ; In re Moore, [1901] 1 Ch. 936.
On the Thellusson Actj see Gray's Rule Against Perpetuities (2d and 3d
Editions) fGS(J to § 727.
430 EULE AGAINST PERPETUITIES (Part 4
CADELL V. PALMER.
(House of Lords, 1S33. 1 Clark & F. 372.)
Henry Bengough, Esq., by his will, dated the 9th of April, 1818,
gave and devised, from and after the decease of his wife, Joanna Ben-
gough, his messuage with the gardens, stables, and other appurte-
nances belonging thereto, situate in St. James's Square, Bristol, to
the Rev. Charles Lucas Edridge, Arthur Palmer, the Rev. Cadell
Edridge, and George Wright, their heirs and assigns forever, upon
trust, for sale; and directed the proceeds to sink into and become
part of his personal estate. He further gave and devised to the said
trustees, their heirs and assigns, certain other real estates, upon trust,
to permit his wife to occupy a part thereof during her life, and, after
her decease, to pay out of the rents and profits an annuity of £300 to
his nephew, George Bengough, for life, and an annuity of i200 to his
nephew, Henry Bengough, for life ; and subject to the payment of the
said annuities, and otherwise subject, as in the said will mentioned,
upon trust, from time to time, during the term of twenty-one years,
to be computed from the day of the testator's decease, to collect and
receive the rents and profits of all his real estates so devised to them
(except the house in St. James's Square) ; and from time to time dur-
ing the continuance of the said term to lay out the moneys to arise
from such rents and profits in the purchase of freehold estates of in-
heritance in England, when and as often as there should be a surplus
in hand amounting to the sum of ilSOO. And he directed the estates
so to be purchased to be conveyed to the trustees, upon the same
trusts and conditions as Avere thereinafter * limited concerning his
estates thereinbefore devised; and that the trustees should not per-
mit more than £.S00 to remain in bankers' hands, but should invest the
same in the three per cent, consolidated bank annuities until a con-
venient purchase could be found, and add the interest to the princi-
pal, to accumulate during the said term in the same manner as the
rents and profits of the real estate were before directed to accumu-
late ; and as to all the said trust estates and hereditaments so by him
thereby devised (except his said messuage in St. James's Square), up-
on trust, that the trustees for the time being should retain and stand
possessed of the same during the term of one hundred and twenty
years, to commence from his death, if his said nephews, George Ben-
gough and Henry Bengough, his nephew, James Bengough, his great
nephews, Henry Ricketts the younger, and Richard Ricketts the
younger, his niece, Ann Elizabeth Bengough, his great niece, Ann
Ricketts the younger, the ten children then living of the said Charles
Lucas Edridge (for whose names a blank was left in the will), and the
8 See the report of this case under the title of Bengough v. Edridge, 1
Sim. 273, where the Vice-C.'hanoellor ordered "hereinbefore" to be suosLituted
for "hereinafter," That part of the decree is not appealed from. — lici).
Ch. 1) THE RULE AND ITS COROLLARIES 431
eleven children then living of the said Arthur Palmer (whose names
were mentioned), or any or either of his said nephews and niece, and
great nephews and great niece, or any or either of the said several
children of the said Charles Lucas Edridge and Arthur Palmer,
should so long live; and also during the term of twenty years, to be
computed from the expiration or other sooner determination of the
said term of one hundred and twenty years determinable as aforesaid,
nevertheless upon trust for his said nephew, George Bengough, for a
term of ninety-nine years, if he should so long live, and the said
terms of one hundred and twenty years and twenty years, or either of
them, should so long continue ; and from and after the expiration or
other sooner determination of the said term of ninety-nine years, then
in trust for the first, second, third, fourth, fifth, sixth, and all and
every other and subsequent born son of the same George Bengough,
severally and successively, according to the priority of their births :
and after the determination of the estate and interest of each of the
same sons respectively, and also, as the circumstances of the case
should require, after the determination of the estate of any person
taking from time to time under, or as answering the description of
heir male of his body, in trust for the person who for the time being
and from time to time should answer the description of .heir male of
his body, or who, in case of the death of his parent, if such death had
taken place, would be heir male of his body, under an estate tail lim-
ited to the same son and the heirs male of his body, to hold to the
same son or person respectively for a term of ninety-nine years, if
the same son or person respectively should so long live ; and the said
terms of one lumdrcd and twenty years and twenty years, or either of
them, should so long continue, every elder of the same sons, and the
person who for the time being and from time to time should answer,
or who, in case of the death of his parent, if such death had taken
place, would answer the description of heir male of his body, to be
preferred before every younger of the same sons, and the person who
for the time being should answer, or in case of the death of his par-
ent, if such death had taken place, would answer the description of
heir male of his body.
The testator then declared several successive trusts of the said es-
tates during the said terms of one hundred and twenty years and
twenty years, in favor of his nephews, Henry Bengough and James
Bengough, his great nephews, Henry Ricketts the younger, and Rich-
ard Ricketts the younger, his niece, Ann Elizabeth Bengough, and his
great niece, Ann Ricketts the younger, respectively, and their respec-
tive first and other subsequent born sons, and of the persons who for
the time being should be, or who in case of the death of their re-
spective parents would be heirs male of such sons respectively, simi-
lar to the trusts before stated to, have been declared in favor of the
said George Bengough, and his first and other subsequent born sons,
and of the person who for the time being should be, or who in case of
432 RULE AGAixsT PERPETUITIES (Part 4
the death of his parent would be, heir male of the body of each of the
same sons respectively, except that he directed that the estates of the
said Henry Ricketts and Richard Ricketts, and of their respective
sons, and of the person or persons answering the description of heirs
male or heir male of their respective bodies ; and also the estates of
the said Ann Elizabeth Bengough and Ann Ricketts, and of their re-
spective husbands, and of their first and other sons, and of the per-
sons answering the description of heirs male of their respective bodies,
should respectively cease, if he or they for the time being should re-
fuse to take the surname and bear the arms of Bengough only, after
he or they respectively should become entitled to the receipt of the in-
come of the said trust estates. And from and after the determination
of the said respective estates and interests, then in trust for the per-
son or persons respectively who for the time being and from time to
time should answer the description of the testator's heir or right
heirs-at-law ; and if there should be more than one, in the same pro-
portions, as they would be entitled to a real estate descending from
the testator as the first purchaser, and vesting in him or them as his
right heirs to hold to the same person or persons respectively, if more
than one, as tenants in common, as to each of the same persons re-
spectively, for a term of ninety-nine years, if the same person should
so long live, and the said terms of one hundred and twenty years and
twenty years, or either of them, should so long continue.
The testator further directed that each of the said terms of ninety-
nine years should be computed from the time when the person or per-
sons respectively to whom the same were limited should become enti-
tled to the income of all or any part of the said trust estates, under
the limitations thereinbefore contained ; and that in case the said limi-
tations in favor of persons unborn could not take effect precisely in
the order in which they were directed, and there should consequently
be any suspension of the beneficial ownership, by reason that the per-
sons entitled to take under the same limitations or trusts should not
be then born, in that case the income of his said devised trust estates
should, during such suspension of ownership, belong to and be en-
joyed by the person or persons for the time being entitled, or who, in
case there had not been such suspension of ownership, would for the
time being have been entitled to the next estate in remainder, subject
nevertheless to the right of any person or persons to be afterwards
born, and who would have been entitled, under any prior Hmitation,
to receive the income of his said trust estates from his, her, or their
actual birth, or respective births.
The testator then directed, that after the expiration or sooner de-
termination of the said terms of one hundred and twenty years and
twenty years, his said trust estates should be conveyed and assured
by his then trustee or trustees thereof to such person or persons as
would at that time be entitled to the same, either by purchase or by
descent, for the first or immediate estate or estates for Hfe, in tail, or
Ch. 1) THE RULE AND ITS COROLLARIES 433
in fee in them, if the same had by his will been devised, settled, or as-
sured to the use of his nephew, the said George Bengough, and his
assigns for his life, with remainder to his first and other sons succes-
sively, according to the priority of their births in tail male, with re-
mainder in similar estates for life, and remainders in succession to the
said Henry Bengough, James Bengough, Henry Ricketts, Richard Rick-
etts, Ann Elizabeth Bengough, Ann Ricketts, and their sons respective-
ly, with a proviso for the cesser of the estates of the said Henry Ricketts
and Richard Ricketts, and their respective first and other sons, and the
heirs male of their respective bodies, who for the time being should re-
fuse to take the surname and bear the arms of Bengough only, after he
or they respectively should become entitled to the receipt of the said in-
come ; and also for the cesser of the estate of the said Ann Elizabeth
Bengough and Ann Ricketts, and their respective husbands, and their
first and other sons, and the heirs male of their respective bodies, who
for the time being should make a like refusal with reversion to the
testator's own right heirs. And he further directed, that the person
or persons to whom such conveyances should be made, should have
such estate in the said trust estates as he or they would at that time
be entitled to take under the said limitations, if the same had been
actually made by his will, with the same or the like remainders over
as if the said trust estates had been devised by his will in manner
aforesaid, or as near thereto as might be, and the circumstances of
the case and the rules of law and equity would permit; yet, neverthe-
less, that no such person should have or be entitled to a vested estate
or any other than a contingent interest until the expiration or sooner
determination of the terms of one hundred and twenty years and
twenty years ; and he declared that such limitations were introduced
into his will only for the purpose of ascertaining the objects to whom
such conveyances should be made, and not for the purpose of making
any immediate devise or gift to, or raising any immediate or present
estate by way of trust or otherwise for them ; on the contrary thereof,
he directed that during the said terms of one hundred and twenty
years and twenty years, no person or persons should be entitled, at
law or in equity, to any beneficial estate in his said trust estates, or
the income thereof, by way of vested interest, for any longer period
than ninety-nine years, determinable as before mentioned, and that,
in the events and in the mode before expressed, heirs or heirs of the
body should be entitled to take in the first instance, and as purchasers
in their own right. And he directed, that if at any time during the
said terms of one hundred and twenty years and twenty years, each
of the male persons who for the time being should be entitled to the
income of his said trust estates should require the same, it should be
lawful for his trustees to convey to each or any person making such
request the said trust estates, or part thereof, as he should be entitled
to under the limitations thereinbefore contained, for an estate of free-
4 Kales Pbop.— 28
434 RULE AGAINST PERPETUITIES (Part 4
hold for the life of the same person, so as to give him or her an es-
tate of freehold instead of an estate for ninety-nine years.
The testator, after giving various other directions and powers con-
cerning the said trust estates, and after bequeathing several legacies
and annuities, gave and bequeathed to the said trustees, their execu-
tors and administrators, all the residue of his personal estate whatso-
ever, upon trust, that they should either continue his moneys upon the
securities upon which they should be invested at his decease, or call in
the same, and sell all such parts of his residuary estate and effects as
should not consist of money, or securities for money. And he direct-
ed that, during the term of twenty-one years, to be computed from the
day of his decease, the trustees for the time being of his will should
receive the dividends, interest, and annual income of all his residuary
estate, and from time to time during such term invest all such divi-
dends, interest, and income, and the accumulations of the same^ in
their names, either in the three per cent, consolidated bank annuities,
or upon mortgages of freehold hereditaments in Great Britain, as
they should think proper, as an accumulating fund, in order to in-
crease the principal of his residuary estate during such term of twen-
ty-one years ; and should, with all convenient speed, from time to time
during that term, lay out and invest all his residuary estate and ef-
fects, and all accumulations thereof, in purchases of freehold heredit-
aments of an estate of inheritance in fee-simple, in England or Wales,
when eligible purchases should arise ; which estates, so to be pur-
chased, should be conveyed unto and to the use of the trustees, in fee,
upon the same trusts, and under and subject to the same and the like
powers, provisos, and limitations as were by him thereinbefore de-
clared, concerning his said estates devised to them in trust as therein-
before mentioned, or as near thereto as the death of parties, the
change of interests, and other contingencies w^ould admit ; and he ap-
pointed his said trustees to be executors of his said will.
The testator died in April, 1818, and his three first-named trustees
and executors shortly afterwards proved his will, and became his le-
gal personal representatives, George Wright having renounced pro-
bate, and executed a deed of disclaimer to them as to the trust estates.
Ann Ricketts, the testator's only sister, and next of kin at the time
of his death, died in the month of October, 1819, having by her will
appointed the respondents, W. P. Lunell, J. E. Lunell, and George
Lunell executors thereof ; and they proved the same, and became her
legal personal representatives.
Mrs. Bengough, the testator's widow, died on the 10th of June,
1821, having duly made and published her will, and appointed as ex-
ecutors thereof the said Rev. Cliarles Lucas Edridge (since deceased),
and Thomas Cadell, the appellant, who duly proved the same, and
thereby became her legal personal representatives.
George Bengough, the testator's nephew, and first taker of an es-
tate under the limitations in the will, filed his bill in Chancery in the
Ch. 1) THE RULE AND ITS COROLLARIES 435
year 1821 (amended in ]S23) against the acting trustees and execu-
tors, and against the said Henry and James Bengough, Henry and
Richard Ricketts, Ann Bengough, and Ann Ricketts, the younger, and
also against the said personal representatives of Joanna Bengough,
the widow, and of Ann Ricketts, the sister, of the testator; and after
stating the said will and his own rights under it, and as heir-at-law
and one of the then next of kin of the testator, he prayed (amongst
other things) that the will might be declared to be well proved, and
that the trusts thereof, so far as the same were good in law, might be
decreed to be carried into execution, and that an account might be
taken of the personal estate and effects of the testator, and of his
funeral and testamentary expenses, and debts and legacies ; and that
the clear residue of the personal estate might be applied upon the
trusts of the will, so far as the same were effectual in law; and as far
as the same were ineffectual in law, then to such person or persons as
would, in such case, by law be entitled thereto : and that an account
might be taken of the testator's real estate, and of the rents received
by the trustees ; and that what should be found due from them on
taking that account might be applied upon the trusts of the will, as
far as the same were good in law ; and that the court would be pleas-
ed to declare how far the trusts of the real and personal estate were
good ; and as far as the trusts were declared to be void, that the plain-
tiff might be declared to be entitled to the real estate ; but, in case the
trusts of the will should be considered valid, then that such of the
rents and profits of the estates devised to the trustees in possession,
as accrued during the life of Mrs. Bengough, might be applied in the
purchase of freehold estates of inheritance in England or Wales, and
that the annuities of the plaintiff and Henry Bengough might be paid
out of the rents and profits that had accrued, and should accrue after
her death ; and that the residue thereof might, during the remainder
of the term of twenty-one years, be also applied in the purchase of
freehold estates of inheritance in England or Wales ; and that such es-
tates, when purchased, might be conveyed to the trustees upon the
trusts declared of the estates so to be purchased ; and that, as often
as there should be the sum of £1500 arising from the rents and profits
of the devised estates, it might be laid out in such purchases of free-
hold estates as aforesaid ; and that the plaintiff might be declared to
be entitled to the immediate possession and enjoyment of the said es-
tates so to be purchased, for the term of ninety-nine years, if the
plaintiff should so long live, such term to be computed from the death
of the testator; and that in case the said rents and profits should not,
as soon as they amounted to il500, be so laid out, the plaintiff might
be declared entitled to the interest and dividends thereof from the
time the same amounted to £1500, until the same should be laid out
in the purchase of freehold estates ; or that, in case the said trusts
were partly valid and partly invalid, then that proper directions might
be given for effectuating such of the trusts as were valid, and for de-
436 RULE AGAINST PERPETUITIES (Part 4
daring and effectuating the rights of the persons entitled, so far as
the trusts were invaUd.
The defendants having put in their answer to the bill, the cause
came on to be heard before the Vice-Chancellor in 1823, when an or-
der of reference was made to the master, who, in pursuance thereof,
reported that the plaintiff was, at the time of the death of the testa-
tor, and then was, the heir-at-law of the said testator, and that the
said Ann Ricketts, deceased, the sister of the said testator, was his
only next of kin at the time of his death, and that William P. Lunell,
J. E. Lunell, and George Lunell, were then her legal personal repre-
sentatives, and the only persons, who, together with the plaintiff, and
the said Henry Bengough, James Bengough, and Ann Elizabeth Ben-
gough (the children of the said testator's late brother, George Ben-
gough), and the said Charles Lucas Edridge, and the appellant, the
executors of Joanna Bengough, the widow of the said testator, would
in case of intestacy have been entitled to distributive shares of the
personal estate of the testator.
Upon the death of James Bengough, the suit was revived against
Sarah Bengough, his widow and personal representative ; and William
Ignatius Okely, having married Ann Elizabeth Bengough, was subse-
quently made a party to the suit.
The cause having come on to be heard, on further directions, be-
fore the y^ce^^ChaiKiellor, his Honor, by a decree, bearing date the
24th day of January, 1827, ordered it to be declared (amongst other
things) that the testator's said will ought to be established, and the
trusts thereof carried into execution, &c. His Honor, in giving his
judgment in respect of that part of his decree, said, "that although the
rule of law be framed by analogy to the case of a strict settlement,
where the twenty-one years w"ere allowed m respect of the infancy of
a teliannn tait,"yet he considered it to l3e fully settled ^jthaLEmlEitions
bv Way ot devise or springing use might be m ade to depend upon an
absolute term 61 twenty-one years after lives m being.'"
Frorn this part of the decree the personal representative of the tes-
tator's widow appealed to the House of Lords, and the appeal came on
for hearing in February, 1832.
The learned judges who attended were J. A. Park, Littlisdali;,
GaselEE, Bosanquet, AIvDERSon, J. Parke:, and Taunton, JJ. ; Bay-
LEY, Vaughan, Bolland, and Gurney, BB. ; and the following were
the questi ons submitte d to them :
Firs t, whether a limitation, by way of execu tory devise, is void , as
to o remote,_pr otherw ise , if it is not to tak e ettect until after the de-
ter m i n a t i o n ^f_one^£ more JjIe^prJiverTrrBe^^
tiolr" of~a rterm of twen ty-one years afterwa rds, as a term in ^ross,
and without ref erence to the in fancy of an y person whois to take un-
der ^suchJimiUt i on^.QlLJ2i-am^
Secondly, whether a Hmitation by way^of executory devise is void,
as too remotefbr otherwise7~tf^t is nbl tu Lake-cffeci uirtil ufteFTtre
Ch. 1) THE RULE AND ITS COROLLARIES 437
determination of a life or lives in Jbehig,and_jipon the expiration of a
ter mol twenty-one^years afterwards, together with a number of
months eqijaTto tli^ordirraiy'pefibd of gestation ; but the whole of
such yeais and-^months^to-be-j^keTi asa ter^mjTn gross7~a"nd withmit
reference loThemfahcy of any~person whatever^ born or en venfre
sa mere .
Thirdly, whether a limitation b y w ay of executory devise is void,
as too remote, oFotlicfwIsg^ if iF is not to take effect until after the
determination of a life or lives in being, and upon the expiration of a
term of tvvenTy^one^ears^afterwards, together with the number ~of
months equal to the lo ngest period^f^gestajtion jjbut the whole of
such years ahdmbntTi? to be taken as a term in gross, and without
refeTCTnre^"to~ttie infancy of any person vvhatever, l^orn or en ventre
s a me re.
The learned judges attended again on a subsequent day (June 25th),
and Mr. Bar on B aylEy delivered their opinion as follows : First, in
answer to the firiFquestion : I am to return to your lordships the
unanimous opinion of the judges who have heard the argument at
your Lordships' bar, that such a limitation is not too remote, or oth-
erwise void. U pon t he introduction of executor}rdevises7and the in-
dulgence thereby allowed to testators, care was taken that the proper-
ty which wasThe~s ubject oITEem should jiot be tied up beyond a
reasonable^time, and that too great a^restramt iip_on alienadon should
noFbe perniitted7^TTie^ cases oF^Lloyd v. Carew, 1 Show. P. C. 137, in
the year 10^6, and Marks v. Maries; 10 Mod. 419, in the year 1719, es-
tablished the point, that for certain purposes, such time as, with ref-
erence to those purposes, might be deemed reasonable, beyond a life
or lives in being, might be allowed. The purpose, in each of those
cases, was, to give a third person an option, after the death of a par-
ticular tenant, to purchase the estate ; and twelve months in the first
case, and three months in the other, were held a reasonable time for
that purpose. These cases, however, do not go the length for which
they were pressed at your Lordships' bar; they do not necessarily
warrant an inference that a term of twenty-one years, for which no
special or reasonable purpose is assigned, would also be allowed ; and
I do not state them as the foundation upon which our opinion mainly
depends. They are only ir nportant as establishin g th at a life or lives
in being is not the limitation ; that the re are cases iji which it may be_
exceeded. Taylor v.J2i'^ldal^2 Mod. 289 (1677), is the first instance
wT^H a^re- met with in the books, Jii^w hich so grea t^an excess as twen-
ty-one yearVaTtefli Tlle^ oFlives i n bei ng xyas^ allo\\-ed;iLnd tTiat \vaT^
case^of mTaiTcy: rr^vas^aTTimitatlon to the heirs of the body of^^^ob^
ert^WarRjrrT'and their heirs, as they should attain the respective ages
of twenty-one; there might be an interval, therefore, of twenty-one
years between the death of Robert, till which time no one could be
heir of his body, and the period when such heir should attain twenty-
one, till which time the estate was not to vest: and that limitation
438
RULE AGAINST PERPETUITIES
(Part 4
was held good by way of executory devise. That, however, was a
case of infancy, and it was on account of that infancy that the vest-
ing was postponed. This case was followed by, and was the founda-
tion of, the decision in Stephens v. Stephens, Cas. temp. Talb. 232.
That was a case of infa ncy also Tlie executory devise there was, "to
such other sorTof thelSody oT my daughter, Mary Stephens, by my
son-in-law, Thomas Stephens, as shall happen to attain the age of
twenty-one years, his heirs and assigns forever;" and the judges of"
the Court of King's Bench certified that the devise was good. The
certificate in that case is peculiar; it refers to Taylor v. Biddal, and
says, "that however unwilling they miglit be to extend the rules laid
down for executory devises beyond the rules generally laid down by
their predecessors, yet, upon the authority of that judgment, and its
conformity to several late determinations in cases of terms for years ;
and, considering that the power of alienation would not be restrained
longer than the law would restrain it, viz., during the infancy of the
first taker, which could not reasonably be said to extend to a perpetui-
ty; and considering that such construction would make the testator's
whole disposition take effect, which otherwise would be defeated ;
they were of opinion that that devise was good by way of executory
devise." This also was a case of infancy; it was on account of that
infancy that the vesting of the estate was postponed; and though, un-
der that limitation, the vesting of the estate might be delayed for
twenty-one years after the deaths of Thomas and Mary Stephens, it
did not follow of necessity that it would ; and it might vest at a much
earlier period. These decisions, the refore,_clo_not distinctly or neces-
sarily establisji the position, that a ter m in QTOSS^fojr twen ty-one
years , witho ut ~any reference to^jifancy, after a life or lives in esse,
will be goodT)y~wa3njf executory devise,; but there is nothiiiglmThem
nprp^crcarTly TrrT()iiriiif7" it to ra? rK"of infancyT~TlTe 'contem poraiiebii s^
understanding might have been, that it extended_generally to any
tenlTot twenty-one^ears ; and there are so me autho rities which lead
to a belief that sucli was f^Te^ase. Iri'Goo dtTtle v. W ood.^Villes. 213 ;
s. c.~7T^. R. Iu3 n.. Lord Cnief Justice Willes discusses shortly the
doctrine of executory devises, and notices their progress of late
years. He says : "The doctrine of executory devises has been set-
tled ; th£y_Iiaye j3ot bee n consi^re(ri!l!l b^ffe~"possibilitie gl_^
tain interests ai id esta tes, and liaye_b cen resembled to _XQn tingen t re-
m ai nHp f*^ in all other respect s, only tliey ha ve been piiJ;^jimler_so m e
restraints, to prevent perpetuities. At fi rst it was held, that the con-
tingen^y^^ll&LJiappen witjim tUTr^ompass of a life or hves^n being,
or a reasonable number of years; atTength it was~extended a little
further, viz., to a child en"'velltre sa mere, at the time of the'tather ' s
d e a til ; becSTTSTrT-as ' tlraT^conl itigcncy must necessarilyjjappialaaatliin
les s"~t!ia n~ntTTe'monTlTS after t he death ol a person inbeing. that con-
st ruction~wouTd' rhtroduce no inconvenience ; and the" riite^as, in
many instances, beelT^extended to twenty-one yeaTs~after tTie^ath of
Ch. 1) THE RULE AND ITS COROLLARIES 439
a person in being; as in that case, likewise, there_Ls.no danger of a
perpetuity." Ancl in citing this passage in Thellusson v. Woodford,
1 N. R. 388, Lord Chief Baron Macdonald prefaces it by this eulo-
gium : "The result of all the cases is thus summed up by Lord Chief
Justice Willes, with his usual accuracy and perspicuity." He does, in-
deed, afterwards say, 1 N. R. 393, after noticing Long v. Blackall,
"the estal)lishcd length of time during which the vesting may be sus-
pended, is during a life or lives in being, the period of gestation, and
the infancy of the posthumous child ;" and that rather implies that he
thought the rule was confined to cases of minority. This opinion of
Willes, C. J., though not published till 1797, was delivered in 1740;
and in the minds of those who heard it, or of any who had the oppor-
tunity of seeing it, might raise a belief that there were instances in
which a period of twenty-one years after the death of a person in esse,
without reference to any minority, had been allowed; and, though
there be no such case reported, it does not follow that none such was
decided. In Good man v. Goodr ight, 2 Burr. 879, is this passage:
"Lord C. J. ManslTeid says, 'it is a future devise, to take place after
an indefinite failure of issue of the body of a former devisee, which
far exceeds the allowed compass of a life or lives in being, and twenty-
one years after,' which is the line now drawn, and very sensibly and
rightly drawn." This was published in 1766; and, whether the last
approving paragraph was the language of Lord Chief Justice Mans-
field or the reporter, it was calculated to draw out some contradiction
or explanation, if that were not generally understood by the profes-
sion as the correct limitation. In Buc kworth v. Thirk ell, 3 Bos. &
Pul. 654 n.; s. c. 10 B. Moore, 238 mTXord Mansfield says, "I re-
member the introduction of the rule which prescribes the time in
which executory devises must take effect, to be a life or lives in be-
ing, and twenty-one years afterwards." In Je^e_v.^Audley, 1 Cox, 325,
Lord Kenyon (Master of the Rolls) says, "The limitations of personal
estate are void, unless they necessarily vest, if at all, within a life or
lives in being, and twenty-one years, or nine or ten months after-
wards. This has been sanctioned by the opinion of judges of all
times, from the Duke of Norfolk's Case, 3 Chan. Ca. 1, to the present
time ; it is grown reverend by age, and is not now to be broken in
upon." In Long_VjBlackall, 7 T. R. 102, the same learned judge says,
"The rules respecting executory devises have conformed to the rules
laid down in the construction of legal limitations ; and the courts have
said that the estates shall not be unalienable by executory devises for
a longer time than is allowed by the limitations of a common-law con-
veyance. In marriage settlements the estate may be limited to the
first and other sons of the marriage in tail ; and until the person, to
whom the last remainder is limited, is of age, the estate is unaliena-
ble. In conformity to that rule, the courts have said, so far we
will allow executory devises to be good." And, after referring to the
Duke of Norfolk's Case, he concludes, "It is an established rule,
440 RULE AGAINST PERPETUITIES » (Part 4
that an executory devise is good, if it must necessarily happen within
a life or lives in being, and twenty-one years, and the fraction of an-
other year, allowing for the time of gestation." In Wilkins on v .
South, 7 T. R. 558, Lord Kenyon says, "The rule respecting execu-
tory devises is extremely well settled, and a lini itation, by wavj^f^ex-
ec utoryjievise, is_ good, if it may (I think it should be, must) take
place_after a life or liv es in iDeing, and within twenty-one years, and
the fracti on of anothe r year afterwards. "^ We would not wish the
Hoifse to suppose, that there were not expressions in other cases
about the same period, from which it might clearly be collected, that
minority was originally the foundation of the Hniit, and to raise some
presumption that the limit of twenty-one years after a life in being
was confined to cases in which there was such a minority; but the
manner ij i which the rule w as_expressed^^ the instances to which"!
have ref erred, as well a s_ in text writers, appea rs to us ^o justify the
concl usion, t hat it was at leng th ext ended_ to th eenTarg^ IimjFof_a
life or lives in being, and twenty-o ne~years afterwafdsr It is difficult
to suppose, tharmeiV^f such dismrrnnatTnglTunds^^nd so much in
the habit of discrimination, should have laid down the rule, as they
did, without expressing minority as a qualification of the limit, par-
ticularly when, in many of the instances, they had minority before
their e3'es, had it not been their clear understanding, that the rule of
twenty-one years was general, without the qualification of minority.
Mr. Justice Blackstone, in his Commentaries (2 Bl. Com. [16th Ed.]
174), puts as the limTts of executory devises, that the contingencies
ought to be such as may happen within a reasonable time, as within
one or more lives in being, or within a moderate term of years ; for
courts of justice will not indulge even wills, so as to create a per-
petuity. The utmost length that has been hitherto allowed for the
contingency of an executory devise, of either kind, to happen in is,
that of a life or lives in being, and twenty-one years afterwards ; as,
when lands are devised to such unborn son of a feme covert as shall
first attain twenty-one, and his heirs, the utmost length of time that
can happen before the estate can vest is, the Hfe of the mother, and
the subsequent infancy of her son ; and this has been decreed to be a
good executory devise. Mr. Fearn e. in his elaborate work upon Ex-
ecutory Devises, lays down the rule in the same way : "An executory
devise, to vest within a short time after the period of a life in being,
is good;" as in Lloyd v. Carew, which he states, and Marks v. Marks;
and he says, "The courts, indeed, have gone so far as to admit of ex-
ecutory devises, limited to vest within twenty-one years after the pe-
riod of a life in being;" as in Stephens v. Stephens, Taylor v. Biddal,
Sabbarton v. Sabbarton, Cas. temp. Talb. 55, 245, all of which he
states, and in all of which the vesting was postponed on account of
minority only; and then he draws this conclusion, "That the law ap-
pears to be now settled, that an executory devise, either of a real or
personal estate, which must, in the nature of the limitation, vest with-
Ch. 1) THE RULE AXD ITS COROLLARIES 441
in twenty-one years after the period of a life in being, is good ; and
this appears to be the longest period yet allowed for the vesting of
such estates." The instances put, all instances of minority, might cer-
tainly have suggested that it was in cases of minority only that the
twenty-one years were allowed ; but, by stating it generally, as he did,
he must have considered twenty-one years generally, independently of
minority, as the rule. The same observation applies to Mr. Justice
Blackstone. That such was Mr. Fearne's understanding, may be col-
lected from many other passages in his book; but from none more
distinctly than in the third division of his first chapter on executory
devises, (9th Ed. 399, 401), where, after having mentioned as the sec-
ond sort of executory devises, those where the devisor gives a future
estate, to arise upon a contingency, without at present disposing of
the fee, and after putting several instances, he then concludes the di-
vision thus: "And the case of a limitation to one for life, and, from
and after the expiration of one day (or any other supposed period,
not exceeding twenty-one years, we may suppose), next ensuing his
decease, then over to another, may be adduced as an instance of the
call for the latter part of the extent to which I have opened the sec-
ond branch of the general distribution of executory devises." And in
his third chapter (page 470), he begins his eighth division with this
position: "It is the same (that is, that an executory devise is not too
remote) if the dying without issue be confined to the compass of twen-
ty-one years after the period of a life in being." And in the eiglrth
division of the iburnfcHapfeFfpag'e 517) Iie^sayi^"It seems now to be
settled that whatever number of limitations there may be after the
first executory devise of the whole interest, any one of them that is
so limited that it must take effect, if at all, within twenty-one years
after the period of a life then in being, may be good in event, if no
one of the preceding limitations which would carry the whole interest
happens to vest." The opinion of ^Ir. Fearne is continued in the
diflferent editions, from the period when his work was first published,
in 1773, down to the present time; but, upon that expression which
occurs in Thellusson v. Woodford, 4 Ves. 337, showing that a doubt
existed in the mind of Lord Alvanley, that doubt is introduced into a
subsequent edition, for the purpose of consideration ; but it does not
appear to me, from anything expressed by his great and experienced
editor, or in any note of his, that he thought the rule laid down by
Mr. Fearne was not the right and correct rule ; but, instead of that,
he seems to have intimated, that his opinion was in conformity with
it ; because he gives extracts from what Mr. Hargrave. who agrees
with Mr. Fearne, had said upon the subject, as if the inclmation of his
opinion was that Mr. Fearne was right, and that the unqualified rule
of twenty-one years was correct. At length, in Beard v. Westcott, 5
Taunt. 393, the question, whether an executory devise was good,
though it was not to take effect till the end of an absolute term of
twenty-one years after a life in being at the death of a testator, with-
442
RULE AGAINST PERPETUITIES
(Part 4
out reference to the infancy of the person intended to take, was dis-
tinctly and pointedly put by Sir W. Grant, the then Master of the
Rolls ; and the Court of Common Pleas certified that it was. The
point, though necessarily involved in that will, was not prominently
brought forward, either upon the will itself, or upon the first of the
two cases that was stated ; and, lest it might have escaped the notice
and consideration of the Court of Common Pleas, it was made the
subject of an additional statement to that court. The first certificate
was in November, 1812; the next in November, 1813; and the judges
who signed them were Sir James Mansfield, Mr. Justice Heath, Mr.
Justice Lawrence, Mr. Justice Chambre, and Mr. Justice Gibbs, men
of great experience, and some of them very familiar with the law of
executory devises. Those certificates stood unimpeached until 1822,
when the same case was sent by Lord Eldon to the Court of King's
Bench, and that court certified that the same'Hmitations which the
Common Pleas had held valid, were void, as being too remote; but
the foundation of their certificate was, that a previous Hmitation,
clearly too remote, and which was so Considered by the Court of
Common Pleas, made those limitations also void which the Common
Pleas had held good. The subsequent limitations were considered as
being void, not from any infirmity existing in themselves, but from
the infirmity existing in the preceding Hmitation ; and because that
was a limitation too remote, the others were considered as being too
remote also. Whether the Court of King's Bench gave any positive
opinion on that, I am unable to say. I think the Court of King's
Bench would have taken much more time to consider that point than
they did, and have given it greater consideration than it received, if
they had intended to dififer from the certificate that had been given by
the Court of Common Pleas; but, when it became totally immaterial,
in the construction they were putting upon the will, to consider
whether they were or were not prepared to differ from the Court of
Common Pleas, it is not to be wondered at, that that point was not
so fully considered as it might otherwise have been. Upon_the direct
authority, therefore, of the decision of the Court of Common~Pleas,
V. WestcottT
in BearcPv.' Westcott7~ and: the dicta by L
Maiisfield, and Lord Kenyoii, an
C. Justice \Villes, Lord
le rules laid down in Blackstone
an d Fearn e, we consider ourselves warranted m saying that the limit
is a life "or lives in being, and twenty<)ne~ years attcrvvar cls, with out
reference to the mtancy ot any pers on wiiateven Thi¥"wTll certainly
render the esiaie"TTii?ib'eu aiile lo r twenty-one 3^ea rg_ai tgr lives'in bein g,
but it will preserve in safety any limitations which may have been
made upon authority
tTTcta or text wriTFTs^ have iTTen tiOned ;
and it wTTTnot ti e upJiieJalierLaliaa-a ii unreasonabl e length orTTmeT^
Upon the se cond and third questions proposed by your Lordships,
whether a limitation by way of ex ecutory devise is void, as too re-
mote, or otherwise, if it is not to take ettt^CT UhtH after tTie determinaT
tion oT~a life or lives in being, artd lip6n rhrigxpiration of a term of
Ch. 1) THE RULE AND ITS COROLLARIES 443
twenty-one years afterwards, together with the number of months
eqiTaTTo^The ordmary or longest period of gestation, but the vvliole
of such years and~months To beTaken" as 'a~feF mTfi ^rb ss, and wiHTout
reference to the rhfancy'orany~persbn whatever, born or en ventre TST
*mere,T^he unanimous 15f)IhTon of tlie fudges is, that such a hmifation
wolild be void, as tooTemoteT "nTey'co^nsider tw enty-one y ears as the •
li mit, a nd the perioH~o7 gestation to be allowed in those cases only^
wliich tlie gestation exists. ~ "^ ~~
'Villi, Lord (JiiancELLOrT ~I shall move your Lordships to concur in
the opinions expressed by the learned baron, as the unanimous reso-
lutions of the judges. The two last questions were put with a view to
comprehend more fully the question argued at the bar, and to see the
origin of the rule. T hat rule was originally in troduced in conse-
quence of the ii ifan cy of p arties ; but whatever was its beginnmg, it is
n o w 'to betake^T as estab1ish^ cn3y"tTTF'(ltcg]ofTTi^~judg^^ fronfTim e
to time. A decision of your Lordships in the last resort, assTsfecl
here by the then Chief Justice of the Common Pleas, in Lloyd v.
Carew, 1 Show. P. C. 137, settled the rule; for the wdiole question was
there gone into. Some doubt has been expressed as to whether this
principle was adopted as the uniform opinion of conveyancers. It is
impossible to read the passages read by the learned baron from Mr.
Fearne's book, without seeing that it was the settled opinion of that
eminent person, that t wenty-oiT e_vea rs m i ght be t aken aljsolutely.
The able editor of his book was of the same opinion, and MrTjTis-
ticc Buller's opinion was stated by him and examined. Mr. Butler
makes it a question of separate consideration, and treated the subject
as Mr. Fearne had done . The opinion of Lord MansfielH~was the
same, and the doctrine is not weakened by what Lord Kenyon is stat-
ed to have said in Long v. Blackall, 7 T. R. 100. In the opinion of all,
the rule was clearly confined to twenty-one years, as the period now
understood. It was, however, necessary to state the first question,
for the opinion of the judges, and they have not shrunk from the con-
sideration of it. It was also right to have put the other two ques-
tions, to which the learned judges also applied themselves, and they
have excluded the period of gestation beyond the term of twenty-one
years, except where the gestation actually exists. If your Lordships
be of the same opinion, you will affirm the judgment of the court be-
low, and dispose of this case. Th e rule will then be, that a limitation
will n ot be too remote, if the vesting- be suspended for tw^entv-on e
ye afTlSeyond a life or lives in being; but that beyond that perio d it
would.
Tlie judgment of the court below was afBrmed.
444 RULE AGAINST TERPETUITIEa (Part 4
ASHLEY V. ASHLEY.
(Court of Chancery, 1833. 6 Sim. 358.)
By an order ° in this cause the master was directed to inquire what
interest the testator had in a certain estate in London. The master
found that James Lewer, being seised in fee of said estate, died in
1773, and by his will devised said estate to his wife for life, remain-
der to preserve contingent remainders, remainder to his daughter,
Sarah Chandler, for life, remainder to trustee to preserve &c., and
after her death to "all and every the child or children" of Sarah Chand-
ler "equally to be divided between fhem, if more^thali one, share and
sliare alike, and to take as tenants in common and not as joint tenants,
a nd for want of s uch is'sue^of B ar ah ClTa nHTer" then to his daughter
AIarv_H,^ nd for lifg with like remainders to~HerglTildr en, r em^sinder
to Thomas Chandler infee; The residiie'of his estate, real and per-
sonal^ e gave„ tQ,liis_ wije^in fee and absolutely.
Sarah Chandler had eight children^ living at the death of James
Lewer or bom afterwards. Five of them had died without issue, but
three were living.
The master reported that all the limitations in the will failed, subse.-.
que nt to tlie devi se to t h e child or childreiro T^Sarah ChancHer, as be-
in g onlv to take effect in case there neve r w as any sucli _child] anci
that the children of Sarah Cha ndler took Tife estates only without
cross remai nders between th em ; and that, subject thereto, the fee sim-
pl e^'oTThe houses p assed, by the general re siduary devise^to -tEe widow
of_Jame s Le wer, the testator.
The Vice-Chancellor [Sir Lancelot Shadwell]. jvly opinion
is^ directly against the fin ding of the master. [His Honor here read
the devise, and then proceeded thus:] Now but one subject is given
throughout. The expres sion, "for want of s ucliis sue,'' means _want
of iss ue wheneveFthat event may ha p pen. eit herT S^Tther e^being^^chil-
dren originally, or by the childr en ceasing to exist. Th ose words see m
to me to create "cross remain3ers by implication.
Declare that the childreli'of Mrs. Chandler took estates for lite, as
tenants in c ommon, wTtli~crO^B-rei«a4H4ers between them for lITeTwith
rem"ain3er to Mrs. Hand toiiJif e, with remaind er to_her children, as
ten ants in c ommon for life, with cross remainders between them for
lif e, wit h remainder to Thomas CiraridleFuTfee : andTef er it back to
the master to review his report.^"— ' —
8 The following statement is substituted for that in the report.
10 See, also, Madison v. Larmon, 170 111. 65, 48 N. E. 556, 62 Am. St.
Rep. 356 ; Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682. But see Fosdiek
V. Fosdiek, 6 Allen (Mass.) 41.
Ch. 1) THE RULE AND ITS COROLLARIES 445
SOUTHERN V. WOLLASTON.
(Court of Chancery, 1852. 16 Beav. 27G.)
The testator, by his will dated in 1835, bequeathed £400 Consols to
trustees, upon trust for his cousin Ed\vard^ Wollaston for life ; and
aft er his decease, upon trust to assig n and transfer^^r^pa^, distribute_
an d divide the same unto and^ equally between all and e very the chil-
dren and^ild oLEdward Wollaston who shall be' living at his de-
ceaseTand who should then be of or afterwards Kve to_att ain Ihe^ ge
of Twenty^fivej^ears ; if more than one, in equal shares.
There was a^gift over, in case there should be no child living at his
death, or of their all dying under twenty-five. And the testator di-
rected, that after the decease of Edward Wollaston, and while any of
the persons presumptively entitled thereto should be under the age of
twenty-five years, the dividends of the shares of the persons so, for the
time being, under that age in the i400, should be applied towards the
maintenance and education of the person to whom the said stock mon-
eys should, for the time being, under his will presumptively belong.
The test ator died in 1845. Previous thereto, and in J.837, the legatee
EdwaT^'^'ollaston had jied, leavmg eleven c hjl.d£eji ; _ four only_ sur-
viveH the testator, and the youngest attained twenty- five i n_ 1848^
"Tnjue^ttoTr'was l^sed, at a Tormer Tiear'ihg (r6~Beav. 166), whether
this gift to the class of children was or wasjiot void for remoteness ;
andthe point~norhaviiig~b'een fully argued. The impression of the court
then was, tha t it w as_void,j3Ut_^permjssion_was^ obt ained to arg ue th e
point.
TvTr. Lloyd and Mr. Bilton now appeared for the children. They
argued as follows : The will speaks as at the testator's death. This
legacy is therefore free from all objection in regard to remoteness, for
the tenant for life was the^iT_dead^ an d his child ren ascertained : and
as th ey we re all more tha n fmir ypgr^ nf age the legacy of necessity
vested witlim due limits^jhat is, within twenty-one years from the tes-
tator'S death. "IfTWiITiamrv^Teale, 6 Hare, p. 251, Sir James WigFam
expressed his opinion on the very point. He says, "A third point, upon
which my mind is also made up, is this: that, in considering the va-
lidity of the limitations in this will, with reference to the state of the
testator's family, the state of the family must be looked at, as it ex-
isted at the time of the death of the testator, and not as it existed at
the date of the will. If a t estator should give his property to A. fo r
life, with remainder to^uch of A.'s children as sliuuld^ft^ t^wenty-
five" years df~age, and the te stator^ sfiouldZdi eTTiving A., there is no^
doubt but that the limitations' over to the children of A. would be void,
Lealce V. R u b h is ui i, 2 -M€fr^63; blit it, m that case, A.Tiad~diecl living
the testator, and at the death of the testator all the chiTdren of A. h ad
attaTiTed^went}Rlve',lhe~c^ass w ould be then ascertain ed, and I cannot
thinlTit possible that any court of justice would exclilde them from the
446 RULE AGAINST PERPETUITIES (Part 4
benefit of the bequest, on the ground only, that if A. had survived the
testator, the legacy would have been void, because the class in that
state of things could not have been ascertained." ^^
The Master of the Rolls [Sir Johx Romilly] said he should
follow the case of Williams v. Teale, and declare that the gift to the
children was not void for remoteness.
AVERN V. LLOYD.
(Coiirt of Chancery, ISGS. L. R. 5 Eq. 383.)
This cause came on to be heard on further consideration and on a
petition.
Joseph Wright, by will, in March, 1780, after directing his execu-
tors, as soon after his decease as might be convenient, to sell all his ef-
fects, and to invest the proceeds in some of the public funds, directed
them to pay one moiety of the d ividends to arise from such funds to
his brother Francis for life, and after his decease to the is?TIe^ale of
h is" bro tl ipr h] -nncis equally, share and share alike, f or their live s and
the life of the longer liver, and af ter th e decease of the survivor , or in
case there should be no such male issue ot his brother Francis, to pay
such moiety of the dividends t o his broth er John Wright for life, and
after his decease to his issue male equah y, share ana share alike, for
their respective lives and the life of the longer liver ; and after the de-
cease ofth£_survivor, or in case there should be no such issue "male
of his brother John, then to all and every the daughters and daughter
of his brother Francis equally, share and share alike, for their respec-
tive hves, and to the survivors and survivor ; and after t he dec ease^ of
the surv ivor of such daughters an d daughter of his brother Francis,
he bequeathed~tTTie moiety of "'The tunds and the"~dividends tTTereoT To
the executors, administrators, and assigns ot the survivor of his br gtli^
ers John and Francis, or their issue, male or female, wdio s hoii ld hap-
pen to be such surviv or. The testator directed his executors to pay
the other moiety ot such funds to his brother John for life, and after
his decease to pay the dividends of such moiety to his issue male for
their lives and the life of the longer liver ; and after the decease of the
11 The rest of the remarks of Wigram, V. C, in Williams v. Teale, 6 Hare,
239, 251 (1847), on this point is as follows : "I have noticed this point he-
cause I find that an intellisent writer (I allude to jNIr. Lewis, in his hook of
Perpetuities) has expressed a contrarj- opinion in his observations on the
case of Vanderplank v. King, 3 Hare, 1, and has upon that ground doubted
the correctness of my decision in that case. In another part of the same
book, the cases upon which he founds his opinion are collected and com-
mented upon ; but upon examining those cases, it appears to me that none of
them (as it Is in terms admitted) is inconsistent with the opinion I have
expressed. I have considered the point with much attention, and I am clear
that t he f|uestion to be considered is . How the fa mily sto od at the deatli of
the testator, and not now it stood aT"liii> rui'lii i (TTire. " """ ' '
Ch. 1) THE RULE AND ITS COROLLARIES 447
survivor, or in case there should be no such issue male of his brother
John, to his brother Francis for life, and after his decease to his issue
male equally, for their lives and the life of the longest liver ; and after
the decease of the survivor, or in case there should be no such issue
male of his brother Francis, then to all and every the daughters and
daughter of his brother Francis equally, for their lives and the lives of
the survivors and survivor, and after the decease of the survivors and
survivor of such daughters and daughter of his brother Francis, he
bequeathed the last-mentioned moiety of such funds and the dividends
to the executors, administrators, and assigns of the survivor of his
brothers John and Francis, or their issue, male or female, who should
happen to be such survivor.
The testator died in 1785.
Francis Wright died in 1801, leaving three sons, Joseph, John, and
Francis, and five daughters, of whom Ann intermarried with the de-
fendant Robert Lloyd.
In March, 1815, in a suit instituted by the three sons against their
uncle John and others, for the purpose of having their rights under the
will declared. Sir W. Grant ordered the transfer into court by the
uncle John of £1100 £3 per Cent Stock, and of £950 New South Sea
Annuities, in trust in the cause "the account of the legatees for life ; "
that the costs should be taxed and paid out of a sale of sufficient of
such stock; that one moiety of the dividends accruing on the residue
of such stock until such sale, and on the residue after such sale, and
one moiety of the dividends accruing on the annuities, should be paid
to the three plaintiffs in equal shares during their joint lives, and after
the death of them, or either of them, that the whole of the dividends
of the last-mentioned money should be paid to the survivor during his
life; and that the dividends accruing on the other moiety of the an-
nuities should be paid to the uncle, John Wright, during his life, and
that on his death and that of the survivor of the three plaintiffs, any
persons entitled to the moieties of the stock and annuities were to be
at liberty to apply to the court.
The funds were transferred into court, and by the payment of costs
the stock was reduced to £764 13s. 8d.
The uncle, John Wright, died in 1818 without issue. In January,
1819, it was ordered in the cause that the whole of the dividends on
the stock and annuities should be paid to the plaintiffs, Joseph, John,
and Francis Wright equally. Joseph Wright died in 1820, and, on pe-
tition, it was ordered that the dividends should be paid to John and
Francis in moieties. John and Francis sold their interests in the stock
and annuities, and it was ordered that the dividends should be paid
to their assignee during their lives and the life of the survivor. John
Wright died in 1849. Ann Lloyd was the survivor of the five daughters
of Francis, the brother of the testator. She died in 1842, and the de-
fendant, her husband, became her legal personal representative.
Francis Wright, the survivor of the three plaintiffs above mentioned,
448 RULE AGAINST PERPETUITIES (Part 4
died in April, 1856, and since that date no dividends had been paid
to any person. Letters of administration to the effects of the said
Francis were granted to his daughter, the plaintiff, Emma \l. Avern,
and she and her husband, in April, 1863, filed their bill praying for
a declaration that she, as administratrix, was entitled to the funds in
court, or, if not, that the rights of all parties under the will might be
declared.
Sir John Stuart, V. C. In this case there is no question as to
the validity of the limitation of the life es tates in r emamder tofhe"Tin^
born issue, ma le andTemale, of the testator's broth ers. John _andj'ran-
c is^! The _ _un15orn issue T Tearly__t ake life estat es, share and share alike .
But it has been contended that the ultimate limitation to the executors,
administrators, and assigns of the survivor of these tenants for life
is too remote. The limitation is in these terms : "To the executors,
administrators, and assigns of the survivor of his brothers John and
Francis, or their issue, male or female, who shall happen to be such
survivor." Considering that this limitation to the executors, admin-
istrators, and assigns must take effect in the lifetime of one of the un-
born issue to whom a good estate for life is given, so as to give him
an absolute estate in possession when he becomes survivor, it is not
easy to see on what ground it can be considered as too remote. The
gift to the executors, administrators, and assigns of the sur\-iving ten-
ant for Jife aTtaclTes'to the life estate, so as to give a contingent abso -
lu te interestToeacTi tenant for l ife. This contingent absolute mter-
est vests in possession in the survivmg tenant for life as soon as he is
ascertained. It attaches the absolute interest as much to the life es-
tate in the case of personal property as the rule in Shelley's Case, 1
Rep. 219, attaches the inheritance to the life estate in the case of a con-
tingent limitation to the heirs or the heirs of the body of the tenant
for Hfe of a freehold estate, so as to make the heir take by descent
when the contingency happens. Each of the tenants for life in this
case had as much right to alien his "conrmgent right to the ab-5gt ufe"ln -
te rest as to al ien his life estate; an d the person clamimg uncle Tan as-
sign ment oi the whole eijiate lilld"interest of the tenant for life_3K!Liild,
as s oon as his assignor became the survivor o f the other te nants fo r
life, be entitled to the posse ssion and enjoyment as absolu tel5wj"'er. ^It
seems obvious that such a case is not wi thin t he principle on whid j^
the law against perpetuity rest s, and that the limitation in question of
the absolute interest does not fail as being too remote.
Ch. 1) THE RULE AND ITS COROLLARIES 449
EVANS V. WALKER.
(Chancery Division, 1876. 3 Ch. Div. 211.)
See ante, p. 172, for a report of the case.
ABBISS V. BURNEY.
(Court of Appeal, ISSl. 17 Ch. Div. 211.)
JessEL, M. R.^2 This is an appeal from a decision of Vice-Chancel-
lor Malins upon an important point of real property law. The firsts
qu estion is whet her t he rules_a^ to remoteness apply to what has been
te rmed an equ itable Te mamde r, where the legal estate has Been vested
in trustees under the same instrument which creates the equitable es-
tate. The seco nd quest ion is, wliethfiiLJJie^Hmitaiionjwitli which we
ha ve to dea H n this case is an eqi uta ble remainder or an executory~3e-
yise.
The gifts in the will, so far as relates to the real estate, may be stated
very shortly. There was a devise of freehold estate to trustees and
t heir h drs, vesting in them the le gal f ee upon trust to p^y~fhe rents
to tl ie testator's wife. Maria Finch ^ forheFlTfe, then upon trust that
the trustc^es should^^iringjhe life of o ne^ ^Tgnry MayeF, who was then"
liv mg, retain the rents for their own use, and after his death ul)oh
trust_to__ coiivey the~Ir^ ehold estates ^rTfte^test ator imt o_such son of
^^ iili am Macdo nald asshould first attain the age of twenty-five years,
his h eirs an d assigns, absolujely^ forever 7~siibj ect to~arcon(litron as tG~
talai% the name and arms of the testator, and in~TheliTean^timelTe~di-
recled thaFthe rents should accumulate for his and their benefit.
The only facts necessary to be stated are that William IMacdonald
was living at the death of the t estator, and no^n of his had then at-
tamecTThejigejDXJwie^iity^xe) but he had a son who, after the testator's
death but^during the lifetime of Maria Finch, attai ned the age^of twen-
ty -^fivei Maria Finch and Henry Mayer being both deacT, the question
now arises whether the limitation to the son of William Macdonald
who should first attain the age of twenty-five years is or is not void
for remoteness. The V^ice-Chancellor decided that it is not void for
remoteness on certain technical grounds which I will proceed to con-
sider.
Of course, if this is a limitation by w ay of exec utory devise it is
v oid for remofenes s. the rule as to remoteness being that an executory"
devise, in order tobe valid, must be such as necessarily to take efifect
within a life or lives in being at the death of the testator and twenty-
one years afterwards. Now it is obvious that the limitation to the first
12 The ease is stated in the opinion of Jessel, M. K,
4 Kales Prop. — 29
450
RULE AGAINST PERPETUITIES
(Part 4
son of William Macdonald who attains the age of twenty-five years is
not confined within the period of any life in being and twenty-one years
afterwards.
The ground on which it was endeavored to support the gift was this :
it was s aid that the gifj J(^ili£,son ofWilliarn Macdmiald_i:ta^_aii_eqiii-
table contmgent remainder, and^ that according to the law of coiitingent
rernirrrtders^he estate cduIH'not take_effect_at_all unlessJFwas~vested
at tlie^death ofTlTF survivor ol Maria Finch an d Henr y Maye r, aii d
thalTTHeref orer~if "couIdniaE"^ "void for remoteness, as it must take
effecTat t he^'g^cprraTion ot Iivg?Tn being^f lio^'T aFari- "The argument
proceeded on the footing that the same rules whicli"govern devises of
legal estates in freeholds govern also devises of equitable estates, using
the term equitable in the sense I have mentioned, and the Vice-Chan-
cellor gave effect to that argument.
The first observation to be made upon that is, that these contingent
eq uitable r aiiainders, as they are sometimes called, jig not stand upon
the saine footing as legal remainders. The reason why a contingent
remainder under a legal devise failed, if at the death oTthe previous
holder of tHe "est3te~of freehold there was n o person w lia_answered
the description of the rem ainder-nian next to take, w as the fe udal rule
that the freeKold could never be vacant, for that there musFalways'be
a tenant to render the services to the lord, and therefore if the remain-
der could not take effect immediately on the determination of the prior
estate, it never could take effect at all. Xhisu::£SulLo f feudal r ules was
never held tq^ap^ly to e quitable es tates, and it was sometimes""sa id'Tfrat
theTegal_esfate in the trustee supported tEe^ remainder. That was not
the best mode of expressing the^doctrine, the~prmciple really being that
as the legal estate in the trustees fulfilled all feudal necessities, there
being always an estate of freehold in existing persons who could ren-
der the services to the lord, there was no reason why the limitations in
remainder of the equitable interest should not take effect according to
the intention of the testator. If at the time of the determination of
the prior equitable estate of freehold there was no person capable of
taking, a person afterwards coming into existence within the limits of
the rule of remoteness, and answering the terms of the gift, was al-
lowed to take. So that the doctri ne of asc ertaini ng once for a ll__at
the^deatb of tlie-tenant for life what personsj!^£re_to^t ake unde r^Jhe
subsequent jcontingent limitations, had no application to equitable es-
tates. Equity hai; not on this subject followed^the law. According to
my experience it has always "Been assumed, without argument, that
where the fee is vested in trustees upon trust for a man for life, and
after his death upon trust for such of his children as being sons shall
attain twenty-one, or being daughters shall attain that age or marry
under that age, and at the death of the tenant for life there are some
children adult and some minors, the minors, if they live to attain twen-
ty-one, will take along with the others ; but if equity had followed the
law, then, inasmuch as there were persons capable of taking at the
Ch. 1) THE RULE AND ITS COROLLARIES 451
death of the tenant for life, namely, the adult children, they would
have taken to the exclusion of the children who were minors, as was
the case where the limitations were legal. It appears to me, there-
fore, that where the_Jegal_fee is outstanding in the trustees, that doc-
trine of conTTrigent rern^mders^wTiich, until the recent Statute, pre-
veme d contrng enTTeman-idefs from taking effect at airurrtesB^they vest^'
ed'ir'the moment~df the termination of the prior" estate ItTT reeliold,
h as~no operatJunTa nd-on that ground Tlhink this appeal^should'be al-
lowing
On the second point also I must differ from the conclusion arrived
at by the learned judge of the court below. I cannot find that there
is any equitable remainder to any child of William Macdonald. There
is a gift to the trustees upon trust for the widow for life ; then there
is a direction to them to retain the rents for their own benefit during
the life of Henry Mayer, which is not an equitable remainder, because
they, having the legal ownership, cannot have a separate equitable es-
tate. Then, on the death of Henry Mayer, there is a direction to them
to convey the legal estate to the first son of William Macdonald who
attains twenty-five. That direction to convey does not give the son
of William Macdonald an^equitable remainder expecISiit uii a priui ■
eqlTttabie-iife~estate. There is no^ equitable lite estate alter the death
of "the wido'wT and the direction to the trustees to convey is nothing
like a remainder. In my opinion, therefore, the gift to the son of Wil-
liam Macdonald is an executory limitation, and subject to all the rules
with regard to executory limitations, and on this ground also I am of
opinion that the decision appealed from ought to be reversed.
Cotton, L. J. I am of the same opinion. One point argued by Mr.
Williams was that the attaining twenty-five years was not part of the
description of the person to take, but that the gift was to be construed
as a gift to the first son, with a gift over if he did not attain that age,
and he referred to cases in which a violent construction of that kind
has been put by the court upon devises of real estate so as to give ef-
fect to what was considered by the court to be the intention of the tes-
tator. I asked Mr. Williams whether that violent construction had
ever been put upon a gift which included both real and personal es-
tate, and he was not able to refer me to any such case. But, inde-
pendently of that, how can it be said that in a gift to such son of Wil-
liam Macdonald as shall first attain the age of twenty-five years, the
attaining that age is not part of the original gift and part of the de-
scription of the devisee. Where that violent construction has been put
upon the words there has generally been some obscurity or ambiguity
in the original gift, or there has been a gift over on the person not at-
taining the prescribed age. In the latter case, as Vice-Chancellor
Wigram said, in the case of Bull v. Pritchard, 5 Hare, 567, 591, the
court construed the testator as giving all he had to the first taker, ex-
cept what he had given to the devisee over. But here there is no gift
452 RULE AGAINST PERPETUITIES (Part 4
over of that kind, and tke attaining of the age of twenty-five is an
essential part of the description of the person who is to take.
Then, assuming this is not to be a vested interest before the son at-
tains twenty-five, is the devise bad or not for remoteness ? The Vice-
Chancellor, as I understand him, proceeded on this ground. He said
if there is a legal contingent remain der that remainder of necessity
must be vested g t the' cea lmg of t he par ticular estate upon whi ch it is
limited or ji ot take effect at all and therefore, even although it is to a
persorTiFhe attains twenty-five, yet, as it must vest at or before the
determination of the prior life estate, there can be no question of re-
moteness, for if it ever comes into effect at^all it must come mto effe ct
on the^xpifation of a life_or lives in being . That no doubt is so, but
how can that apply to limitations of this kind, where the testator, by
his will, dealing with the legal estate and vesting it in trustees, has di-
rected that they are to hold it in certain events and at certain times on
particular trusts ? The rule_ does not app ly in equity, because in equit y
the feudal rules^ of tenure wilLnoLbejill owedlcrcletea't the trusts which
the testator lias^dec lared b y his will, a nd, even although at the ter-
miiiaHon of the particular estate the persons cannot be ascertained, yet
the court w'ill afterwards enforce the trusts in favor of persons who
subsequently come into esse and answer the description of the objects
of gift. It follows that the objection on the ground of perpetuity is
not removed.
I quite agree wath the Master of the Rolls that the question really
does not arise here, because tl iere is no limitation by wav of remainder.
The estate being given by the testator to trustees, he has directed that
at a particular time their estate shall be put an end to by their con-
veying it away to somebody else. They are not directed to hold it upon
trust for somebody else during his or her life and afterwards in trust
for a remainder-man, but they, having the fee absolutely in themselves,
are directed after a particular time to convey that estate from them-
selves, and to give the person then to be entitled the legal estate. Of
course, if there be no objection on the ground of remoteness, equity
w^ould compel them to hold it after that particular time for the benefit
of the person to whom they ought to convey, but as a matter of limita-
tion in the will it is not a 1imjfatu}I!_ilf ^^ pgnitahl p pt^tatpj n^re mainder ,
it is merely a direction at a future time to co nvey the estate to som e-
b ody els e^ r~atTi ttiereTore^f opinion that the c^uestion of contingent
remainders really does not arise, an d that the trus t to arise here at a
per'To3~~beyDTrd fliat allowed by the rulesof_perpetui ty mus^^ e dealt
with as aiTexecuTory trust and not as an eq uitable remain der. fiTTTiy
opinion, thercforeTThe^decisfon of the ^Vice^^Chancellor is erroneous,
and must be reversed.
Lush, L. J. I am of the same opinion. It is somewhat remarkable
that there is no decision to be found expressly upon this point, but I
may observe that it has been published as the opinion of very eminent
text-book writers, and was assumed in Blagrove v. Hancock, 16 Sim.
Ch. 1) THE RULE AND ITS COROLLARIES 453
371, as well by the counsel on both sides as by the learned Vice-Chan-
cellor himself, that the doc tririe as to excepting contingent remainder s
from the rule as to remote ness is not appUcable to equitable estate s.
The reason appears t6~be"a very obvious one. The doctrine in ques-
tion was founded entirely upon the requirements of the feudal law
which necessitated that there should always be somebody in possession
as tenant of the land to render service to the lord, and therefore if the
contingent estate did not take effect at the time when the preceding es-
tate ended, then it could not take effect at all ; so that remoteness was
out of the question. The courts of equity never interfered with that
doctrine, but when they came to deal with the equitable limitations of
real property, where the legal fee was given to trustees by the same
instrument, so that there were persons always at hand to fulfil the re-
quirements of the feudal law, the , courts of equity d ealt with tho se
equitable limitations accor ding to their own_principles, an d^disre^fd-
ing'the teudal law, to which there was no necessity to pay any atten-
tion, as its requirements were already satisfied, they ca rried out the in -
te ntion of the t estat or by giving effect to the equitable limitations ac -
cordingj o the term s of his will._ But then came in another doctrine,
founded on principles of public policy, that an estate cannot be tied up
longer than for a life or lives in being, and for twenty-one years aft-
erwards.
In this particular case the testator directed that the estate should be,
after the death of Henry ]\Iayer, conveyed by the trustees unto such
son of William Macdonald as should first attain the age of twenty-five
years, and the rents and profits of the estate v.-ere to be accumulated
until he attained the age of twenty-five years. If, therefore, the eldest
son of William ^Macdonald had been born in the year in which Henry
INIayer died, the rents and profits of the estate might have been left to
accumulate, and the vesting of the estate might have been postponed
beyond the period of twenty-one years from the expiration of any life
in being. I am therefore of opinion that the l imitation to the son of
William Macdonald is void for remoteness.
In re HARGREA\'ES.
(Court of Appeal, 1890. 43 Ch. Div. 401.)
Hannah Hargreaves, by will dated the 24th of November, 1838,
devised to John Townsend and Henry King certain specified free-'
holds, ''To have and to hold the same unto and to the use of them, the
said John Townsend and Henry King, and the survivor of them, and
the heirs and assigns of such survivor upon the trusts, nevertheless,
and to and for the several uses, ends, intents, and purposes thereinafter
mentioned, expressed, and contained of and concerning the same."
The trusts were to receive the rents and pay the residue, after deduct-
ing expenses, to her s ister Mary for life, for her separate use, as there-
454 RULE AGAINST PERPETUITIES (Part 4
in mentioned, and after h er d ecease "upon further trust to pay the res-
idue of such r ents to her oldest _xiliid during his^or ,her hfe, and after
the de cease of such oldest ch ild to the next oldest child during his or
her life, and so on in siiccession to the nexf^ldest child during his or
her life, till all the children of my said sister Mary shall depart this
life, and from and after the decease of my said sister Mary and all her
children upon further trusts to~pay the~residu^e ot such rents, issues,"
and profits" to the testatrix's sister Eliza for life for her separate use
as therein mentioned, and af ter her decea se to~pav the residue to her
c hildren successively in the same way as to Mary's children. "And
from and after the decease of my sai d sisters Mary and Eliza and all
their children, upon further trusts that they, my said trustees, or the
survivors of them, or the heirs or assigns of such survivor do and
shall stand seised of the said freehold hereditaments and premises, in
trust f or such pers on or persons, in such parts, shares, and propor-
tions, and in such manner and form7~and under and subject to such
powers, provisions, directions, limitations, and appointments as the
lon gest liver of them, my said sisters Mary and Eliza and their chil-
dren ^hall, notwithslahdmg coverture, by__ any~dee d or deeds, JiTstru-
ment or instruments in writing, or b y his or her last^will and testa-
ment in writing, or any codicil or codicils thereto to be respectively
duly executed and attested, direct, limit, or appoint , give, or devise
the same, and i n default of any such direction, limitation, or appoint-
ment, gift or devise then upon further trust of the same freehold here-
ditaments and premises for my own heir ^aMaw absolutely."
The testatrix died in December, 1838. Her sister Mary died in 1864,
leaving two children surviving her, one of whom died in 1871 ; the
other, Hannah Tatley, lived till 1889, when she died, leaving a will,
made in 1885, by which she appointed this property to a trustee in
trust for her children. The testatrix's sister Eliza hacrdied~cHiTdless
The persons on whom the legal estate vested in the trustees of the
will of Hannah Hargreaves had devolved took out an originating
summons to have it decided wh ether the trust lim itations, to take ef-
fect^jiterthe^ deaths of^he testatrix's sisters Mary aiid'^iza and ~all
their children, were valid, and who in the eventswhiclHTa^jiappened
was entitled to the_pro^perty! TiTe defendants were the trustee unBer
the wHl of Hannah Tatley and the person who claimed under the heir-
at-law of the testatrix.
ICay, J., said that he should decline to hear an equitable ejectment
upon an originating summons. The plaintiffs appealed.
Upjohn, for the person claiming under the heir-at-law. The objec-
tion was not taken by me, but by Mr. Justice Kay, and I submit that
the court had jurisdiction. The property being very small, I should
be glad for the case to be disposed of here, without incurring further
expense.
Ch. 1)
THE RULE AND ITS COROLLARIES
455
F. Thompson, for the appointee, concurred in this. The case then
proceeded on the merits.
Cotton, L. J. This is a case where trustees of a will in whom the
legal estate in fee is vested, and who are in possession of the property,
come asking to have a decision, to whom, according to the true con-
struction of the will, they ought to hand over the property. It would
be construing Order LV., rule 3, too narrowly if we were to say that
they cannot raise this question by originating summons. The ques-
tion to whom the beneficial interest in the property now belongs turns
upon the point whether the power of appoin tment ^given by th ejyilLoI
the testatrix is voK!~t nr~fcnioteiT e ss7 The limitation to the sisters for
life~an(1~tTrTheir children for their lives are perfectly good, but mjny
opinion the power to appoint isv oid f o r remoten ess. This power is
giv"errto~the last siirvivor of the sisters and their children. The chil-
dren niight not airUe in being aTtEe"ireaflT ofThe 'tesIaT rtxT tfii power,
ther efore, is noF given to a person who mustliece"ssarily be ascertam-
ed within the period~allowed bv""the rtllFaganist perpetuitTes T On th e
death ot the last survivmg child tTTe^eqlutabTe'estate devolved on the
hei r-at-lavr bt the festsrtri^ not uhder~tHe~Tr[rsrs declared by her^^jTT;
but as on a parllal intestacy, occas"iohecrb}rTh e'Tailure of th e ulterior
trust!
Tmust say a few words as to A vern v. Llovd. Law Rep. 5 Eq. 383,
which is very like the present case. The Vice-Chancellor there says
that as there may be a limitation of valid life estates to the unborn
children, why may there not be this ultimate limitation after their de-
termination ? No doubt there may, if it is limited to a person who is
necessarily ascertainable within the prescribed period. ltis _yery tru e
that after the decease of the tenan ts for life the children coul d have
disposeci-of thTTr interests, vested and _contingent7s o that_(a paFt irom
the quesTKDif'orthe~vaIiHIty'^o^ limitations) the estatemighthaye
beefTdisposed ot as soon as the t enants tor lite were dead, anclTt may
be contended that as the alieiiation of the estate is not prevented the
case iTnof withm the rule as to'remofenessTy But that is not the frue
An executoryTimitation to take effect on tFe
wa v of l ookml
happening of an event which may not take place within_a^life in beings
and twenty-one vears, is not made valid by the^fact that the person in
whoseJavorjTlsISiaxlecaTrT^kTBeTL ^'
LiNDLEY, L. J. I am of the sanie^opinion. Mr. Justice Kay could
not have decided the question of jurisdiction as he did if there had not
been some misapprehension as to the nature of the case. A trustee
has got the estate in his hands, and asks the court to tell him what he
is to do with it. There may be complicated cases where a judge may
say : "I cannot safely decide such a question as this in a summary
way; you must proceed by action," but there is clear jurisdiction to
decide such a question on summons.
As to the merits, the person who is to exercise this power is not
456
RULE AGAINST rERPETUITIES
(Part 4
necessarily ascertainable within the period allowed by the rule against
perpetuities, and the power therefore is void. If Av ern v. Lloy d, Law
Rep. 5 Eq. 383, had been followed in other cases "there would have
been a difficulty, but that case had not been followed, and I do not
tUink thatjtjyas rightly ~deci(IeH" ! - " ^
LoPEs7ir"X niTso~arn of opinion that this case comes within the
words and the spirit of Order LV., rule 3, and that Mr. Justice Kay
had jurisdiction to decide the question on originating summons. As
regards the construction of the will, I am also of opinion that the ul-_
tejiuijmiitations are void because the person to exercise the power
would^HoTnecesSiaillylje ascertained within a life in being and twenty-
one years. "^ " ^
WHITBY V. MITCHELL'.
(Court of Appeal, 1S90. 44 Ch. Div. 85.)
By articles dated the 4th of November, 182 L made shortly before
the marriage of Charles Dennis and Mary Elizabeth Maddy, it was
agreed that upon the marriage a settlement should be made of certain
lands to w^hich Charles Dennis was" entitled in fee simple."
Bv a settlement made in pursuance of the articles, and dated the 7th
of May, 1840, the lands were rrmypyed fo the trustees and theirjieirs^
to the use of Ch arles Dennis fq r_life, with a limitation to trustees to
supp.oi:t con _tingent.j;e mainder s, with reniainder to the use of Alary^
Elizabeth_pennis for_her life, with a like limitation to support con-
tingent remainders, with remainder a fter th e decease of tlie survivor
of Charles and_Mary Elizabeth Dennis, "to tHe_use of a ch ild7^ ran(I-
cl ijld, or m ore rem oTe^lssue, ^r~all~aiid every or any one or moreo T
the children, grandchildren, or more remote i ssue o f the said Charles
Dennis \^y the ^aid Mary^ Elizabeth his wife, such child, grandchil-
dren, or more remote issue being born before any such appointment
as hereinafter is mentioned shall be made to him, her, or them respec-
tively, for such estate or estates, interest or interests, and in such
parts, shares and proportions (if more than one), and with such limita-
tions over, such limitations over being for the benefit of some or one
of the objects of this present power, and in such manner and form, as
the said Charles Dennis and Mary Elizabeth his wife" should by deed
appoint, and indefault of appointmeiit, to the use of the child or chil-
dren of Charles an cI_AlaryjEHzabeth JDennis equally as tenants in
common, aQd^thelieirs and assigns of the same child or children re-
spectively, withaTirnitationTover in case~"any of such children should
die under twenty-one w'ithout leaving issue. The settlement contained
the usual power of sale, and directions for investment of the proceeds
13 Tlie statement of faots is taken mainly from tlie report of the case be-
fore Kay, J., 42 Ch. D. 494.
Ch. 1) THE RULE AND ITS COROLLARIES 457
in the purchase of land, and for interun investment thereof until a
purchaser could be found.
Charles and Mary Elizabeth Dennis had only two children, viz.,
Emily Hyde Dennis (who afterwards married one Burlton) and anoth-
er daughter. Both children were born before the date of the settle-
ment of 1840.
By an indenture dated the 15th of March, 1865, Charles and Mary
Elizabeth Dennis a ppointed that one moiety of the lands comprised in
the indenture of the 7th of JMay, 1840, or the proceeds of sale thereof,
should, after the decease of the survivor of them, go and remain to the
use of E giily Hyde Bur lton for_life, for her sole and separate use,
without power of anticipation, and aft er her d ecease, t o the us e of such
person or persons as she should by w dj_oi^_ codicil a p:poiiit. and in de-
faulfof appoint mcnt_to the use ol the children of Emily^yde Burlton^
li viiig at the date of that indenture and their heirs equally as tenants
in common, with a gift ove r in case all such children shotild die un-
der twenty-one without leaviiig issue.
A similar appointment was also made by Mr. and Mrs. Dennis in
favor of their other daughter, her children and appointees.
Kay, J., held that the appointment was invalid so far as it affected
to restrain Emily Hyde Burlton from anticipation, and to give her a
testamentary power of appointment, and to give the property in de-
fault of appointment to her children.
The three children of Emily Hyde Burlton appealed.
Cotton, E. J. This is an appeal from a decision of Mr. Justice Kay
declaring that certain li mitations treate d a s introduced into an ante -
n u p tial settlement by virtue of a post-nujjtial appointment under a
power con tained in th e settle ment, being limitations of legal estate!^.
w ere void, not on the grounTTlhat thev \vere void for remoteness but
that they were limitations which the l aw does not allow of legal es-
tates. Now, wTiat are these limrEatTons? First, there is a limitation
of a legal estate to an un born c hild of the marriage for life, amrtlTen^
after that, there is a limitation to the children of that unborn _chil(j..
It IS said that this latter limitaTloli dues not come within^the rule
against perpetuities, and that there is no other rule preventing this
limitation from being good. Mr. Justice Kay has decided, and in my
opinion rightly, that there is a rule in existence which does prevent
the limitation from being good, namely, that you canno t have a po s-
sibility upon a possibility ; or, to state the rule in a more conv enient
form, tlTa ryou cannbt jiave a limitat ion toFthe life of an unborn per-
son^^itK'a'limitation afteFhj s death to his unborn ch iiciren tO take as"
purc haseTs ! Th"St isTHe same thing as what has been caliea "a possi-'
biHty upo1t\ a possibility."
But it is said that, although there is such a rule in existence, that is
superseded by the more modern rule against perpetuities. In my
opinion the old rule with regard to a possibility on a possibility has""
458 RULE AGAINST PERPETUITIES (Part 4
not been done away with b y this modern rule. It is conceded that
tlie rule against a possibility upon a possibility existed loiig; be fore
the_nik prohibiting the limitations of estates tending _to_a_perp£tuity
existed.- Can we say that the old rule has been put an end to or su-
perseded? Mr. Joshua Williams lays it down that the rule still ex-
i sts ; while other t" ext^^writers say i t does not exist. In this difference
of opinion we must see what aid we can obtain "from judges and oth-
ers in high position. First of all, we have B utler's note to Fearn e —
and the same thing is expressed in the works of other writers — to the
effect that the rule of law against double possibilities is a rule still ex-
isting, prohibiting limitations of estates in such a way as That" aP
though they may not offend against the rule of perpetuities, they are
bad as being objectionable to the law. Then Lord Kenyon, referring
to that point in Hay v. Earl of Coventry, says' (3 T. R. 86) : "It is not
necessary for me to say what effect that would have had in the present
case, if that point" — that is, whether an estate for life could be given
to unborn issue — "had remained undecided ; because the law is now
clearly settled that an estate for Hfe may be limited to unborn issue,
provided the devisor does not go farther and give an estate in succes-
sion to the children of such unborn issue." It is said that only meant
that a limitation to the children of unborn issue generally, without
any Hmit as to the time within which such children should be born,
would oft'end against the rule of perpetuities ; but in my opinion Lord
Kenyon was referring to the old rule against double possibilities, jt.
is clear, in my opinion, that the rule under which Mr. Justice Kay h as
decided tliiscasejsamlejwhich_^ still subsisting long
af ter t he~rule again st p erpetuities had been crystallized and l aid^bwn
in definite and~distinct terms.
Then^"again, in Monypenny v. Bering, 2 D. M. & G. 145, Lord St.
Leo nard s says (p. 170) : "Then the rule of law forbids the raising
ofsuccessive estates by purchase to unborn children, that is, to an
unborn child of an unborn child. With this rule I have never meant
to interfere, for it is too well settled to be broken in upon." Accord-
ing to the argument addressed to us on behalf of the appellants that
old rule has been superseded by the modern rule against perpetuities ;
but here we have Lord St. Leonards trpatiTTff_if ag Qtill «;n1-><;i<;fin g in
1852. " ■
Then we have besides, Butler's note to Fearne (10th ed. vol. i. p.
565, n.), in which he lays down what he takes to be the law — that
there was no decision superseding the old rule. He says this : "The
cases of a possibility upon a possibility may be considered 'as excep-
tions from the rule. They proceeded on a different ground, and gave
rise to this important rule, that, if land is limited to an unborn person
during his life, a remainder cannot be limited so as to confer an estate
by purchase on that person's issue." He there quite treats it as the
true rule still subsisting. And then we have a statement by Burton,
Ch. 1) THE RULE AND ITS COROLLARIES 459
in his Compendium (7th ed. p. 255), showing that he did recognize
clearly that the old rule was still subsisting. He says : "Life estates^
m ay by la \v_be_given jn succession to any number of persons in exist^
ence, and ulterior estates in succession to their childr en yet unb orn.
* "* * But no remaindef can be given to the child of a person who
is not in ex istenc£."
Therefore, although very ingenious and learned arguments have
been addressed to us to show that the old rule has been superseded
and put an end to, it is, in my opinion, well established that the rule
is still in existence.
There is a passage in Lord St. Leonards' judgment in Cole v. Se-
well, 4 D. & War. 1, 32, in which he speaks of the rule as being obso-
lete, but he nowhere lays down that the rule is no longer existing.
He only means that the rule is no longer necessary to be referred to
because, through the introduction of shifting uses and executory
devises, the law is now governed rather by the rule against perpetui-
ties. When j\Ir. Marten referred us to Sugden on Powers, I referred
him to the opinion expressed by the learned author, when sitting as
Lord Chancellor, in Alonypenny v. Bering, 2 D. AL & G. 145, 170, in
the passage which I have read, and which shows he did not consider
the old rule to have been abrogated. In my opinion the decision of
Mr. Justice Kay is right.
LiNDLEY, L. J. I entertain no doubt myself that Mr. Joshua Wil-
liams' observations on this subject are correct from beginning to enri,
and i do not know that I could express my views better than he did.
I do not know, any more than he se ems t o have done, the exact mean-
i rig of the old rule as to a possibility~upon a possibili ty; and if any
one turns to the passage in Coke upon Littleton where it is discussed,
I hope he will understand it better than I do. I confess I do not
understand it now, and never did. But, al_aJl_events^Lit j^ave.jis£_ta_
tl ie rule which everyone can und e rstan d, and which is express ed hy^
But ler in the note to Fearne, where he sa y s t hat' 'the cases of a pos-
si bility upon a possibility * * * gave rise to this important rule,
thaJLi Lland is li mite d to an unborn person during his life^ a remain-
der cannot be limited, so as to confer an estate by purchase on that
p erson s issueT ' That is intelligible ; and there are other passages on
pages 502 and 503 showing this was the author's settled opinion.
I have always understood that to be the settled rule of law, and I am
not aware of any decision or dictum which in any way impugns it.
But it is said that the old rule became o bsolete, or merged or confused
in tjie^raorjeZ mpdern law ot perpetuitie s? B utler, however, shows t jiat
this i s a mistak e. Th e^ rule against pe rpetuitie s was inv en ted m uch
later, on account of the law of shift inguses and execut ory d evise s.
When sTuTting uses and executory devises were invented it became
necessary to impose some limit upon them, and the doctrine of per-
petuities has arisen from that necessity. The old rule against double
460 RULE AGAINST TERrETUITIES (Part 4
possibilities is a rule that has not been abrogated, and it is founded on
very good sense; because it is not desirable that land should be tied
up to a greater extent than that allowed by the rule. So far from
supporting ingenious devises for tying up land longer, the time has
long gone by for that ; and, as the law is against the appellant's con-
tention, in my opinion the appeal should be dismissed.
Lopes, L. J. That there was an old rule that an estate could not be
limited to an unbo"rn cTiild^ of an unborn person has been admitted',
aiidT^h fact, cannot be denied. It was an old rule originating out of
the feudal system. But it is said that, although this old rule did once
extstrit TTas^been superseded by the rule against perpetuities. No
direct authority has been cited for any such contention, nor can any
such authority be found. Counsel have referred to certain dicta by
text-writers of more or less doubtful import ; but as early as the year
1789 that old rule was recognized as existing by Lord Kenyon in Hay
V. Earl of Coventry, 3 T. R. 83 ; and again, in 1852, it was recognized,
in Monypenny v. Bering, by so great an authority as Lord St. Leon-
ards. Thus, in 1789 and 1852, that rule was recognized, — that is to
say, at a time when the rule against perpetuities was in existence.
I have no doubt, therefore, that these are two independent and_ co-
existing rules. The rule against perpetuities originated alTd^wasren-
dered necessary on~account^of tITe~mtr6ductr6iroT executory devises
and^pnhgihg uses, ''against which the old rule would have been an
insuTITaenrpr ofe cTi oii: ""
T^am clearly oFopinion that the decision of Mr. Justice Kay was
right, and that the appeal should be dismissed.^*
1* The rule of Whitby v. Mitc hell does not, howeve r, apply to limitations of ,
personal property.— nrTeTBowIesrii.ll. [1902] 2"CE.~^Cf:
Ch. 2) INTERESTS SUBJECT TO THE RULE 4G1
CHAPTER II
INTERESTS SUBJECT TO THE RULE
LONDON & S. W. RY. CO. v. GOMM.
(Chancery Division and Court of Appeal, 1882. 20 CTi. Div. 562.)
By an indenture, dated the 10th of August, 1865, made between the
plaintiffs, the London and South-Western Railway Company, of the
one part, and George Powell of the other part, after reciting that the
plaintiffs were seised of the fee simple and inheritance of the piece or
parcel of land and hereditaments intended to be thereby conveyed,
"which being no longer required for the purposes of their raihvay,"
they had contracted to sell to the said George Powell (who was the
adjoining owner thereto), at the sum of ilOO, subject to the conditions
thereinafter contained, the c ompany conveyed to Powell in fee the
pi ece of land in question , being a small piece of land situate near theTr
Brentford Station. And Powell thereby, for himself, his heirs, execu-
tors, administrators, and assigns, covenanted with the plaintiffs, their
successors, and assigns, that he, the said G. Powell, his heirs and as-
signs, owner and owners for the time being of the hereditaments in-
tended to be thereby conveyed, and all other persons who should or
might be interested therein, should and would at any time thereafter
(whenever the said land miglit be required for the railway or works
of the company) w henever thereunto requested bv the compa ny, their
successors or assigns, by a six calendar months' previous notice in
writing, to be left as therein mentioned, and upon receiving from the
company, their successors or assigns, the said sum of £100 without
interest, make and execute to the company, their successors' and as-
signs, at the expense of the company, a re conveyance of the said
hereditaments free from any encumbrances created by the said G.
Powell, his heirs or assigns, or any persons claiming under or in
trust for him or them.
The ten years limited by the 127th section of the Lands Clauses
Consolidation Act, 1845, had expired in 1862, but the company had
still power of purchasing land in this neighborhood by agreement.
The premises comprised in the above indenture were in the year
1879 sold and conveyed along with other property, by the son of
George Powell to the d efenda nt, who had full notice of the provisions
of the deed of August, 1865. Uninterrupted possession of the land
had been had by George Powell and his successors in title ever since
the purchase in 1865.
462 RULE AGAIXST PERPETUITIES (Part 4
On the 12th of March, 1880, the company gave not ice in wri ti ng to
the defendant claiming to repur chas e the property~under the provi-
sion in the deed of AugustrT865. The defendant refused to recon-
vey, upon which the company commenced their action, alleging that
the land in question was required for the purposes of their undertak-
ing, and for the improvement of their railway and works, and c laimed
sp ecific perform ance of the covenant in the deed of 1865.
The defendantT)y his defence alleged that he had purchased this
land in the year 1879 after the death of G. Powell, and long after the
period limited by the Lands Clauses Consolidation Act and other
Acts under which the plaintiffs were incorporated for the absolute
sale and disposal by them of all superfluous lands had expired, and
that all estate and interest of the plaintiffs in the said lands had be-
come vested in the adjoining owner when the defendant so purchased.
That the condition or covenant in the deed of August, 1865, if and so
far as the same purported to bind the land in the hands of succeeding
owners, or to bind succeeding owners, was invalid, but if valid had
ceased, and was at an end before the defendant purchased.
At the time when the company gave their notice to purchase this
land from the defendant they had no compulsory power of purchasing
land in that neighborhood, but under the London and South-Western
Railway Act, 1863 (26 & 27 Vict. c. xc), § 94, and the London and
South-Western Railway (General) Act, 1868 (31 & 32 Vict. c. Ixix.), §
23, and others of their Acts, they still had power to purchase lands by
agreement, under which this land might have been purchased if the
defendant had been willing to sell it.
The action now came on for trial, and several engineers of the plain-
tiffs were examined as witnesses, who proved that the land in question
was now required by the company for the purpose of extending the
works connected with the station at Brentford, and, further, that in
the year 1865, when the land was conveyed to G. Powell, there was a
great probability that at some future period it would be so required.
The action came on to be heard before Mr. Justice Kay on the 28th
of November, 1881.
1881, Dec. 2. Kay, J^. after stating the effect of the deed of the
10th of August, IS65, continued :
The defendant is an assignee of Powell with notice of the covenant.
On the 12th of March, 1880, notice was given that the railway com-
pany required the land. The defendant refusing to convey, this action
was commenced on the 22d of November, 1880, for specific perform-
ance of the covenant.
In opposition to the claim it is insisted :
1. That the arrangement was ultra vires and void.
2. That the covenant to reconvey is void as tending to a perpetuity.
3. That the land is not required for the purposes of the railway.
On the last point I am satisfied by the evidence of the company's
engineers, which according to Stockton and Darlington Railwav Com-
Ch. 2) INTERESTS SUBJECT TO THE RULE 463
pany v. Brown, 9 H. L. C. 246, and Kemp v. South-Eastern Railway
Company, Law Rep. 7 Ch. 364, is conclusive, that the land is bona fide
required for purposes within sect. 45 of the Railways Clausei~Cbn- "
solidation Act.
By their special Act of 1863, the company had in 1865 p ower to pur-
c hase this land for such purposes, and that power still exists under
ail Act obtained by them in 1868.
But it is argued that this was in 1865 superfluous land, and ought
tlien to have been sold absolutely to Powell as the adjoining owner,
and that this being a conditional sale was void. I am satisfied by the
evidence that though not wanted at the time, there" was in 1865 a
strong probability that this land, which immediately adjoins the com-
pany's station at Brentford, would be required eventually, and there-
fore a prospective contract to purchase was I think within the powers
of the company: Kemp v. South-Eastern Railway Company; Hooper
V. Bourne, 5 App. Cas. 1. And it seems to me that the true effect of
the transaction in 1865 was not a conditional sale, but a sale out and
out to Powell, with a personal contract by him to reconvey when
called on at a certain price. Probably the price he had to pay was
considerably less by reason of this covenant, and if the transaction
was ultra vires, the proper thing to do would be to set the sale aside
altogether, in which case the land ought to be reconveyed on payment
back of the purchase-money. But I do_riot_think it was a tr ansactio n
b eyond tlTe_£ mvers of the compa nv.
I'he reiTiaining question is, whether this covenant is void as tending
to a perpetuity.
""ijpuir Lhi^ranch of the argument two cases were referred to. The
first of these is G ilbertson v. Richa rds, 4 H. & N. 277; 5 H. & N.
453. ' ^
In that case one Billings, being entitled to the fee simple of certain
lands, agreed 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 con-
tained a proviso that if the mortgagee, or any one claiming under him,
should ever enter into possession the premises should thenceforth be
charged w'ith the payment to Billings, his heirs and assigns, of the
annual sum of £40. It was argued that this was void for remoteness.
That argument was answered by Baron Martin, thus : "The second
objection was that it was void for remoteness ; that it was to arise at
any time, however distant, when the parties of the fourth part, 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 created which violates the law against
remoteness, and 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 per-
petuity in an illegal sense. It is vested in Thomas Billings and his
heirs. He or his heirs may sell it or release it at their pleasure. A
464 RULE AGAINST TERrETUITIES (Part 4
rent in fee simple may be granted to a man and heirs to continue for-
ever. Why, therefore, may not one be granted to commence at any
time, however remote? It is only a 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 objection 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." In the Exchequer
Chamber the same objection having been passed, was thus answered
by Mr. Justice Wightman, who delivered the judgment of the court :
"The only question which remained for consideration was whether
the second objection, founded on the law against perpetuities, was
available in this case, and we are of opinion that it is not. We think
that this rent is not liable to the objection as to perpetuity. The real
efifect of the liinitations in the deed before us is, that the mortgagees
are to take possession or sell, subject to the payment of this rent to
Billings. It is a restricti on on the amount of tlie estate of the mort-
gagees, and seems within the cases as to The power of sale in a mort-
gagee v\diicTT 7~aTtncMent^1xriTiF''gstate, "IS held noFto be within th e
rule as to perpetuities. 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 the
8 & 9 Vict. c. 106, § 6."
The section of the Act referred to is that which enables a con-
tingent executory and a future right and a possibility coupled with an
interest in any hereditaments, whether the object be ascertained or
not, to be disposed of by deed. Before that Act such interest could
be released when the person contingently entitled was ascertained.
L ord St. Le onards, in the 8th edition of his treatise on Powers, at
page 16, thus comme'hts on that decision. Pie cites the language of
Baron Martin thus : "A rent in fee simple, the court said, may be
granted to a man and his heirs to continue forever. Why therefore
may not one be granted to commence at any time however remote?
It is only a 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 v ested i n an exi sting person , and his heirs in fee simple, who
may dealwith it at his or their pleasure, it is not subject to the objec-
tion of remoteness, notwithstanding that its actual enjoyment may de-
pend upon a contingency which may never happen, or may happen at
any time, however distant. This," said Lord St. Leonards, "is an im-
Ch. 2) INTERESTS SUBJECT TO THE RULE 465
portant distinction in the law of perpetuity, but it was not necessary
for the decision of the case. No 'perpetuity was created by the power
of sale in the mortgagees or by the right of them or their heirs to
take possession of the land, but in exercising that right they took,
subject to a perpetual rent of £40 a year in favor of the mortgagor.
It was a charge on the estate and had no tendency to a perpetuity."
From this it seems to me that Lord St. Leonards did not agree
with the reason for the decision, but thought it could be supported
upon the ground that the exercise of the powers of sale and e'ntry by
a mortgagee not being obnoxious to the rule against perpetuities, nei-
ther could a condition appended to the exercise of these powers be so.
The dictum at the end of the judgment in the Exchequer Chamber
he does not seem to notice.
The other case cited to me is B irmingham Canal Company v. Ca rt-
wright, 11 Ch. D. 42L There a right of pre-emption, unlimited m
pomfof time, was contracted to be given. The learned judge in that
case cited the passages from the judgments in Gilbertson v. Richards,
4 H. & N. 277, which I have referred to, and stated his own opinion
thus : "The next question arises upon the terms of the covenant giving
the right of pre-emption — whether or not that right is obnoxious to
the rule against perpetuities. In my opinion the covenant is not in any
way liable to that objection. I think that \yherever a right or inter est
is pres ently v ested in A. and his heirs, alt hough the right may n ot
arise until the happening of some contuigency which may not take
effect \viTtrifr tlie period defined by the rule against perpetuities, suctr~
ri ght" or inier esrT s hot ob noxi ous~toTlra t ruler and for this reason T"-
The rule is aimed at preventing the suspension of the power of deal-
ing witIT~prb£erfy-3-the alienation oflaiid or' other property! Blit,
wlieh there Ts a present right of that sort, although its exercise may be
dependent upon a future contingency, and the right is vested in an
ascertained person or persons, that person or persons, concurring
with the person who is subject to the right, can make a perfectly 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 to-
gether at any time alienate the land absolutely. I think that Gilbert-
son v. Richards is a distinct authority in favor of that conclusion."
I need not say that after quoting such authorities I should distrust
my own judgment where it differs from them if I did not find ample
authority to support me. But I am unab le to agree with these dicta.
I n my opinion a presen^ rkdrt to an interest in property which may
arise at a period beyond the legal limit is void notwithstanding that
the person entitled to it may release it.
Tt w(Mlld be y great extension of The "power of tying up property to
hold otherwise. If the owner in fee of an estate, or the absolute own-
er of any property could be fettered from disposing of it by a springing
use or executory devise or future contingent interest which might not
4 Kales I'bop. — 30
466 RULE AGAINST PERPETUITIES (Part 4
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 the
executory limitations might be vested in an infant, a lunatic, or in 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 the law. From the report of Gilbertson v. Rich-
ards the dictum there, which I have read, seems to be founded upon a
short extract from Sanders on Uses, thus cited in the report of the ar-
gument. In Washborn v. Downs, 1 Cas. C. 213, cited in Sanders on
Uses, it is said "a perpetuity is where, if all that have interest join,
and yet they cannot bar or pass the estate." The whole passage in
Sanders is this : "It is said in the case of Washborn v. Downs that
a perpetuity is where, if all that have interest join, yet they cannot bar
or pass the estate, and in the case of Scattergood v. Edge, 1 Salk. 229,
that every executory devise is a perpetuity so far as it goes, i. e., an
estate inalienable, though all mankind join in the conveyance. But,"
says Sanders, "these definitions of a perpetuity are not accurate. If
an estate be limited to the use of A. and his heirs, but if B. should die
without heirs of his body, then to the use of C. and his heirs, the limi-
tation to C. and his heirs would be void as tending to a perpetuity.
Yet C. might no doubt release or pass his future estate, and with the
concurrence of the necessary parties the fee simple might be disposed
of before there was a failure of issue to B. A perpetuity may with
greater propriety be defined to be a future limitation restraining the
owner of the estate from aliening the fee simple of the property dis-
charged of 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."
This was written before the passing of the Act 8 & 9 Vict. c. 106,
which only gives the power to alienate certain contingent interests
then inalienable. But many cases besides that given by Sanders
might be put in which a contingent interest which might be alienated
or released before that Act would nevertheless be void if so limited
that it might not arise within a life or lives in being and twenty-one
years afterwards. It is impossible to assert as a general proposition
that where the ownef^of an estate and the owner ot sucn a contmgent
int erest ~can~Toge thennake a good title, or one can release to the
o ther, the rule ot perpetuities does not apply .
But it is very singular that the case of Washborn v. Downs, which
seems to be the foundation of these dicta, hardly seems to justify the
short report of it given by Sanders. In that case an equitable tenant
in tail sought to suffer a recovery, and it seems to have been argued
that unless he could do so there would be a perpetuity. The answer ap-
pears to have been No, because with the concurrence of the trustee,
the owner of the legal estate, he could do so. The passage quoted re-
Ch. 2) INTERESTS SUBJECT TO THE RULE 467
fers to some such argument as this. The words of the report are
these: "The court in the principal case took time to advise, and advis-
ed the parties to agree. And in the debate of this case it was said
that a perpetuity is where if all that have interest join and yet cannot
bar or pass the estate. But if by the concurrence of all having the
estate tail it may be barred, it is no perpetuity." This does not mean
that if a person presently entitled to the benefit of a springing use or
executory devise void for perpetuity can release it, the power of doing
so would prevent its being void. The question whether a cestui que
trust could suffer a valid recovery was much discussed in the reign of
Charles II, as appears by the cases of Goodrick v. Brown, 1 Cas. C.
49 ; Lord Digby v, Langworth, 1 Cas. C. 68 ; and it was afterwards
held in North v. Champernoon, 2 Cas. C. 78, by Lord Nottingham,
C, that the recovery of the cestuis que trust in tail was good, and
the trustee would be compelled to convey accordingly. But if I am
right in this view thus far, it does not by any means follow that the
contract in this case is void.
The rule against perpetuities is a branch n ot of the_law of contract
but of property. This is clearly enough stated in page 5 of the Intro-
duction to iVir. Lewis's well-known work on Perpetuities, in passages
cited from Butler's notes to Fearne on Contingent Remainders and
from Jarman on Wills. Mr. Lewis, at page 164, adopts the definition
of a perpetuity which I have read from Sanders, and adds one of his
own, which runs thus : "In other words, a perpetuity is a future limita-
tion, 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 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, except with the concurrence of the
individual interested under that limitation."
A contra ct not creating any estate or interest properly so called in
p roperty, at la \y ox equit^is not, in my opinion, obnox i ous to th e
rule!^ For instance, a 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 contract to buy
or sell land and covenants restricting the use of land, though unlimit-
ed, are not void for perpetuity. In these latter cases the contracts do
not run with the land, and are not binding upon an assign, unless he
takes with notice. They are not, properly speaking, estates or inter-
ests in land, and are therefore not within the rule. I think that this
is the true test to apply to this case, and am of opinion that this cove-
nant does not create any interest in land. A purchaser without notice
from Powell would not be bound by it. It is not, I think, within the
rule against perpetuities at all. Consequently I hold that objection to
fail ; and as the defendant took the land with notice, I hold that he is
468 RULE AGAINST PERPETUITIES (Part 4
bound in eqiiitv by the covenant, on the principle of Tulk v. Moxhay,
2 Ph. 774.
I therefore make the usual decree for specific performance, with
costs. I suppose the title is accepted, if not, there must be the usual
reference as to title.
__ Thp flpfpuHant appealed. The appeal was heard on the 6th of
^larch, 1882.
[In the co urse of the argiunent, counsel said , " A covenant to renew
a lease at the en d of forty or fifty years has always been consider ed
good, and a covenant to grant a renewed lease containing a similar
covenant for renewal: Hare v. Burges, 4 K. & J. 45."^ To which
Jessel, M. R., replied: "That is an_excep tion from the general rnlej ' *
[Davey in reply said: '^Covenants to renew lea ses are distinguisha-
ble, for they run w nt h the land at law. "!
Jes sel, M. K THis is an appeaPfrom a decision of Mr. Justice
Kay, and it raises two points : first, whether an option of repurchase
given to the London and South-Westerh Railway Company by a deed
of sale entered into between the company and one Powell, the prede-
cessor in title of the defendant Gomm, is obnoxious to the rule against
remoteness ; and secondly, whether the deed itself is or is not void,
having regard to the 127th section of the Lands Clauses Consolidation
Act, 1845.
The deed was made in 1865 after the compulsory powers of the rail-
way company had expired, and it recited that the company was seised
of the land which was no longer required for the purposes of their rail-
way and had contracted to sell it to Powell, who was the adjoining
owner, at the sum of £100, subject to the condition thereinafter con-
tained. The company then conveyed the land to Powell in fee for
£100, and the deed contained this covenant by Powell: [His Lordship
read the covenant giving the option of repurchase to the company.]
Now that is unlimitfrj jf) pojnt 'T'f <"i'Tnp^ and i t does not appear to me
t o be possible to insert a l imit of time, because to put~m~the^ ^words'
"within a reasonable time," or any other words limiting the time, would
be exactly contrary to the intention of the parties. It is not only un-
limited in point of time, but it is obviously intended so to be. The
railway company do not want the land now, and they do not know that
they ever will want it, but their bargain is that whenever it may be
required for the works of the company the owners or owner for the
1 See, also, on the g eneral validity of covenants for the pe n^etnal renewal
of lease s in additionTTT the ease cited. Pollock v. BOOTH, "IT. K. U Ef]. LiUU ;
InreTTarde Browne, L. R. LlOll] 1 Ir. 205; Blackmore v. Boarduian, 1>S Mo.
4L!0; Diffenderfer v. Board of Public Schools, 120 Mo. 448, 25 S. W. 542;
Banks v. Haskie, 45 Md. 207.
2 In Woodall v. Clifton, L. R. [1905] 2 Ch. 257, 265, Warrinston, J., said in
regard to covenants for the perpetual renewal of leases: "I think I must
treat these co venants to renew as exc eptions to the general ru le — exceptions
for which it Is very d ifficult to find a logical justification, but exceptions
which have been probably recognized because they were in existence long
before the rule had been developed."
Ch. 2) INTERESTS SUBJECT TO THE RULE 469
time being of the land are or is to convey to the company. The very
essence of the contract is that it shall be indefinite in point of time.
You cannot, as in Kemp v. South-Eastern Railway Company, Law
Rep. 7 Ch. 364, insert by intendment the limitation that the land is to
be taken before the time for executing the works had expired, for in
this case the time for the execution of the works had already expired.
It appears to me therefore plain (and indeed it was admitted in argu-
ment by the respondents) that the option is unlimited in point of time
I f then the rule as to remoteness applies to a covenant of this na-
tu re, this covenant cl early i s bad as e xtending Beyond the perio d al-
lo wed by t_h e_rule. Whether the rule applies or not depends upon this,
as it appears to me, d_oes_o r does not th e cov enant give an interest in
t he land ? If it is a bare_or^ mere personal contract it is of course not
o5noxious to the rule , but in that case it is impossible to see how the
present appellant can be bound. He did not enter into the contract,
but is only a purchaser from Powell who did. If it is a mere per-
sonal contract it cannot be enforced agai nst the assignee. Tlierefdfe
the company must admit that it somehow binds^the land, ^ut if.it
b inds the land it creates an equitable interest in the land - The right
to call for a conveyance of the land is an equitable interest, or equitable
estate. I n the ordinary case of_ a_contra ct for purchase there is no
d oubt about this, and an ^option for repurch asd^^ is not djfferent in ij^
nature! T^^person exercising the option has to do two things, he has
to give notice of his intention to purchase, and to pay the purchase-
money ; but as far as the man who is liable to convey is concerned, his
estate or interest is taken away from him without his consent, and
the right to take it away being vested in another, the covenant giving
the option must give that other an interest in the land.
It appears to me therefore that this covenant plainly gives the com-
pany an interest in the land, and as regards remoteness there is no dis-
tinction that I know of (unless the case falls within one of the recog-
nized exceptions, such as charities), between one kind of equitable in-
terest and another kind of equitable interest. In all cases they must
take effect as against the owners of the land within a prescribed period.
It was suggested that the rule ha §^ no a pplic ation to any case of co n-
tract , but in my opinion t hg mode in which the interest is created i s
i mmateri al. Wh ether it is by devise or voluntarv gift or contract can
make no differenc^^ Th e question is, What is the nature of the inter-^
e ^ iniended to be create3 7 I do not know that I can do better than~
read the two passages cited in argument from Mr. Lewis's well-known
book on Perpetuities at page 164. He cites with approbation this pas-
sage from Mr. Sanders' Essay on Uses and Trusts: "A perpetuity
may be defined to be a future limitation, restraining the owner of the
estate from aliening the fee simple of the property discharged of such
future use or estate before the event is determined or the period is ar-
rived when such future use or estate is to arise. If that event or pe-
riod be within the bounds prescribed by law it is not a perpetuity."
470 RULE AGAINST PERrETUITIES (Pait 4
Then Mr. Lewis adds these words : "In other words, a perpetuity is a
future limitation whether executory or by way of remainder and of
eitlier real or personal property, which is not to vest until after the
expiration of, or 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, except with the concur-
rence of the individual interested under that limitation."
Now is there any substantial distinction betwe en a contract for pur-
chase, or an option for purch ase, and a conditional limitation? is tliere
any difference in substance bet^vveen the case of a limitation to A. liT
i €e, with a proviso that w^henever ajiotic^ in writing is sent and_tlOQ
paid b y B. or his heirs to A. or his heirs, the estat e sBaTTvest in B.
and his heirs, and a contract tha ^whenever such notice is given arid
such^payiiient made by B. or his heirs to A. or his heirs, A. shall ^ on- _
vey to^B. and" EiFheirs? It seems TdTme tlTaTin a court of-eqmty it is
impossTbleTo^ suggesf~that there is any real distinction between these
two cases. There is in each case the same fetter on the estate and on
the owners of the estate for all time, and it seems to me to be plain
that the rules as to remoteness apply to one case as much as to the
other.
That appears to me to dispose of the case, unless Ave agree with the
conclusion of Mr. Justice Kay on the last point considered by him.
Down to that point I agree with him. I consider that he is quite right
in the view he takes of the doctrine of remoteness and of the authori-
ties cited before him, not forgetting the case of the Birmingham Canal
C ompany v. Cartwrig ht, 11 Ch. D. 421, which must S e~treatedas over-
rule d. But Mr. Justice Kay, having, asT^ think he lias mosFcorrectly" —
and accurately defined the law thinks that this case is not within it, be-
cause he comes to the conclusion that "this covenant does not create
any interest in the land." But he had forgotten that if that were so
he could not make a decree against Mr. Gomm. If it were a mere con-
tract it was not Gomm's contract, and if it did not in equity run w^ith
the land so as to give an interest in the land, it could not have been
enforced against him. It is clear from his Lordship's judgment tliat if
he had been of opinion that this covenant gave the company an interest
in the land (which, I think, is the correct view), he would have de-
cided the case the other way.
With regard to the argument founded on T ulk v. Moxha y, 2 Ph.
774, that case was very much considered by the Court of Appeal at
Westminster in Ha ywood v. The Brunswick Permanent Benefit B uild-
ing Society, 8 Q. B. t). 403, and the court there decided that they A\;.ould
not extend th e doctrin e of^Tulk v. M oxhay to nffirmntiyp covenants^
coinpelling a man to lay out money or do any other act of what I may
call an active character, but that it was to be confined to restrictive
covenants. Of course that authority would be binding upon us if we
did not agree to it, but I most cordially accede to it. T think that we
Ch. 2) INTERESTS SUBJECT TO THE RULE 471
ought not to extend the doctrine of Tulk v. ^Iqxhay in the way sug-
gested here. Tii e doctr ine ofth at case, r ightly considered, appears to
m e_to be either an exten^oiTin equity of the doc t rine of Spencer's Case,
5 Co. Rep. 16a, to another line of cases, or e lse_an^extensi on in equity
of the doctrine of_negatiy e easeme nts : such, for instance, as a right
to the access olTlight which preyents the owner of the servient tene-
ment from building so as to obstruct the light. The coyenant in Tulk
V. Moxhay was affirmative in its terms but was held by the court to
imply a negative. Where there is a negative covenant expressed or im-
plied, as, for instance, not to build so as to obstruct a view, or not to
use a piece of land otherwise than as a garden the court interferes on
one or other of the above grounds. This is an equitable doctrine es-
tablishing an exception to the rules of common law which did not treat
such a covenant as running with the land, and it does not matter wheth-
er it proceeds on analogy to a covenant running with the land or on
analog}^ to an easement. The purchaser took the estate subject to the
equitable burden, with the qualification that if he acquired the legal es-
tate for value without notice he w^as freed from the burden. That
qualification, however, did not affect the nature of the burden ; the
notice was required merely to avoid the effect of the legal estate, and
did not create the right, and if the purchaser took only an equitable
estate he took subject to the burden, whether he had notice or not. It
appears to me that, rightly considered, that doctrinejs not an author-
ity for the proposition that an equitable estate or interest may be raise d
at any Time, notwithstanding th e rule against remoteness. It is, if I
may say so, ahdthef~exceptiori to the rules against remoteness, excep-
tions which had previously been thoroughly established in many cases
at law as regards easements and in equity as regards charities. That
being so, it does not appear to me that Tulk v. Moxhay has any di-
rect bearing on the case which we have to decide.
There is anotherjmportant point which alone would enabkustode-
cidethis_ca££jn_favor of the appellant. Warthe conveyance of 1865
ultra vires? When we look at the provisions of the Lands Clauses
Consolidation Act, § 127 et seq., I think we must consider them to
mean that at the expiration of the statutory period, if the land is then
superfluous, that is, if it is not wanted for the purpose of the railway,
the company must sell it under the penalt}^ of losing it by its revesting
in the adjoining owner. There is no doubt that the company can, be-
fore the expiration of the statutory period, determine that the land is
superfluous and sell it, and it is equally clear that if at the end of the
statutory period they think that the land may be required for the pur-
pose of their railway it is not then superfluous. \Mien I say '"they
think," I mean if their proper advisers have fairly and reasonably come
to that conclusion, that is sufficient. So that the fact of its being super-
fluous may be determined beforehand by the action of the company,
or it may be delayed after the expiration of the statutory period with-
out the land being actually used, but whenever it is determined, either
472 RULE AGAINST PERPETUITIES (Part 4
before or after the expiration of that period, that the land is super-
fluous, it becomes salable or vests in the adjoining owner.
That being so, it is plain that when land is sold as superfluous, _jio
interest in it c an be reta ined by ttie^ company . Now, if I anrriglvtin
the^conclusion at which I have arrived as to the nature of this option
of repurchase an interest was retained by the company. The form of
the conveyance is plain. It recites a contract for sale subject to the
condition thereinafter mentioned. That is not an absolute sale but a
conditional sale. Now the Statute in terms requires an absolute sale,
and that being so, the company could not sell, reserving an option of
repurchase. The sale itself therefore was bevond thdr_20wer, and
was a void sale, and we must recollect that this is a Statute which gov-
erns the legal estate as much as the equitable estate. Then what fol-
lows? The land if superfluous revested in Mr. Powell under sect. 127
at the end of the ten years, free from any restriction, which would give
him a title ; but if it was not superfluous, then as the statutory period
of limitation had elapsed before the commencement of this action, the
appellant would have obtained a title under the Statute of Limitations.
In either case, therefore^_the^appellant's title mu^t be valid as against
the title of the compan}\
On these grounds it seems to me that the present appeal ought to be
allowed.
Sir James Han nen . The first question in this case is as to the effect
of the deed"of the 10th of August, 1865.
It appears to me that the company are estopped from denying that
this land was superfluous land at the time of the sale to Powell. It is
expressly recited that the land is no longer required, and that they
thereupon propose to sell it at a particular price.
It is perfectly plain that the company has only the right to sell sub-
ject to the terms imposed by the legislature in the Lands Clauses Con-
solidation Act. That Act requires th e companv to sell absolutely, and
looking to the history of legislation on this subject I think there is no
doubt that particular stress w^as laid upon the word "absolutely." It
was inserted, in my opinion, in order to prevent the company having
acquired lands which it was found afterwards were not required for
the purpose of the undertaking, from still retaining indirectly a hold
upon those lands. It appears to me, therefore, that as this was n ot an
absolute sale, but a conditional sale, it was void, an d thattheeltcFt
would be that at tTie end ot the ten years, there being no sale, the land
would vest in Powell. At the same time I do not think that every con-
tract made by a railway company for the purpose of settling at the
present time what should be the price of land to be acquired by them at
some future time would be bad in itself. I think tliat if there had been
a separate contract limited to the time within which the company would
have authority to take lands, there would not have been anything il-
legal in their entering into an arrangement with the owner that they
should have a right to purchase at a particular price to save the trouble
Ch. 2) INTERESTS SUBJECT TO THE RULE 473
and inconvenience of having the value settled in some other manner,
and Kemp v. South-Eastern Railway Company, Law Rep. 7 Ch. 364,
is an authority to that effect.
The n ext questi on is, does this covenant create^ an^interest or estate
in the property at law, or in equity. Upon that point I Have^noItTiiTg
to add" fo what has been said by the Master of the Rolls. It is not a
subject with which I have been frequently called upon to deal, and
therefore, any opinion that I may express on the subject has not the
value it would have if it came from one of my learned colleagues ; but
I must say that it app ears to me to be a startling proposition that the
po\\ier to require a conveyance of land at a future time does not create
anyinterest in that land. If it does create such an interest, then it
appears to rhe'tb T5e "perfectly clear that the covenant in this case vio"^
latesjHejFuTe^garnst perpetuity, because, taking the passage" whtch has
been cited from~^anders, "a perpetuity may be defined to be a future
limitation restraining the owner of the estate from aliening the fee
simple of the property discharged of such future use or estate before
the event is determined." Now this covenant plainly would restrain
the future owner from aliening the estate to anybody he pleases, it
restricts him to aliening it to the railway company in the event of the
company exercising their option.
The last question is, supposing this covenant does not create any es-
tate or interest, what is the effect of it as a covenant^ It is clear that
it is not__acovenahL_v\:hich woujd run with the la nd at la\v^ Spencer's
Case ami the notes to it in Smith's Leading Cases, vol. i. 8th ed. p. 90,
seem to me to point very clearly to that conclusion. It has been said,
however, and in fact the judgment with which we are dealing lays
down, that although this is only a personal covenant, yet Tulk v. ]\Iox-
hay is an authority for the proposition that such a covenant if known
to the purchaser of the estate binds him. This argument is disposed
of by the decision of the Court of Appeal in Haywood v. The Bruns-
wick Permanent Benefit Building Society, which seems to me to put
a w holesom e re striction upon t he application of Tulk v. MoxhavJ^y
la ^'ing down thi s rul e, that it onl y ap plies to restrictive covenants, alid
do es not apply to an aff irmative covenant, s uch as a cov enant binding
the owner of the land^ at some future t ime~To convey it.
For these reasons I am of opinion that the judgment of the court be-
low cannot be supported, and that the appeal must be allowed.
LiNDLEY, L. J. I am of the same opinion. This is an action for
specific performance of a contract entered into not by the defendant
but by somebody else. The first thing, therefore, the plaintiff's must
show is, upon what legal principle the defendant is bound by a con-
tract into which he did not enter.
It is not contended that he is bound by it on the ground that the
covenant entered into by Powell runs with the land and binds him at
law. but it is said that though it does not bind him at law it binds him
in equity.
474 RULE AGAINST PERPETUITIES (Part 4
Then upon what principle is it that he is bound in equity ? It is said
that he is bound in equity because he bought the land knowing of the
covenant into which his predecessor in title had entered. That propo-
sition stated generally assumes that every purchaser of land with no-
tice of covenants into which his vendor has entered with reference to
the land is bound in equity by all those covenants. That is precisely
the proposition which had to be considered in Haywood v. Brunswick
Permanent Benefit Building Society, and because it was sought there
to extend the doctrine of Tulk v. Moxhay to a degree which was
thought dangerous, considerable pains were taken by the court to point
out the limits of that doctrine. In that case an owner in fee had grant-
ed a rent, and in order better to secure it, he covenanted for himself,
his heirs and assigns, to build some houses on the land out of which
the rent issued and to keep them in repair forever. It was sought to
enforce that covenant by bringing an action for damages against the
mortgagee in possession of the land, because the houses had been al-
lowed to get out of repair. It was of course seen that an action would
not lie at law ; but it was contended, on the authority of Tulk v. Mox-
hay, that inasmuch as the defendants took the land with notice of the
covenants they were bound by them in equity. The Court of Appeal
declined so to extend the doctrine of Tulk v. Moxhay, and their rea-
sons will be found very carefully stated by Lord Justice Cotton in his
judgment. The conclusion arrived at by the court was that Tulk^v.
Moxhay, when properly understood^ jdid_not_ap ply to any but restric -
tivTYovenants. The case of Cooke v. Chilcott, 3 Ch.~D. 694, before
Vtce'-IThancenor Malins was very much considered, but it was not fol-
lowed by the Court of Appeal. Here we are asked to extend the doc-
trine of Tulk V. Moxhay, and to apply it to a covenant to sell land at
any time for a specified sum of money. That this is an extension of
the doctrine cannot, I think, be denied ; and for the reasons which
were given by the Court of Appeal in the case to which I have referred
I think we ought to decline to extend that doctrine. If so, Jhow_js_
Gomm to be held to be bound b}' this c oven ant ? He did not enter
into It, he is not~b6uhd at law, and Tulkjv. ^loxli av is no authoritv for
saying that he is bound in equity. That appears to me to dispose of
this case^
I agree with the observations rnade_by;_the_Qth£r jnenib£rs__pf^ the
court, that this covenant creat es an int erest injand and is void for re-
rno tehess . On the question of remoteness one view was taken by Mr.
Justice Kay in this case, and the other view by Mr. Justice Fry in Bir-
mingham Canal Company v. Cartwright. My own view is that the
observations made by Mr. Justice Kay on that case and on Gilbertson
V. Richards, are sound. The error in his judgment appears to me to
be, that he has applied Tulk v. Moxhay to this case without sufficiently
considering the extent to which he was carrying it.
As regards the observations upon sect. 127 of the Lands Clauses
Consolidation Act, I also concur with the other members of the court.
Ch. 2} INTERESTS SUBJECT TO THE RULE 475
It appears to me that inasmuch as the company could only sell by vir-
tue of that section, which requires an absolute sale, and as the sale
which they made was not an absolute sa]e within the true meaning of
that clause, the logical consequence is that the whole transaction is
void, and on this ground, if there had been no other, the court must
ITave declined specifically to perform the contract.
I am therefore of opinion that the appeal must be allowed, and judg-
ment must be for the defendant.^
' Mr. Davey asked that the costs of the short-hand notes of IMr. Jus-
tice Kay's judgment might be allowed.
Jessel, M. R. We have not used them, but have read Mr. Justice
Kay's judgment in the Law Journal. If that report had appeared a
sufficient length of time before your brief was delivered, we should not
have allowed the costs of a short-hand note ; but as it was published so
late as the 3d of March, we think the costs ought to be allowed.
In re TRUSTEES OF HOLLIS' HOSPITAL.
(Chancery Division. L. R. [1S99] 2 Ch. 540.)
By an agreement dated October 3, 1898, a contract was entered into
by an agent acting on behalf of a majority of the trustees of Hollis'
Hospital to sell to Ernest Hague certain freehold property belonging
to the hospital, situate at Castle Dyke, near Sheffield, containing 25 a.
1 r. 17 p., for £5,750.
Matters had proceeded so far that the purchaser was satisfied to ac-
cept the title, and the draft conveyance had been approved by the trus-
tees' solicitor, when a letter dated November 16, 1898, was received
by the purchaser's solicitors written by William Henry Anthony, one
of the trustees who had not concurred in the sale, to the effect that
as the heir-at-law of Thomas and John Hollis he thought it his duty
to intimate to them that he was no party to the sale of the property,
and to call their attention to a clause in th e title-deeds as to the prop-
er tY_j;everting__to_theJhe^^
othcrpurp ose than that intended bv the settlor ; and a summons was
taken outunder the Vendor and Purchaser Act by Ernest Hague for
the purpose of determining whether or not a good title had been shown.
William H. Anthony declined to appear with his co-trustees upon
the summons or to take any part in the argument. His counsel ap-
peared simply to state that he was no party to the contract, and de-
clined to be bound in any way by the present proceedings.
The purchaser, on the other hand, warned him that in the event of
3 Accord: In re Tyrrell's Estate, [1907] 1 Ir. 194. 292 (covenant to extin-
Riiish a rent charge) ; Starcher Bros. v. Dutv. 61 W. Va. 373, 56 S. E. 524,
9 L. R. A. (N. S.) 913, 123 Am. St. Rep. 990 : Woodall v. Bruen, 85 S. E. 170
(W. Va. 1915) ; Barton v. Thaw, 246 Pa. 348, 92 Atl. 312, Ann. Gas. 1916D,
570.
476 RULE AGAINST PERPETUITIES (Part 4
the title being held good and of the contract being completed it would
hereafter be insisted that he was bound by the decision in his presence
of the question of title raised.
The history and title of the property appeared from the recitals and
documents to be as follows :
By indentures of lease and release dated August 26 and 27, 1703,
Thomas HoUis (father of Thomas Hollis, Senr.) of his charitable mind
and disposition to the intent to find and provide habitations for six-
teen poor persons from time to time and for ever to be elected of the
poor of Sheffield, or within two miles round as thereby directed, and
to raise moneys necessary for keeping the fabric in which such other
habitations were made at all times thereafter in repair, conveyed cer-
tain hereditaments in Sheffield then converted into sixteen small apart-
ments or habitations with other hereditaments to certain persons there-
in named, their heirs and assigns for ever, to their use and behoof
upon trust and subject to the powers, declarations, and agreements
therein mentioned and expressed.
By an indenture of assignment dated January 24, 1704, the same
Thomas Hollis assigned to Thomas Hollis, Senr., his executors, ad-
ministrators, and assigns, certain Government terminable annuities
amounting to i90 per annum; and by deed-poll dated January 26,
1704, Thomas Hollis, Senr., declared that the same annuities were so
assigned to him upon trust that he should pay the same towards main-
taining the said almshouses, and for several other purposes in the said
deed mentioned.
By a writing or codicil under his hand and seal dated February 21^
1715, annexed to the deed of assignment of January 24, 1704, Thomas
Hollis, the father, revoked several payments in that deed contained,
and left his son, Thomas Hollis, Senr., liberty to continue or discon-
tinue them as he, his executors or assigns, should think fit without be-
ing accountable to any.
Thomas Hollis (father of Thomas Hollis, Senr.) died, and the be-
fore-mentioned annuities were turned into South Sea annuities and
South Sea Stock, which annuities and stock were sold by Thomas Hol-
lis, Senr., for £1,500.
Thomas Hollis, Senr., for the augmentation of the said charities and
for the better settlement thereof, added to the il,500 the sum of £610,
and with those two sums purchased certain messuages, lands, and tene-
ments from Sir John Statham and Thomas Turner.
At the date of the next-mentioned indentures the hereditaments orig-
inally conveyed by the indentures of lease and release of August, 1703,
had become legally vested in Thomas Hollis, Senr., and ten other per-
sons (including Thomas Hollis the younger) by way of survivorship
or otherwise.
By indenture of lease for a year dated May 17, 1726, and made be-
tween Thomas Hollis, Senr., of the one part and John Williams of the
other part, Thomas Hollis, Senr., in consideration of 5s. bargained and
Ch. 2) INTERESTS SUBJECT TO THE RULE 477
sold the hereditaments so purchased by him from Sir John Statham
and Thomas Turner (which included the property comprised in the
contract the subject of the present application) unto the said John Wil-
liams. To have and to hold unto the said John Williams, his execu-
tors, administrators, and assigns, from the day next before the day
of the date of that indenture for a year at a peppercorn rent if de-
manded, to the intent and purpose that by virtue of that deed and of
the statute for transferring of uses into possession, the said John Wil-
liams might be in the actual possession of all and singular the prem-
ises aforesaid, and be thereby enabled to accept a grant and release
of the reversion and inheritance thereof to him, his heirs and assigns
for ever, to and for such uses, trusts, intents, and purposes as in and
by such release should be limited, expressed, and declared concerning
the same.
There was a similar indenture of lease to John Williams, mutatis
mutandis, by the then trustees of the almshouses and premises com-
prised in the release of 1703.
By an indenture dated jV Iay 18, 1726, and made between the said
Thomas Hollis, Senr., of the' iirstpart, tiie ten named persons (includ-
ing Thomas Hollis, younger) therein mentioned (being the ten persons
in whom, jointly with Thomas Hollis, Senr., the property originally
devoted to charity by the father of Thomas Hollis, Senr., was then le-
gally vested), of the second part, the said John Williams of the third
part, and Isaac Hollis, William Steed, Daniel Bridges, and John Crooks
of the fourth part, after reciting the deeds and matters before referred
to, it was witnessed that for the support and maintenance of the said
charity and for the better accomplishment and performance of the
trusts and powers in them reposed by former conveyances, the said
Thomas Hollis, Senr., and the ten persons parties of the second part,
nominated, elected, and chose the four persons parties of the fourth
part to be trustees, to be added to the surviving trustees in the room
of such others of the said trustees as were dead ; and it was further
witnessed that in consideration of 5s. apiece to the old trustees, paid
by the said John \\^iiliams, the old trustees granted, aliened, released,
and confirmed unto the said John Williams in his actual possession of
the tenements and hereditaments next thereinafter mentioned then
being by force and virtue of the indenture of bargain and sale for one
year bearing date the day before the date of this indenture, in consid-
eration of money and by force of the statute for transferring of uses
into possession, and to his heirs the hereditaments by the indenture
of release of August, 1703, conveyed by Thomas Hollis (father of
Thomas Hollis, Senr.), to hold unto the said John \\'illiams. his heirs
and assigns for ever, to the use and behoof of Thomas Hollis, Senr.,
and the fourteen other persons, the old and new trustees, their heirs
and assigns for ever, upon the trusts and to and for the several and
respective uses, intents, and purposes thereinafter limited, expressed,
and declared of and concerning the same; and it was thereby fur-
478 RULE AGAINST PERPETUITIES (Part 4
ther witnessed that the said Thomas Hollis, Senr., for the better sup-
port and maintenance of the said charity and for the augmentation
thereof and in consideration of 5s. paid by the said John WilHams,
granted, aHened, released, and confirmed to the said John Williams (in
his actual possession of the hereditaments thereinafter mentioned then
being by force and virtue of the indenture of bargain and sale for one
year bearing date the day next before the date of this indenture, in con-
sideration of money and by force of the statute for transferring of
uses into possession), and to his heirs, all the hereditaments purchased
by the said Thomas Hollis, Senr., from Sir John Statham and Thomas
Turner. To have and to hold unto the said John Williams, his heirs
and assigns for ever, to the use and behoof of the said Thomas Hollis,
Senr., and the other old and new trustees, their heirs and assigns for
ever. Nevertheless, upon the several and respective trusts and to and
for the several and respective intents and purposes thereinafter lim-
ited, expressed, and declared of and concerning the same. Then fol-
lows a declaration of the trusts of all the hereditaments conveyed to
the effect that the old and new trustees and the survivors and survivor
of them, their heirs and assigns, or the heirs and assigns of such sur-
vivor, should place atid put sixteen poor persons that should be of the
ages of fifty years at least and single, of the town of Sheffield or with-
in two miles round, in the sixteen apartments or dwellings (being the
hereditaments originally conveyed by Thomas Hollis, the father of
Thomas Hollis, Senr.), with divers provisions for the government of
the charity and filling up vacancies. And upon this further trust that
they the said old and new trustees, their heirs and assigns, or the
major part of them, their heirs and assigns, should pay, apply, employ,
and lay out the rents, issues, and profits of all and singular the prem-
ises thereinbefore granted and released as therein mentioned for the
benefit of the objects of the charity, including paying a schoolmaster
and schoolmistress for the teaching of fifty poor artificers' and trades-
men's children, and that they the said trustees should lay out and ex-
pend such part or parts of the rents, issues, and profits that should
or might arise or grow out of the thereby granted and released prem-
ises in the necessary support and reparations of the tenements and
apartments, and what could be spared thereof (if any) to be kept in
store against any extraordinary occasion for repairing, or to be laid
out in such other manner as the trustees or the major part of them,
their heirs and assigns-, should think fit. Then follow provisions for
the appointment of new trustees, for keeping accounts for laying out
the balance, with power to deduct out of the rents, issues, and profits
£S to defray charges of keeping and settling accounts, and to eat and
drink in commemoration of the benefactors of the charity ; and then
follows this provision, upon which the question in the present case
arises :
"Provided always and. it is herebjyuled ared and ag reed by and be-
tween tlie said parties to these presents, t hat if at any^ tmi e Trereafter
Ch. 2) INTERESTS SUBJECT TO TUE RULE 479
the premises hereby conveyed or^ny part thereof, or the rents, issues,
anxTp^rofits of the s'ame^or of any part thereof^ shall be employed or'
corfverted to or for any other use, or uses, intents, or purposes than
as are hereinbefore mentioned and specified. Then and from thence-
forth all and every the buildings, lands, and prernisesliereinbefore con-
veyed to the uses and upon the trusts hereinbefore mentioned shall re-
vert to the right heirs of the said Thomas Hollis, Senr., party hereto,
aViythmg'lie rein contained to the contrary thereof in anywise notwith-
standing."
Then follow certain powers for Thomas Hollis, Senr., during his
life, and after his decease for John Hollis, Newman Hollis, Junr., Isaac
Hollis, and Richard Solley, four of the trustees, and the sui-vivors and
survivor of them, at any time or times during their lives or the life
of the survivors or survivor of them, to nominate tlie persons to re-
ceive the benefit of the almshouses and to appoint schoolmasters and
schoolmistresses, and a power for Thomas Hollis, Senr., in his life-
time to revoke, add, alter, or diminish all or any of the charities or
sums thereinbefore appointed in such manner as he should see fit, and
a power for the trustees to pay their costs, charges, and expenses, and
to lease for terms not exceeding twenty-one years, and to lease certain
closes, purchased of Thomas Turner, for eight hundred years or any
less term to build on, and a covenant with John Williams, his heirs
and assigns, against incumbrances.
Byrne, J., after stating the facts as set out above, proceeded: It
is contended on behalf of the purchaser that a good title cannot be
made by reason of the clause in the deed of May 18, 1726, providing
for the reverter to the right heirs of Thomas Hollis, Senr., inasmuch
as the sale will be a breach of the condition and, alternatively, that the
title shown is not one which ought to be forced upon a purchaser.
It is contended on behalf of the vendors — that is, the trustees other
than W. H. Anthon^y^^ — that the conditio a- is void as t ejiding to a per-
petuity, and that whether the clause in question, be constr ued as oper-
ati ng by way of shifting use, as they say it should be, nr by way of
co ndit ion subsequent.
Tlie ettect ot tne method of conveyance adopted was as follows :
the lease for a year operated, and the bargainee John Williams was in
possession by the Statute of Uses. The release operated by enlarging
the estate or possession of the bargainee to a fee — this was at the com-
mon law — and the use being declared in favor of persons other than
the bargainee the statute intervened and annexed or transferred the
possession of the releasee to the use of the trustees to whom the use
was declared: see Butler's notes to Coke upon Littleton (18th Ed.) p.
272 a, note vi. 2.
I think the clause about wdiich the contest arises is in terms and form
a true common law condition subsequent, being aptly worded and be-
ing in favor of the heirs of Thomas Hollis, Senr.
It is true that words of an express condition may in certain cases be
480 RULE AGAINST PERPETUITIES (Part 4
intended as a limitation, but the rule is that it shall not ordinarily be
so construed, and there does not appear to be any reason in the pres-
ent case why it should be construed as a limitation rather than as a
condition: see Sheppard's Touchstone (7th Ed.) p. 124, note 16.
It was c onceded in argument that if the clause in question ought to
be constru ed as a limitation or as c reating a shifting u sej t would be
voi d as mf ringing the rule against p ei peti^tie s : and it was a rgued that
th e"claus e ought to be construed as one intended to shift the use which
was vested by "virtueo t tlie release in the trustees^ upon the happening
of^Tne~coiitemplated event, in the heirs of th e origina l bargainor, and
that it was not possible for it to operate otherwise, having regard to
the fact that the estate to be defeated was one existing only by virtue
of the statute. I do n ot think that this arg iiment c an prevail .
It is laid downTn terms in Sheppard^s^ouchstone, p. 120, that a
condition may be annexed to a limitation of uses, and thereby the same
— namely, the uses or the estates arising from the uses — may be made
void. To which statement a note is appended by Mr. Preston: "and
shall be executed by Statute 27 Hen. 8, so that the donor and his heirs
may take advantage of the condition. Sav. 77 . See further in Vin.
Abr. Condition (N)."
In Serjeant Rudhall's Case, Savile, Case civ., p. 76, the serjeant,
"being cestui que use in fee, and therefore being entitled to devise the
use, devised certain lands before the Statute of Uses by his will in writ-
ing to Charles his younger son and the heirs male of his body, with re-
mainder to John his eldest son in fee, with this condition : that neither
the said Charles nor any of his heirs of his body should aliene or dis-
continue any of the said lands but only to the jointure of his wife for
the time being, and for the use of the said jointures of the said wives
of the said heirs for term of lives of the said wives. And after the said
William Rudhall died and Charles his son entered, and after the year
4 Edw. 6 (that is, after the Statute of Uses), by his indenture leased
the land to the defendants for term of their lives, rendering the ancient
rent to him, his heirs and assigns. Then, 1 EHz., the said Charles
levied a fine to certain persons and their heirs with proclamations,
which was to the use of the said Charles and Alice his wife and the
heirs male of the body of Alice by him begotten, and for default of
such issue to the use of the heirs of the said Charles begotten, and for
default of such issue to the use of the right heirs of the said William
Rudhall the father. And it was averred that the use of this fine was
for the jointure of the said Alice for term of her life. And the plain-
tiff, as heir of Serjeant Rudhall, entered for the condition broken.
And in this case three doubts arising: one, if it was condition or limi-
tation of estate in use ; another, if the condition was broken ; and the
third, if the heir of the cestui que use should take advantage of condi-
tion broken by the Statute of Uses. And it appears that this is con-
dition, because condition destroys the estate and returns the land to
the donor and his heirs; a limitation of estate is when the first estate
Ch. 2) INTERESTS SUBJECT TO THE RULE 481
is destroyed and new estate limited by way of remainder or otherwise.
And here is condition, because there is not a new estate limited over,
but the estate to which it is annexed is destroyed. And then arises for
consideration if the condition is broken : and it appears that lease for
lives of the defendants reserving the ancient rent being made accord-
ing to the statute is not a discontinuance. For the statute has given
power to make such estates that they are legal, and legal estates cannot
make injurious discontinuances. Therefore the condition in this re-
spect is not broken ; but the limitation of other uses by which other
heirs are inheritable than were at first is to break the condition. For
the limitation of use on fine in special tail is contrary to the will of
Serjeant Rudhall. And the limitation of the fee to the heirs of Ser-
jeant Rudhall is other limitation to heirs than as he himself limits:
for he limits the fee to John Rudhall, his eldest son, and his heirs ; and
it might be that John Rudhall and his heirs are heirs of the half-blood
to the direct heirs of Serjeant Rudhall, whence it is other inheritance
than as was in the first limitation, which is breach of the condition.
And as to the taking advantage of condition annexed to the use, it ap-
pears that the Statute of Uses has given this advantage when the uses
and possession are united, that the heir of the father enter, by which
it appears, by the opinion of all the justices, that the entry was ai
lowable and the plaintiff shall recover. And it was adjudged that his
entry was allowable, for the condition was broken by limitation of use
in special tail and of the other remainder in fee in the heirs of the
father; but lease for life, according to the statute, is not discontinu-
ance, and, therefore, no breach of condition. Also, this entry for con-
dition is warranted by the Statute of Uses, and, also, it was agreed
that this was condition and not limitation."
I have translated the report out of the law French, and I think that
the case, which is also reported in other books (Moore, 212; 1 Leon.
298), is an authority for the statement in Sheppard's Touchstone, p.
120.
The next question i s, whether or not the condition, being an express
common law con dition subsequent, is void for perpetuity . 1 have not
beenTef erred To~any case deciding the question, nor have I since the
argument, after a considerable search, been able to find any authority
in the reports enabling me to say that the point has been judicially de-
cided.
For the exposition of our very complicated real property law, it is
proper in the absence of judicial authority to resort to text-books which
have been recognized by the courts as representing the views and prac-
tice of conveyancers of repute. Except in the comparatively recent
although most valuable book of the late Mr. Challis (whose loss we all
regret), to which I shall have to refer more fully later on, I cannot
find any definite statement of opinion adverse to the views expressed
by Air. Sanders and Mr. Lewis in their well-known treatises, and I
4 KALES~PROPy— 31
482 RULE AGAINST PERPETUITIES (Part 4
will first refer to Sanders on Uses and Trusts (5th Ed.) vol. 1, pp.
206, 207, 213. [His Lordship read the passages, and continued:]
I find in Lewis on Perpetuity (Ed. 1843) pp. 615, 616, the opinion
of the learned author expressed in clear and unambiguous language.
[His Lordship read the passages, and continued:]
Amongst quite modern text-writers I find a similar expression of
opinion. See the work of the learned American author Mr. Gray,
who has written on the law of Perpetuity, at p. 215, where he states
his view, in spite of the fact that there are American authorities tend-
ing the other way, the point not having been taken or argued in such
authorities ; see also Marsd en on Pe rpetuities, p. 4.
I have purposely avoictecPreferring to certain dicta in recent cases
until I come to examine Mr. Challis' argument, which was in fact the
basis of the argument putlorward on the parr of the purchaser in the
present case. That argument and the learned author's expression of
opinion are to be found in Challis' Law of Real Property (2d Ed.)
pp. 174-177. [His Lordship read the passages he referred to, and
continued :]
Pausing at the introductory paragraphs, I do not propose to em-
bark upon a consideration of the origin and development of the rule
or rules against perpetuities, about which there have been and will
continue to be grave differences of opinion amongst real property
lawyers. I find a clear and well-recognized rule certainly applicable
to all ordinary methods of disposition in vogue since the Statute of
Uses, and what I have to do is to see whether or not that rule applies
to prevent the effectuating by means of a common law condition what
is forbidden by the law in the case of all other methods of disposition
of property.
Mr. Challis is right of course when he says that "when any part of
the common law is found to require amendment, the Legislature
alone is competent to apply the remedy." But the courts have first
to find what is the common law — that is, the principle embodied in
what is called the common law — and to apply it to new and ever-
varying states of fact and circumstances. The common law is to be
sought in the expositions and declarations of it in the decisions of the
Courts and in the writings of lawyers. New statutes and the course
of social development give rise to new aspects and conditions which
have to be regarded in applying the old principles. The policy of the
law against the creation of perpetuities was certainly asserted at a
very early date, as was also the policy of discountenancing unrestrict-
ed restraints upon alienation. I may give by way of illustration what
was said by Lord Macnaghten in the case of Nordenfelt v. Maxim
Nordenfelt Guns and Ammunition Co., [1894] A. C. 535, 564, 565.
[His Lordship read the passage, and continued :]
Might it not be said from Mr. Challis' point of view that if it was
the common law in the reign of Queen Elizabeth that all restraints of
trade, general or partial, were void, that they must still be void ? The
Ch. 2) INTERESTS SUBJECT TO THE RULE 483
answer appears to me to be that the principle was that restraints of
trade are contrary to public policy, and that is the principle still ; it is
the application of it that has varied.
An illustration of a void conclition because impossible of fulfilment
is given in Sheppard's Touchstone, p. 133 — namely, if one give o£
grant land on condition that a man will go to Rome in three days.
Thdl which was impossible at the time when the illustration was given
has now become possible owing to a change of circumstances, and
though tlie old principle stands the application of it has changed. In
reference to the suggestion as to devising "a novel restriction to be
applied to novel forms of limiting, or otherwise conferring, an estate
or interest unknown to the common law" (Challis, p. 175), I may point
out that in the present case the object of the grantor could not have
been obtained without adopting a novel form of assurance unless in a
very roundabout and circuitous fashion. He wanted to vest the es-
tate in himself jointly with others.
It is right to mention here that this case being one of a gift for
charitable purposes, the question could not have arisen had the deed
been dated ten years later than it was, having regard to the provisions
of the Mortmain Act (9 Geo. 2, c. 36), which provides that the gift or
conveyance must be without any power of revocation, reservation,
trust, condition, limitation clause or agreement whatsoever for the
benefit of the donor or grantor, or of any person or persons claiming
under him.
I think that some of Mr. Challis' criticisms of the dicta of Jessel,
M. R., in the case of In re Macleay, L. R. 20 Eq. 186, are not quite
reasonable. The use of the expression "tenant in tail" at p. 190 of
the report is an obvious slip, either verbal or clerical, for "tenant in
fee," as is clear by reference to p. 187, where the learned judge says :
"Looking at the will, I have no doubt that there is a condition an-
nexed to the gift in fee," and this is followed in the next sentence by
the remark : "First of all, it is to be observed that the condition,
good or bad, is confined within legal iimiits ; it is applicable merely to
the devisee himself, and therefore is not void on any ground of re-
moteness."
This being so, I find in the passage I have read, coupled with the
passage at p. 190, referred to by Mr. Challis, a clear expression of
opinion by Jessel, M. R., that had the condition in question not been
limited in point of time, as it was, it would have been void for remote-
ness.
The decision of North, J., in Dunn v. j^lood, 25 Ch. D. 629, as to
the remoteness of the power of re-entry in that case was obiter, in the
sense that it was unnecessary for the purposes of the decision to de-
termine it, although it was a question raised and argued ; but I think
that Mr. Challis, in saying that nothing was said on a ppeal ^ (1885), 28
Ch. D. 586, to support the obiter dictum, appears to have overlooked
the observation of Baggallay, L. J., 28 Ch. D. 592, where he says :
484 RULE AGAINST PERPETUITIES (Part 4
"This right of re-entry was held by Air. Justice North to be void for
remoteness. We have not heard the counsel for the defendant, but
as at present advised I concur with Mr. Justi ce North that t his right
could not be enforced being void under tlie rule against perpetuities."
~T. miist also notice that Alf. Challis niakes^no^reference whatever to
the opinions of Sanders and Lewis which I have quoted.
The result appears to be that there are expressions of opinion by
Jessel, M. R., North, J., and Baggallay, L. J., and the opinions of two
great real property lawyers and text-writers, in favor of the invalidity
of such a condition as the one in question ; besides the opinions of
modern text-writers ; while on the other side there is nothing definite
except the opinion and reasoning of the late Mr. Challis in his work
on real property. It is to be noticed that Mr. Challis put forward the
surmise that at the present day the courts would not acquiesce in the
conclusion he draws without great reluctance; and in reference to his
appeal to arguments to be derived from history, I may refer to his
own observations : Challis, p. 394. [His Lordship read them, and
continued:]
I am of opinion that the condition in question is obnoxious to the ^
rul^ against perpetuities.*
But this still leaves another question for consideration, namely, is_
the title one which ought to be forced upon a purchaser? The rule
wIiTch should be foIlau^edTmluch^cases'is thus~slal'ed by Chitty, J., in
the case of In re Thackwray and Young's Contract, 40 Ch. D. 34, 38,
39, 40. [His Lordship read the observations, and proceeded:]
I have not in the present case any decisions or dicta of judges to
lead me to a contrary conclusion to that to which I have come, and
the question is one of general law, upon which I have dicta of eminent
judges and opinions of text-writers of authority which I consider
justify the view I have expressed.
At the same time, the poin t js^n g Q^ some obscurity and difficult y,
and one which cannot be said to have been the subject of direct ju-
dicial decision. Moreover, regard must be had to the fact that the
person claiming to be heir-at-law of Thomas HoUis, Senr., has given
a notice which must be taken to be notice of his intention to claim the
benefit of the breach of condition, if broken, and he has declined to
argue, or to be bound by the present decision ; so that the purchaser
if he completes will be in danger of immediate litigation — an element
which must have very great weight in considering whether or not the
title ought to be forced upon him: see Pegler v. White (1864) 33
Beav. 403, and Fry on Specific Performance (3d Ed.) p. 408.
Upona_c onsideration of all the circumstances I do not thin k I
ought to say that su ch a titl e has been shown as ought to be forc ed
upo^n the purcliaserif he is unwilling to complete.
4 For the American cases contra, see Gray's Rule against Perpetuities, §§
304^311. Cf. Cooper v. Stuart, L. R. 14 App. Cas. 286.
Ch. 2) INTERESTS SUBJECT TO THE RULE 485
In re ASHFORTH.
(Chancery Division. L. R. [1905] 1 Ch. 535.)
FarwELL, J., delivered the following written judgment:' Martha
Sarah Asliforth made her will on February 21, 1863, and thereby de-
vised her real estate to trustees and their heirs upon trust to receive
the rents and profits and divide the same as soon as they conveniently
could after Lady Day and IMichaelmas Day in each year into three
equal parts, and pay the same as therein mentioned to her three chil-
dren and the survivors or survivor of them during their lives and the
life of the survivor, and she then proceeded as follows : "And from
and immediately after the d_e£ease nithe longe st liy er of my said three
children John jMorris Ashforth, George Morris Ashforth, and ^Nlar-
tha Morris Ashforth, I direct my said trustees for the time being,
subject nevertheless to the payment of the said annuity to Miss Eliza
Robinson, if she should be then living, to pay and divide the said
re nts an d profits of the said farm half-yearly, as soon as conveniently
can be after the days hereinbefore appointed, unto and equally
amongst all such of the children born in my lifetime, or within twen-
ty-one years _after my death of the said jjjhn ]\Io rris A shfoFth,
George"Xlorris Ashforth, and Martha Morris Ashforth who shall be
living oifthe Lady Day ^rTVTicliaelmas Day precedmg~~such payment
and division. And after the death of all s uch children of the said
John Morris Ashforth, George Alorris Ashforth, and Martha Morris
Ashforth, except one, I devise my said farm an d all my said real es -
tate to such 'surviving child and the heirs of his or her body in tail,
with remainder^o the right heir of John Morris, son of my grandfa- ' j ^t,^
ther Thomas Morris." The testatrix died on July 7, 1864. Of her
three children, G eorge died in 187 , having had issue three childr en
o nly, t he present plaintiffs ; Martlia died without issue in 1877; and
Jolm diecl without issue m 1897. The question for decision is wheth-
er the limitation in tail is or is not too remote. ~^ '
P roperty mav be given to an unborn person for life or to several
un born per sons successively for li fe, with remainders over, provifle d'
tha t sucli remainders be mdeteasibly vested in persons ascer tained or
nec bssarilv ascertainable within the limits prescribed by the ruK
a gainst perpetuities. In re Hargreaves, 43 Ch. D. 4U1 ; iivans v.
Walker (1876) 3 Ch. D. 211. Mr. \\'ood did not dispute this, but ar-
gued that in a^smuch as one of t)-|^ tlirpp p1ain|;ffg ]-[iii^f nprp^^pHK- he
tH e su rvivor, they could combine to release or destroy the right of
s urvivorship and ta ke the property at c^nce . B utthis assumes the ex- "^
iste nce of a present estate after the lite estate^, which wil} rema in
whe n the obnoxious contingency is destroyed, and there is none suc h ;
the only estates of inheritance are contingent interests in remainder.
6 The opinion only is given.
486 RULE AGAINST PERPETUITIES (Part 4
The court has first to construe the will, and is driven to conclude that
these interests are void for perpetuity. There is, therefore, no estate
of inheritance in existence available for dealings by way of convey-
ance or otherwise, and nothing is left but the three life estates. The
fallacy lies in the lack of appropriate definition. No release or de-
struction of the contingent interest would be of any avail. What is
required is a dealing by way of conveyance of all the three contingent
interests, and this is impossible, because they have been declared
void, and three void contingent remainders will not make on^good^
vest ed remainde r. Mr. Wood relied on a passage in Lewis on Per-
petuity, p. 164: "A perpetuity is a future limitation, whether execu-
tory or by way of remainder * * * which is not to vest until
after the expiration of, or will not necessarily vest within, the period
fixed and prescribed by law for the creation of future estates and in-
terests ; and which is not destructible by the persons for the time be-
ing entitled to the property subject to the future limitation, except
with the concurrence of the individual interested under that limita-
tion." It is to my mind plain that the learned author, in speaking of
destructibility, is referring to remainders after an estate tail; but in
any case the passage does not help JNlr. Wood, because the validity
of the estate which he wishes to create must depend on the convey-
ance of the ultimate remainders; the persons entitled subject to that
limitation are entitled for life only. ]Mr. Wood also pressed on me a
dictum of Lord Cranworth's in Gooch v. Gooch, 3 D.,'M. & G. 366,
383. I think that if the whole of that passage is read it is plain that
the Lord Chancellor was really thinking of a joint tenancy, and not of
a gift to three with a contingent limitation to the survivor of them.
But, however that may be, it is only a dictum ; and the reasons given
are not easy to reconcile with the judgments of the Court of Appeal
in In re Hargreaves, 43 Ch. D. 401, and London and South Western
Ry. Co. V. Gomm, 20 Ch. D, 562. The case before me is really un-
distinguishable from Garland v. Brown, 10 L. T. 292, before Wood,
V. C, where there was a gift to the surviving children of the testator's
surviving child for life in equal shares as tenants in common with re-
mainder to the survivor of those children in fee, and the remainder
in fee was held void for remoteness.
T hen it is sa id that this is a le gal contingent remainder sppnorted
by a partic ular estate vested m trustees during the lives of the grand-
cliildren and of the survivor of them, and this was not disputed. But
the plaintiffs ^rgue furth er that such a remainder is not afYected Jiv:
a ny doctrine of remoteness , except tne_ rule tnat estates cannot be
limite d to unborn persons for life with remainders to the issue of
such unborn persons. I might have contente d myself with followjn g
KaVTj.'s deciSlOri itl In re lM X»st. 4J unr^C g^ 253i but it is g aidlhat
this \yas only tne second oFalternat ive reason for his judg ment, and 1
haye accordingTy Tonsidered the point for mvse lf.
"It is vefy" difficult to say wlien the conception of perpetuity in its
Ch. 2) INTERESTS SUBJECT TO THE RULE 487
modern meaning first appeared in our courts. There is no doubt that
the common law regarded all attempts to restrict the free alienation of
property with extreme disfavor. As is stated in Mr. Butler's note to
Coke on Littleton, 342 b, i., although the suspense or abeyance of the
inheritance (as distinguished from the freehold) was allowed by the
common law, it was discountenanced and discouraged as much as pos-
sible, and modern law has added her discouragement of every con-
trivance which tends to render property inalienable beyond the limits
settled for its suspense, because it is clear that no restraint on aliena-
tion would be more effectual than a suspense of the inheritance. He
adds : "The same principles have, in some degree, given rise to the
well-known rule of law, that a preceding estate of freehold is indis-
pensably necessary for the support of a contingent remainder; and
they influence, in some degree, the doctrines respecting the destruc-
tion of contingent remainders." There was also the rule that an es-
tate by purchase cannot be limited to the unborn child of an unborn
child. Whitby v. Mitchell (1890) 44 Ch. D. 85. With all respect to
Kay, J., I do not think that much reliance can be placed on the exist-
ence of an independent rule of law forbidding a possibility on a pos-
sibility. See Gray on Perpetuities, p. 86, and Williams on Real Prop-
erty, 6th ed. p. 245. The phrase seems due to Lord Coke's unfortu-
nate predilection for scholastic logic, and may possibly be a pedantic
and inaccurate reason for avoiding remoteness. See Blamford v.
Blamford (1615) 3 Bulst. 98, 108; s. c. 1 Roll. Rep. 318, 321, cited in
Gray at p. 86. "Coke moves another matter in this case on Popham's
opinion, Coke L, Rector de Chedington, that a possibility on a possi-
bility is not good, for here in our case is a possibility on a possibility
* * * yet it seems that it is good, for if Popham's opinion should
be law, it would shake the common assurances of the land. * * *
But I agree that in divers cases there shall not be a possibility upon
a possibility, and he puts the diversities in Lampet's Case (1612) 10
Rep. 46 b, 50 b." It seems probable that contingent remainders
could not anciently have been created at all : see Williams on Seisin,
p. 190; and that down to the time of the Commonwealth the usual
mode of settlement on marriage was by giving vested estates tail to
living persons, and not estates tail to unborn children : ibid. 189.
Although, therefore, there was a general principle that alienation
should not be restricted by the creation of estates beyond a particular
estate for life with a remainder in fee, or in tail, I can find no trace of
any statement of the present rule in terms in any of the old books.
But the general principle was well established, and as the ingenuity of
real property lawyers invented new devices for rendering land inalien-
able for as long a time as possible, it became necessary to mould the
expression of the old law so as to meet new emergencies. Thus in
Cadell V. Palmer (1833) 1 CI. & F. 372; 36 R. R. 128, the House of
Lords settled the question of the extent to which executory limita-
tions and shifting uses, which had become possible under the Statute
488 RULE AGAINST PERPETUITIES (Part 4
of Uses, could be lawfully carried, and they did this, not by creating
any new law, for that would have been lejj^islation, not decision, but
by applying the old law to the new circumstances. The judges who
advised the House supported their opinion by numerous authorities,
and I would refer in particular to the quotation from Lord Kenyon's
judgment in Long v. Blackall (1796-97) 7 T. R. 100, 102; 4 R. R. 73:
"The rules respecting executory devises have conformed to the rules
laid down in the construction of legal limitations, and the courts have
said that the estate shall not be unalienable by executory devises for
a longer time than is allowed by the limitations of a common law con-
veyance." Here, then, is an authoritative statement in terms of pre-
cision of the rule of law which had existed for centuries, but had not
been theretofore defined, and had been applied from time to time, as
occasion arose, by judges who, without formulating the precise limits
of the rule, held, as Lord Nottingham said in the Duke of Norfolk's
Case (1681) 3 Ch. Cas. 14, 31 : "If it tends to a perpetuity, there
needs no more to be said, for the law has so long labored against per-
petuities, that it is an undeniable reason against any settlement, if it
can be proved to tend to a perpetuity." The rule, however, was only
to be applied to cases where it was really necessary in order to defeat
remoteness, and, accordingly. Lord St. Leonards in Cole v. Sewell,
4 D. & War. 1, s. c. 2 H. L. C. 186, 65 R. R. 668, points out that it
has no application to remainders limited to arise after an estate tail,
because they are destructible by barring such estate tail, and are no
more open to objection than the estate tail itself; and this is the
meaning of the reference to destructibility in the passage that I read
above from Lewis on Perpetuity, p. 164. But this reason has no ap-
plication to contingent remainders not so limited and destructible ;
nor do I think that Lord St. Leonards so intended. See Sugden's
Law of Property, pp. 116-121, and Lord Brougham's speech in the
same case in the House of Lords, 2 H. L. C. at p. 234, where he puts
this ground plainly as the reason for his observations. It would be
very strange indeed that Lord St. Leonards should have referred to
the "sacred rule" enunciated in Purefoy v. Rogers (1669) 2 Wm.
Saund. 768. 781, n. 9, that no limitation shall be construed as an ex-
ecutory or shifting use which can by possibility take effect by way of
remainder — a rule which probably owes its origin to the chance of
destruction by the failure of the particular estate incident to the one
and not to the other — and should at the same time have afifirmed that
the rule against perpetuities had no application to such contingent re-
mainders, although they might exceed the limits allowed for execu-
tory limitations, because they could not exceed the limits of perpetui-
ty, for the proposition is self-contradictory. A a.smne that the doctrine
o f_ the de ^'^tr pi^tij^ilii-y r.f rnntnin-pyt rpnin inders by failure nf t]-|^ j2-^r-
ticular estat eis due to the desire of tlie courts to av oid remoteness, as
Mr. ijutler" ^ggests. it does not follow that such remamders shcxiTd
be free from all other bonds! Liability to destruction for a particular
Ch. 2) INTERESTS SUBJECT TO THE RULE 489
cause at or before a griven period is n ot incompatible with, or any
ground for imm unity from, destruction at the same period for a caus^
common to" all other inteTests, executjory^ equitable, or otheruiseT
whiOTrnay lead to remoteness. It is plain, moreover, that the couTEs
hav e acte3~TipoirThe principle that the rule against perpetuities is to
be'appiied where no other sufficient protection a gainst remoteness is
attainably! Thus, inasmuch as equitable contingent remainders never
failed for want of a particular estate, it was held that the rule must
apply to them. In Abbiss v. Burney (1881) 17 Ch. D. 211, the gift
was to trustees on trust for A. for life, and, after his death, on trust
to convey to such son of his as should first attain twenty-five. Sir
George Jessel, j\I. R., said, ibid. 230: "Where the legal fee is out-
standing in the trustees, that doctrine of contingent remainders
which, until the recent statute, prevented contingent remainders from
taking effect at all unless they vested at the moment of the termina-
tion of the prior estate in freehold, has no operation, and on that
ground I think that this appeal should be allowed." In In re Trustees
of Hollis' Hospital, [1899] 2 Ch. 540, the late Mr. Justice Byrne held
that the rule against perpetuity applied to a common law condition.
He says, ibid. 552 : "The courts have first to find what is the common
law — that is, the principle embodied in what is called the common
law — and then to apply it to new and ever-varying states of fact and
circumstances. * * * New statutes and the course of social de-
velopment give rise to new aspects and conditions which have to be
regarded in applying the old principles. The policy of the law against
the creation of perpetuities was certainly asserted at a very early date,
as was also the policy of discountenancing unrestricted restraints
upon alienation." In Chudleigh's Case (1589-95) 1 Rep. 120 a (the
case of perpetuities), the court defeated an attempt to make the Stat-
ute of Uses serve as the means of protecting contingent remainders
from destruction, lest lands should remain too long in settlement. In
Abbiss v. Burney, 17 Ch. D. 211, the Court of Appeal defeated an
attempt made by vesting all the legal estate in the property in trus-
tees. The present attempt is made by vesting a legal estate pur autre
vie in trustees and limiting the contingent remainders as a legal use.
In my opinion, the court is equally bound to defeat this; nor can I
find any rule of law or decision or principle to the contrary. The
opinion of the late Mr. ChalHs (Real Property, 2d Ed., pp. 174-177)
is, I think, sufficiently displaced by Byrne, J.'s judgment in the Hol-
Hs' Hospital Case, [1899] 2 Ch. 540, and that of the late Mr. Joshua
Williams by Gray on Perpetuities, pp. 283-298 ; and the conclusion at
which I have arrived is supported by (in addition to the text-writers
cited in that case and in In re Frost, 43 Ch. D. 246) an argument in
the first edition of Jarman on Wills, vol. ii. p. 727, and repeated in
some of the later editions, by Mr. Serjeant Stephen's note in his Com-
mentaries. 8th ed. vol. i. p. 554, and by Mr. Gray's excellent Treatise
on Perpetuities. The rule against perpetuities applies to all contin-
490 RULE AGAINST PERPETUITIES (Part 4
gent equitable limitatjons of real estate and all contingent limitations
of pers7)nalty, including leasehoTdsT It would cTf tainty be undesir able
to add another to the anomalies that "adorn our law^ as I should sxxc=
ceecTin doing if I held that the rule did not apply to legal contingent^
remainders. I therefore answer the first question, by saying that the
limitatioiTin question is void for remoteness, and the second question
in the nesfative.®
WORTHING CORPORATION v. HEATHER.
(Chancery Division. L. R. [1906] 2 Ch. 532.)
By a lease dated October 1, 1878, Fa nny Heather demised to the
l ocal board of health for the district of Worthing some meadow land
for a term of thirty year s from September 29, 1876, at the yearly rent
ot i6b, and the board for themselves, their successors and assigns,
covenanted that they would not during the term use the demised
premises or any part thereof for any purpose other than that of a pub-
lic p ark or p leasure grpunrl.
"^i'he lease contained a proviso as follows : "Provided always And
it is hereby agreed and declared that in case the said board their suc-
cessors or assigns paying the said rent hereby reserved and observing
performing and keeping all the covenants on their part herein con-
tained shall be desirous at any time during the said term hereby grant-
ed to purcha se the fee simple, and inheritance of the said premises at
the sum of i l,325 and of such their desire shall give to the said Fanny
Heather her heirs or assigns six calendar months previous notice in
writing expiring at the end of any half year of the said term then and
in such case the said Fanny Heather her heirs or assigns shall deliver
to the said board their successors or assigns a copy of the abstract of
title to the same premises which was delivered to her on the occasion
of her purchase thereof such abstract commencing with indenture of
30th J\Iay 1832 between Richard Lindup and Jane his wife of the first
part George Newland of the second part Frances Lindup of the third
part and Richard Newland and James Stubbs of the fourth part and
no prior or other title shall be required. And will on payment by the
said board their successors or assigns of the said sum of £1,325 to-
gether with interest thereon at the rate of £5 per cent, per annum
from the expiration of such notice until payment and of all rent then
accrued execute a proper conveyance and assurance of the said prem^
ises and the inheritance thereof in fee simple unto the said board their
successors and assigns or as they shall direct such conveyance or
assurance to contain sinf^JAr covenants on the part of the said board
their successors or assigns with the said Fanny Heather her heirs
and assigns to those hereinbefore contained relative to the user of the
In the case of In re Frost, 43 Ch, Div, 246, 253, referred to, the will
conferring the legal future interests was dated March ID, 1S70.
Ch. 2) INTERESTS SUBJECT TO THE RULE 491
said premises solely as a public park walk or pleasure ground and to
the erection thereon of no other erection or building except such
lodge and other buildings as are hereinbefore referred to (such cove-
nants being so framed as that the burden thereof shall so far as is
possible run with the said premises)."
On August 25, 1890, the plaintiffs were incorporated by Royal char-
ter, and succeeded under section 310 of the Pubhc Health Act 1875, to
all the property of the local board of health. They continued to use the
land as a public park. Mrs. Heather died in 1902, having by her will
devised all her real and residuary personal estate to C. H. Heather
and V. J. Heather in equal shares, and appointed J. Goldsmith and
E. Sayers executors.
On August 17, 1905, the plaintiffs served on the devisees notice of
their desire to exercise the option given to them by the lease by pur-
chasing the fee simple ot the demised premises for £1,325 upon the
terms and conditions mentioned in the lease.
The devisees repudiated their obligation to comply with the notice,
and insisted that the option was void as infringing the rule against
per petujT ies. The corporation there upoir"bfought this action agamst
the devisees and the surviving executor, and asked for — (1) a decla-
ration that they were entitled to specific performance of the agreement
constituted by the lease and the notice for the sale to them of the fee
simple of the premises, and consequential relief on the footing of such
declaration ; (2) if for any reason the agreement could not be specif-
ically performed, damages against the estate of Mrs. Heather for
breach of covenant; (3) in default of admission of assets by the exec-
utor, administration of the real and personal estate of Mrs. Heather,
and, so far as might be necessary, to follow her assets into the hands
of the defendants Heather.
Warrington, J. This is a n action for, first, specific performance o f
a certain contract taken in the form of an option to purchase contain-
ed in a lease ; s econdly, and alternatively, for damages for breach of
that contract. The contract is not denied. The defences to it are
pi^rely legal. The first defence is that, so far as it is an action for
specific performance, it cannot be enforced because in equity, in which
court alone specific performance can be granted, it creates an in-
terest in the land, and that interest is void as infringing the rule
against perpetuities. The action is defended, so far as it is an action
for damages, on the ground that it is a contract which tends to bring
about an infringement of the rule against perpetuities, and, therefore,
cannot be enforced in a court of law any more than it could be en-
forced in a Court of Equity in the way of specific performance. [His
Lordship stated the facts, and continued :]
Now first with regard to the claim for specific performance : If the
co venantee had been an individual, and if the purpose for which the
land jvns to he crmntf^fl linrl nnf been, as it is. a charitable purpos e — a
point with which I shall have to deal directly — it is admitteJ that
49'3 RL'LE AGAINST PERPETUITIES (Part 4
a fter the decisions of the Court of Appeal in the case of the London
a nd South Western Rv. Co. v. Gomm. 20 Ch. D T 56 2, and my ow n
d ecision in Woodnll v. Cliff on ^ [10Q5| 2 Ch. 2j7. it would he j nipos-^
sible for this court to hold that that contract could be specificall yen-
f orce cH It is said, however— and I propose to deal with this point first
-^on"*the part of the plaintiffs that the purpose for which this land
was to be conveyed was a c haritable pu rpose, and, therefore, notwith-
standing the fact that the interest w^iich flie deed creates would in an
ordinary case be void for remoteness, the object being charity, it
would not be so void. I n my opinion no distinction can be drawn on
that ground between this case and the ordinary case of a coiit ract
w ith" an individuaT . Although the interest of the charity is created by
the contract, it does not become effective until the happening of a
future event, and it is the very postponement of its effectiveness which
renders it obnoxious to the rule against perpetuities. In my judg-
ment the case in this aspect of it is undistinguishable from the case
of a limitation to an individual followed by a limitation to a charity,
void because it is not to take ettect until a tune outside the limits of
the rule against perpetuity. I think it is clear in that case the limita-
tion would be void notwithstanding that it is a limitation to a charity.
In the case of IhTe ijowen, [1893] 2 Ch. 491, it was decided by Stir-
ling, J. — for this purpose it is enough to read the head-note — that
"The principle established bv Christ's Hospital v. Grainger (1849) 1
Mac. & G. 460, and In re Tyler, [1891] 3 Ch. 252, that the rule
against perpetuities has no application to the transfer in a certain
event of property from one charity to another does not extend to
cases where (1) an immediate gift in favor of private individuals is
followed by an executory gift in favor of charity, or (2) an immediate
gift in favor of charity is followed by an executory gift in favor of pri-
vate individuals." The same principle is illustrated by a subsequent
case of In re Lord Stratheden and Campbell, [1894] 3 Ch. 265.
There the testator bequeathed an annuity of ilOO to be provided to
the Central London Rangers, a volunteer corps, on the appointment
of the next lieutenant-colonel. It was held, first, that that bequest
was a charitable bequest ; and, secondly, that the gift was void because
it infringed the rule against perpetuities. There, as in the present
case, immediately on the death of the testator, just as here on the ex-
ecution of the deed, the charity obtained an interest — that is to say,
they were entitled if it were not void to this bequest ; but the bequest
in that case, as the interest in this case, was to become effective only
on the happening of a future event, wdiicli was too remote. It seem s
to me that that case is a direct authority again st the contention of the
plaintiffs, foundtjd Oil the ait4unreiit lllctt the covenantee in this ca se
was'a'cliarityT' "" "^
7 Contra: Hollander v. Ceiitial Metal Ca, 109 Md. 131, 71 Atl. 442, 23
L. R. A. (N.~^.) 1135 (where the lessee^s option to purchase was not even
Ch. 2) INTERESTS SUBJECT TO THE RULE 493
Now I come to the s econd aspect of the action , in which it is a
mere action at common Faw for d amages for breach of the contrac t.
Would that contract have been void at common law? That is to say7
was it such a contract that a court of law would not entertain an
action for damages for its breach? It is a contract to convey land to
the purchaser upon the happening of an event which might occur at a
more remote period than lives in being and twenty-one years after-
wards. In the act of making such a conveyance there is nothing il -
l egal — that is to say, if the covenantor chose in the year 1898 to con-
vey this land to the corporation of Worthing she would have been
performing a perfectly legal act. The act, therefore, which the cove-
nant binds the covenantor to perform is not an illegal act. What
alone is illegal is the limitation of land which is to take efifect at a
pcruHl-LOo reiiioTe. How is it tn^ll LilUL LUliLidLl, wIiIlIi ism form a
mere personal contract that the covenantor will do such an act, be-
comes a limitation? In a court of common law it would not have
that effect. So far as regards the jurisdiction in a court of common
law, the covenantor might convey away the land notwithstanding the
covenant. He might devise it ; he might allow it to descend, and the
covenantee would have no means of getting the land either from the
grantee or from the devisee or from the heir-at-law. The only right
which the covenantee would have had in a court of common law would
have been to recover damages. In a Court of Equity the covenant is
held to afifect the conscience of the covenantor in such a way that he
cannot convey away the land to any person who is in the same posi-
tion as he is himself, that is to say, to a person who is not a purchaser
for value without notice ; and by the operation of the doctrine of spe-
cific performance the covenantee in a Court of Equity is regarded as
having an actual interest in the land to which the covenant applies.
In other words, in the contemplation of a Court of Equity, the con-
tract, being for valuable consideration, is executed to the extent to
which the interest, which ought under that contract to be created by
the subsequent act on the part of the covenantor, is created by the
covenant itself.
Now there is no conflict between the doctrines of law and equity in
this respect. The relief given in a Court of Equity is merely relief
supplemental to, and in most cases more efifectual than, the relief
given at common law, but there is no conflict between the doctrines
of law and equity so as to compel one to regard this covenant merelv
as creating a limitation upon the equitable doctrines. It remains since
th e Judicature Act as it did before — it remains a common l aw con-
tr act capable of being enforced In a court of com mon law without"""
held by the lessee for charity) ; Blakeman v. Miller, 136 Cal. IBS, 68 Pae.
587, 89 Am. St. Rep. 120 (where a lessee for L'U years was given au option to
purchase at any time within the term after 15 years, hut where the statu-
tory rule against perpetuities made no allowance for vesting within any
gross term of years).
494 RULE AGAINST PERPETUITIES (Part 4
ref erence to the laws of equity . Realizing that difficulty, the defend-
ants are compelled to rest their case upon the contention that the con-
tract, though not in a court of common law efifecting that which the
law regards as against public policy — namely, the tying up of land
for a period beyond that allowed by the rule — indirectly tends to
bring about the same result. It is there that I join issue with the de-
fendants. It seems to me that, rightly considered, the contract does
not tend to bring about that result. It is quite true that the cove-
nantor may if he pleases carry it out, and it may be to his advantage
to do so, but he is not compelled to carry it out. It seems to me that
that argument depends on this fallacy. It is not in my opin ion the
contract which is void because it infringes the rule agains t perpetui-
ti es, but It IS tti'e hmitation which, by the operation of the doctrin es
of the Court of Equity, it is the efifect of the cont ract to create, that is
void. The contract remains a valid contract in everyTiTspe ct, but i t
is the limitation it creates in the contemplation of the Court of Equity,
and it is that alone, which is void. It seems to me, therefore, that in
principle there would have been in an old court of common law before
the Judicature Act no defence to this action ; and further, that in this
court also, since the Judicature Act, there is no defence, because for
this purpose the court is sitting as a court of common law.
Now, is there any authority which compels me to say that that
opinion w^hich I have already formed on principle is not the correct
opinion? I have been referred to three cases reported in 2 Vernon —
a case of Freeman v. Freeman, 2 Vern. 233, a case of Jervis v. Bruton,
2 Vern. 251, and the case of Collins v. Plummer, 2 \'"ern. 635. The
only one of those three which in any way helps the defendants is
Jervis v. Bruton. The case is very shortly reported, and the report is
in these terms : "John Morris settles land on his daughter and the
heirs of her body, remainder to his own right heirs, and takes a bond
from the daughter not to commit waste ; the daughter having levied
a fine, and afterwards committing waste, the bond was put in suit."
The only report of the judgment is this : "Per curiam. An idle bond,
and decreed to be delivered up to be cancelled ; and like Poole's Case,
cited in the case of Tatton v. Mollineux (1610) Sir F. Moore, 809,
where a recognizance conditioned that the tenant in tail should not
suffer a recovery, is decreed to be delivered up, as creating a perpetu-
ity." It is very difficult to understand that. No reasons are given for
the finding that it was an idle bond. There is a note which throws
some light on it by the editor of the edition of Vernon's Reports
which I have before me. It is edited by John Raithby, and that note
states this : "The settlement was on the daughter in fee, and on her
marriage with the plaintiff who had survived her were settled in trust
to the use of the plaintiiif and his wife (the daughter of the said John
Morris) for life, to the use of their heirs begotten by the plaintifif, and
for default of such issue, to the heirs of the plaintifT; the plaintiff's
wife died without having had any issue, and the decree declared that
Ch. 2) INTERESTS SUBJECT TO THE RULE 495
the bond in question had been ill-obtained against the said plaintiff's
wife, and that the plaintiff was seised in fee ; and decreed the bond to
be delivered, and the defendants to pay costs at law (they having pro-
ceeded on the bond) and in this suit."' It seems to me that that note
throws some light on the report, and that the reason of the finding
was not that which at first sight would appear to be the reason if one
were to take the report by itself. But in the case of Collins v. Plum-
mer, we have a case on the other side, which may fairly be set against
Jervis v. Bruton, even if Jervis v. Bruton is to be regarded on the
point which I have before me. In that case the head-note is this :
"A. on his marriage settles land to the use of himself for life, then to
the wife for life, remainder to the heirs of his body begotten on the
wife, remainder to his own right heirs ; and covenants in the settle-
ment not to bar the entail, nor suffer a recovery ; and having one
daughter, to whom on her marriage he had given a good portion ; he
suffers a recovery, and by will devises the estate to his daughter for
life, and to her first 8zc. sons in tail, with remainders over. On a bill
for a specific performance of the covenant, the court would not decree
it, but leave the party to recover damages at law, for breach of the
covenant." It is plain, therefore, that the court in that case did not
hold the covenant to be void at law, because it is difficult to under-
stand why, if the court had so held, it did not exercise the further
equitable jurisdiction of granting an injunction to restrain proceed-
ings at law on the covenant, when it refused specific performance. It
seems to me that the court in that case regarded the covenant as a
valid covenant at law, although it could not be enforced specifically
in equity.
Another authority which has been referred to is the case which I
have already mentioned of London and South Western Ry. Co. y .
Gomm, 20 Ch. D. 562. That was an action in equit y only to enforce
a s omewhat sim ilar con tract to the present on e. It was an action, not
brought against the covenantor or against the legal personal repre-
sentative of the covenantor, but brought against the person in whom
the land affected by it was then vested. It was, therefore, an action
which could not have been brought at common law, and was capable
only of being founded on the equitable doctrine of specific perform-
ance. Kay, J., before whom the matter first came, said this, 20 Ch.
'D. 576: " A contract to buy or sell land and covenants restricting th e
use of land though unli rfiited, are not void fonjierpetiiitv- In these
latter cases the contracts do not run with the land, and are not bind-
ing upon an assign, unless he takes with notice. They are not prop-
erly speaking estates or interest in land, and are therefore not within
the rule" ; and he held that the contract did not create an interest in
the land. On that last finding his decision was reversed by the Court
of Appeal ; but the Court of Appeal did not for a moment throw any
doubt upon this — that the rule against perpetuities is a rule which is
applicable to property and not a rule which is applicable to contract,
496 RULE AGAINST PERPETUITIES (Part 4
and that, but for the fact that what was sought to be enforced was an
interest in land which had been created by the contract, the rule
against perpetuities would not have had any reference to that case.
It is quite true that the judges in the Court of Appeal did use expres-
sions to the efifect that the contract was void, but such expressions as
that must be taken to be used in reference to the facts of the case
which was before them ; and they had not to consider any such ques-
tion as that which I have to consider, namely, whether an action for
damages at law could have been brought upon the contract. That
some such idea was in the mind of the Master of the Rolls I think
appears from the passage, where he says this, 20 Ch. D. 580: "If then
the rule as to remoteness applies to a covenant of this nature, this
covenant clearly is bad as extending beyond the period allowed by the
rule. Whether the rule applies or not depends upon this as it appears
to me, does or does not the covenant give an interest in the land?
If it is a bare or mere personal contract it is of course not obnoxious
tcTthe riile "but in flraT~ca."Fe~it TS'Tnrpossible^ fo' see hovv'the present
ap^pellant can be bound. He did not enter into the contract but is
only a purchaser fro m. Powell who d id. Ifjt is a mere personal con-
tr act it can not be enf orced~against the assignee. Therefore the com-""
pany must admit that it somehow binds the land. But if it-binds the
land it creates an equitable interest in the land. The right to call for
a conveyance of the land is an equitable interest or equitable estate.
In the ordinary case of a contract for purchase there is no doubt
about this, and an option for repurchase is not different in its nature.
A person exercising the option has to do two things, he has to give
notice of his intention to purchase and to pay the purchase money,
but as far as the man who is liable to convey is concerned, his estate
or interest is taken away from him without his consent, and the right
to take it away being vested in another the covenant giving the option
must give that other an interest in the land." Then he goes on to
decide that in that view, giving an interest in land, the contract is void
or ineffectual ; but the Master of the Rolls in that case distinguishes
b etween the personal contract and_that whi ch gives an inter est i n
land, ancFTFls iiT thi^ l aTter lispec t_ only that he holds the contract
to be void.'"" It seems to me, therefore, that, sittirig""here in this part of
the action to administer the common law, I must hold that the cove-
nant is a valid covenant, and that the plaintififs are entitled to recover
damages for its breach against, of course, the estate of the original
covenantor.
It has been agreed on all hands that at the trial evidence should not
be given as to the amount of damages, and I must therefore direct an
inquiry as to the damages, and in default of admission of assets there
must be the usual decree for administration of the real and personal
estate of Mrs. Heather.
Ch. 3) EESTRAINT ON ALIENATION 49(
CHAPTER III
THE RULE AGAINST PERPETUITIES DISTINGUISHED
FROM THE RULE WHICH MAKES VOID RESTRAINTS
ON ALIENATION. AND PROVISIONS REQUIRING A
TRUSTEESHIP (OTHERWISE VALID) TO BE EFFEC-
TIVE AT TOO REMOTE A TIME
In re RIDLEY.
BUCKTON V. HAY.
(Chancery Division, 1879. 11 Ch. Div. 645.)
Francis Ridley, by his will, dated the 8th of January, 1863, directed
his trustees to invest a fund in the securities thereby authorized, and
to stand possessed of a moiety of such securities upon trust to pay
the interest thereof to his njece Alice Ridley for her li fe, and after
her death, in trust for all and every the c hildren or child of the said
Alice Ridley as should be livino: at the time of he r death, and the is-
sue then living of such of them as should have died m ner lifetime, in
equal shares, such issue to take their respective parents' shares; and
in case there should be no child of the said Alice Ridley, or no child
or issue who should attain a vested interest in the said moiety, then in
trust for such person or persons as the said Alice Ridley should,
whether covert or sole, by will appoint ; and in default of such ap-
pointment in trust for her next of kin who should be living at the time
of her death and such default or failure of her issue as aforesaid,
according to the Statutes of Distribution. And the testator directed
that his trustees should invest the sum of £4000 in the securities au-
thorized by his will, and stand possessed thereof in trust to pay the
interest thereof to his niece IMary Cooper during her life, and after
her death upon the same trusts in favor of the children or issue or
parties claiming under any will of the said ]^Iary Cooper in all re-
spects as were thereinbefore declared concerning the securities be-
queathed in trust for the children of the said Alice Ridle3^ And the
testator, after making other bequests, proceeded as follovv's : "Provid-
ed, also, and my will further is that the several legacies and bequests
whether of income or principal hereby given to or for the benefit of
any legatees, being females, shall be for the respective sole and separate
use independent of and free from the debts, control, or engagements
of any husband or husbands whomsoever, and that the receipts ol suth
lalesPeop. — 32
498 RULE AGAINST PERPETUITIES (Part 4
legatees respectively, whether covert or sole, shall be good and sufficient
discharges to my trustees, but not so as to enables uch legatees re-
spec tively t o anticipate, charge, seTt;~and—dt5ptiSe7'or otherwise en-
cumber sucli legacies aiid bequests, or the annual income thereof, or
any part thereof respectively."
The testator died on the 1st of May, 1863.
In 1864 a decree was made for the administration of the testa-
tor's estate, the plaintiffs being some of his next of kin, and the de-
fendants the trustees of the will, who transferred into court a sum
of i4200 5s. 2d. Consols representing the legacy bequeathed in favor
of Mary Cooper, and the income of the fund was paid to her dur-
ing her life.
Mary Cooper died in 1878, having had eight children, six of whom
died in her lifetime without having been married. The remaining two,
daughters, survived their mother. They were born in the testator's
lifetime and had attained twenty-one and married. Both their hus-
bands were now living.
This was a petition presented by the two married daughters by their
next friend, praying that the fund in court might be paid out to them
in moieties on their separate receipts.
The husbands were made respondents to the petition.
The question was whether the restraint on anticipation was void as
transgre ssing the law aga inst perpetuities.
ChittyTH. C, and (Jswaid, for the petitioners. We submit that the
restraint on anticipation is void as infringing the rule against per-
petuities though the remainder of the gift is good. The petitioners
are, therefore, entitled to the fund absolutely, discharged from the
restraint.
[JESSEL, M. R. Why should a restraint on anticipation be void? It
is only a mode of enjoyment.]
It has been held that a restraint on anticipation in a gift or appoint-
men t which may ij icludFunborqchildrenTs void, as b eing too remote :
Armitage v. Coates, 35 Beav. 1 ; In re Cunynghame's SettlenientTXaw^
Rep. 11 Eq. 324; In re Michael's Trusts, 46 L. J. (Ch.) 651.
[Jessel, M. R. The question is, whether a restraint on anticipa-
tion is not an exception to the general rule against perpetuities and
remoteness, following out the legal principle that property shall not be
inalienable.]
No exception has yet been allowed against the rule of perpetuities.
[JessEL, M. R. The rule against perpetuities is that you shall not
make property absolutely inalienable beyond a certain period. It is
only a rule in favor of alienation.]
In Thornton v. Bright, 2 My. & Cr. 230, Lord Chancellor Cotten-
ham held that an appointment by a father under his marriage settle-
ment to his married daughter for her separate use, without power of
anticipation, was a good appointment to the extent of the separate
use, and that decision was followed by Lord Hatherley, when Vice-
Ch. 3) RESTRAINT ON ALIENATION 499
Chancellor, in Fry v. Capper, Kay, 163, where he held that the re-
straint on anticipation was void and might be rejected, though the
separate use might be sustained.
[Jessel, M. R. The judges do not seem to have considered the real
point. If a restraint on anticipation is an infringement of the rule
against perpetuities, a father would be prevented from appointing to
his children, under a settlement, in a way most beneficial to his daugh-
ters.]
If the rule is broken into at all, it is difficult to see where it is to
stop.
[JESSEL, M. R, The question is whether this is not to be the excep-
tion to the rule. Why should not a father appoint to his daughters
in a way most beneficial to them, that is, appoint in such a way that
the daughters and not their husbands, who are not the objects of the
settler's bounty at all, shall have the benefit? Th e restraint on antic i-
pat ion was thou ght so beneficial that it brokelnto the general law
agamst inalienability ; that is to say, all property was to be alienable
exce pt a married w^oman^ ' "
The a uthorities are certainly against a restraint on anticipat ion be-
i n^ imposed upon a class of persons some of whom may possibly "Be
unborn. ' ~~~
' Whitehorne, for the trustees, referred to In re Ellis' Trusts, Law
Rep. 17 Eq. 409, and Baggett v. Aleux, 1 Coll. 138; 1 Ph. 627.
JessEL, M. R. The law upon the present point appears to me to be
in an unsatisfactory state, and I hope it may eventually come to be
considered by the Court of Appeal.
This gift is, in efifect, t o a person for life, and t hen to her chil-
d ren Jiving at her death ; daughters who are married women to taRe
wit h a rest r aint on anticipation . The question is whether the gift is
vo ia, or whether the restraint alone is void_ andthe gift is good.
Now', it is necessary to consider what the meaning of a restraint
on anticipation is, for with the exception of a single observation in one
of the authorities, to which I will refer presently, the point does not
seem to have been discussed at all.
In the first place, the law of this country says that all property shall
be alienable ; but there has been one exception to that general law, for
restraint on anticipation or alienation was allowed in the case of a mar-
ried woman. That was purely an equity doctrine, the invention of the
Chancellors, and is, as I have said, an exception to the general law
which says that property shall not be inalienable. That exception was
justified on the ground that it was the only way, or at least the best
way, of giving property to a married woman. It was considered that
to give it to her without such a restraint would be, practically, to give
it to her husband, and therefore, to prevent this, a condition was al-
lowed to be imposed restraining her from anticipating her income, and
thus fettering the free alienation of her property.
That ground I must assume to be correct. The result, therefore, was
500 RULE AGAINST PERPETUITIES (Part 4
that the exce ption to the s^eneral law was in favor of maiT ie(l,wnm^n,
to enable them to enjoy their proper ty-
Then there was another rule, also invented by the Chancellors, in
analogy to the common law. That was an invention of a different kind
from the other, and was this time in fSsyor of alienation and not against
it. The law does not recognize dispositions which would practically
make property inalienable forever. Contingent remainders were intro-
duced, which had the effect of rendering property inalienable. The
doctrine of contingent remainders was discussed by the Chancellors,
who held that a remainder depending upon what was called a possibility
on a possibility was contrary to the common law. That was a whole-
some rule, only it was considered that it did not go far enough. The
result was that the C hancellors es tablished this rule in favor of aliena -
ti on, that property^could no t_ ^eti ed up longer than for a lif e in be-
in g and twe n ty-one years after. 'li} at is called the rule^ againsJ:. per-
petuities. This rule, therefore, was established directly m favor of
alienation : it merely carried out the principle of law that property is
alienable. Similarly in the case of executory interests, the law put
a limit or fetter upon the testamentary power. The theory of both
rules is, however, the same, namely, that property is alienable, though
it may be made inalienable to a certain extent and in a peculiar way.
The question is, whether the restraint on alienation should not be
allowed within certain limits under the one rule as well as under the
other. The first exception is a clear and manifest exception to the
general law, which says that property shall be alienable; the question
is, whether there should not be a similar exception to that branch of
the general law which says that property shall not be inalienable be-
yond a life in being and twenty-one years after. But this question
does not appear to me to have been well weighed or considered.
Take the case of an ordinary marriage settlement, where property
is settled for the benefit of the husband and wife and then on their
children as they shall appoint. They have sons and daughters. If
the exception applies to the rule against perpetuities, they may ap-
point to such daughters with a restraint on anticipation. If, on the
other hand, the rule against perpetuities is to prevail, they cannot do
so; that is, they cannot appoint the property to the daughters in such
a way as to give them the actual benefit of it, though in the case of
the sons they can do so. This is one instance of the inconvenience
which follows from holding that a daughter in such a case cannot be
restrained from anticipation during coverture.
Now it is remarkable that the decision of Lord Cottenham in Thorn-
to n V. Brig ht seems to have been to the other eft"ect. The point, I
/'agree, was not argued, but we cannot imagine that the very eminent
counsel who argued the case, and the very eminent judge who decid-
ed it, overlooked the point. And in F ry^y. C apper, where there was
an appointment under a marriage settlement to a daughter for her
separate use, without power of anticipation, Lord Hatherley, when
Ch. 3) RESTRAINT ON ALIENATION 501
Vice-Chancellor, in referring to Thornton v. Bright, said, "The ap-
pointment was decided by Lord Chancellor Cottenham to be a valid
exercise of the power. Therefore, independently of principle, it would
be difficult for me, after that decision, to hold this appointment to be
bad." Lord Hatherley accordingly held that the appointment was not
void as fettering the propert)' beyond the legal limits, but that the re-
straint on anticipation might alone be rejected. Since those cases there
have been further decisions with which I am not satisfied, but which,
nevertheless, sitting here as a judge oFhrst m stance, 1 am not at lib-
erty to disregard. The point came before Vice-Chancellor James in
In re Teague's Settlement, Law Rep. 10 Eq. 564. There a widow,
who had under her marriage settlement a power of appointment
amongst the children of the marriage, e xecuted the power by giving
a share of the settlement fund to a married daughter for her separat e
use, without power of anticipation , and the Vice-Chancellor held that
the re stramt on anticipation only was void, but that the remainder of
th e appointm ent was good . I must say the Vice-Chancellor's judgment
is v ery un satistactory to me, because he gives no_reasons, and he does
not consider what the effect of a restraint on anticipation is.
It was argued by Mr. Hardy that the restraint on anticipation was
good, and he says, 'Tt cannot be said that the rule would have been
infringed if Mrs. Teague had put this restraint upon her daughter for
twenty-one years and no more ; then what reasonable ground is there
for not extending the protection to the daughter throughout her mar-
ried life?" He must have meant by that what I have already ex-
pressed, that the object of the restraint was to give the daughter the
actual benefit of the appointment. Then the Vice-Chancellor, after
referring to Fry v. Capper as a decision in point, says, "I think it is
impossible to hold that the rule against perpetuities can be abrogated
in the way which has been suggested.*'
That is practically the whole of the Vice-Chancellor's judgment.
The answer to that is. You do not want to abrogate the rule ; the ques-
tion is, whether the restraint on anticipation is not an exception, not
merely to the particular rule, but an exception along the whole line,
so to speak. The Vice-Chancellor really gave the go-by to the point.
Then the point came before Vice-C hancellor Malins in In re Cunyng-
h ame's Sett lement, — the same point exactly" There, under a marriage
settlement, the nu s_band ap point ed the fund to the separate use of a
mar ried daughter, with a res _tr aint on anticipat ion, and it was held that
the a ppointnient to the se parate use was valid, but that the restrain t
on anticipat ion was void as being too remot e. ~
Now all the Vice-Chancellor says is this : "I am of opinion that,
upon principle, this is an invalid exercise of the power so far as it
restrains alienation." Then, after referring to the authorities I have
already mentioned, he says, "I should have arrived at the same de-
cision in the absence of authority, but the cases I have referred to
confirm me in the opinion that the restraint on alienation is not with-
502 RULE AGAINST PERPETUITIES (Part 4
in the power." The whole argument of his judgment was, that it was
a restraint which might extend beyond the limit, and was therefore
void, but he did not consider whether, though extending beyond the
limit, it was not an exception to the general rule. Therefore he really
did not consider the point at all.
Then the last case is that of In re IMichael's Trusts, before Vice-
Chancellor Hall, who referred to a dictum of Lord Romilly's in Armi-
tage V. Coates, and his only judgment, as reported, was that he thought
Armitage v. Coates applied to the case before him, and made the order
as prayed.
So that nptj^ne- of the judg es-appganto m^-to Jiave co nsider ed th^
real poi nt, namely, wh ethera restriction on alienati on, such as the re
is in"tHej3r eser<' ^a^p is 'vaTid ^ I ca miot^ however7~c[o otherwi se tha^i
foK ow^eir decisions, though but for them my judgment would have
been to the opposite effect/but I think thTpoint iS^opgiTlor the ^^ourt
of AppeaTT"" "
The order will, therefore, be as prayed.^
SLADE V. PATTEN.
(Supreme Judicial Court of Maine, 1878. 68 Me. 380.)
ApplI^Ton, C. J. This is a bill in equity, brought in pursuance of
the provisions of R. S., c 77 , § 5, by the complainants claiming under
the will of George F. Patten, to obtain the construction of the same.
All having an interest in the question to be determined have been made
parties to the bill, and have entered an appearance.
The will is in these words: "I give, devise, and bequeath, all and
singular, my estate, real and personal, as follows; that is to say, to
each and all my children an equal part or proportion of all and singular
my property, viz. : To Catherine F. Walker, Hannah T. Slade, wife of
Jarvis Slade, James T. Patten, Statira Elliot, wife of John Elliot,
Paulina Tappan, wife of Winthrop Tappan, Augusta Whittlesey, wife
of Eliphalet Whittlesey, and George M. Patten, o ne seventh part to
each of the m and their he irs, with the proviso, that the parts and pro-
portions heT'eby devised and beq ueathed to Cathe rine F. Walker, Statira
E piot. Paulina/Tappan a nd Au gusta Whittlesey and thei r heirs^ instead
of passing intotheir hands, is to go in-o the hands of James Slade, of
New York, and George M. Patten, of Bath, whom I hereby appoint
tr^LsJte£s, to hold, manage and dispose of said parts, and the property
received therefor, for the use and benefit of said Catherine F. Walker,
1 Observe, however, that if some of the m arried woraenwhose_s^aT2i&.
est ates are subject to th e restr aint on r^iieiuilioil tfl'^ in oj^lSeT tT^glt estatoPs
theiFTnt erc n t D. H e rb e rt v. ^W^b)iter,-JILX:kr--I»r--Gi f) (l - ^ i-^ O) ; "^tgHre^erneley's
Trust s; L. K r-tl902] 1 Ch. 54.''.; In re Ganio. T,. It. [1907] 1 Cli. 276. Com-
pare with Wilson v. Wilson, 28 L. J. Ch. (N. S.) 95.
Ch. 3) EESTRAINT ON ALIENATION 503
Statira Elliot, Paulina Tappen and Augusta Whittlesey and their heirs,
ac cording t o ili i ! disci tLi o n of paid truotocs. -^ ~
it is apparent that the't^stator intended to treat all his children with
perfect equality, giving "to each and all his (my) children an equal
part and proportion of all and singular his (my) property ;" and, while
he placed "the parts and proportions" of four of his daughters in the
hands of trustees, the trustees were "to hold, manage and dispose of
said parts, and the property received therefor, for the use and benefit"
of his said daughters and their heirs. True, it was to be according to
the discretion of the trustees, but that discretion related solely to the
holding, managing and disposing of these parts. There is no pro vision
f or the termination of the trust estate. It continues for the heirs of
thp dn mrlitfft^ nrnripd. equally as for the daughte rs. ' ~~-
i rThe tru stees are toh old the estate for the Tbur daughters a nd the
hei rs of the d aughters, fhen_the jrust is void _as_cr eating a perpetuity !
But it has been argued that the intention of the testator was that the"
trust, as to each of his daughters, should cease as to such daughter
and vest in the children of such daughter. But this is against the
express terms of the will, by which the trustees are to hold the estate
"for the use and benefit" of the four daughters named "and their
heirs." The trust is as much for the heirs of the daughters as for the
daughters. The will makes no provision for the termination of the
trust at the death of the daughters or their heirs. It continues as
much for the latter as for the former. The devise is one^and- indivisi-
ble to the trustees to hold, jmanage and dispose of, forJJifLjJse and
benefit ot the daiigHersandt heiFTieirs. In no legal sense can the"
daughters be^d^med^TheTirsttakers, and the trust valid as to them
and not as to their heirs.
But assuming it to have been the testator's intention that on the
decease of his daughters their respective shares should go to the heirs
of such daughters in fee simple, still, this would create a perpetuity,
because it was possible, that they might have heirs unborn at the testa-
tor's death and in whom the estate would not vest within lives in being
and twenty-one years and a fraction afterwards.
"This rule is imperative and perfectly well established. An execu-
tory devise, either of real or personal estate, is good," observes Mer-
rick, J., in Fosdick v. Fosdick, 6 Allen (Mass.) 41, "if limited to vest
within the compass of a life or lives in being, and twenty-one years
afterwards ; adding thereto, however, in case of an infant en ventre
sa mere, sufifiicient to cover the ordinary time of gestation of such child.
But th e limit ation, in order to b^ valiclj must be so made th at the p?^ -^
tate, or whatever Is devised~or bequeathed, not only m ay, but m ust
necessarily, vest within the prescribed period. If by any p ossibi lity
the vesting- may be postponed beyond this period, the limitation over
will be void." In any view of the trust, therefore, it must be deem-
ed void, as~creating a perpetuity. 1 Perry on Trusts, §§ 381, 382, 383.
Here, in the first instance, there was an absolute gift to the daugh-
504 RULE AGAINST PERPETUITIES (Part 4
ters and their heirs. Upon this gift a limiting or restrictive clause was
attempted to be grafted, which, it has been seen, was void. The first
gift remains in full force, if the attempted qualification becomes in-
effectual . The presumption is that "the testator intends the prior ab-
solute gift to prevail, except so far only as it is efifectually superseded
by the subsequent qualified one." 1 Jarman on Wills, § 257. "When-
ever there is a limitation over," remarks Alerrick, J., in Fosdick v.
Fosdick, 6 Allen (Mass.) 41, 43, "which cannot take efifect by reason
of its being too remote, the will is to be construed as if no such pro-
vision or clause were contained in it ; and the person or persons other-
wise entitled to the estate or property will take it wholly discharged
of the devise, bequest and limitation over. Sears v. Russell, 8 Gray
[Mass.] 86, 97; Brattle Square Church v. Grant, 3 Gray [Mass.]
142 [63 Am. Dec. 725]."
The conclusion is that the trust for the daiiglit^rs is void_as creating^
a perpetuity, and the absolute gift remains.
It is obvious that there~are no wo rds ojjnheritance jn thetrustees.
But that cannot be deemed material. Courts of equity do not permit"
a trusTtoTall for want of trustees'."" Their tenure is to be determined
by their powers and duties. "The intent of the parties is determined
by the scope and extent of the trust. Therefore the extent of the
legal interest of a trustee in an estate given to him in trust is measured,
not by words of inheritance or otherwise, but by the object and ex-
tent of the trust upon wdiich the estate is given. On this principle
two rules of construction have been adopted by courts ; first, when
a trust is created, a legal estate sufficient for the purposes of the trust
shall, if possible, be implied in the trustee, whatever may be the limi-
tation in the instrument, whether to him or his heirs or not; and,
second, although a legal estate may be limited to a trustee to the
fullest extent, as to him and his heirs, yet it shall not be carried
further than the complete execution of the trust requires." 1 Perry on
Trusts, § 312. Courts will im ply an estate in the trustees , t hough no
estatei s_ given th e m in words, to carry into effect the intention ot the
paftiesTThe absence of words of inheritance in the trustees would
not be held to limit the duration of the trust to their lives, if the trust
were a valid one. But the trust being void, for the reasons already
given, the estate of the trustees must cease ; as no provision has been
made for a trust which could be carried legally out.
The devise to Mrs. Elliot differs from that to the other daughters.
The provisions of the will as to her stand thus: First, there is a
de vise to he r and her heirs . Then a trust is interposed , which wc have
sec"n is void, followed by the f ollowlng^ lause : " In case that Statir a
Elli ot should die before her husband aiij l leave "no children. 1 will
that her part, after the expiration of six ye ars, be transferred by the
trustees over to the~l?5rties of the ot her "siSTlie ir s, and to be equally
divided between thenTl" "
Ch. 3) RESTRAINT ON ALIENATION 505
Leaving out of consideration the trust as void, there is first a gift
to her and her heirs, but in case she dies before her husband leaving
no children, then over. This is as if he had said to Statira Elliot and
her children, but in case she dies leaving no children, then over. The
doctrine is thus stated : "When a testator in the first instance de-
vises land to a person and his heirs, and then proceeds to devise over
the property in terms which show that he used the word heirs in the
prior devise in the restricted sense of heirs to the body; such devise
confers only an estate tail, the effect being the same as if the lat-
ter expression had been originally employed." 2 Jarman, 238. "If,
therefore," remarks Shaw, C. J., in Ni ghtingale v. Burrell, 15 Pick.
(ISIass.) 104, "an estate is devised to A. and his heirs, which is a fee :
andi t^^is afterwards provided that it A. die without issue, then over ,
th is reduces it to an estate tail by implication . The law implies that
by 'heirs' in the first devise, was intended heirs of the body, and it
also implies from the proviso, that it was not the intent of the testator
to give the estate over and away from the issue of the first devisee,
but, on the contrary, that such issue should take after the first devisee."
Parkman v. Bowdoin, 1 Sumn. 367, Fed. Cas. No. 10,763. The cases
cited by the counsel for ]\Irs. Elliot lead to the conclusion that she
would be entitled to an estate tail in the real estate .
But the words which will create an estate tail when applied to real
estate, will give an absolute interest when applied to oersonaltY- "The
same limitation under the English law, which would create an estate
tail if applied to real estate, would vest the whole interest absolutely
in the first taker if applied to chattels." 4 Kent Com. 283. Hall v.
Priest, 6 Gray (:^Iass.) 18, 22.
Such might have been the legal rights of Mrs. Elliot had there been
no attempt at creating a trust estate, but this provision cannot be
eliminated from the will. It is there. If the trust is void as to one
daughter, it is void as to all. Equality among the children is the rule.
It \vas not the intent that three daughters sho uld_ have an absolute
es tate in their sli ares and the tourth_ to have an interest only for life_;
Now to set aside the trust as to three of the daughters and giving such
a construction to the will as would give Mrs. Elliot a life estate only
in case she survived her husband, thus limiting her only to her in-
come, so that the estate may be kept intact to meet the contingency
of her dying and leaving no children, would be the making a will the
testator never made and defeating his manifest intent of giving "to
each and all his (my) children an equal part and proportion of his
property." -
If the trust was void from the beginning, then those named as trus-
tees never held any of her property as trustees to be transferred to
the heirs.
2 See Bigelow v. Cady, 171 111. 229. 48 N. E. 974, GP, Am. St. Rep. 230.
506 RULE AGAINST PERrETUiTiES (Part 4
The result is that the trust as to the daughters is void ascreatinoL
a p erpetuity; and, as it is the m anifest intention bt the testator to di-
vi dehis pstnte eqn ally among ; - his children, the' 515ecial clause as to Mrs.
E fliot is so connected w ith and dependent upon the trust clause, that
if tha t fails this fails with it, and, as they liola tne estate de\ased 'as
an--^l2g7Ti1irt^o-;f|-, gn f -gually dnpg ^lip.
'According to the true construction of the will of George F. Patten,
it is declared :
I. That the trust attempted by said will to be vested in the com-
plainants is wholly void.
II. That the children of Catherine F. Walker, deceased, are entitled
to receive payment, delivery and conveyance of a share, to wit : one
fourth of the principal and body of the estate in the hands of the
complainants, to the use of themselves, their heirs and assigns for-
ever, absolutely and free of all control from the complainants.
III. That said Statira, Paulina and Augusta are each entitled to re-
ceive payment, delivery and assignment of a share, to wit: of one
fourth of the principal and body of the said estate in the hands of
the complainants, each to the use and behoof of herself, her heirs
and assigns forever, free from the control of these complainants.
IV. That these complainants may and shall pay, deliver and assign
to said Statira, Paulina and Augusta, and to the children of said
deceased Catherine, any and all of the principal and body of the es-
tate in their hands to the use of said Statira, Paulina, Augusta, and
to the heirs and assigns of each forever, and to the use of the heirs
of said Catherine, their heirs and assigns, their respective and several
shares, free from the control of the complainants.
And it is ordered and decreed that the costs of the proceeding be
charged upon the estate of Statira, Paulina, Augusta and the heirs of
Catherine.
Walton, Barrows, Danforth, Virgin and Libbey, JJ., con-
curred.^
3 Compare Pennsylvania Co. v. Price, 7 Phila. (Pa.) 4.65 (1870) ; Winsor v.
Mills, 1.57 Mass. 362. 32 N. E. 3-52 (1892) ; Lawrence v. Lawrence, 4 W. Austra.
L. R. 27 (1901) ; Williams v. Herrick, 19 R. I. 197, 32 Atl. 913 (1895) ; Howe
V. Morse, 174 Mass. 491, 55 N. B. 213 (1899).
Tn the absence of a^ statute expressly pe rmittin g It, a triis t for the per-
petual care of the testato r's cemetery l ot has bee n held "v^&itT: MasoiT^.
Bloomington Library Ai?5'n7 237 111. 442, 8«J M. ET l(>44rT^~tS:nn. Cas. 603.
See, also, cases cited in Ames' Cases on Trusts (2d Ed.) p. 201, note 1. On
the other hand, where the trust is for the care of a cemetery lot or other
object and where there is no cestui que trust, and the trust is limited to con-
tinue/or not to exist**5Ives in bein^' in 21 years from the creation of the in-
terest, the trust is valid and may be carried out by the trustees. Mussett v.
Bingle, W. N. (1896), p. 170; Angus v. Noble, 73 Conn. 56, 46 Atl. 278;
Leonard v. Haworth, 171 Mass. 496, 51 N. E. 7 ; Pirbright v. Salwey, W. N.
(1896) p. 86. See, also, cases cited in Ames cases on Trusts (2d Ed.) p. 201,
note 2, and "The Failure of the 'Tildcn Trust,' " by J. B. Ames, 5 Harv. Law
Rev. 389, 397, et seq.
Ch. 3) RESTKAINT ON ALIENATION 507
PULITZER V. LIVINGSTON.
(Supreme Judicial Court of Maine, 1896. 89 Me. 359, 36 Atl. 635.)
Agreed statement. This was an action of covenant broken, submit-
ted to the law court on an agreed statement of facts which are found
in the opinion.
FosTr.R, J. More than forty years ago certain persons residing in
England and France were the owners in fee of large tracts of real es-
tate in America, particularly in the States of Maine, New York, Penn-
sylvania, and the District of Columbia. These estates had formerly
been the property of their ancestor, William Bingham, of Philadelphia,
and from whom the title descended, the "Bingham Estate," so-called,
embracing t wo million two hundred thousand acres in the State of
Maine alone. TEes^ large landed estates were principally wild and un-
inipfovecCand required the management in this country of representa-
tives of the owners.
Considering the large and increasing number of persons who jointly
owned these estates and the distance of their residence from the
same, provisions for the sales and conveyances by letter of attorney
were inadequate, because of deaths frequently occurring among those
who were the owners, and of the necessity of purchasers inquiring
and taking the risk of the correctness of the information as to the
continuance of the lives of the parties executing a letter of attor-
ney.
On July 18, 1853, three-fifths undivided of this property were vested
in the following named persons : William Bingham Baring (Lord Ash-
burton), Henry Bingham Baring, Frances Emily (Baring) Simpson,
William Frederick Baring, and Anna Maria Helena (Countess de
Noailles), and on that day these persons executed a deed of trust of
their undivided three-fifths of the property to Joseph ' Reed Inge'rsoU
and John Craig Miller, as trustees.
The other two-fifths of the property were vested in William Baring
de Lotbiniere Bingham, who on the 12th day of August, 1862, exe-
cuted a like deed of trust of his undivided two-fifths of the property
to the same persons, as trustees.
These owners, for the more convenient management of their prop-
erty in this country, conveyed it to these trustees by the foregoing
deeds, and upon substantially the following trusts, as therein ex-
pressed :
(1) To let and demise the real estate; (2) to invest and keep in-
vested the moneys and personal estate, with power of sale and rein-
vestment; (3) to collect and receive the rents and income of the real
estate, and the interest and income of the personal estate ; (4) to remit
the net income to the parties or their legal representatives, according
508 RULE AGAINST PERPETUITIES (Part 4
to their respective rights and interests therein, or otherwise to apply and
dispose of the same as the parties or their legal representatives should
from time to time direct.
The following powers were therein expressly conferred upon the
trustees, viz. : To grant, bargain, sell, exchange, and absolutely dispose
of in fee simple, or for life, or lives, or for years, or for any other es-
tate, all or any part of the real estate, and to make in due form of law
all such deeds and conveyances as might be necessary to carry the sale
into effect; to remit the proceeds of such sales after deducting ex-
penses, to the parties or their legal representatives, according to their
respective interests therein, or to otherwise apply and dispose of the
same as the parties or their legal representatives should from time to
time direct ; to raise by mortgage of the premises or any part thereof,
such sum or sums of money as should be requested by the parties, or
such of them as might be entitled to any beneficial interest in the prem-
ises; to appoint by deed successors with all the powers of the trus-
tees originally named; and finally it was expressly provided that it
should be l awful for the pa rties r esj^ectively, "an d thej j: -rp.si:)ective ^-
gal representatives, at any time or timesnereauer. by any writing or
writings uncIerTheir respective hands and seals, and attested by two or
more credible witnesses, to alter, change, r f^^rnl-p.^ annn], gpd destroy
al l and every the trusts h ereby created as respects their respective shares
and interests in the premises, and to declare, direct, and appoint such
other uses and trusts, if any, concerning their respecti\'e shares and in-
terests in the said trust estate, or any part thereof, as they shall re-
spectively choose or think proper, anything herein contained to the con-
trary notwithstanding."
New trustees were from time to time nominated in accordance with
the provisions of the deeds in relation to successors to the original
trustees, and on September 14, 1882, the then trustees, Charles Willing
and Phineas Pemberton Morris, conveyed the particular property in-
volved in this action to ]\Iay W. Bowler, of Cincinnati, Ohio. On
October 4. 1886, May W. Bowler conveyed the same to the defendant,
and on May 30, 1894, the defendant conveyed the same by warranty
deed, with full covenants, to the plaintiff.
The plaintiff has brought this action for a breach of the defendant's
covenant contained in her deed to him that the property is "free of all
incumbrances," alleging an outstanding title in fee in those persons who
executed the trust deeds, or their heirs or assigns, as a breach of that
covenant. And as a part of the same transaction with the deed from
defendant to the plaintiff, the defendant executed and delivered to
the plaintiff' a special covenant that those grantors in the trust deeds
had no right, title or interest in the property that could be maintained
in any proceeding in the courts of this State as against the title con-
veyed by her to the plaintiff, and a breach of this special covenant is
also alleged in this action.
Ch. ?,) RESTRAINT ON ALIENATION 509
The land involved in this action is situated at Bar Harbor, and com-
prises about fifteen acres with the buildings thereon. The purchase
price between the plaintiff and the defendant was $90,000, and since
the conveyance over $100,000 more have been expended in improve-
ments.
The rights of the parties depend upon the legal effect to be given to
the trust deeds of July 18, 1853, and August 12, 1862, the plaintiff
claiming that these deeds are not legally sufficient to divest the grantors
of their title m t lie prop ert y; that there w ere futvtre estates^and Jnter^
ests~so hmited therein that they offend against those rules of law which
prescnbe jind limitjt he_period within which future estates and^mteresfs
mu st Hecessarily ves t; anH thatTliese deeds beiiig~\''oid no title ever
passccTto the trustees but still remains in the grantors, or their heirs or
assigns.
The ground upon which the trust is attacked, and the court asked to
declare it void, is that the terms of the trust violate that rule of law
known as the Rule against Perpelull ics.
It is necessary in order to determine whether the trust is objection-
able, to consider just what the rule is, and what is its object and pur-
pose.
T he rule aga inst perpetuities was.estaJblislie d to preve^nt po s^ji iortem
control of property. TfTorbids the c reation of estates which are to vest,
orTome into being' upon a remot e^^ntingencyT^d where^ the vestin g
of an estate or interest is thereby unlawfully postponed.
It i ^ cuiiLiaiy Lu ^tlie'poIicY ot thj Jla:w-lliat "tHerF sIioilJd be any out-
standing titles, estates, or powers by the e xistei ice, operat ionror exer-
cise ot w^hi ch at a period o f time be3 ^on d iTves in being , an aT\r e ii ly ^obc
yea rs~and a frac tion thereafter, the complete and unfettered en joyment
of an estate M-i tli all t EeTights,~pnvileges. and powers i ncident to own-
ersliip_ should be qualified or impedejj . When this is the case, as the
court say in Philadelphia v. Girard's Heirs, 45 Pa. 26, 84 Am. Dec. 470,
they are called perpetuities, not because the grant or devise as written
w ould actually make them perpetual, but because thev transgress the
li mits which the law has set m restraint of .grants or devises that tend
to a per])etual suspension of the title or of its vesting or, as is some -
tim es with less accuracv expressed, to a perpetual prevention or r e-
st raint upon alienat ion.
Tills rule of restraint upon alienat ion has frequently been confound-
ed with the r ule against perpetu ities. They are, however, separate and
d istinc t rules, although their object is one and fbe satp e, — the preven-
tion of property being taken out of commerce, locked up, or so held
that it cannot be conveyed. It is important therefore in the consid-
eration of cases to bear in mind that the two rules are independent and
distinct. Gray on Perpetuities, § 236, thus speaks of the two rules:
"There are two distinct rules of law by the joint action of which the
t>'ing up of estates is prevented : (1) Estates cannot be made inalienable.
510
RULE AGAINST PERPETUITIES
(Part 4
(2) Future estates cannot be created beyond the limits fixed by the rule
against perpetuities."
The rule against perpetuities concerns only remote future and con-
tingeliFFStates and interestsr It appliesJe^uall3rt( rTegal"^hd equitable
estat es, to jnstru ments ' executmg powers, as well as to other instru-
ments! Duice of iNortolks Uase, i VernT 164 (3^hrCasT48)T^ Gray
oiTRule against Perpetuities, § 411. A limitation that is valid in the
case of a legal estate is valid in the case of an equitable estate. If an
equitable estate, as for instance a trust, is so limited that it creates a
perpetuity, a similar limitation of a legal estate equally creates a per-
petuity. Goddard v. Whitney, 140 Mass. 100, 3 N. E. 30; Kimball v.
Crocker, 53 Me. 266; Ould v. Wash. Hosp., 95 U. S. 303, 312, 24 L.
Ed. 450.
Whatthe n is a perp etuity ?
It is a grant of property wh erein the vesting of an estate or interes t
is unlawfully postponed. The law allows_thevestingof an estate or
int^rest^_^J3£L also the ^ power of alienation, to be postponec
period of a life or l ives in being~aiT^ jb\\^enty ^-oneyeaFs _arK
thereafter; anH aH restraints Jipon^jhe yesti^^ that m ay suspend it
beyond thaJtjjeriod axF'treateda perpetual restraints and^ void,
estates' or jnterests which a^edependent^onjthem are void. " Not hmg
is denounced as a perpetuity thaT^does nottransgres'sThis rule, and
equ ity lo llows tHTs ruleby'way'of analogy in dealing with executory
trusts
analHose trilsTs which transgress the rule^re'called^r ans'gre s-
siv£_trusts, ' being in equity the substantial equivalent of what in law
are called perpetuities. Feame on Rem. 538 n. "But the limitation,
in order to be valid, must be so made that the estate or whatever is
devised or bequeathed, not only may, but must necessarily, vest within
the prescribed period. IfJiy_any_possibility__Uie v^^^ be post-
poned^beyond this per iod, the limitation oyer will be void?' Fosdick
V. Fosdick, 6 Allen (Mass.) 41 ; Brattle Square~T!HurcB~V. Grant, 3
Gray, 142, 63 Am. Dec. 725. Lewis in his work on Perpetuities gives
the following as an accurate definition^of__aperpetuity : "A perpetuity
is a f^itur e limitatio n, j u^hether ex ec utor}^ or b y_way of remaihderT^d
of eith er real or personal property, 'wliic h is not to vest unti l aft er
the_ex£iratTorrTjf7'or wilTnot necessarily ve st wi thin, the period fixed
and pjescrib ed/bv law~For t he~creatiQn of futur e~esFate s_and^interests,
andwhic h is not de structible by th e^ersons for the^ time being entitled
to the propertys ubject to the futureTJinjtation, ex cept witfi^he c oricnr-
ren( ^e oF the^lndrvi dual interested under that limitati ^m."
The rj.ile against perpetuities has no applicat i'^ri tr> y^^stfrl C^j^^^^^^^'^''
interests. " Gray on Perpetuities, § 205. It co ncerns itself onl y witR~
the vestin g, the c ommen riti p- of estntes, and not at all w ith their termi-
nation! It niak es no difference w hen such a vested estate or interest
Hmited terminates. Routledge v. DorrTl72 Ves. jr.~3^6l Evans v.
WaTIcefr3XhV Div. 211; Hampton v. Holman, 5 Ch. Div. 183; see 14
Ch. 3) RESTRAINT OX ALIENATION 511
Am. Law Review, 237. When an estate or interest vests in a per-
son he is the owner and can ahenate it. Fosdick v. Fosdick, 6 Allen
(Mass.) 41 ; Kimball v. Crocker, 53 Me. 266 ; Merritt v. Bucknam, 77
Me. 258; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73.
Examined in the light of the foregoing rules and principles, we are ^-^
unable to discover wherei n the deeds in question offend the rule agains t L_^
pe rpetuitie s. Ihe tru stees took th e le gal estate. The beneficial or
equita ble estate was rese rved to t he grantors and their representatives.
All interest sjegal a n d equitable ~vv^^re_ vested. "^^o tTTing was p'osTponed.
The~"Beneficial enjoyment of the estate absolutely and unqualifiedly
vested in tlie persons who, prior to the delivery of the deeds, held the
legal title. Each of these persons as the owners of the equitable es-
tate, after the deeds were delivered, possessed over his own equitable
interest t he same powe r of sale, conveyance, devise, and disposition,
as prior to the deeds he had over his undivided interest in tlre-iegal
estate? Upon the exercise ot~3JTy' oi these powers. The person~in
whose favor it might be exercised would become fully possessed of
such equitable and beneficial interest. The trustees as the holders of
the legal title, during the continuance of the trust, have the fullest pow-
ers of sale and conveyance, so that the alienation of the property is
absolutely unfettered. The owners of an equitable estate, Hke the
owners of a legal estate, can alienate or assign their interest. There
is nothing in these deeds that prohibits this. By an examination of
the deeds of trust it will be perceived that neither the rules, nor the
reason of the rules, have been transgressed. The land is as alienable, in
legal contemplation, as if the deeds had never been executed. No pro-
vision is disclosed looking to any future, contingent or remote estate,
which, springing into being in future would hinder free alienation by
imposing a clog on the title which those now vested with the present
title and possession could not remove.
But there is another point which is fatal to the plaintiff's contention
that these trust deeds are obnoxious to the rule against perpetuities. (^^
This rule does not apply to interests which though future are des truc-
ti ble at the mere will and pleasure of the present owner of the property .
"A future estate which at all times until it vests is in the control of the
owner of the preceding estate, is, for every purpose of conveyancing, a
present estate, and is therefore not obnoxious to the rule against per-
petuities." Gray on Perpetuities, § 443. The author clearly points
out in sections 140 and those that follow, that a perpetuity is an in-
destructible interest, and while he shows that it has another artificial
meaning, or "an interest which will not vest till a remote period," yet
in all his illustrations he shows clearly that interests which are destruc-
tible are not perpetuities. This doctrine is laid down by Chief Justice
Gibson in Hillyard v. ]\Iiller, 10 Pa. 334, wherein he cites with approval
the definition of a perpetuity as given by Lewis, and also in Mifilin v.
Mifflin, 121 Pa. 205, 15 Atl. 525. In the latter case, the court, in
512
RI'LE AGAINST PERPETUITIES
(Part 4
considering the provisions of certain deeds which were claimed to be
inoperative because of the rule against perpetuities, uses this language :
"P ut the estate of Mrs. M ifflin was neither inalienable nor indestructi-
ble. It was entirely withiiTher poweFtonjecome the owner in fee of the
estates g ranted and to tot air>^ctefearany_ulte rior limitations. It pfoW^d
notrrTng^to say she did not exercise her power and that therefore the
situation is the same as though she never had the power. For certain
purposes and in certain cases that, of course, is true. But in consider-
ing merely the application of the rule against perpetuities, it is not true,
because t hat rule requires t hat the estates in question should b e inde-
stru ctible, and an estate which can be destroved by the perso rTl^lTO"
hol Hs it for the tim e beings is not indestruct ible."
"So in another recent case in Pennsylvania the court say: "Aside
from this it was competent for all the parties in interest at any time to
defeat the power and to take the property discharged thereof ; under
these circumstances, we cannot say that the trust created a perpetuity."
Cooper's Estate, 150 Pa. 576, 24 Atl. 1057, 30 Am. St. Rep. 829; Lov-
ering v. Worthington, 106 Mass. 86, 88 ; Bowditch v. Andrew, 8 Al-
len (:\Iass.) 339; Goesele v. Bimeler, 14 How. 589, 14 L. Ed. 554.
The very definition of a perpetuity as given by Lewis has its appli-
cation to a future limitation 'Svhich is not destructible by the persons
for the time being entitled to the property subject to the future limita-
tion, except with the concurrence of the individual interested under that
limitation." The_jl£eils_ in question contain ce rtain ex press powers o f
revocation. The equitable owners of the estate have therein expressly
reserved^^e right at any and all times "to alter, change, revoke, annul
and destroy all and every the trusts hereby created as respects their
respective shares and interests in the premises, and to declare, direct
and appoint such other uses and trusts, if any concerning their respec-
tive shares and interests in the said trust estate or any part thereof, as
they shall respectively choose or think proper, anything herein con-
tained to the contrary notwithstanding."
These pojVBrs^xjearly provide for a complete revocation of the_trusts
at any time, and thereby r emove ^ heca se~ f rom tHe rule against per-
petuities.
But it is argued f or_the_plaintiff that, admitting the interest of the
beneficiajowners to be vested, and alienable^ tTie~^xistence^ of the legal
estate in the trustees witK a power of sal£_nt ijicIefimt£^uration^vhich
may be exercised after the expiration of lives in being and twenty-one
years, tends to a perpetuityj and that, under the authorities, a power
of sale conferred upon one not the owner of the beneficial interest in
land, if it may be exercised at an indefinite or too remote period is
void.
It is true that if an inibiiiited indestr uctible power exists, it doe s
re stram tre j~aTienationJby_th e one, w ho,.,jub]cct_to_jhji t power, is th e_^
owner of thfe fee. "A power of sale suspended indefinitely over the
Ch. 3) KESTRAINT ON ALIENATION 513
fee is open to the same objection as an executory devise or springing
use to take effect whenever A. or his heirs shall do a given act." Lewis
on Perpetuities, 547. Thus in Tullett v. Colvill e, 2 L. R. Ch. (1S94)
310, a devise of certain property was made to trustees, and the trustees
were directed to car ry on the busines s of the testator as a gravel con-
tractor "until my gravel pits are worked out, and then sell the said
gravel pits~and the freehold land oh which the same is'situated." The
court held that this power of sale was t oo remo te and that the rule was
violated, because, while the gravel pits might be worked within the pre-
scribed limits of the rule, yet they might not be so worked out, and
the po werof sale might not go into operation until an uncertain and
po cciV^' tr,n. rpmnff T^j^-tg ir Llbg^^f utJIr e' """The'Tfue^Tea^OTrfur'tiotdihg
sucnpowers good," says Gray in his work on Perpetuities, "is that the
trusts to which they are attached must come to an end, or can be de-
stroyed, within the limits fixed by the rule against perpetuities." Speak-
ing further in relation to powers, he says, § 506 : "To sum up the law
as to powers in connection with settled property: (1) Sometimes the
power ceases as soon as the equitable fee or absolute interest vests in
possession. (2) Sometimes the power can be exercised until the owner
of the equitable fee or absolute interest calls for the legal estate. (3)
Sometimes the power can be exercised within a reasonable time after
the fee or absolute interest has vested in possession, such reasonable
time being not over twenty-one years after lives in being. (4) Some-
times the power is created to be exercised on a contingency which
may happen after the legal fee or absolute interest has vested in pos-
session, and which may be more than twenty-one years after a life in
being. In the first three cases the power is not void for remoteness;
in the last case it is."
In the case at bar the powers of sale in the trust deeds are within the
second class. The owners of the equitable fee are by the express terms
of the deeds entitled to call far a conveyance of the leg al estate from
theTfustees and therebv to destroy a nd finallv "determine the trust . _The
power, therefore, does not hang suspended over the fee like an unbar -
rab le executory d evi_se, but is subject to be barred a nd f^p<itrnypc\ hy tlip>
cest uis que trustent, or any one of them. Biddle v. Perkins, 4 Simons,
135 ; Wallis v, ''rhurston, 10 Simons, 225. True, here is a trust to sell
for all time, but revocable at pleasure. What is there in these deeds that
tends to a perpetuity if we clearly observe what that means? There is
in these deeds that which it is settled makes the p ower valid al though
in' Terms perpetual. — and that is the powerof revocatio n. 2 Sug. Pow.
472. A trust an 4 a power of sal e that contin ue only at t he pleasur e
of the ben eficial owner cannot possibly be s aidjg be an i jle gal restr aint
on* alienatiom The purpose of the trust was lawful and in harmony
\vith the policy of the law. It was created to secure a more convenient
management of these large landed estates, and less trouble and delay
4 Kales Prop. — 33
514
RULE AGAINST PERPETUITIES
(Part 4
in passing title to the grantees who might from time to time purchase
portions of these distant and unsettled tracts.
A recent case in Illinois involved a conveyance to three trustees in
trust for an unincorporated company, the property being conveyed to
the trustees and their heirs and assigns forever. They were given
power to sub-divide, improve, sell and convey. The court, after noting
several definitions of the rule against perpetuities, makes use of the
following language : "T he mere creation of a trust does not ipso fact o
suspend the power of a lienation. It is only suspended by such trust
wlien aT rust-term is created, eithe r expr essly or by implication , during
the"existence ot which a sale by the Iruste ^ v'^nnlH hp. in rnntrav"pritin^
of the LrusL; vvli eiethg^ trustee is empowered to sell the land withou t
restrictioiTas to time, the power of alienation is not suspended although
the alienation is in fact pos tponed by The non-actio n ot the trustee or,
in consequence of a discfetfon reposed in h ' m bv the c reator of the
tr ust. '*' * * THere is nothing in the trust agreement in this case""
halving the slightest tendency to create a perpetuity. The land was to
be conveyed to the trustees to be sub-divided and improved and then
sold, and the time of the sale was left wholly to their discretion ; indeed
the whole scheme of the association was to purchase, sub-divide and
improve suburban property for the purpose of placing it at once upon
the market for sale. No trust-term was created and a conveyance of
the_la nd, or any part of it, at any time was no violation of the trust.
Wherejthere are personsjn being at the creation of an estate ca£abj£.
of 'convey ing an imrne diate and absolute estate "in fee in possession,
suspension of the power o f alienation, and no question asTo"
perp£tui ties~can a rise/' Hart v. Seymour, 14-/ ill. b98, 3b N. K. 24^.
There is nothing whatever done by the terms of these deeds, in the
case before us, but to create an agency to sell land; an agency, to be
sure, that is to continue after death and to be exercised for heirs,
devisees, grantees, etc., until, and only until, any one sees fit to put
an end to it. But an agency to continue after death being impossible,
the mode of doing it was by a trust with powers by which the ownership
is vested in trustees, and the beneficial interest dealt with under these
powers.
When the position of the parties and of the property is considered,
it becomes apparent that this was the object of the arrangement. The
property was land bought in the last century. The owners lived in
England and France. A sale required that all should join, and agencies
were always liable to be revoked, or become impracticable by settle-
ments, so that there would be no delegation of authority. The remedy
was an agency that would continue, and there could be none unless the
title was transferred, the legal title thus being vested in trustees, and
the equitable title in the beneficial owners. Thejiarti^s by execut ing
these d e£ds_atie_mpted to a_ccelerate alienation and avoid any retardmg'
of it. The purpose of these d eeds wa s to raake^property more readily
Ch. 3) EESTRAINT ON ALIENATION 515
mar ketable, more conveniently alienable, — the very object which the rule
against perpetuijiesjwas adopted to^su bserv e. When the reason of the
rule'faib, the rule itself has no application.
It may be proper to state that we have carefully examined the deci-
sions to which our attention has been called by the learned counsel for
the plaintiff, and which, perhaps, are not in complete harmony with
some of the views enunciated in this opinion.
The case of Slade v . Fatt en, 68 Me. 380, is one of those cases. There ^LcC^ o. f^cuCi^
the testator devised to his'four daughters certain portions of his estate
with the proviso that the parts and proportions devised and bequeathed
to his four daughters, and their heirs, instead of passing into their
hands, were to go into the hands of two trustees, "to hold, manage and
dispose of said parts and the property received therefor, for the use
and benefit of said [four daughters] and their heirs, according to the
discretion of said trustees."
T his devise is dist inguishable from the Bingham trust in the impo r^^
tant^ re sp e ct tliaTt he^wiUcoiitamed no clause giving tp-the cestuis que
;:ht to revoke or annul the trust, THF'power of revoca-
reserved in the trust deeds in ^he case at bar makes a most im-
portant difference between those deeds and the devise involved in Slade
v Patten. The decision there seems to be based on the conclusion that
no provision was made for the termination of the trust, but that it was
to be continued for the benefit of the "heirs" of the daughters, and
therefore to continue indefinitely. "There is no provision for the ter-
mination of the trust estate," remarks the court.
In one paragraph of the opinion the court makes use of the following
language : "But assuming it to have been the testator's intention that Sy-rrv^e^A^ J't^Ce*^.^*^
on the decease of his daughters their respective shares should go to the
heirs of such daughters in fee simple, still, this would create a perpetu-
ity, because it was possible, that they might have heirs unborn at the
testator's death and in whom the estate would not vest within lives in
being and twenty-one years and a fraction afterwards."
This statement is absolut ely incojisistent with the facts of the case
as well as the well settled principles of law. It cannot admit of doub t
eve n that a devise of property to a (i anghtpr fnr life and at lipr dpnth to
her heirs in fee is perfectly go od.
But the foregoing statement from the opinion may be regarded as
only a dictum. The real question which the court decided was that
the word "heirs" was a word of general import and not limited to
those persons who would be heirs within a life in being and twenty-one
years and a fraction thereafter, and therefore the trust undertook to
preserve the estate for persons who might become heirs indefinitely and
hence violated the rule.
The interests devised, however, were clearly vested interests. The
legal title was given to the trustees, the equitable fee to the daughters
516
RULE AGAINST PERPETUITIES
(Part 4
and their heirs, but all interests were present and vested. The legal
estate vested in the trustees at the testator's death, and at the same
time the entire equitable interest limited to the daughters and their
heirs vested in them. No other interest was devised or bequeathed.
All the estat es and int erests that were ever to arise verted immediat ely
upon the tes tator's dea ttrr Afiei cuiieLLly st ating die rilTe, the court
says': "in view of the trust, therefore, it must be deemed void as ere*
ating a perpetuity."
From the expressions in the opinion to which we have referred, it
seems to have b e en as sumed tha ^a trus^ jwhich_wil l not or may no T
teriTTihate^'ithin lives m bemglmd twenty-o n^jyeaTS3nd_a_frad-U3n
afte_rwardsj s_yoid"as cr e ating a perpet uity,_B u t ih is i-^ not mrrert — It
cannot be sustained eitheruponprinci£k_^^ A future limi-
tation~tliat may not vest withi n that pe riod cre ates a perpetuity, an d^is
there t^ore void. But ajimitation that mus t vest, if at all, w ithin jttje"
peri od does not create _a^ per petuity, and it ma kes no difference whe n
the trust or interest limited te iTninates,Tt it has vested within the pe-
riodT' "All thaMsjeqiiired by the"Tntr-a^mTSt-^pefpetuitiesls7^diart^
est ate orTurFprpst sh all_v^st^lt lim the prescribed period. Seaver v.
Fitzgerald, 141 Mass. 401, 403, 6 N. E. 73. The right oT^ossession or
en joym ent may_be postponed longer.
The reasoning of the court was wrong,
the testator's daughters, however ; for.
No injustice was done to
owing to his having used lan-
guage which by itself expressed an absolute gift to his daughters and
their heirs, followed by a proviso that trustees should hold the legal
title in trust for them and their heirs, the court, by rejecting the proviso
m reference to the trustees as void, decided that there was an absolute
gift by devise to the daughters which took effect.
The opinion, therefore, in Slade v. Patten cannot be su stained upon
, authority. Barnum v. Barnum, 26 Md. Il9, 90 Am. DecTSH, is a case
wlTereThe owner ~ot hotel property devised it to trustees with directions
to lease it, fcut prohibifed^alienirtinnrdufihg^^the^erin- o-f-a-tTust which
exceeded liv'es'ln being and twenty-o ne years tlie reaftgr: The court
held "such a t rust void , and gave ettect to an alternative limitation con-
'tained in the will. T r] this^ case there was an absolute suspension of the
p ower of alienatio n for a period prohibited bythe rules ot law7 unlike
the case at bar. ~~~~ "' "~~
The cases of Deford v. Deford, 36 Md 168, Gouldsboro v. Martin,
41 Md 488, and Collins & Bernard v. Foley, 63Jdd. 162, 52 Am. Rep.
505, would seem to support the dictum of the reasoning in Slade v.
Patten, and these Maryland cases are the only ones to which the atten-
tion of the court has been called, or which in the examination of the
case before us, we have been able to find, supporting that doctrine. But
the doctrine of these cases is opposed to the great trend of authority
elsewhere, and Gray, in his very thorough and valuable work, speaks
Ch, ?>)
RESTRAINT ON ALIENATION
517
of these cases as grave, practical error s growing out o f confound-
ing the rule againstperpetuities with~the rules disallowing restrai nts
on aTienationT
It is unnecessary to consider any of the other objections raised,
inasmuch as the conclusion to which the court has arrived determines
the validity of the trust deeds, and thus disposes of the case.
Judgment for defendant.
ARMSTRONG v. BARBER.
(Supreme Court of Illinois, 1909. 239 111. 389, 88 N. E. 24G.)
Carter, J.* * * * All the reasons for holding that George
and Elsie take a present interest at testator's death are alike applicable
to Arthur's one-third. If it be conceded that as to Arth ur's share the
trusteeship^ n the discretion o |_the trust ees m ay last l onger than ten
years fr om the probate, and e ven duri ng Arthur's w hole life, still that
does not render the provisions~void, because his int erest vested, as~d rd
those of George and Elsie, at~tlfe date oF testator's death. If it be ar-
g ued tnat this might""cfegten5n: inde^tructibte Trust in~llie trustee s, the
answer is as suggested in Gray on Perpetuities, (2d Ed. § 121f), that
t his doer'n ot violate the rule again st perpetuities, as that rule "is con-
cerned only with the begi nning of ^ntpfp^ts :" that said rule "settles
th^lllTiy ulLliiu vvllllll luLerests must vest,l3'ut when once vested they
are all, present and future alike, subject to the same restraints against
alienation, and with this the rule against perpetuities has nothing to do."
I n England the creation of such indestructible trusts of such absolute
equit able interests is not permitte d. Saunders v. Vautier, 4 iJeav. 115 ;
Ha?bin v. Masterman, [1894] 2 Ch. 184; Weatherall v. Thornburgh,
8 Ch. Div. 261 ; Gray on Restraints on Alienation, (2d Ed.) §§ 105-
112. I n_ this .^tntp_ suc h trusts have b een permitted . Eunt v. Lunt,
supra, 108 111. 307. The authorities In this and other jurisdictions
bearing on this question are reviewed at some length in Kales on Fu-
ture Interests, sections 286 to 296, inclusive. Once such trusts a re
pe rmitted it follows that t here must be some limits as to the length of
time they ca n b e made~ to last. It is sug gested in Gray oiTFerpctuij ie's,
(2cri!.d. ^ l.^li,j that it is perhaps likel y that the same pe riod as that
prescribed byth e rule against~perpetuTties should be ta ken, but^the
aut hor adds tfiaTTti s open to the courts to adopt spme otheF^perTod,'
if' Tound advisabl e. There~are intimations in some of the" authorities
thaT7 in a case like the present, any provision which permits the trustees
to retain property in trusteeship for ten years from the probate of the
will is wholly void, the trusteeship, however, still remaining, with the
difference that instead of being indestructible for the beneficiaries who
4 The statement of facts is omitted and only part of the opinion is given.
-OW-»'-»»-s
518 RULE AGAINST PERPETUITIES (Part 4
are of age and who have an absohite indestructible equitable interest
may compel the trustees to transfer the legal title to them although the
time specified in the will for the termination of the trust has not arrived.
This court, in Kohtz v. Eldred, 208 111. 60, 69 N. E. 900, has stated
that such a trust will terminate as soon as the object for which it was
established has been accomplished. The question when this trust niay_
end is, however, not necessary for the decision in this case. Admit-
ting, as most favorable to appellee's contention, that the probate of
this will might have been delayed, still that does not in any way mili-
tate against the legal and equitable interests vesting thereunder immedi-
ately upon the death of the testator. At most, the failure to probate
promptly could only delay the distribution of the funds, and such dis-
tribution, as we have pointed out, could be controlled by the courts
under the rules governing restraints on alienation of property. * * *
Ch. 4) LIMITATIONS TO CLASSES 519
\
CHAPTER IV
LIMITATIONS TO CLASSES
LEAKE V. ROBINSON.
(Court of Chancery, 1817. 2 Mer. 363.)
John Milward Rowe, by his will, dated the 17th of June, 1790, gave
to the plaintiffs (whom he appointed executors,) all his three per cent,
and four per cent, stock, upon trust, in the first place, to pay to his
wife, Sukey Rowe, during- her life, two several annuities of £245 8s.,
and £168, out of the dividends of the four per cents, (which with cer-
tain other provisions, were declared to be in bar of dower and thirds,)
and in the next place, to pay and apply an annuity of £54 12s. (there-
by given) towards the maintenance, education, or advancement of his
grandson, William Rowe Robinson, until he should attain twenty-five ;
and from and after his attainment of that age, to pay him the said
annuity during his life ; and after his decease, the testator bequeathed
the principal sum of £1,820, (part of his three per cent, annuities,) or
so much thereof as should produce the annual sum of £54 12s. as
after mentioned ; and after the decease of his wife, he directed that
his said executors should pay and apply the annual sum of £145, (part
of the annuity of £245 8s.) and the annual sum of £40 (part of the
annuity of £168,) towards the maintenance of the said W. R. Robin-
son till twenty-five; and afterwards for his life and after his decease,
bequeathed the principal sums of £4,846 16s. 8d., three per cents, and
£1000 four per cents, as after mentioned.
The testator then directed the plaintiffs to apply the dividends of
£3,333 6s. 8d., three per cents, for the maintenance and advancement
of his grandson, Charles Mitford, until twenty-five, and upon his at-
taining that age, to transfer to him the said principal sum of £3,333
6s. 8d., three per cents.
He then gave to the plaintiffs £1,000 India stock upon trust, to ap-
ply the dividends, &c. thereof, and also the annual sum of £100,
(part of the dividends, &c. of his three per cent, stock,) or so much as
they should think fit, towards the maintenance, education, and ad-
vancement of his said grandson, William Rowe Robinson, until twen-
ty-five ; and upon his attaining that age, he gave to him the dividends
of the said stock during his life ; and after his decease, he bequeathed
the said £1,000 East India stock, and the sum of £3,333 6s. 8d. three
per cents, (the dividends whereof then produced £100 per ann.) as
after mentioned.
520 RULE AGAINST PERPETUITIES (Part 4
The testntor then devised and bequeathed to the plaintiffs, their
heirs, &c. all his real estates at Westham and Pevensey, of which he
was seised in fee, or as mortgagee in possession, or otherwise, and
the principal sums charged thereon, and the ground-rents issuing out
of his messuages in Hedge Lane, upon trust to apply the said ground-
rents, and the rents and profits of his said estates, and interest of the
said mortgage moneys, or such parts as they should judge proper,
towards the maintenance, education, or advancement of his said
grandson, William Rowe Robinson, until twenty-five; and after his
attaining that age, to pay to, or permit him to have and receive the
same during his life, and after his death, (in case he should leave any
lawful issue,) to pay and apply the said several annual sums of £54
12s. £145 8s. £100 and £40, and the dividends of the said £1,000 India
stock, and the rents and profits of the said estates at Westham and
Pevensey, and the interest of the said mortgage moneys, and the said
ground rents, or such part thereof as they (the plaintiffs) should think
proper, unto, and for the maintenance, education, and advancement
of all and every the child and children of the said William Rowe
Robinson, lawfully begotten, until (being sons,) they should respec-
tively attain twenty-five, or (being daughters,) should attain such
age, or marry with the consent of parents or guardians ; and then to
pay, transfer, and assign an equal proportion of the said several prin-
cipal sums of £1,820, £4,846 16s. 8d., and £3,333 6s. 8d. three per
cents, £1,000 four per cents, and £1,000 East India stock, and the said
ground-rents and estates at Westham and Pevensey, and the mort-
gage moneys, and all the interest, dividends, or rents due or payable
in respect of the same, "to such child or children, being a son or sons,
who shall attain such age or ages of twenty-five as aforesaid, and to
such child or children, being a daughter or daughters wdio shall at-
tain such age or ages, or be married as aforesaid, his, her, or their
heirs, executors, or administrators ; if only one such child, or, having
been more, if all but one should die, before their shares should be-
come payable as aforesaid, then the whole to such only, or surviving
child."
The testator then directed as follows ; that "i n case the said Wi l-
liam Rowe Robinson_ shall happen to die wit hout leaving issue, living
at tlTe~time"of his dece ase, or le aving suchTthev shall die~ai rbeIore
any of~tliem shall attain twenty-five^ if sons, a nd if daughters, before
they shall attain siich age, or be married as afores ai d ;" then the p lain-
tiffs should pay, apply, and trans fer the said principal s ums of stock,"
gro ^d-rents, e jtates_an d mortgage moneys, "unto aiicl amolTg st all
and every the brothers and sisters of the said Willj a ni RoweRobin -
son, share and share alike, upon his, her, or their attaining twenty-
five, iflTbrother or brothersTand it a si^ei-tii "Sisters, at sucli age o r
marriage, with such consent as aforesaid."
He then directed the plaintiffs to invest the surplus or savings to
arise out of the said several annuities, dividends, ground rents, and
Ch. 4) LIMITATIONS TO CLASSES 521
interest, until his said grandson, William Rowe Robinson, or his is-
sue, (if any), or his brothers and sisters who should become entitled
as aforesaid, should attain twenty-five,' or be married as aforesaid,
and pay and apply the same for the benefit of the person or persons
entitled, upon the attainment of such age or marriage respectively.
The testator then (after making certain provisions out of the re-
mainder of his stock before bequeathed to the plaintiffs for others of
his grandchildren,) gave to the plaintiffs, their executors, &c. all sums
of money then due to him on mortgage, (except those secured on the
estates at Westham and Pevensey,) upon trust, to pay one moiety of
the interest to his daughter Airs. Robinson, for her life, and after her
death, to her husband, George Robinson, for his hfe, and after the
death of the survivor, in and towards the maintenance and advance-
ment of W. R. Robinson, till twenty-five, and after, &c. to W. R.
Robinson for life, and after his decease, towards the maintenance and
advancement of all and every his child and children, till twenty-five,
or marriage as aforesaid, and upon trust, to pay or assign an equal
proportion of such moiety of the said mortgage moneys, to such
child or children respectively, and in case the said William Rowe Rob-
inson should die without leaving issue, or all such issue should die
before twenty-five, or marriage as aforesaid, then upon trust to pay
and divide the same, unto and among all and every the brothers and
sisters of the said William Rowe Robinson, share and share alike, at
their respective ages of twenty-five, or marriage as aforesaid ; with
interest in the mean time, for such brothers and sisters, as before di-
rected with respect to the issue (if any) of the said William Rowe
Robinson.
He then directed the plaintiffs to pay the other moiety of the inter-
est due to him on mortgage, to his daughter Frances Dippery Mit-
ford, and her husband W^illiam Mitford, for their Uves and the life of
the survivor, and after the decease of the survivor of them, to pay
and dispose of the said interest and principal moneys, to and among
their children, in the same manner as he had before directed, with re-
spect to the issue (if any) of the said William Rowe Robinson.
The testator then gave to the plaintiffs, their heirs, executors, &c.
all the residue and remainder of his real and personal estate and ef-
fects not before disposed of, upon trust to sell, (in case his daughters
should think proper and so direct,) and lay out the produce in the pur-
chase of real estates on government securities, and out of such real
and personal estate till disposed of, and the produce, &c. to pay one
moiety of the rents, interest, and dividends to his daughter, Mrs.
Robinson for her life, and after her death, to her husband for his life,
and after the death of the survivor, to pay and apply the said moiety,
or so much thereof as they should think fit, unto, or for the mainte-
nance, education, and advancement of the said child and children of
the said Elizabeth Grace Robinson, by the said George Robinson,
(other than and except the said W. R. Robinson,) until they should
522 RULE AGAINST PERPETUITIES (Part 4
attain twenty-five, or marry as aforesaid, in equal shares and propor-
tions, and after the attainment of such age or marriage, to pay and
transfer all such moiety of the residue or produce thereof, to and
among such child or children, in equal shares and proportions, and
with regard to the remaining moiety, he directed that his daughter
Mrs. Mitford, and her husband, and the child or children (if any) of
them, and their issue, should have and enjoy the same, in the same
manner as before expressed with regard to his daughter Mrs. Robin-
son and her family. The testator then directed that in case of the
death of any of his said grandchildren before attaining twenty-five or
marriage, the shares of them so dying, should go to the survivors of
their respective brothers and sisters ; and in case of the death of ei-
ther of his said two daughters, without leaving issue by her said hus-
band, living at her decease, or any child or children of such issue, then
and in such case, the share or proportion of such part of his estate or
effects given by him, or intended for such issue, or the child or chil-
dren of such issue, should go to and be divided amongst the issue of
his surviving daughter, by her then husband, or the child or children of
such issue who might be dead, equally, share and share alike ; and in
case both his said daughters should die without issue living at their
respective deceases by their then respective husbands, or any child or
children of such issue who might be deceased, then he directed that
each of his said daughters, (subject to the life interest of their then
husbands,) might (notwithstanding their coverture,) give and dispose
of her share and proportion of his said estate and effects to such per-
son or persons as she might think proper, either by deed or will.
On the 17th of June, 1790, when the testat or made this will, h is
grandson William Rowe Robin son^ had_one brother a.nd three sisters
living. Between the date^ f the wil l and the testator's deathj^he had
another sister born.
OirTIie~ytli of February, 1792, the testator died. Between the
death of the testator and the death of Williamn^ve Robinson, the
saicf^VjllianLRo we Robinson had twaJJother brothers born. On tlie
10th of October, 1800, Wi lliam Rowe Robinson d ied ; having attained
twenty-five without issue, unmarried and intestate ; and ano ther sister
was born after his death.
At the time of thetestator's will, and of his death, Mr. and Mrs.
Mitford had five children, one of whom was since dead, leaving issue ;
and after the testator's death, they had another child.
Sukey Rowe, the testator's widow, survived him, and died in 1804,
having first made her will, and appointed Mr. Mitford, and another,
executors thereof. Mrs. Mitford was also dead, and her husband had
taken out administration.
Under these circumstances, the question for the decision of the
court was, whether, in the event which happened, of the death of Wil-
liam Rowe Robinson without issue, the limitation to his brothers and
sisters, to take effect on their attainment of the age of twenty-five, or
Ch. 4) LIMITATIONS TO CLASSES 523
marriage as aforesaid, was a good and effectual limitation, or was
void, as being too remote. And this principally depended on the de-
termination of two other questions, viz. first, whaLxlasses^ofj^ersons
were those intended by the testator to take^ in t he event of William
Row^"^obinsOTndying without issue, or witliout issue living to attain
the age~onwenty-five, under the description of ^^H and every the
brothers an cTsTst ers of the~said William Rowe Robinson ;" because, if
that hmitation were held to extend to all the brothers and sisters who
mi£Jit_be^jx)n2^and (in the e vent vvhidT haj^ngjjjld) artually were born,
after the death of the testator, and the period of vesting was post-
poned byTHe' wHTtill their attainment of tjie age of twenty-five, it is
obvious ThaT niore' than twenty-one years, ^the period beyond which
a limitafion by^ay of executory devise cannot take effect) might pass
after the death of the testator before the arrival of the limited time :
and this, consequentlyTgave^rise^fo tHe^ second question ; which was,
whether t he atta inment of twenty-five was in fact the period assigned
fo r thejvesting o^ f tlie several shares, o r was to b e^^akenjonly as the
tim^ fixed for tlie pay ment of the several shares which had already
V e sted at some antecedent p eriod .
The: Master of the Rolls [Sir William Grant]. The first
point to be determined in this case is, Who are included in the de-
scription of brothers and sisters of William Rowe Robinson, and of
chiklFen ofl^r. and Mrs. TloljmsonT^ancl Mr. an^Mrs. TMitford —
whether those only wh6~were in betiTg"afThe time of^Tie t^sTator's
death, or all who miglTFTome in " esse^uiWg the lives of the respec-
tive tenants for life. Upontliat pointnTcTnotTee how a" question-
can" possibly be raised. Not only is the rule of construction com-
pletely settled, but in this case, I apprehend the actual intention of the
testator to be perfectly clear. Indeed, I believe, wherever a testator
gives to a parent for life, with remainder to his children, he does mean
to include all the children such parent may at any time have. That is
not an artificial rule. It is the rule which excludes any of the chil-
dren that is, and has been called an artificial rule — namely, the rule in
Andrews v. Partington, 3 Bro. C. C. 60, 401, and other cases of that
description, which excludes all who may be born after the eldest at-
tains twenty-one. The case of Ellison v. Airey, 1 Ves. Ill, might
have been decided the other way without at all affecting this ; for there
it was the death of one person that determined what children of an-
other person were entitled to take. It is impossible to impute to this
testator an intention to exclude all the children of his grandson, Wil-
liam Rowe Robinson, who should not be living at his (the testator's)
own death, that grandson having no children at the time the will was
made. All the bequests to the children of his daughters are made in
as comprehensive terms.
As to the brothers and sisters of William Rowe Robinson, I do not
apprehend that it is at all necessary to speculate on the question sug-
gested by Mr. Bell, viz. who would, within the meaning of the will,
524 RULE AGAINST PERPETUITIES (Part 4
come under the description of brothers and sisters — whether only the
children of both parents, or such as one of them might have after the
death of the other.
Our qu estion is, whether th e testator's bounty was confined to such
brothers and sister s (in whatever seiTse t hese words hiay Tje'taRen) as_
should be liv mg at his o \vn dea^h. According to the established rule
of construction, an d wh at I conceive tojiave been the actual intention
of the testator, all who were living at the time of William Rowe Rob-
inson'''s death mustbe held to be comprehended in the description.
Having ascertainedthe^persons intended to take, the next question
is at what time the interests given to them were to vest.
There is no dire ct gift to any of these classes of persons. It is only
through the medium ot directions given to the Tinistees^ that we can
asc ertain tITe~be"h eIits^tended for theiriT Thelrustees have a discre-
tionary power to apply what portion oi the income they think fit, for
the support, maintenance, and advancement of the infant legatees.
Except in one instance, the testator does not say what is to become
of the surplus interest. In the case of the property first given to
William Rowe Robinson for life, the surplus interest is to accumu-
late, and to be paid with the capital, either to himself, or to his chil-
dren, or to his brothers and sisters, when they shall have attained the
age of twenty-five.
No direction being given as to the surplus interest of the two moie-
ties of the mortgage money, it will make part of the residue ; for, al-
though the interest of residue goes with the capital, that of particular
legacies does not, even supposing it be the payment, and not the vest-
ing, that is postponed. It is a mistake to suppose that the trustees
are authorized to apply any part of the capital for the benefit of any
legatee not attaining twenty-five. It is only in the residuary clause
that produce is spoken of, and it is evident that the direction relates
only to the income of the property, or of the produce thereof when it
should be sold.
As to the capital, there being, as I have already said, no direct gift
to the grandchildren, we are to see in what event it is that the trustees
are to make it over to them. There is, with regard to this, some dif-
ference of expression in the different parts of the will. In some in-
stances the testator directs the payment to be to such child or chil-
dren as shall attain twenty-five. In others the payment is to be made
upon attainment of the age of twenty-five. In the residuary clause it
is, from and immediately after such child or children shall attain the
age of twenty-five, that the trustees are to transfer the property. But
I think the testator in each instance means precisely the same thing,
and that none were to take vested interests before the specified pe-
riod. The attainment of twenty-five is necessary to entitle any child
to claim a transfer. It is not the enjoyment that is postponed; for
there is no antecedent gift, as there was in the case of May v. Wood,
3 Bro. C. C. 471, of which the enjoyment could be postponed. The
Ch. 4) LIMITATION'S TO CLASSES 525
direction to pay is the gift, and that gift is only to attach to children
that shall attain twenty-five. The case of Batsford v. Kebbell, 3 Ves.
363, was much more favorable for the legatee ; for the interest of the
fund was given to him absolutely until he should attain the age of
thirty-two, at which time the testatrix directed her executors to trans-
fer to him the principal for his own use. He died under thirty-two.
Lord Rosslyn said, "There is no gift but in the direction for payment,
and the direction for payment attaches only upon a person of the
age of thirty-two. Therefore he does not fall within the description."
It was supposed that the clauses in the will, where the word "such"
is left out, might be construed differently from those in which it is in-
serted ; and that, although where the payment is to be to such child or
children as shall attain twenty-five, nothing could vest in any not an-
swering that description, yet where the payment is to be to children
upon the attainment of twenty-five, or from and after their attaining
twenty-five, the vesting is not postponed. If there were an antecedent
gift, a direction to pay upon the attainment of twenty-five certainly
would not postpone the vesting. But if. I give to persons of any de-
scription when they attain twenty-five, or upon their attainment of
twenty-five, or from and after their attaining twenty-five, is it not pre-
ciselv the same thing as if I gave to such of those persons as should
attain twenty-five? None but a person who can predicate of himself
that he has attained twenty-five, can claim anything under such a gifl.
I am aware, however, that although, with regard to particular lega-
cies, this doctrine has not been controverted, yet the case of Booth
V. Booth, 4 Ves. 399, may be considered as throwing some doubt upon
it, when it is a residue that is the subject of the bequest. There is
certainly a strong disposition in the court to construe a residuary
clause so as to prevent an intestacy with regard to any part of the
testator's property. With all that disposition, it is evident that Lord
Alvanley felt that he had a difficult case to deal with. Some violence
was done to the words in favor of what he conceived to be, and what
in all probability was, the intention. That intention however was
collected from circumstances that do not occur in the present case.
Both the legatees were adults at the time the will was made. Lord
Alvanley admits that, if it had been otherwise, it might have made
some ingredient in the argument. Then the whole interest was given
to them absolutely, — a circumstance which has always been held to
furnish a strong presumption of intention to vest the capital, and
which is not afforded by a direction for maintenance out of the in-
terest, as was decided in the case of Pulsford v. Hunter, 3 Bro. C. C.
416. The legatees might both live to extreme old age, without the
event ever happening on which the legacy was made payable. There
was no survivorship between them, nor was there any bequest over
in the event of the death of both or either; so that intestacy must
have been the consequence of death before marriage. In every one
of these particulars this case differs from that of Booth v. Booth.
526 RULE AGAINST PERPETUITIES (Part 4
They agree in nothing, except that the words "from and immecHately
after" occur in both.
The case of Booth v. Booth is therefore not merely no authority
for what is contended for by the grandchildren, but it is a strong au-
thority the other way. For it shows that, where there is no gift but
by a direction to transfer from and after a given event, the vesting
would be postponed till after that event had happened; unless, from
particular circumstances, you are enabled to collect a contrary in-
tention. For otherwise Lord Alvanley would only have had to say,
"These words can have no such effect as is ascribed to them. They
operate only as a postponement of the enjoyment." Here, interest
is not given to children dying before twenty-five. Children attaining
twenty-five are to take the whole. There is not even a provision for
the case of a child dying under twenty-five, leaving issue. All is to
go to those who do attain twenty-five. How is it possible, therefore,
that a child can be said to have a vested interest before twenty-five,
when it has neither a right of enjoyment, a capacity of transmission,
or a ground of claim, until after it shall have attained that age?
When the vesting is so clearly and expressly postponed, it is in vain to
endeavor to infer from other expressions, used without any reference
to that object, that the testator did not conceive himself to have post-
poned the vesting. That he has unnecessarily provided for survivor-
ship ; that he has spoken of shares of grandchildren dying under twen-
ty-five, and, in the last proviso, given over the moieties of the residue
only in the event of either of his daughters dying without leaving any
issue or any children of such issue, — are all of them circumstances
that appear to me not at all to affect the question of vesting, as none
of these clauses make any new gift to the grandchildren, nor can they
alter the terms or conditions of that which had been already made.
Then, assuming that after-born grandchildren were to be let in, and
that the vesting was not to take place till twenty-five, the consequence
is, that it might not take place till more than twenty-one years after a
life or lives in being at the death of the testator. It was not at all dis-
puted that the bequests must for that reason be wholly void, unless
the court can distinguish between the children born before, and those
born after, the testator's death. Upon what ground can that distinc-
tion rest? Not upon the intention of the testator; for we have al-
ready ascertained that all are included in the description he has given
of the objects of his bounty. And all who are included in it were
equally capable of taking. It is the period of vesting, and not the de-
scription of the legatees, that produces the incapacity. Now, how am
I to ascertain in which part of the will it is that the testator has made
the blunder which vitiates his bequests? He supposed that he could
do legally all that he has done; — that is, include after-born grandchil-
dren, and also postpone the vesting till twenty-five. But, if he had
been informed that he could not do both, can I say that the alteration
he would have made would have been to leave out the after-born
Ch. 4) LIMITATIONS TO CLASSES 527
grandchildren, rather than abridge the period of vesting? I should
think quite the contrary. It is very unlikely that he should have ex-
cluded one half of the family of his daughters, in order only that the
other half might be kept four years longer out of the enjoyment of
what he left them. It is much more probable that he would have said,
"I do mean to include all my grandchildren, but as you tell me that I
cannot do so, and at the same time postpone the vesting till twenty-
five, I will postpone it only till twenty-one." If I could at all alter the
will, I should be inclined to alter it in the way in which it seems to me
probable that the testator himself would have altered it. That altera-
tion would at least have an important object to justify it ; for it would
give validity to all the bequests in the will. The other alteration
would only give them a partial effect ; and that too by making a dis-
tinction, which the testator himself never intended to make, between
those who were the equal objects of his bounty. In the latter case, I
should be new-modeling a bequest which, standing by itself, is per-
fectly valid ; while I left unaltered that clause which alone impedes the
execution of the testator's intention in favor of all his grandchildren.
Perhaps it might have been as well if the courts had originally held
an executory devise transgressing the allowed limits to be void only
for the excess, where that excess could, as in this case it can, be clear-
ly ascertained. But the law is otherwise settled. In the construction
of the Act of Parliament passed after the Thellusson cause, I thought
myself at liberty to hold that the trust of accumulation was void only
for the excess beyond the period to which the Act restrained it. And
the Lord Chancellor afterwards approved of my decision. But there
the Act introduced a restriction on a liberty antecedently enjoyed,
and therefore it was only to the extent of the excess that the prohibi-
tion was transgressed. Whereas executory devise is itself an in-
fringement on the rules of the common law, and is allowed only on
condition of its not exceeding certain established limits. If the con-
dition be violated, the whole devise is held to be void.
To induce the court to hold the bequ ests in this will to be par-
tiall^L._go od, the ca se has jbeen argu ed as if they hacLbe en m adeJ:o
someindividu als w ho are, and to ^omejwhp_are_not, capable jjltak^^
B ut the^^quests in question, are not made to individuals, but to class -
esj _jind what I have to deter mine is, whethe r the class can tak e. I
must make a new will for the testato r, if I split in to portio ns h is gen-^
era l bequest to tHF^lass, and say, Hiat bec ause the rule of law forbids
his intentio nfrom operating in favor of th e whole clas s, Xw^llj'P.^k^
his bequests, w hat he ne ver intende d them to be, viz. a series of par-
ticula'r legacies to particular individuals, qr"\vhat he TiacTas Tltflejn Hs ^
colTte mpTa tjon^ distinct bequests, Tn each instance, to two different
classes, namely, to grandchildren livi ng at his dea th, an d to grand-
children^boriTaTteFTiis deatli.
If the present cas~e~Tvere an entirely new question, I should doubt
very much whether this could be done. But it is a question which
528 RULE AGAINST PERPETUITIES (Part 4
appears to me to be perfectly settled by antecedent decisions, and in
cases in which there were grounds for supporting the bequests that
do not here exist. In Jee v. Audley. 1 Cox, 324, there were no after-
born children — no distinction therefore to be made between persons
capable and persons incapable — (all were capable) — no difficulty, con-
sequently, in adjusting the proportions that the capable children were
to take, or in determining the manner, or the period, of ascertaining
those proportions. I am asked why the existence of incapable chil-
dren should prevent capable children from taking. But, in Jee v.
Audley, the mere possibility that there might have been incapable
children was sufficient to exclude those who were capable. It is said,
the devise there was future. Certainly ; but only in the same sense in
which these bequests are future: that is, so conceived as to let in
after-born children ; which was the sole reason for its being held to be
void. Unless my decision on the first point be erroneous, the bequests
in this case do equally include after-born children of the testator's
daughters, and are therefore equally void.
The case of Routledge v. Dorril, 2 Ves. 357, appears to me to be
also an express authority on the point now in question. And I think
that the circumstance, that there the will was an execution of a pow-
er, was rather favorable than adverse to the courts making a dis-
tinction between the two sets of grandchildren. For it might have
been contended that after-born grandchildren were not proper ob-
jects of the power, — that the appointment was therefore void quoad
them, but good quoad those who were capable of taking under the
power. Whatever might be the value of that argument, it would
have no application to the question now before the court. For in this
case it could not be said that any one grandchild was, more or less
than another, the proper object of the testator's spontaneous bounty;
and therefore we have not the line, which the power might have fur-
nished, for making a distinction between the two classes of grand-
children. If, even in such a case, the distinction could not be made, a
fortiori is it impossible to make it in this.
The case of Blandford v. Thackerell, 2 Ves, 238, has no application
to the present question. There was no vice or excess in the testator's
bequest, which the court had to cure by excluding some of the objects
in whose favor it was conceived. It was a sort of charitable inten-
tion for the benefit of children and grandchildren of relations of a
specified description. As it was not a future bequest, or by way of
remainder, it would, according to the established rules of construc-
tion, extend only to children and grandchildren living at the testator's
death. Lord Rosslyn thought fit, (probably because it was in the na-
ture of a charity,) to extend it to all the objects to whom the testator
might legally have extended it — that is, children or grandchildren
born during the lives of the different relations. Whether that was,
or was not, a correct execution of the particular will, the case has na
bearing at all on the point now under discussion. The case of Wil-
Ch. 4) LIMITATIONS TO CLASSES* 529
kinson v. Adam, 1 V. & B. 422, was referred to, as furnishing an in-
stance of a distinction made between those who were, and those who
were not, capable of taking vmder the same devise. That was merely
a question of description, who were or were not included under the
denomination of children. If it could be shown that after-born
grandchildren are not entitled to the appellation of grandchildren,
there would be a short end of the present case. On the whole, my
opinion is, that all the bequests to the grandchildren as classes, (for
I have nothing to do with the bequests to individuals,) are wholly
void.
A question has been made, whether the particular bequests thus de-
clared void do or do not fall into th e res j^ due. I have always under-
stood tha"t7with regard to personal estate, everything which is ill giv-
en by the will does fall into the residue ; and it must be a very peculiar
case indeed, in which there can at once be a residuary clause and a
partial intestacy, unless some part of the residue itself be ill given.
It is immaterial how it happens that any part of the property is un-
disposed of, — whether by the death of a legatee, or by the remoteness,
and consequent illegality, of the bequest. Either way it is residue, —
i. e. something upon which no other disposition of the will effectually
operates. It may in words have been before given; but if not effectu-
ally given, it is, legally speaking, undisposed of, and consequently in-
cluded in the denomination of residue.
A testator supposes that each part of his will is to take effect, and
consequently cannot be said to have any intention to include in his
residue anything that he has before given. I do not see, therefore,
how such arguments as might be used in cases of the description of
Roe V. Avis, 4 T. R. 605 ; Church v. Mundy, 12 Ves. 426; and Welby
V. Welby, 2 V. & B. 187, can be here applicable. The limitations of a
particular bequest, and those of the residue, may be quite incongru-
ous ; for the testator supposes that each is to have its separate effect.
But what eventually turns out to be undisposed of will not the less
constitute residue, because some of the provisions contained in the
residuary clause may be inappHcable to a case of which the testator
did not foresee the existence.
I am of opinion that, in so far as any of thejpjirticular bequests are
i ll disposed of, they fall into the residue . But then, according to
what I have already determinedTThere is no good disposition of the
residue itself after the death of the tenants for life, excepting in so
far as the ultimate proviso may operate upon the subject of it. As to
that proviso, one half of the residue is placed out of the reach of its
operation, by Mrs. ]\Iitford's having left children at her death. The
consequence is, that, subject to Mr. Mitford's life interest, it belongs
to the testator's next of kin. The fate of the other half rests in con-
tingency. If j\Irs. Robinson should die without leaving issue, it is
well given over to the children of Mrs. Mitford, there being nothing
4 Kales Pkop. — 34
530 RULE AGAINST PERPETUITIES (Part 4
in this bequest to make it too remote; and it being evident that the
testator used the words "surviving sister" in the same sense as other
sister. But if Mrs. Robinson shall leave issue, this half also will, at
her death, be undisposed of, and divisible among the next of kin.
The question as to the widow's right to share in the property which
turns out to be undisposed of, I take to be settled bv the case of Pick-
ering V. Lord Stanford, 2 Ves. 272, 581 ; 3 Ves. 332, 492; 4 B. C. C.
214.^
PICKEN V. MATTHEWS.
(Court of Chancery, 1S7S. 10 Ch. Div. 264.)
Francis Hoofif, by his will, gave his property, real and personal, to
trustees on trust to pay certain legacies and annuities, and continued
as follows: "Subject as aforesaid, I direct my trustees to stand pos-
sessed of my said trust estate, upon t rust for such o f the children of
my daughter Helen by her first husband (but not her~cEiI3reinDy' her
present husband), and the children ot my"daughter Charlotte, who be-
ing sons shall live to attain the age ortwehty-frve j^earj^or being daugh~
ter?''HraIl~attaIn~niat age or "previously marry, whichever shall first
happen ; and I expressly direct that all such grandchildren shall par-
ticipate equally without regard to the number of each family." And
the testator empowered his trustees to maintain the children out of
their expectant shares until they should respectively acquire vested
interests in the trust estate.
The testator died in December, 1865. The testator's daughter Helen
had at the date of the testator's death three children by her first hus-
band, ot whomthe plainfiff TVad attained tlie age M"twenty-fiyF aT tKe
date of the testator's death. Charlotte had two children who were in^
faints'; ' - -
'Malixs, V. C. I have very carefully considered the cases which
have been cited ; and the conclusion to which I have come will have
the advantage, that it will, I think, carry into effect the intention of
the testator.
If the two daughters of the testator had had no children living at
his death, the gift would have been void for remoteness; because it
would not be certain that the property would vest within a life or lives
in being and twenty-one years after. But this is a gift to living grand-
children. The testator evidently knew that his grandchildren were in
existence, and I must attribute to him knowledge of their ages, knowl-
edge therefore that before his death the plaintiff had attained the age
of twenty-five years. Now, the rules of law applicable to this case
are, first, that a_gift to a class not preceded by any life, estate Js a gift
to such of the class as"~are Irving at the death of the testator. The
1 See, also, Porter v. Fox, 6 Sim. 485 (1834).
Ch. 4) LIMITATIONS TO CLASSES 531
case of Singleton v. Gilbert, 1 Bro. C. C. 542, n. ; 1 Cox, 68, proceed-
ed on that footing. There, there was a demise of real estate (sub-
ject to a term to secure annuities) to all the children of A., and the
heirs of their bodies. A. had two children at the death of the tes-
tatrix, and one born afterwards, but before the death of the annuitants.
It was held that the after-born child could not take, though if there
had been a precedent life interest, that would have been enough to
postpone the period of vesting. Lord Chancellor Thurlow, in giving
judgment, says, "The general principle is that, where the legacy is
given to all the children, it shall not extend to after-born children ; but
where it is given with any suspension of the time so as to make the
gift take place by a fair, or even by a strained construction (for so
far some of the cases go) at a future period, then such children shall
take as are living at that period. But in this case I can see no cir-
cumstance to take it out of the general rule." That is a decision that
the d evise extends only to t h ose children who are living at the deat h
of the testator. TtTsa rule of convenience.
'i'he second rule is, that w here you have a gift for such ofjhe chil-
dren of A. as shall attain a specified a ge, o nl y those who are in esse
when the first of the class attains t he specified age can take . All after-
bo nTTKiHrHr'are'excIuded^ Tliis also is a rule of convenience^ It
was laid down in the case of Andrews v. Partington, 3 Bro. C. C. 401,
and has been followed in numerous cases, of v/hich Hoste v. Pratt,
3 Ves. 730, and a case before me of Gimblet v. Purton, Law Rep. 12
Eq. 427, are examples. In the latter case I proceeded on the prin-
ciple that only those who were alive when the first of the class at-
tained twenty-one could take. The maximum number to take was
then ascertained. Vice-Chancellor Wigram, in giving judgment in
the case of Williams v. Teale, 6 Hare, 239, makes this observation:
"If a testator should give his property to A. for life, with remainder
to such of A.'s children as should attain twenty-five years of age, and
the testator should die, living A., there is no doubt but that the limita-
tions over to the children of A. would be void : Leake v. Robinson,
2 Mer. 363 ; but if in that case A. had died, living the testator, and
at the death of the testator all the children of A. had attained twenty-
five, the class would be then ascertained, and I cannot think it pos-
sible that any court of justice would exclude them from the benefit
of the bequest, on the ground only that if A. had survived the tes-
tator the legacy would have been void, because the class in that state
of things could not have been ascertained." So that he adopts the
principle that when once the class to take has been ascertained there
is no objection to postponing the vesting to a future period.
Upon the authority of these cases I come to the conclusion that the
persons who can take under this limitat ion are those who wereliv ^
"in g at th e deatn of the tegtatof: Vmef^ Francis, 2 Bro. C. C. 658, a
leading authority on the subject, shows that the same principle pre-
vails whether the parent of the children who are to take be alive or
532 RULE AGAINST PERPETUITIES (Part 4
dead at the date of the will. I have already mentioned Singleton v.
Gilbert and Viner v. Francis. These cases, as well as Doe v. Sheffield,
13 East, 526, and Doe v. Over, 1 Taunt. 263, all show that a gift to
a class only embraces those of the class who are living at the death
of the testator.
Here there is a gift to such of a class as shall attain twenty-five.
The class_jyag Zascertnine d_aLthe__deat h oT~ t he testatof~l)eca use one
of them had then attained twenty- five. The two infant children oT
CharloTEe"Heale who were alive at the death of the testator are en-
titled to take, provided they attain the age of twenty-five years.
The case mainly relied on by the other side was Griffith v. Blunt,
4 Beav. 248. There Lord Langdale, in giving judgment, said that
the will was really free from ambiguity; the vesting was not to take
effect till twenty-five, and therefore the gift was too remote. But the
real question was. In whom was the property to vest? Was the class
to take ascertained at the death of the testator?
Here I hold that there is a valid gift because one of the children
of Helen (by her former husband) had attained twenty-five at the death
of the testator; the maximum number to take was, therefore, then
ascertained, and the gift in question is not void for remoteness.^
2 Suppose the limitations be upon trust to A. for life, then upon trust for
such children of A. as should attain the age of 25, and suppose one had
attained that age at the testator's death. See Gray, Rule Against Perpetui-
ties (2d and 3d Ed.) § 20.5a; Belfield v. Booth, 63 Conn. 299, 27 AtL 5S5;
Pitzel V. Schneider, 216 111. 87, 74 N. E. 779.
Suppose an immediate vested bequest to the grandchildren of A., a living
person, to be paid them at 25, and suppose A. has one grandchild in esse
at the testator's death, who is three years old. Is there a valid gift to that'
grandchild? See 19 H. L. R. 59S ; Gray, Rule Against Perpetuities {2d & 3d
Eds.) § 121b (where, however, Mr. Gray inadvertently states the case con-
sidered, erroneously, as a gift "to the grandchildren of the testator" and "to
the children of A.").
In re IMoseley's Trusts, L. R. 11 Eq. 499, 11 Ch. Div. 555, 5 App. Cas. 714:
The testator, after giving a legacy of £3000 to trustees upon trust to pay the
interest to his daughter, Mary Jordan, for her life for her separate use, pro-
vided as follows: 'And from the decease of my said daughter my will is, that
the sum of £3000, the securities for the same, aud the produce thereof, shall
be in trust for all the children of my said daughter who shall attain the age
of twenty-one years, and the lawful issue of such of them as shall die luider
that age leaving lawful issue at his, her, or their decease or respective de-
ceases, which issue shall afterwards attain the age of twenty-one years, or
die under that age leaving issue living 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 respec-
tively would have taken if living.' None of the children of Mary Jordan
died under twenty-one leaving issue, but some died under age without leaving
issue. Five attained twenty-one, of whom two died in their mother's lifetime,
and the remaining three survived her. Held, the gift after the death of
Mary Jordan failed for remoteness.
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 533
CHAPTER V
SEPARABLE LIMITATIONS, INDEPENDENT GIFTS. AND
LIMITATIONS TO A SERIES
LONGHEAD d. HOPKINS v. PHELPS.
(Court of King's Bench, 1771. 2 W. Bl. 704.)
Ejectment and special case. 30th and 31st August, 1706, John
Phelps, in consideration of an intended marriage with Mary Moore,
conveyed the premises in question to the use of himself and his heirs
till the marriage. And from the marriage to trustees for forty years,
on trusts which never took efifect ; remainder to John Phelps for ninety-
nine years, if he so long lived ; remainder to trustees for the life of
John Phelps, to preserve contingent remainders ; remainder in case
Mary Moore should survive John Phelps, to trustees for fifty years, on
trusts which never took effect; remainder to Mary Moore for life for
her jointure ; remainder to trustees for 1000 years on trusts after-men-
tioned; remainder to the first and other sons of John Phelps on said
Mary begotten successively in tail male ; remainder to the right heirs
of John Phelps. The trust of the 1000 years' term was declared, that,
"in case th e said John Phelps should happen to die without issue male
of his body, on the body of the said Mary begotten, or if all the issue
male oetween them shall happen to die without issue, and ther e
should be i ssue female of the marriage, which should arrive respec-
tively t o the age or ages of eighteen years, or be married : Then ,
fro m and atter the death of the survivor of John Phelps and Ma ry
M oore without issue male, or in case at the death of the survivor there
s hall be issue male, then from an d af ter the death of such issue mal e
without issue, the trustee s should raise f5U0 for one daughter, £1000
for tU'O ^ and,'m case of thre6 Of tlior^, snouid assign the \y liole term
to tneir use ; with a clause of maintenance till eighteen or marriage."
There was issue of this marriage one son^ Richard, and four daughter s,
who- all lived to eighteen, and w ere m arried : and they, or their rep-
resentatives, are the now defendairts. 1/31, John Phelps died. 1744,
Richard Phelps, the son, died without iss ue ; but devised to his'wifeT
M a^Y , TSvhb afterwards married Thomas Hopkins, "Hie^Iessor of the
plaintiff), inter alia the premises in question. 1 760, Mary, th e mot her,
died, and the four daughters entered, against whoni~tliis ejectment is
brought.
Glyn, Serjeant , for the plaintiff, argued, th at the trust s of the term
w ere void, being on too remote a contingency , — the dying of the issue
male of the marriage without issue generally.
53-4 RULE AGAINST PERPETUITIES (Part 4
But THE Court, without hearing counsel for the defendants, were
clear that t he first part of the contingency was good, viz., "in cas e
John and Mary died without leaving issue maleT " And as that hap-
pene d in fact to be the case, they would not enter into the consideration
how far the other branch of the contingency might have been support-
e d,' x vhjcli-rnnld ^"Ijr ''ome in question, m case Richard had survi v"ea
bot h his parent s. So ordered the
'ostea to the defendants.^
PROCTOR v. BISHOP OF BATH AND WELLS.
(Court of Common Pleas, 1794. 2 H. Bl. 358.)
In this qu are impedi t. brought to recover the presentation to the
ch urch of the rectory of West Coker in Somers f^''^^'"'^'^; ^^^^ riprlaratinn
stated, that one William Ruddock was seised in fee of the advowson,
and presented, that on his death it descended to his two nieces Jane
and Mary Hall, that Jane Hall intermarried with Nathaniel Webb,
and Mary with Thomas Proctor : that Nathaniel Webb died, his wife
surviving him, whereby the said Jane in her own right, and Thomas
Proctor and Mary in her right were seised, that the church then be-
came vacant by the death of the incumbent, whereby the said Jane
Webb and Thomas Proctor in right of the said Mary, presented their
clerk ; that Jane Webb died, upon whose death her whole share of
the advowson descended to her son Nathaniel Webb, who thereupon
became seised in fee in coparcenary, with Thomas Proctor and Mary
his wife ; that Thomas Proctor died, his wife surviving him, whereby
the said Nathaniel Webb the son, and Mary Proctor became seised.
There were then set forth several presentations on vacancies by
Nathaniel Webb and Mary Proctor. The death of the said Nathaniel
Webb was then stated, whose share descended to his son Nathaniel
Webb, who became seised in coparcenary with Mary Proctor: that
Mary Proctor died, upon whose death her share descended to her
grandson Thomas Proctor, who became seised, together with the
last-mentioned Nathaniel Webb : that the church again became va-
cant, upon which, they not agreeing upon any person to be presented
by them jointly, the said Nathaniel Webb presented the said Thomas
Proctor, as in the first turn of the said Jane Webb, the elder sister of
the said Mary Proctor: that he died and his share descended to Eliza-
beth Proctor, his sister, the present plaintiff, who was entitled to
represent in the first turn of the said Mary Proctor, the younger sis-
ter of the said Jane Webb, yet, &c.
The bishop pleaded the usual plea as ordinary ; and the other de-
fendants — That true it was that the said Nathaniel Webb the grand-
son of Jane Webb and the said Mary Proctor were seised of the
1 See Doe d. Herbert v. Selby, 2 B. & C. 92G. »
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 535
advowson in coparcenary, and that Mary Proctor died so seised, and
that the said Xathaniel \\^ebb presented as in the first turn of the said
Jane Webb, &c. : but the said defendants further said, that the said
Mary Proctor being so se igp'ij piari^ T-i^r l^ct ^vill anri tp-^i-nmont, and
ga ve and devised unto the first or ntliej- ^^n r, nf lipr grand.'i on. the said
las t-mentioned Thomas Pro ctor, that should be bred a clergyman and
be in holy orders, and to his heirs and assigns all ner right of pre!? rn-
tation to the said rectory, &c. : but in case he r said gran dson the saTd^
last -menti oned 1 homas i^roctor shoul_d-,hava no -sucli ^son, then sh e
ga ve" and devised the said righ t of presentation unto her g randson t he
sa id Thomas Moore, his heirs and assio-ii,s j orever :~tHat afterwards
the said Mary Proctor died so seised, leaving the said last-mentioned
Thomas Proctor and Thomas Moore her surviving, and that after-
wards the said Thomas Proctor died without having ever had any
son ; whereby and by virtue of the said last will and testament of the
said Mary Proctor, the said Thomas ■\Ioore became seised of all the
share of the said Mary Proctor of and in the said advowson, &c.,
wherefore it belonged to the said Thomas ]\Ioore to present. &c. as in
the first turn of the said Mary Proctor the younger son of the said
Jane Webb, &c.
To this plea there was a general demurrer, which was twice argued ;
the first time by Bond, Serjt., for the plaintiff, and Heywood, Serjt.,
for the defendants ; and a second time by Adair, Serjt., for the plain-
tiff, and Le Blanc, Serjt., for the defendants.
Ths Court (absent Mr. Justice Buller) were clearly of opinion
that t he first devise to th€ son of Th omas Proctor w-as void, from the
u ncertainty as to the time when such son, if he had anv. might take
o rcler s : and that th e devise over to }^Ioore. as it depended on the
same ev ent, was also void ; f or the words of fl?e will would not admit
of the contingencv being divided, as was the case in Lon^^head v.
Phelp s, 2 Black. 704 ; and there was n o ins|;^nce in wh irh a 1j]-[-|ii-pHnn
a fffer a prior devise, which was void fr om the contingencv ])ein<j ton
r emote, had been let in to take effect, but the contrarv was express^v
d ecided in the House of T.nrds in the case of The Earl of Chatham v.
Tothill, 6 Brown Cas. in Pari. 451, in which the judges founded their
opinion on Butterfield v. Butterfield, 1 Vezey, 134. Consequently the
heir-at-law of the testatrix was entitled.
Judgment for the plaintiff.-
2 Per Jessel, M. R.. in Miles v. Harford, 12 Ch. D. GDI, 702-70.5: "As I
understand the rule of law it is a question of expression. If you have an
expression giving over an estate on one event, and that event will include
another event which itself would be within the limit of peri>etuities, or, as
I say, the rule against perpetuities, you cannot split the expression so as
to say if the event occurs which is within the limit the estate shall go
over, although, if that event does not occur, the gift over is void for re-
moteness. In other words, you are bound to take the expression as you find
it, and, if, giving the proper interpretation to that expression, the event may
transgress the limit, then the gift over is void.
"What I have said is hardly intelligible without an illustration: On a
536 RULE AGAINST PERPETUITIES (Part 4
CHALLIS V. DOE d. EVERS.'
(Exchequer Chamber and House of Lords, 1850, 1859. 18 Q. B. 231; 7
H. L. Cas. 531.)
AldERSON, B.* This is a writ of error upon the judgment of the
Court of Queen's Bench upon a special verdict.
This was an action of ejectment, brought to recover one-twelfth
part of certain property devised by the will of one Thomas DoUey to
gift to A. for life with a gift over in case he shall have no sou who shall at-
tain the age of twentj'-five years, the gift over is void for remoteness. On a
gift to A. for life, with a gift over if he shall have no sou who shall tiike
pi'iest^s orders in the Church of England, the gift over is void for remote-
ness ; but a gift superadded, 'or if he shall have no son,' is valid, and takes
effect if~he has no son ; yet both these events are Included in the other
event, because a man who has no son certainly never has a sou who attaius
twenty-five or takes priest's orders in the Church of England, stUl the al-
ternative event will take effect because that is the expression.
"The testator, in addition to his expression of a gift over, has also ex-
pressed another gift over on another event, although included in the first
event, but the same judges who have held that the second gift over will
take effect where it is expressed have held that it will not take effect if
it is not expressed, that is, if it is really a gift over on the death before
attaining twenty-five or taking priest's orders, although, of course, it must
include the case of there being no son. That is what they mean by split-
ting, they will not split the expression by dividing the two events, but when
they find two expressions they give effect to l)oth of them as if you had
struck the other out of the will. That shows it is really a question of words
and not an ascertainment of a general intent, because there is no doubt that
the man who says that the estate is to go over if A. has no son who attains
twenty-five, means it to go over if he has no son at all, it is, as I said be-
fore, because he has not expressed the events separately, and for no other
reason. That is my view of the authorities. This is a question of authorities.
"Now, we come to the case we have before us. The estate is to go over
if any of his sons get another estate, that is. if any one of his sons who
has got possession of this estate gets one of the other estates, or if any of
the issue male of the body of any of the sons gets the estate. Here you
have two events expressed. He might have said, if any of the issue male
of my body get the estate, which would have included both events, and
then you could not have split it up, but he has not said so. He has divided
it for some reason or other, probably a conveyancer's one, because it is an
alteration of a conveyancer's form. The words 'sons' and 'issue male' are
Iwth added, but he has divided that and suggests two events, then and in
any of the events 'and so often as the same shall happen the uses hereby
limited of and concerning my freehold hereditaments to or in trust for any
such younger son or whose issue male shall for the time being become en-
titled as aforesaid, and to or in trust for his issue male shall absolutely
cease.' That is, there is a cesser of the estate either of the younger son or
the issue male of the younger son. Why should I alter the words? Why
should I say that the event of the younger son properly expressed succeed-
ing to the estate being in due time is to be void for remoteness? The rea-
8 An appeal from this decree, on behalf of the Crown, was heard before
Lord Lyndhurst, C. His Lordship directed a case to be made for the opinion
of the Court of Common Pleas upon tlie will. But, before the case was ar-
gued, the suit was compromised. — Rep.
4 The judges who sat in the Exchequer Chamber were Maule, Williams,
and Talfourd, JJ., and I'latt, B. The case in the Queen's Bench is reported
18 Q. B. 224.
Ch. 5) LIMITATIONS AND IXDEPENDENT GIFTS 537
his daughter EHzabeth. The lessors of the plaintiff were !Mary Ann
Evers and her husband, she being one of two children of John Dolley,
the son of the testator.
The testator had four children, John, Sarah, Ann, and Elizabeth:
and, by his will, dated 12th June, 1819, he gave the property (the one-
twelfth of which is now in question) to trustees during the life of his
da ughter Eliz abeth, in trust for her separate use, and, aitjer Jier de-
cease, he gave Ifie same to such children as she might Have, if a son
or sons, w ho shou ld live to the age of twenty-three y ears, and, if a
daughter or d aughters, who should live to the age of twenty-one year s,
their heirs ancfassign s, as tenants in common. He then provided for
the disposition ot tlie property in the event of one or more of the chil-
dren of Elizabeth dying, leaving others or another surviving. He
then proceeded thus : "I n case all the children of my said daught er
Elizabet h Maria shall die, if a son or sons, under the age of t wentv-
thre e vears, or. if a daughter, under the age of twenty-one vears. or if
glip'haQ nnpp " T crivp the Said property, &c. unto the said trustees,
during the respective lives of my son John and my daughters Sarah
Ward and Ann Dolley, upon trust for the use of John, an d thp c;ppa-
rate uses of Sarah a nd Ann , during their lives, in equal share s : "and,
u pon t he decease of mv said son and two last-named daughters, I gi ve
the~s hare of suc h of them so dyi ng unto his or her children, if a so n
or so ns. Jiving to attain the age of twenty-three vears. and, if a
daugTT ter or daughters, living to the age of twentv-one vears his, h er
and TTieir heirs, executors, administrators and assigns :'' if more than
one, as tenants in common. " And" Ttiie nart of the dp yi^f^ upon av1iiY|-[_
the Question depends), "in case of the death of mv said son or eithe r
of mv said two "daughters without leaving a child, if a son, who sh all
1 iv e to attain the age of twenty- three years, or, if a daughter, who
sha ll live to attain the age ot twentv-on e vears. 1 give the part an d
parfs such children or child would be entitled to as aforesaid unto
son suggested to me is this, it is quite plain he means it to go along the
whole line. I agree.
"So in the case of a man dying without a son attaining twenty-five. That
is not good although he means it to apply to the case of his having no son.
and there is none. It is not what he means as to the event, but whether
he has expressed the event on which the estate is to cease, so as to bring
one alternative within the limits, and if he has chosen to say the estate
is to cease first of all, as he might have said if a younger son becomes a
peer or attains the age of fifty, or any other event within the limits, or any
of the issue male of my younger sons shall become a peer, one gift over
might be valid, he might have said if any of my issue male shall become a
peer, or if the issue male of my younger son become a peer thereupon the
e.state shall go over, that would have been different, but I think I have no
right to alter the expression. The law is purely technical. The expressions
are there, and using them gives effect to the real intention. Why should I
go out of my way to extend technical law to a case to which it has not
hitherto been extended? It seems to me that I ought to read the expres-
sions as I find them. The event which is expressed has happened. It is
within legal limits, and I think the estate should go over."
538 RULE AGAINST PERPETUITIES (Part 4
the child or children of my said son and two daughter s havi ng iss ue,
if a son or sons, living t o the age of twenty-three years7~and, It a
d a ughter or c iaugnters, living to attain the age of tw entv-one years:"
if tw^o ot my said last-named children have such children or child, lo^
them, his or her heirs, executors, administrators and assigns, as tak-
ing in equal shares from his or her father or mother, his, her and their
heirs, executors, administrators and assigns."
El izab eth died in August 1838, having been married, but never h av-
i ng had a child . Upon her death, her brother and two sisters took
each one-third of the property devised to her as above. In March
1847 A nn dipfL- having been married, but also ne ver having had a
child. And thereupon Mrs. Ever s, being o ne of two children of John.
a CT being twenty-one years of age, claimed one-twelft h of the prop-
er ty~devisedto_^lizad)eth^^
h appened, the two children of John became entitled to~HaIf~6f th e
one-third ot the property devised to Elizabeth which had come to
Arfh upon he r death, and that she, as on e~ of them, was en titfed to the
hart ot this half, or one-twelfth of thewhole.
7\. special verdict was found, which stated the above facts : and
judgment was given by the Court of Queen's Bench for th e lessors of
the plaintiff. And upon this judgment the present writ of err or_is
brought. '
This will came under the consideration of the Court of Queen's
Bench in the case of Doe dem. Dolley v. Ward, 9 A. & E. 582 : and
both parties acquiesce, and, as we think, most correctly, in the pro-
priety of that decision.
We are to take it, therefore, as clearly established that by this will
the testator gave an estate for life to his daughte r, Elizabeth, with a
con tingent remainder in fee toner unborn children, which, on th e
bi rth oi a child, became a vested remainder in fee ; and that, upon
su ch child or children being born , but failing, if m ale, to attain twenty-
three, and, if fe male, twenty-one, then he gave Elizabeth's share over
by an executory devise to his other three c hildren equall y. Now it is
clear- thai Ll ils executory devise over would be void as too remote .
But in this part ot his will t he testator also provided, by a distinct and
separate clause, that, if Elizabeth should have no children, the pr op-
e rtv devised to her should go over in like manner to his three remain-
in g children . Now in that event (which happened) the contingen t
remai nder to Elizabeths ch ildren never vested; and so the devise
ov er took cttcct. not as an executory devise, but as a good co ntT ngen t
re mainder to the three other children of the testator, one ofwhom
w as the testator's daughter Ann .
In the event therefore whicK has happened, the devise was one to
Eliza beth for l ife, conti ngent remainder to her unborn issue (which
failed), co ntingent rem ainder, as to one-third, to Ann for life, with a
co ntingent r emainder in tee to Ann's unhqrh issu e, to become vested
on the birtli oi a childTahd^vith the devise over (on which the present
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 539
question turns) in favor of the children of her surviving brother John
and sister Sarah. Now Ann died never having had a child; and, con-
sequently, the contingent remainder in fee given to her children failed.
We must look therefore at the t_erms of the dev ise over.
They are as follows : "In case ofthe death of my saiTson or either
of my said two daughters without leaving a child, if a son, who shall
live to attain the ag e of twenty-thr ee years, or if a daughter, who
sh all attain the age of twenty-one yeafS, Igive tn e part and parts'
s uch children or child would be entitled to as a foresaTdirnto the^iil d
or children of my said son and two daughters having issue, if a son or
son s, hvmg to the age of twentv-three years , and, if a d aughter g r
dau ^iters, livmg to att ainth e age of tw enty^gne^yearsj^jfjyyo of my
said last-named children have such childr en o r child," &c.
Kow here thefe~a re i TOtTlTe two events which were separatelv and
d is tinctly mentioned in the former devise overT The event, if she shall
ha vT; no children, is not mentioned in terms at all,
The question between the parties is, w hether this devise over be
v oid or no t. It may be well admitted that the te stator intended to in -
clu de in these wo rds two pvpt|];<; : first, th e event of Ann having n o
ch ild at all ; for, certainly, if she never had a child, she must die with-
out leaving a son who could attain twenty-three or a daughter who
could attain twenty-one ; but, s qcondlv. he also intended to inc lude in
th ese same w^ords the compound event of her having a child and tnat
ch ild dying under the prescribed ag e. T his second event is, accord -
ing t o all the cases, too remote an e vent to take effect according to
1 a w. " 1 li e hrst, it it stood alone, is ie;^ ^i. ine tning to ne settled is
the principle upon which the court is to act.
In the first place, it seems established that th e time f^ rnns tfnp tViP
wi ll is at the testator's death. The devise must be legal at that time,
to 'oust the heir-at-law. Now, at the death of the testator and in the
lifethne of x\nn, how would this devise have been construed? For it
is not sufficient that, on the happening of certain events, the devise
may take effect, and, if limited to these events originally, would have
been valid : but it ought to be shown that the devise of the testator
must be valid and legal in all the events contemplated by him.
This, we think, is the principle contained in the passage of Sir W.
Grant's judgment in Leake v. Robinson, 2 Meriv. 390, in which he
says : "Executory devise is itself an infringement on the rules of the
common law, and is allowed only on condition of its not exceeding
certain established limits." In a devise to a class, therefore, the courts
do not split the devise into its parts and give effect to the legal part
of it. For this, says Sir \V. Grant, is to make a will for the testator.
He says : "I give my property to the wdiole of this class," It may
be that the persons to whom he is not permitted by law to give it are
the very persons in favor of wdiom he includes the whole class in his
bounty : and therefore, in splitting the devise into its parts, you may
perhaps violate his will, even as to those to whom you give it. If he
540 RULE AGAINST PERPETUITIES (Part 4
separates the devises himself, it is not so. Here the meaning, and
the true meaning, of this clause is, In every event which can happen
in which Ann dies leaving no child who if male attains twenty-three
or if female twenty-one, I give the estate over. That is what he says,
and what he means. He includes all these events in one class. Some
are legal, some illegal. How is the court to separate these events,
which the testator has expressly joined together, without making a
will for him?
The principle, therefore, seems to be against splitting such a devise
when we are considering the question wnetner it is a legal one. Now
this qTT5snon';-it is conceded, ITmyi hH dt^let-tnhiea as on readmg the
will at the instant of the testator's death. Do the cases cited affect
this principle ?
On looking at them, we find that in all of them the devise in any
event was legal, and that it was competent to the testator to make it.
In Jones v. Westcomb, 1 Eq. Ca. Abr. 245, the case on which the
Court of Queen's Bench proceeded, this was so. That was a bequest
to the wife for life, and, after her death, to the child with which she
was supposed enceinte, and, if such child should die before twenty-
one, then, as to one-third, to his wife, and two-thirds to other per-
sons : and it was held, the wife not being enceinte, that the bequest
over took effect. But, if the testator had distinctly expressed all that
the court held to be included in the words he used, the whole would
have been still legal. This is not an authority, therefore, for splitting
a devise and giving effect to the legal, rejecting altogether the illegal
part of it. Gulliver v. Wickett, 1 Wils. 105, which is in truth the same
case, only applying the will to real estate, is to the same effect. And
the observations of the court in this latter case, as to the validity of
the executory devise over, if it took effect as an executory devise, were
material if this necessity for the devise being legal in all the contin-
gencies contemplated by the testator be the true principle on which
the court acts, and may reconcile the observations of Mr. Fearne
(Cont. R. p. 396) with those of Bavley, J., in Doe dem. Harris v.
Howell, 10 B. & C. 191, 200. Meadows v. Parry, 1 Ves. & B. 124, is
to the same effect. These cases are fully explained and put on a very
clear principle by Sir W. Grant in Murray v. Jones, 3 Ves. & B. 319.
They show, no doubt, that the existence and failure of the children to
whom the provisions limited is made is not in all cases, and was not
in these cases, a condition precedent to the devise over. But they
show no more, and do not at all apply to the question now before the
court, whether, if one of the contingencies be illegal, the single devise
which includes that contingency with others becomes void. If Lady
Bath had separately stated in her will the two contingencies, in either
of which Mrs. Markham was to take, each would have been legal ;
and the court held that her including them in one expression made no
difference. It is like expressing the individuals of a class, all of whom
can legally take, and including all those individuals in a class which is
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 54 J
good. But the reverse is true if some of the individuals cannot legally
take. There, if expressly named, the will is carried partly into effect.
If classed, it is void altogether.
Suppose that this had been the limitation in a deed : To Ann for life,
remainder to her children in fee, and, if she have none who, if a male,
attains twenty-three, or, if a female, attains twenty-one, then over : it
is, we apprehend, clear enough that such a limitation over would be
void altogether at the common law. It may however, says Mr. Fearne
(Cont. R. p. Z72)), be good in a will, or by way of use, upon a contin-
gency to happen within a reasonable period. Now, if so, must the
contingency here so happen ? We think not : for it may go beyond
the time allowed by law, if the natural and full effect be given to the
words of the testator.
For these reasons, we think that the judgment of the Queen's Bench
must be reversed.
Tud o-ment reye rsed.
The case was then t)rought to th^Jiouse of Lords.
The judges were summoned, and Mr. Justice Wightman, ]\Ir. Jus-
tice Williams, Mr. Baron Martin, Mr. Justice Crompton, ]\Ir.
Baron Bramwell, and Mr. Baron Watson attended.
ThE' Lord Chancellor [Lord Chelmsford] moved that the fol-
lowing question be put to the judges :
Neither of the testator's daughters, Elizabeth Maria and Ann, ever
having had any issue, and Ann, the survivor, having died in 1847, does
the will contain any valid devise on her death to the children of John
and Sarah of the property originally given to Elizabeth Maria and
Ann respectively for their lives?
Mr. Justice Wightman. My Lords, for the purpose of consider-
ing the question proposed by your Lordships, it will not be necessary
to state in detail the terms of the devises and limitations in the will,
as they are stated shortly in the case of the defendant in error, and
somewhat more at length, but very distinctly and correctly, in the
judgment of the Court of Exchequer Chamber.
The question in effect is, whether thejCpurt of Queen's Bench was
right in holding that the devise over to the children of John and Sarah
took effect as a contingent remainder on the death of Ann without
issue, or whether the Court of Exchequer Chamber was right in hold-'
ing~that the devise over to the children of John and Sarah was one
indivisible executory devise which could not be split or separated into
two^ parts. ^ """^
Upon this point the decision of the Court of Exchequer Chamber
seems to be mainly founded upon the judgment of Sir William Grant
in the case of Leake v. Robinson, 2 Mer. 363. In that case the limi-
tation over was to the whole of a class, of whom some were capable
and others incapable ; and it was held by Sir William Grant that such
a limitation could not be divided and be good as an executory devise
for such as were capable, and bad for those that were incapable. The
542 RULE AGAINST PERPETUITIES (Part 4
class was indivisible, except by the testator himself, for if divided after
his death it mig-ht be that the persons of the class who were by law
incapable of taking in remainder were the very persons in favor of
whom he included the whole class ; and therefore, if the devise were
split, the persons who would take might not be those whom it was the
intention of the testator to benefit.
But the present case is upon this point c learly distinp-uish ahlp ; and
th e limitation over seems to be in its nature divisihlp^ the havincy nn
ch ild at all being one contingency, and the havino- a child wlii ch^ if a
son, does not reach the age of twentv-three. or if a female, twen tv-
/one, being th e othe r. In Do e d. Herbert v. S elby, 2 B. & C. 926, it
UJ. wis held tnat an estate might be devised over in either of two events,
and that in one event the devise may operate as a contingent remain-
der, and in the other as an executory devise, and the Court of Queen's
Bench in the judgment in the present case considers that it was gov-
erned by the case of Doe v. Selby.
It is admitted by the Court of Exchequer Chamber that by the
words used by the testator in the limitation over, he intended to in-
clude two events, first, the event of Ann never having a child at all,
and the compound event of her having a child, and that child dying
within the prescribed age. The first event, if it stood alone, was lega l.
T h e second event was too remote to take effect according to law .
The Court of Exchequer Chamber, however, was of opinion, that the
testator included all these events, some legal, others illegal, in one
class, and that the court could not separate them ; that the true mean-
ing of the clause was, "in any event which can happen in which Ann
dies leaving no child, who, if male, attains twenty-three years, or if
female, twenty-one, I give the estate over."
The whole question, therefore, as before observed is, whether the
clause for carrying the estate over is divisible or not. If it is, the
appellants ought to succeed, if not, the respondents ought to succeed.
The terms used in the limitation over include two contingencies ;
would there have been any real difference if the terms had been to
Ann for life, with remainder to her children in fee, and if she has no
child, or if she have a child who if a son shall not attain twenty-three
years, or if a daughter who shall not attain twenty-one years, then
over? In such case it can hardly be doubted but that the estate would
be devised over in either of two events, and that in one event the de-
vise over would be good as a remainder, though the second alternative
would be objectionable as an executory devise on the ground of re-
moteness. The Court of Exchequer Chamber remarks that in the
case of Jones v. Westcomb, Gulliver v. Wickett, and the other cases
cited upon the argument, the limitations over, whether divisible or
not, were in any event legal, and those cases, therefore, do not affect
the question in this, which turns upon the divisibility of the contin-
gencies ; and, commenting upon the case of Murray v. Jones, the
court observes, "That if Lady Bath had separately stated in her will
Ch. 5) LIMITATIONS AND IXDEPEXDENT GIFTS 543
the two contingencies in either of which Mrs. Markham was to take,
each would have been legal, and her including them in one expression
made no difference. It is like expressing the individuals of a class all
of whom can legally take, which will be good ; but the reverse is the
case if some of the individuals cannot legally take." That was the
case in Leake v. Robinson, which is clearly distinguishable from the
present, for the reasons already stated ; and it may indeed be cited as
an authority to show that the limitation over in that case might have
been good, if the terms used had been such as to separate such part of
the class as could take from such as could not.
N o case or authority has been cited to show that where a devis e
ov er mcludes two contingencies which are in their nature divisible, and
o ne~ot which can operate as a remainder, they mav not be divided
thou gli included in one expression : and our opinion does not at all
confli ct with the authority of the cases of Proctor vTT he P.ishnp oT
Bar i^ and ^ ;\ells^Z H. Bl. 358. and Tee v. Audlev. 1 Cox. C. C. 324/in
neither ot whi ch "cases was it possible for t h^ limit; ^ t i'^ n over to oper
ate aS Z femamder.
Ave are therefore of opinion, for the reasons we have given, that
the Court of Exchequer Chamber was wrong in holding that the con-
tingencies in the limitation over could not be separated ; and as that
was the ground of the decision, it is unnecessary to enter into the con-
sideration of various points which were made, and cases which were
cited upon the argument before your Lordships, as we think that the
devise was divisible, and that the judgment of the Court of Queen's
Bench was right, and that the will contained a valid devise on the
death of Ann to the children of John and Sarah of the property origi-
nally given to Elizabeth Maria and Ann respectively for their lives.
Lord Cranworth. My Lords, in this case I do not propose to
trouble your Lordships by going over the facts, or stating the terms
of the devise. The will has been so fully considered, that after the
unanimous opinion which we have received from the learned judges
upon its construction, I think it is unnecessary for me to do more than
to state to your Lordships that I concur in the opinion of the judges,
and very shortly to state the grounds of that concurrence.
I think that the gift to the children of John and Sarah on the death
of Ann without issue in 1847 took effect as a contingent remainder
and not as an executory devise, and so was good ; because when the
particular estate determined, the contingency on which the remainder
was to take effect had happened.
On the death of Ann, the testator gives what she had enjoyed for
her life to her children, that is, sons at the age of twenty-three and
daughters at twenty-one. This devise, according to the decision of
the Court of Queen's Bench in Doe d. Dolley v. Ward, would, if Ann
had left any children, have given them a vested estate in fee simple
with a subsequent executory devise, or attempted executory devise to
the children of John and Sarah in the event of the sons dying under
544 RULE AGAINST PERPETUITIES (Part 4
twenty-three. This would have been bad for remoteness. But in the
event which happened the gift to the children of Ann never took
efifect, so that the question as to the remoteness of the gift over on
the death of those children under twenty-three never arose. On the
death of Ann, the contingency on which one sixth of the shares of
Elizabeth and Ann was given to the children of John had happened,
for Ann had then died without any child who could attain the age of
twenty-three years ; and there is no rule which could prevent the es-
tate from then vesting in those to whom it was given on a contingency
which happened at the instant when the particular estate determined.
The case is not distinguishable in principle from Gulliver v. Wickett.
There, it is true, the devise over, if there had been a child, was on an
event not too remote, and which, therefore, might have taken effect.
In that respect it differs from the present case ; but the court held
that the devise in the event which did happen, of there being no child,
took effect, not as an executory devise, but as a contingent remainder.
I state that, although I know that a very high authority, Mr. Fearne
(Cont. Rem. 9th Ed. p. 396), says the contrary; but looking at the
case, I can come to no other conclusion. The note of the reporter, at
page 106, appears to me to show that he did not fully appreciate the
force of Chief Justice Lee's language, which seems to have been studi-
ously framed with the view of showing that in one event, that which
did not happen, namely, the event of there having been a child, the
gift over must have taken effect (if at all) as an executory devise, but
in the event which did happen, namely, there being no child, the gift
took effect as a remainder. The language is this ; after stating the
case, he says, taking the proviso to be a limitation, and not a condition
precedent, these cases amount to a full answer (the cases he had re-
ferred to), and therefore we are all of opinion, "That the true con-
struction of this will is, that here is a good devise to the wife for life,
with remainder to the child, in contingency in fee, with a devise over,
which we hold a good executory devise, as it is to commence within
twenty-one years after a life in being, and if the contingency of a child
never happened, then the last remainder to take effect upon the death
of the wife ; and the number of contingencies is not material, if they
are all to happen within a life in being or a reasonable time after-
wards."
Now, I am aware that Mr. Fearne treats the gift as an executory
devise, and not as a remainder. But this is directly at variance with
the language of the court (which I have just read), and as I think with
the well-understood distinctions between executory devises and con-
tingent remainders. If the language of the gift over had been that,
"In case of the death of my said son, or either of my said two daugh-
ters without leaving a child who shall attain the age of twenty-three
years or without ever having had a child, then I give the share of
such son or daughter unto the children," &c. ; surely, on the happen-
ing of the latter alternative, namely, the death of one of the daughters
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 545
without ever having had a child, the children taking under the gift
over, would have taken a remainder. They would have taken an es-
tate expressly given to them on the determination of the preceding
life estate, given to them, it is true, on a contingency which, according
to the hypothesis, would have happened at the instant when the par-
ticular estate came to an end. I can see no distinction, when we are
only construing the language of the will, between the case where the
contingency of dying without having had a child is, as I have suggest-
ed, expressed, and wdiere it is implied, as it is in the present case.
There is a contingent remainder in fee to the child of the tenant for life
if she had had one ; if she had none then there is a gift to others in
fee ; the contingency must be determined at her death ; and whether
the result should be to give the estate to her own child, or to the chil-
dren of her brother and sister, in either case the gift must take effect
as a remainder, for no prior estate is divested or displaced.
It is true that if the former alternative had happened, that is, if the
daughter, tenant for life, had left a child, then there was a gift over
on the death of that child, wdiich was void for remoteness. That gift
over could only take efifect, if at all, as an executory devise ; for it
would be a gift over divesting the fee simple given to the child of the
tenant for life. But I see no reason for holding that because in one
alternati ve the gift must have operated as a n execut ory devise, there-
fore It must do so in the other. In the case which has happened there
is'S'giit to the children ot the" surviving son and daughter taking efifect
immediately on the termination of the preceding life estate, and which
therefore is unobjectionable.
I therefore entirely concur in the unanimous opinion of the judges,
that the judgment of the Exchequer Chamber reversing that of the
Queen's Bench was wrong.
Lord WenslivYDALE. My Lords, I entirely agree with the learned
judges in the answer which they have given unanimously to the ques-
tion which your Lordships proposed to them, and in the advice given
by my noble and learned friend who has preceded me.
The facts of the case upon which the question arises are very suc-
cinctly and distinctly stated in the judgment of the Court of Exchequer
Chamber delivered by the late lamented Baron Alderson, and no
fault can be found with any part of it prior to that relating to the
clause which the judges in the Court of Exchequer Chamber held that
they could not construe divisibly ; nor can any objection be made to
the principles of construction which the court laid down, except as to
that particular clause.
The court held it to be clearly established that the testator gave an
estate for life to his daughter Elizabeth Maria, with a contingent re-
mainder in fee to her unborn children, which became vested on the
birth of a child, and that upon such child or children being born, but
failing, if a male, to attain twenty-three, and, if a female, twenty-one,
4 Kales Prop. — 35
546 RULE AGAINST PERPETUITIES (Part 4
then he gave Elizabeth Maria's share by executory devise to his three
other children equally. That executory devise was too remote. But
he also provided by a distinct clause that if Elizabeth Maria had no
child the property should go over in like manner to his three other
children ; and that event having happened, the devise over took efifect,
not as an executory devise, but as a good contingent remainder to his
three other children, one of whom was Ann. She died, never having
had a child, and the contingent remainder in fee to her children failed.
And the question arises on the terms of the devise over, in which the
court observes there are not the two events which are separately and
distinctly mentioned in the former devise. The devise over, if she
shall have no children, is not mentioned in terms at all.
The court admitted that the testator intended to include in the
words of the clause the double events, first of Ann having no child at
all (for, certainly, if she never had a child, she must die without leaving
a son or daughter who should attain the required age), and, secondly,
the compound event of her having a child, and that child dying under
the prescribed age. But the court did not feel itself at liberty, in the
case of an executory devise, so to construe the clause, but acted on
the principle that a devise to a class, as Sir William Grant held in the
case of Leake v. Robinson, could not be split.
In concurrence with the opinion we have received from the learned
judges, I think, this is a mistake. The gift to a class is a gift to a
body of persons, uncertain in number at the time of the gift, but to be
ascertained at a future time, and who are all to take equally, the share
of each depending, as to amount, upon the ultimate number of per-
sons (see 1 Jarman on Wills, 287-295), and that ultimate number is
incapable of being ascertained within legal limits. Such a devise as
this, Sir William Grant held he could not split into portions, for that
would be to make a new will. But that doctrine is entirely inapplica-
ble to this case. There is nothing to prevent the construing of the
clause in the first instance, and ascertaining its proper meaning,
though it be an executory devise, and having ascertained its meaning,
to apply the rules of law to it. So doing in this case, there cannot be
a doubt that the meaning of the clause is what the Court of Queen's
Bench suggests it to be, and its legal efifect is precisely the same as if
the testator had provided, in express words, for the event of Ann
having no children, as he had done in the former clause as to Eliza-
beth having none. So reading this clause, th ere is no doubt that in
the event which happened of Ann having no chi ldren, the gift ov er
tooK ettect Dy way ot cont mgent remamden
RbRD Chelmsford. My Lords, the question jn this case is, wheth-
er the devise over in case of the testator's daughter Ann dying with-
out issue, or in case of all the children which she might have dying, if
a son, under the age of twenty-three years, or if a daughter, under
the age of twenty-one years, will embrace the case, which is not ex-
pressly mentioned, of the daughter Ann never having a child at all ;
Ch. 5) LIMITATION'S AND INDEPENDENT GIFTS 547
and if so, whether the devise over is good in that event, or whether it
must not all be taken together, and the part with respect to the sons
dying under the age of twenty-three being too remote an event to
take effect according to law, the whole devise must not be held to be
void.
Both the Court of Queen's Bench and the Court of Exchequer
Chamber consider that the devise in question included the case of the
daughter Ann having no child ; Mr. Baron Alderson, who delivered
the opinion of the Court of Error, saying : "It may be well admitted
that the testator intended to include in the words two events : first,
the event of Ann having no child at all, for certainly, if she never had
a child, she must die without leaving a son who could attain twenty-
three, or a daughter who could attain twenty-one ; but secondly, he
also intended to include in the same words the compound event of her
having a child, and that child dying under the prescribed age." But
the Court of Queen's Bench held that the limitation might operate as
a contingent remainder, in the event of Ann having no child, which
would of course take effect, if at all, upon the determination of her life
estate, although, if she had died leaving children, the limitation would
have been void, as it would then only take effect as an executory de-
vise, and would be bad as being too remote. The judges in the Court
of Exchequer Chamber, on the contrary, held that, although the limi-
tation inchided the event of Ann's having no child, which would of
course, if it had stood alone, be a perfectly vahd bequest, to take effect
on Ann's death, yet that being entire and indivisible, and part of it
depending upon an event too remote to take effect according to law,
it was altogether void. The ground upon which they proceeded was,
that a devise upon different contingencies can only be split into its
parts, and effect given to one part of it, where all the contingencies
contemplated by the testator are legal, and for this reason they dis-
tinguished the case of Jones v. Westcomb upon which the Court of
Queen's Bench proceeded, and the case of Gulliver v. Wickett, which
was upon the same will, from the present case. But it appears to me
that the distinction is not to be supported either upon principle or by
authority. It is conceded by the Court of Error that the limitation
in question involves a contingency with a double aspect, depending
upon events which are distinct and separate from each other. The
alternative contingencies must therefore be taken as if they had been
separately and distinctly expressed. Why then should the words of
contingency, on which the void estate was intended to be limited,
affect the valid estate to which they do not apply?" And can there be
any difference in principle between cases where'fhe alternative lifnita-
tions, though distinct and separate in their nature, are both involved
in words which apply equally to and include within them both the
limitations and those where each of the limitations is separately ex-
pressed by its appropriate description? If this is so, the opinion of
the Court of Exchequer Chamber is opposed to the authority of the
548 • RULE AGAINST PERPETUITIES (Part 4
cases of Leake v. Robinson, Goring v. Howard, 16 Sim. 325, and oth-
er cases which relate to personal property, and Alonypenny v. Dering,
2 De G., AI. & G. 145, which is a case of real property. The case of
Proctor V, The Bishop of Bath and Wells was pressed upon your
Lordships as a conclusive authority in favor of the defendant ; but it
appears to me to afford him no assistance. In that case there was no
possibility of the limitation ever taking effect independently of the
first devise. It was limited upon the event of Thomas Proctor having
no son capable of entering into holy orders. This must necessarily
have been contingent during the life of Thomas Proctor, the devise
over was wholly dependent upon it, and as the court said, "The words
of the will could not admit of the contingency being divided." If the
devise over had been in case Thomas Proctor should have no such
son at the death of the testator, it would have been more hke the
present case, and would have exactly resembled Monypenny v. Der-
ing, and there would have been no doubt, notwithstanding the invalid-
ity of the devise to the son of Thomas Proctor, that the alternative
limitation would have been good.
I therefore concur in the opinion which has been expressed by my
noble and learned friends, that the judgment of the Court of Queen's
Bench was correct, and that the judgment of the Court of Exchequer
Chamber reversing that judgment was erroneous, and ought to be
reversed.
Lord Brougham. My Lords, I entirely agree with all my three
noble and learned friends who have addressed your Lordships, and
with the learned judges who, after full consideration, have given a
clear and unanimous opinion upon the subject. As to the cases, of
which there are several, I need not go into them. One of them is
Proctor V. The Bishop of Bath and Wells. In that case there was no
particular estate to support the contingent remainder, and it was
clearly an executory devise. There were also several other cases
which I need not go into, as my noble' and learned friends have refer-
red to them. I therefore move your Lordships to pronounce judg-
ment for the plaintiff in error, reversing the judgment of the Court of
Exchequer Chamber, and setting up the judgment of the Court of
Queen's Bench.
Judgment of the Cour t of Exchequer Chamber rev ersed, and judg-
ment given tor the" plaintiff in error.^
5 The principal case was misapplied in Watson v. Toung, 28 Ch. D. 436
(1S85), but its correct application was made in In re Bence, [1891] 3 Ch.
242, and in In re Hancock,, [1901] 1 Ch. (C. A.) 4S2,''aud [19021 A. C. 14,
where the misapplication in Watson v. Young was noted.
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 549
STORRS V. BENBOW.
(Court of Chancery, 1853. 3 De Gex, M. & G. 390.)
The Lord ChancEIvLOR ® [Lord Cranworth]. I was perfectly
prepared to dispose of this case three months ago, but was told that
the point was very much the same as that raised in Gooch v. Gooch,
3 De G. M. & G. 366, and that the parties therefore wished the matter
to stand over until that case was disposed of, thinking it might have a
material bearing upon the present question. I confess, however, that
this appears to me to be a perfectly clear case, and to be independent
of any decision in Gooch v. Gooch.
The question arises upon a clause in a codicil which is in these
words : "Item. I direct my executors to pay by and out of my per -
sonal es tate exclusively the sum of £500 apiece to each child that may
b( ^born t o either of the children of either of my brothers lawfully te-
goTten, to be paid to each ot them on his or her a ttainmg the age"o f
twenty-o ne years without beneht ot survivorship." This is a money
legacy to each child of any nephew the testator had or might have.
The testato r had brothers living ; but there might be legacies .too_re-
m ote, because the gift included legacies to~children of a chi ld not yet
born .
Tlie bill was filed twenty or thirty years ago ; and the cause was
heard before Sir John Leach. The argument then was, that the gift
was too remote; but Sir Tohn Leach thought that, according to the
true construction of the clause, chil dren born in the lifetime ot th e
testalot' weie i neant. and therefore he said the gift could not be too
remote, lor it only let in children that mi^ht be bo rp bofwopn fhp r]atp
o f the will and the deatlT A decree was accordingly made declaring
that tlie children in esse only at the time of the death of the testator
were entitled to the legacies, and it was referred to the master to in-
quire, &c. The master found that the p laintiff was in esse in this
se nse ; namelv. that the testator died in October and the piaintitt was
born six month s atterwards ; and 1 think he was so. The quesiion
then Is whether he is entitled; I am of opinion tliat he certainly is ;
for he was a child in esse within the meaning put upon the clause bv
S ir John Leac h.
There are th ree way s in which this g ift might be interpre ted : it
might mean children that were in esse at the date of the wi ll : it might
mean children that might come into esse in the lifetime of the testator ;
and it might mean c hildren born at any time . I own it seems to me
that th jc^ gpnt lpmnn k pntitled quacunque Via. If it was to the chil-
dren then in being, he would, I think, be probably within the meaning
of such description; but if it was to children to come in esse in his
lifetime and afterwards to be born, it seems to me that a child in ventre
« The opinion onl}- is here given.
550 RULE AGAINST PERPETUITIES (Part 4
sa mere at the death of the testator was a child "hereafter to be bom"
within the meaning of the provision.
The rule that makes a limitation of this kind mean children at the
death of the testator is one of convenience : a line must be drawn
somewhere, otherwise the distribution of the testator's estate would be
stopped, and executors would not know how to act ; but that rule of
convenience cannot be applied to exclude a child certainly within the
meaning of the limitation, in the absence of any contrary expressed
intention of the testator. I think therefore that Sir John Leach was
right, supposing the interpretation of the will to be what I have stated,
and that this child certainly comes within the description. I must add,
h owever, that I do not sav that the gift was at all remote it iL -uigant
a child to be born at any time, because this is not the case of a class ;
it is a gif t of a pecuniary leg acy of a particula r amount^to every child
of every nephew which the testa tor then had, or of every nephew that
mi ght beTorn af ter his death, and is ther efore good as to the childr en
of t he nephews h'eni eii had, and b ad as to the_children of nephew s to
be lborn after his deatT T
It would be a mistake to compa re this with Leake v. Robinson, 2
Mer. 363, and other cases where the parties take as a . class ; tor the
difficulty which there arises as to giving it to some and not giving it
to others does not apply here. The question of whether or not-the
children of after-born nephews shall or shall not take, has no bearing
at all upon the question of whether the child of an existing nephew
takes ; the legacy given to him cannot be bad because there is a legacy
given under a similar description to a person who would not be able
to take because the gift would be too remote. I give therefore ^q
positive_02i nion upon the po int of remoteness generally in this case,
because I think that quacunque via, on the construction of the will,
there~is nothing~to~7ustity the exclusion fr om ta king of a^ild who
waFcbnceived at the death of the testator~anci born~si?rTrr"seven moiitli s
afterwards! If the wor"ds~iF"questionlTieant children who though not
theiFiiT existence should be in existence at the death, the plaintiff was
in existence at the death ; and if they mean children born at any time,
he was born and must have been born if at all within such a time as
made his legacy not remote. I am therefore of opinion that in any
way he is entitled
CATTLIN v. BROWN.
(Court of Chancery, 1853. 11 Hare, 372.)
The question arose upon a devise by Frances Bannister, who died
in 1805, to T homas Bannister Cattlin for lif e, with remainder to al l
and e very the child and children of the said Thoma s^annister Cattlin,
d uring their natiiral live s, in equal shares if more~than oneJan^L^hj^
the decease of airy or either of such child or children, then the part
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 551
or share of him, her, or them so dying unto his, her , or their child or
ch ildren lawfnlly b egotten or to be begotten, and to his, her, or their
h eirs forever, as tenants in common.
The testator died in January, 1805.
Thoma s Bannister Cattlin had issue five childre n; namely, George,
Emma, Cecilia, Caroline, and Clement , who w ere born in the lifetime,
and were living at t he deatli_Df Ike. testat o_r; and one child named"
Judee, who became the wife of Adam Brown, and went to India in
1828, and it is presumed died on her passage or immediately after her
arrival, as she was not afterwards heard of, and who left issue sev-
eral children, some of whom survived Thomas Bannister Cattlin the
tenant for life. Caroline, one of the children, who survived the tes-
tator, had also issue several children. Th omas Bannister Cattlin also
had o ther issue, ten children , Thomas IMagnus, Charlotte, Frederick
Wilham, Eliza, Frederick Fisher, William, Emily, Clarissa, Alary, and
Susannah, born after the decease_gfjtlieJjestator, Of these, two, Fred-
erick William and Jihza, diedin his lifetime without having had any
issue. Several of the other children who were born after the death of
the testator had issue.
The devised estate was su bject to a mortgage created by the t es-
tator for securing the payment of £2000 and interest; and under'^he
decree of the court, made in 1843, the same estates w^ere conveyed in
fee by way of mortgage to secure £2574 and interest, which was raised
to pay the debts of the testator.
The authorities referred to are mentioned in the judgment, with the
exception of Griffith v. Pownall, 13 Sim. 393, which is to the same
effect as the cases referred to in the fifth rule. (Infra, page Z17 [see
p. 554, this volume].)
Vice-Chancellor [Sir William Page Wood]. The point in this
case is one of some novelty, and I therefore propose to state somewhat
fully the reasons that have led me to the conclusion to which I have
come.
The question arises on a short devise to Thomas Bannister Cattlin
for life, and after his decease to all and every his children or child,
for their lives, in equal shares, and after the decease of any or either
of them, the part or share of the child so dying unto his, her, or their
children or child, and his, her, or their heirs forever, as tenants in
common.
There were some children of Thomas Bannister Cattlin in esse at
the death of the te.;tator, and others who were subsequently born ; and
the question which has been argued is, w hether the remainder in fee
tn an y of the <rrandrhi1dren could take effect, it being ad rnitfed thnt the
rem ainder in fee to _t he children of those children of Thoma.S_^ Ban-
nister Cattlin who were born after the death of t he testator _can not take.
effecf
The first observation that arises in this case is, that the limitations
are none of them bv way of executory devise, but are limitations of
552 RULE AGAINST TERPETUITIES (Part 4
contingent rema inders . I apprehend, however, that a contingent re -
manider can noFbe limited as depending on tlie t'"'"'^ii"ation of a par-
tic ular estate, whose d eterminatio n will not necessarily t ake place with-
in~t he period allowed bv_ la\v . Tt has been sometimes a question
whether a limitation over beyond the period might or might not be sup-
ported as a good contingent remainder, on the ground of its destructi-
bility in the lifetime of the tenant for life. Mr. Jarman in his learned
work discusses the point, and observes, "the same species of reasoning,
by which a remainder or an executory limitation, to arise on the de-
termination of an estate tail, is supported, might seem to apply to a
contingent remainder, which is liable to be destroyed by the act of the
OAvner of the preceding estate of freehold, no estate being interposed
for its preservation ; but the writer is not aware of any authority for
the application of the doctrine to such cases. If, therefore, freehold
lands, of which the legal inheritance is in the testator, be devised to A.
for Hfe, with remainder to his eldest son who should be living at his
decease for life, with remainder in fee to the children of such eldest
son who should be living at his (the son's) decease ; although A. in his
lifetime might destroy all the remainders, and the eldest son after his
(A.'s) decease might destroy the ultimate remainder in fee devised to
his children, Avithout being amenable either at law or in equity to the
persons whose estates are thus destroyed, such ultimate remainder
would, nevertheless, it is conceived, be void for remoteness, on the
ground that the destruction in these cases is efifected by what the law
calls a tortious or wrongful act (though it is a Avrong without a rem-
edy), the perpetration of which is not to be presumed." 1 Jarm. Wills,
226. The latter observation applies very strongly to this case, for here
t he leg al estate is outstanding and subject to a mortgage, and the party
in whnm surh Ipp-rI estate ^ s vesterrwoiikl be, ill effect, a triistee to sup -
po rt the contingent reniainder, the destruction of which, under such
circumstances, could only be effected by an act which would be doubly
tortious. The rule is stated in the able argument of J\lr. Preston, in
Mogg V. Mogg, 1 Mer. 654. He says, "A gift to an u nborn child for
life is good, if it stops there ;_bu^if^a rema inder i s adde d to his^chil-
dreri_orjissueaspurcl^ tliere be^ a liniitation
of the time within which it is to Jake effect." Id. 664. That is, I thTiik,
a perTectly accurate statement of the law which I am to apply to this
case.
I am bound, however, in this case, to look at the whole question, a nd
to con sider how it would stand o n the doctrine which has been est ab-
lished' w TtlT regard to gitts by way ot executory devis e"
The first rule is, that an executory devise is bad unless it be clear,
at the death of the testator, that it must of necessity vest in some one,
if at all, within a life in being and twenty-one years afterwards. This
principle will be found expressly stated in the opinion delivered by the
present Lord Chancellor, when advising the House of Lords in the
case of Lord Dungannon v. Smith, 12 CI. & Fin. 546, 570.
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 553
The second rule is, that you must ascertain the objects of the testa-
tor's bounty, by construing his will without any reference to the rules
of law which prohibit remote limitations ; and having, apart from any
consideration of the effect of those rules in supporting or destroying
the claim, arrived at the true construction of the will, you are then to
apply the rules of law as to perpetuities to the objects so ascertained.
Thirdly, if the devise be to a single p erson ans\vering a_given de-
scription at a time beyond the limits allowed by law, or to a series oI~
si ngle mdividuals answering a given d escriptjon^n H any one member
of the series intended to take may by possibility be a person excluded
by the rule a s to remoteness, then no person whatever~can"take, be-
ca use the test ator has expressed hisjntentTon_to include allTandlTor^to
give to one excluchiTg otTiers. One of the earliest cases affirmmgThis^
rule" Is that ot Proctor'vrThe Bishop of Bath and Wells, 2 Hen. Bl.
358. The devise in that case was of an advowson, in fee, to the first
or other son of Thomas Proctor, the grandson of the testatrix, that
should be bred a clergyman and be in holy orders ; but in case he
should have no such son, then to another grandson of the testatrix in
fee: and it was held that the first devise was void as depending on
too remote a contingency ; and that the latter limitation, as it depended
on the same event, was also void, for the words of the will would not
admit of the contingency being divided. In the recent case of Lord
Dungannon v. Smith, 12 CI. & Fin. 546, it was sought, in support of
the bequest, to show that one of the series of persons who might be
the heirs male of the body of the grandson, might take within the pre-
scribed period, and was not therefore within the objection ; but the
answer was, that "there was no gift to him in terms different from
the gift to all others who may be able to bring themselves within the
terms of the gift," and that "\vhere j^jtestatoi^as made a generaLbe-
quest, einlim£iag— ar-ggeat^amnber^iaf p o ssibl e obj^cts^- thexe is no_aii-
thorit y for holding th at a court can so _mnuld it as-to say that ij tjsdi-
visi ble intn two classes, the o np embrarin^jhe la wful, the other the un-
la wful objects of his bounty ^" 12 CI. & Fin. 574.
The fourth rule is, that where the devise is toa clas s^f_persons an-
swering a given descr iption7 and any membej^ of ^that class~niay~po s-
si blyTi a^ 'e to^e^rertri ined at a period exceeding the limits allowed by
l aw, the same consec|uenc e follows as in the preceding rule, and for
th e same reason^ You cannot give the whole property to those who are
in fact ascertained within the period, and might have taken if the gift
had been to them nominatim, because they were intended to take in
shares to be regulated in amount, augmented or diminished, according
to the number of the other members of the class, and not to take ex-
clusively of those other members. Of this rule the cases of Jee v.
Audley, 1 Cox, 324, Leake v. Robinson, 2 Mer. 363, and Gooch v.
Gooch, 14 Beav. 565, are illustrations. Jee v. Audley was a strong
case of that class, for there all the children actually in esse might have
554 RULE AGAINST PERPETUITIES (Part 4
taken, and it was only the possibility that there might have been in-
capable children, which excluded those who were capable.
The fifth and last rule to which I need to advert, is this, — that w here
there is a gift or devise of a given sum of money or property to each
meiTTber'oF a class, and the gift to each is wholly independent of the
sanre or similar gift to every other member of the cFass Tah d cann otjbe
augmented or diminished whatever be the number of the other mem-
bers, theYVth e gi ft may be ^ood as to those within the limits allowed by
law^ This was settled in the case of Storrs v. Benbow, 2 MyT. & K.
46. That was a gift of £500 apiece to each child that might be born
to either of the children of the testator's brothers, without benefit of
sur^'ivorship. The legacy of £500 to each of the children living at the
death of the testator, who alone could take, was unaffected by the num-
ber of subsequently born children, who were excluded ; and the ex-
clusion of the latter did not therefore affect the children who were
capable of taking under the bequest. The last rule, in fact, amounts
to no more than this, — that the gift being single to each party, you
have only to consider whether that particular gift must of necessity
vest, if -at all (according to the first rule), within the limit allowed by
law.
Let us now consider the facts of the present case, and apply the rules
which have been stated to those facts ; and inquire whether the gift be
or be not to a number of persons in shares, which, being distinctly as-
certained and settled, are incapable of augmentation or diminution.
And here I would observe, that it at first appeared to me that there
was no distinction between the present case and the late case of Green-
wood V. Roberts, 15 Beav. 92, where there was a gift of an annuity to
the testator's brother, and, after the decease of the annuitant, to and
amongst such of his children as might be then living, in equal shares
during their lives, with a provision that at the decease of any of them,
so much capital as had been adequate to the payment of the annuity to
which the child so dying had been entitled during his or her life, should
be forthwith converted into money, and divided equally amongst the
children of him or her so dying, as and when they should severally at-
tain the age of twenty-one years ; and he gave them vested interests
therein, and directed, that if any children of his brother should at his
decease be dead, and had left issue, such issue should have the share
the parent would have had if he had outlived the brother. If the cir-
cumstances of that case had not in fact been distinguishable, I should
have been under the necessity of differing from it; but in that case
the children of the brother, who were born and in esse at the death of
the testator, might all have been dead at the death of the brother.
The case therefore fell within the third and fourth rules which I have
mentioned. It was a gift to a class to be ascertained at a time beyond
the limits of remoteness, and all the members of the class might be per-
sons without these limits. The children born at the testator's death
Ch. 5) LIMITATIONS AND INDEPENDENT GIFTS 555
might take no interest whatever. On this ground the decision in Green-
wood V. Roberts was, no doubt, perfectly right.''
The testator devises the estate to Thomas Bannister Cattlin for life,
with remainder to all his children as tenants in common for life, with
remainder as to every share of every child to the children of that child
in fee. Now, to follow the respective shares of the property, suppose
Thomas Bannister Cattlin to have four sons, A., B., C, and D., and
A. and B. to be living at the testator's death and the others to be born
aftenvards. A. and B., on the testator's death, take an immediate vest-
ed interest in remainder for life, expectant on their father's death,
with remainder to their respective children in fee, subject to their re-
spective moieties being diminished on the birth of C. and D., but their
exact shares are ascertained within the legal limits at the death of their
father, and neither their life interests nor the remainder in fee are ca-
pable of being wholly divested in favor of any party beyond the legal
limits, neither could any one intended by the testator to take an inter-
est, but at a period beyond the legal limits, possibly take in lieu of A.
or B. ; their shares are not therefore within the third rule, or governed
by the judgment in the case of Lord Dungannon v. Smith, as might
have been the case if the devise had been to the sons of Thomas Ban-
nister Cattlin li ning at his decease, with remainder to their sons in fee,
for then there might possibly, at the death of Thomas Bannister Cat-
tlin, have been no son who was in existence at the testator's death. Nei-
ther, again, can any possible event happening after the death of Thom-
as Bannister Cattlin, augment or diminish the share of A. or B. Here,
then, A. andJB^ are respectively persons in esse at the death of the tes-
tatoT, who are to take a share that must be ascertained in a manner in-
capable of augmentation or diminution at the expiration of another
life in esse. What is there to prevent the limitation of that share to
hi'm for life, with remainder to his children in fee? for this share must
of necessity vest, if at all, within the legal limits, and complies, there-
fore, with the rule. It is in reality the case of Storrs v. Benbow, sub-
stituting a given share for a given sum of money.
The two shares of A. and B., in the case I have supposed, are wholly
free from the questions which arose in Leake v. Robinson, or Lord
Dungannon v. Smith. Sir William Grant, in Leake v. Robinson, speak-
ing of the bequest made by the testator in that case, says : "He sup-
posed that he could do all that he has done, — that is. include after-born
children, and also postpone the vesting until twenty-five. But if he
had been informed that he could not do both, can I say that the al-
teration he would have made would have been to leave out the after-
born grandchildren, rather than abridge the period of vesting? I
should think quite the contrary" (2 Mer. 388).
The present case is free from the difficulty which is pointed out in
those remarks, and upon which the point in that case was determined.
7 See, however, Gray, Rule Against Perpetuities, § 391. Compare with.
Wilson V. Wilson, 28 L. J. Ch. 95.
556 RULE AGAINST PERPETUITIES (Part 4
The case of Dodd v. Wake, 8 Sim. 615, which was mentioned, comes
within tlie same categon^ as Greenwood v. Roberts. In Dodd v. Wake,
the bequest of a sum of money was hmited unto and amongst the chil-
dren of the testator's daughter, who should be hving at the time the
eldest should live to attain the age of twenty-four years, and the is-
sue of such of the children of his said daughter as might then happen
to be dead leaving issue, to be equally divided between or among them,
share and share alike, as tenants in common. There were three chil-
dren living at the death of the testator, who might have attained the
age of twenty-four within the proper period, — but upon that form of
bequest it seems clear, as the Vice-Chancellor held, that the testator did
not intend it to apply of necessity to any existing child, but to take
effect only when the first child attained twenty-four, which might pos-
sibly be without the period of legal limitation. The children living on
that event might or might not be composed of a class not in existence
at the death of the testator.
In the case now bef ore me, no person out of the prescribed limit s
could pos sibly take the whole of A. or B.'s share, and the exact amount
ot each s hare_is finallv ascertained within the legal limi ts ; and from
the time that it is so ascertained , no party without the legal period can
possibly acqui re the le ast interest in it, so as to divest_ 0£,diminisIiJt;
nor~can anyl^arty whojejiite^rest is so ^sceTtaingd 3Yithin-tlie--petiod,
or his children, acquire any interest in the shar es of such other p arties
so as to^augmervTiln
-fhe limiratiim"a"s to the shares of C. and D. in the case I have sup-
posed would be clearly void, as their children might be born at a period
exceeding the limits which the law allows, they themselves not being
in esse at the death of the testator. I observe that Mr. Jarman ex-
presses a doubt whether the state of events should not be considered
as they stood at the date of the will (1 Jarm. Wills, 229 n. s). It is
now clear that the death of the testat o r is the time to be looked at.
The rule on this point is plainly expressed by the present Lord Chan-
cellor [Lord Cranworth] in the case of Lord Dungannon v. Smith,
where, observing that a gift to the person who at the death of B. should
be the heir male of his body, if he should attain twenty-one, would be
good as to the person who should be heir male of B. at his death, he
adds : "It would be good, because at the death of the testator it would
be absolutely certain that the bequest must take effect, if at all, within
twenty-one years after the death of B. ; and it would not be rendered
invalid by a subsequent gift to others, which might be too remote" (12
CI. & Fin. 574; see also Williams v. Teale, 6 Hare [31 Eng. Ch.
R.] 239).
The declaration will be, that the estat e was by the w ill of the tes-
tator well linTJted in j i^e^ tn tlie rhildrp''' ^f th osp (-lijj rVrpTwvt^Yhnrna.s
Bannister Cattlin who were living at the death of the testator.^
8 Accord: Dorr v. Lovorinj;, 117 Mass. H-IO, 18 N. E. 412 (ISSS).
On IvImitations to a Series. — See Waiiiman v. Field, Kay, 507 (1854);
Lyons v. Bradley, 16S Ala. 505, 53 South. 244 (1010).
Ch. G) MODIFYING CLAUSES 557
CHAPTER VI
MODIFYING CLAUSES
RING V. HARDWICK.
(Court of Chancery, 1840. 2 Beav. 352.)
The question in this case arose upon the will of William Davies,
dated in 1825. whereby he gave his residuary personal estate to P.
Hardwick, Wm. Clare, and his wife, Mary Davies, upon trust to
convert and to invest in their names upon government security, and
to pay the dividends and the rent of the leaseholds, &c. to his wife,
Mary Davies, "during the term of her natural life or widowhood;"
and he proceeded as follows: "And from and immediately after the
death or second marriage of my \vite the said ]Martha Davies, then
upon trust that they the said Philip Hardwick, William Clare and
INIary Davies, or the survivors, &c., do and shall with all convenient
speed collect in the outstanding parts of my said personal estate, and
add the same to my money in the funds, and make a division of all the
said money then in the funds, &c., and all and every other parts or
part of my said personal estate between all and every of my four chil-
dren, viz. my two sons, the said William Davies and James Davies,
and my two daughters, the said Alary Davies and Martha Ann West."
He then provided that the "division" was not to be made into four
equal parts, but that a sum of £2000 should be appropriated and paid
out of the shares of his sons, James and William Davies, "to or for
the use and to augment the shares of his two daughters, the said
]\Iary Davies and Martha Ann West, in equal shares and proportions,
to be received by or for the use of them the said Mary Davies and
Martha Ann West. And subject thereto the division of all and singu-
lar his said personal property at the decease or second marriage of his
said wife, the said Martha Davies, was to be equal, share and share
alike, between his said four children, viz. his said two sons, the said
William Davies and James Davies, and his ?aid two daughters, the
said ]\Iary Davies and Martha Ann West, the shares of his said two
sons, the said William Davies and James Davies, were to be paid and
transferred to them immediately upon the decease or second marriage
of his said wife, the said ]Martha Davies, "upon their first appropriat-
ing thereout, or otherwise paying the said sum of £2000 to or for the
use of, and to augment the shares of his said two daughters, the said
Mary Davies and the said Martha Ann West; to hold the said shares
558 RULE AGAINST PERPETUITIES (Part 4
unto them the said William Davies and James Davies severally and
respectively, and their several and respective executors, administra-
tors and assigns, from thenceforth absolutely forever."
The will then contained a gift over between the surviving brother
and sisters of the sons' shares, in case either died unmarried and
without issue before their shares should become payable, and pro-
ceeded as follows : "But as touching and concerning the shares of
my said personal estate, which with the said augmentations will be-
come the property of my said daughters, the said Mary Davies and
Martha Ann West, upon the decease or second marriage of my said
wife, the said Martha Davies, my directions are, and I do hereby de-
clare my will and meaning to be, that the whole of such shares and
augmentations shall immediately upon the decease or second marriage
of my said wife, the said Martha Davies, be invested and laid out
upon government security at the Bank of England, under the super-
intendence of them, the said Philip Hardwick and William Clare, or
the survivor of them, in manner following, that is to say, the share
and augmentation of the said Mary Davies as hereinbefore mention-
ed, and also any other augmentation which may become her share by
the decease of the said William Davies and James Davies or either
of them unmarried and without issue, as is also hereinbefore men-
tioned, or by the decease of the said Martha Ann West, as herein-
after mentioned, shall be so invested and laid out in the names of the
said Philip Hardwick, William Clare and William Davies, or the sur-
vivors, &c. jointly with and in the name of her the said Mary Davies,
upon trust that they the said Philip Hardwick, William Clare and
William Davies, &c. do and shall permit my said daughter, the said
Mary Davies, to receive the dividends for life for her separate use;"
"and from and after her decease then upon further trust that they,
the said Philip Hardwick, William Clare and William Davies, &c.
do and shall pay, divide and transfer the capital money which formed
the share and augmentation of my said daughter, the said Mary Da-
vies, unto, amongst and between all the children, whether male or
female, and both male and female of my said daughter, the said Mary
Davies, in equal shares and proportions, and to become vested in such
children respectively at the age of twenty-five years ; and if any such
children or child shall die under that age, the share or shares of all
and every such children or child shall be divided amongst the surviv-
ors of such children who shall live to attain that age; and if only
one child shall live to attain that age, then the whole of such share
and augmentation shall belong to such only child upon his or her at-
taining that age; and if it shall happen that the said Mary Davies
shall depart this life without leaving any such children or child who
shall live to attain the said age of twenty-five years, then the whole
of the said shares and augmentations shall be upon trust, and shall be
divided between all the children of the said William Davies, James
Davies and Martha Ann West, whether male or female, and both
Ch. G) MODIFYING CLAUSES 559
male and female, who shall live to attain the said age of twenty-five
years, in equal shares and proportions ; and if only one such child
shall live to attain that age, then the whole of such share and aug-
mentations shall belong to such only child upon his or her attaining
that age."
The testator declared similar trusts, mutatis mutandis, of Martha
Ann West's share, and contained the following powers of mainte-
nance and advancement: "Provided always, that in case of the death
of the said Mary Davies or the said Martha Ann West before their
children, or the children or child of either of therri, shall have attained
the said age of twenty-five years, or in case they the said Mary Da-
vies and Martha Ann West, or either of them, shall depart this life
without leaving any children or a child, and there shall be then living
any children or a child of the said William Davies and James Davies,
or either of them, but such children or child may not then have at-
tained the said age of twenty-five years, it shall be lawful for the said
Philip Hardwick, William Clare, and William Davies, &c. to receive
the dividends of the share and augmentations of the said Mary Davies
and Martha Ann West, or either of them, as the case may be, and
apply the same dividends, or a competent part thereof, for the educa-
tion and maintenance of the children or child of the said Mary Davies
and Martha Ann West, or of the said William Davies and James Da-
vies, as the case ma}^ be, until such children or child shall attain the
said age of twenty-five years, according to the true intent and mean-
ing of this my said will as hereinbefore mentioned and expressed in
respect thereof; and upon the same principle, in the event or events
last aforesaid, it shall and may be lawful for the said Philip Hard-
wick, William Clare and W^illiam Davies, &c. with the consent of the
said Alary Davies and Martha Ann West during their respective life-
times, and after their deaths or the death of either of them, then in
the discretion of the said Philip Hardwick, William Clare and Wil-
liam Davies, &c., by sale of any part of the said government securi-
ties, to raise and advance any part of the share of any one or more of
the said children for their advancement in the world, not exceeding
one quarter part of the probable expectant share of every one such."
The testator died in 1827; his widow survived him but a short time;
his daughter, Mary Davies, married the plaintiff, Mr. Ring, and died
in 1829, without having had any child born alive, and the plaintiff w^as
her administrator. The testator's sons, William Davies and James
Davies, were also dead, and had left children. Martha Ann West was
living, and had children, two of whom were born in the testator's life.
The questions which arose upon the death of Mary Ring without
children, as to the share intended for her and her children, were first,
wdiether the gift over to the children of her brothers and sisters was
too remote ; and if so, then whether under the circumstances she took
a life or an absolute interest in that share.
Mr. Pemberton having commenced his reply,
500 RULE AGAINST PERPETUITIES (Part 4
The Master of the Rolls [Lord LangdalE] said: The chil-
dren, on whose behalf this case has been argued, if they take anything
must take it under that clause directing a division between all the
children "who should live to attain the age of twenty-five years." It
is admitted, that a gift expressed by those words is by itself too re-
mote and void ; but then it is said, there are other directions in the
will which ought to qualify that construction. The directions are
first of all, upon the death or second marriage of the wife to invest,
&c. the particular share previously given to a daughter, in the name
of the trustees. Then it is said, that in the subsequent clause, which
refers to a period when the children are under twenty-five, that which
was intended for the children is termed "the share" of the children,
and that, therefore, the gift is vested, subject to be divested ; but I
consider this share means such share as had been before given, that
is, a share for such as should live to attain twenty-five years, and this
subsequent clause cannot therefore alter the effect of the previous
gift. Next it is said to be a gift with a double aspect. I am of opin-
ion that that is not the true construction of the clause. In respect to
the clauses for maintenance and for raising money for advancement,
they are accessories to that which is void, and cannot therefore alter
the construction. Upon the other point as to the extent of the gift to
the daughter, I will hear a reply.
Mr. Pemberton having replied.
The Master oe the Rolls' said: I think that there is sufficient to
be collected from the prior words in this will to give an absolute inter-
est to the daughters ; and those prior words are so connected with
what follows as to show that the testator intended a restriction of
that absolute interest ; and the restriction not having become efi:ec-
tual, the whole interest remained according to the original gift.
WHITEHEAD v. BENNETT.
(Court of Chancery, 1S53. 22 L. J. Ch. N. S. 1020.)
Samuel Barker, by his will, dated the 21st of November, 1834, ap-
pointed Joseph Todd, Edward Loyd, Benjamin Braidley and Robert
Bennett, to be his trustees and executors, to whom and their heirs,
executors and administrators he gave, devised and bequeathed all his
freehold, leasehold and personal property u pon trust to sell, when
and as they should think proper. The testator then gave several an-
nuities and legacies, and continued : "All the money arising from the
sale of my freehold and leasehold estates, and the money arising from
my personal estate not consisting of money, as well as all my moneys,
to be in vested fo L_t he benefit o f my three daughters, Maria White-
lieadTwidow, Anne Bennett, wife oTRoberTT^eniiett, and Mary Ben-
nett, wife of Charles Bennett, and the interest thereof to be paid to
Ch. G) MODIFYING CLAUSES 561
each of my sa i d daughters ^u^ ring th eir respective na tural lives with-
ouTThe control of their husbands, and on the decease of^each of them
I do will and direct that o ne half nf tlip fund or share fro m winch in-
t erest or the income thereof is hereb y directed to be pai d to the par-
ent respectively for life as aforesaid, s hall be paid to the childre n of
each__of^my daughters so dyinp r, equally, at the age of tw enty -one
year s. And it is my will that the injerest of the other half shall be
paid_to_tJie chil dren of each of my dau ghters for their respective lives,
and on the decease of my- said grandchildrerTfespectrvely, the share of
which they, my said grandchildren, are only to receive the interest
there^ for life as afo resaid , to be paid to their children respectively
when and as they attain their respective ages of twenty-on e ye ars.
The testator died, leavfhg TiTs three daughters, Maria, Anne and
Mary surviving him.
Maria and Anne were still living and were defendants to the suit,
but Mary died in 1837, before the suit was instituted, leaving four
children, who were also made defendants.
There were several great-grandchildren of the testator, one of
whom was^born_after the testator's death.
"The fTrst question was, whefher or not the gift to the testator's
great-grandchildre n was void f or remoten ess. The next question
was, whether the three daughters of the testa tor took alDsolute inter-
ests undeFtHejwill. There was also a question as to the rights of Die
children of Anne, inasmuch as some of them might die in their moth-
er's lifetime, but which, under the circumstances, it was not necessary
to decide at present.
Kinde;rslEy, V. C. It seems i mpossible to argue that the limita-
tion to the great-grand childre n is not void. Indeed, that question has
scarcely been pressed. There is no doubt whatever about this _gen-
e ral princip le, that if a residue or sum of money by way of legacyTBe
give ii or appointed to A. by a testator in the first instance, and then
there is a modification of that gift, or a limitation ov er for th e benefit
of per sons, the issue of tlie pa r ties, although those su bsequen t limita-
t ions iiTav fail, no doubt ^ the first gift, whic h was an absolute gift,
w ould prevail^ no matter whether it was a gift or an appoiiitment un-
dcr a power. The question here, then, really is this, wli ether there is
sucha^ift to the party_in the first instance, as to come within the
princijple _and the authoriti€s~citec r? Is there a gitt to one daughter or
to each of the daughters of a third part of the money, and then a limi-
tation of the share thus given in the first instance absolutely, in such
a form as that it falls within the principle, so as to make each of the
daughters entitled to the benefit of the first absolute gift? In the first
place, it is very questionable whether a direction to invest for t he
b enefit of the daughters subject to these limitations, would amount fo
an abso lute g ift. It seems clear that a gift to invest for the benefit
of A., B. and C. would be enough if it stopped there, but it does not
4 Kales Prop. — 36
562 RULE AGAINST PERPETUITIES (Part 4
follow that a mere direction to invest, followed by the limitations in
this will, would be an absolute primary gift, but where there is a gift
to invest for the benefit of daughters, how can I say the testator
meant to make an absolute gift to the daughters as joint tenants, and
then to go on and limit, not that gift in joint tenancy, but one half of
the third share to the children of one, and then as to the other moiety
of that third, to the children of that one for life? Can I say that the
t estator mean t it t o be an absolute gift with that sor^of lijnitation,
ev en if ft were a joint tenancy? What Tie meant was, that this money
should be investecTfor the benefit of his daughters, and then he directs
how they are to derive that benefit. He does not express that he has
given a share to each for life ; he carefully abstains from that, and
speaks of it as the share, the income of which is given to the daughter
for life. Therefore, I think, taking all the will together, though I ad-
mit that a clear direction to invest for the benefit of A., B. and C.
would be an absolute gift to them, yet that, in this case, there is not
an absolute gift to the daughters, and that the principle of the cases
cited is not impeached. I acted on this principle myself in the case of
Harvey v. Stracey, 1 Drew. 7Z, and should do so again if the same
circumstances occurred ; but I do not consider this case within the
principle. I ought to have observed that the other question, as to the
rights of the children of Anne, does not arise. I think I am bound to
say that it is clear, whatever the testator does not dispose of goes to
the heir of the testator qua heir, because he is entitled to every por-
tion of the testator's real estate which is undisposed of. There was
the case of Fitch v. Weber, 6 Hare, 145, where the testator charged
his estate for the benefit of certain persons, and it was held that the
heir was entitled to the benefit of what was undisposed of, because it
was part of the testator's real estate, and he is entitled to it whether
conversion has taken place or not.
On Interests Aftee Estates Tail. — See Goodwin v. Clark, 1 Lev. 35 (1662) :
Nicoils V. Sheffield, 2 Bro. O. C. 215 (1787) ; Wilkes v. Lion, 2 Cow. (N. Y.) 333
(1S23),
Ch. 7) POWERS 563
CHAPTER VII
POWERS
BRISTOW V. BOOTHBY.
(Court of Chancery, 1S26. 2 Sim. & S. 465.)
By Sir Brooke and Lady Boothby's marriage settlement, certain
freehold estates, the property of the lady, were settled on Sir Brooke
Boothby for life, with remainder to Lady Boothby for life, with re-
mainder to trustees for 500 years, for raising portions for the youn-
ger children of the marriage, with remainder to the first and other
sons of the marriage in tail male, with remainder to certain other trus-
tees, for a term of 1,000 years, to raise portions for the daughters in
default of issue male of the marriage, with remainder to the first and
other sons of Lady Boothby, by any after-taken husband, in tail male,
with remainder to the daughters of Lady Boothby, equally, as tenants
in common in tail, with remainder to the sur^-ivor of Sir Brooke and
Lady Boothby in fee: and it was provided that, in case there should
not be any child or children of the marriage, or there being such, all
of them should die without issue, and Sir Brooke should survive Lady
Boothby, then it should be lawful for Lady Boothby, by deed or will,
whether she should be covert or sole, and notwithstanding her cover-
ture, to charge the premises with £5,000, to be raised and paid, after
the decease of Sir Brooke and Lady Boothby, and such failure of is-
sue as aforesaid, to such person as Lady Boothby should direct, and
to create a term of years for the better raising of such sum of money.
There was only one child of the marriage, who died at the age of
eight years. ^
Lady Boothby died in the lifetime of Sir Brooke, having, by her
will, executed the power of charging the settled estates with the
£5,000.
The present suit was instituted, by a person claiming under that
will, against the heir of Sir Brooke Boothby, for the purpose of giving
effect to that charge. The defendant put in a general demurrer.
The Vice-Chaxcellor [Sir Johx Leach]. In that part of the
instrument which creates the power, the clear expressed intention is,
that it shall only take effect upon a general failure of issue of the
marriage; and there is no language, in any other part of the instru-
ment, which can authorize a court to state that this was not the real
intention of the parties. There can be no doubt that, if it had been
1 The child died before its parents. See s. e. 4 L. J. O. S. Ch. S8.
5G4 RULE AGAINST PERrETuiTiES (Part 4
pointed out to the parties that the estate was not Hmited to all the is-
sue of the marriage, and that the power expressed was, therefore, too
remote, the deed would have been altered, and that the power and the
limitations to the issue would have been made to correspond. But
there is nothing- in this instrument which enables me to say whether
this would have been effected by extending the limitation to the sons
in tail general, or by directing that the power should arise upon the
failure of the particular issue of the marriage, who were inheritable
under the settlement, as it is now framed. I am compelled, therefore,
to construe the deed as I fmd it, and to say that the event upon which
the power is to arise, being too remote, the demurrer must be al-
lowed.^
BRAY V. BREE.
(House of Lords, 1S34. 2 Clark & F. 453.)
The lyORD Chancellor^ [Lord Brougham]. My Lords, this
appeal from a decision of the Vice-Chancellor [Sir Launcelot Shad-
well] raised a question of considerable nicety, although now, on a
further consideration of it, I entertain very little doubt as to what
your Lordships' judgment ought to be. The nature of the case, rath-
er than any great difficulty that I experienced in making up my mind
to advise your Lordships on it, has given rise to the intention I have
of entering into the circumstances somewhat more at large than I
otherwise might have done in a case where I saw no reason to differ
from the court below.
Upon the marriage of Broad Malkin and Elizabeth Spode, by a
settlement then made, the sum of iSOOO, secured by bond, was vested
in trustees, subject to the joint appointment of the husband and wife
among the child or children of the marriage. I need not state the
terms of that power of appointment, as the question arises not upon
that, but upon the several appointment of the wife, she surviving her
husband ; which was in exactly the same terms, word for word, as the
power of appointment given to the two jointly. The fund was to be
in trust for all and every the child and children of Elizabeth Spode, by
Broad Malkin to be begotten, in such shares and proportions, and to
be paid at such age or ages, time or times, and with such benefit of
survivorship ox otherwise, and subject to such conditions, restrictions,
and limitations over the same (to be always for the benefit of some
one or more of such child or children), as the said Elizabeth Spode
alone, by any deed or deeds, writing or writings, to be by her sealed
and delivered in the presence of and attested by two or more credible
witnesses, or by her last will and testament in writing, to be by her
2 See Laiiesborongh v. Fox, Cas. temp. Talb. 2G2 (1733).
» The opinion only is given.
Ch. 7) POWERS 565
signed and published in the presence of and to be attested by the Hke
number of witnesses^, should direct or appoint. The settlement then
goes on to provide for the case of there being neither a joint appoint-
ment by the husband and wife, nor a several appointment by her, in
execution of the power ; in which event it provides for the transfer of
the fund of £8000 to the child and children, if more than one, share
and share alike, at certain ages mentioned.
Mrs. Malkin survived her husband, having but one child, Saba Eliza
Malkin, and she executed the power to that daughter; she, in efifect,
appointed, for she appointed under certain limitations "to such per-
son or persons as she, the said Saba Eliza Bray, at any time or times,
and from time to time, during my life, or after my decease, and not-
withstanding her present or future coverture, should (in manner
therein mentioned) direct or appoint." So that she gave Saba, her
daughter, the power of appointment; and in default of that execution
of the power, she then limited the fund in a way which it is unneces-
sary here to state. Saba Eliza, who was married to Mr. Bray, having
afterwards appointed to her uncle William Hammersley, who has de-
parted this life since the appeal was brought, the question arises be-
tween her husband and the appointee's representatives under Saba
Eliza's execution of the power; which question is, whether she took
an absolute interest in the £8000 under the original settlement, in
which case tlie fund would belong to her husband, or whether she
took under her mother's power of appointment. If she did not take
under her mother's power of appointment, but took under the original
settlement, in that case cadet questio. If she did take under her moth-
er's power of appointment, the remaining question is whether she well
executed that power given to her by her mother. I have no doubt
that there is a good execution of the power in that case ; but the ques-
tion raised, as your Lordships may perceive, is twofold : first, wheth-
er the power under the settlement of 1805, and which Elizabeth Mal-
kin, the mother, assumed to execute, was a power of appointing, in
the event which occurred, to one child, or only a power of distribution,
appointing among more than one child ; that is, whether it was a pow-
er of appointment, or whether only, in effect, a power to ascertain the
shares which several individuals should respectively take. That is the
principal question, and the only one encumbered with the least doubt :
on the other, that is, whether the power was well executed, I have not
any doubt whatsoever. [His Lordship then addressed himself to the
question whether the power given to Elizabeth Malkin authorized
her, in the event of there being but one child, to appoint to that child,
and he determined that it did. This discussion, which occupies all the
rest of the opinion except the last paragraph, is omitted. That last
paragraph is as follows :]
My Lords, it was said that Alexander v. Alexander, 2 Ves. Sen.
640, touched a part of this case; Folkes v. Western, 9 Ves. 456, also
was relied upon on the part of the appellant. Much doubt has been
566 RULE AGAINST PERPETUITIES (Part 4
thrown upon that case at different times ; it was said there was an-
other point in that case decided, which had been wrongly decided ;
but my opinion is, that Folkes v. Western, as far as it appHes to this
case, is rather against than for the purpose for which it was cited.
My Lords, I rely upon the reasons I have given independently of au-
thorities, particularly the first, and above all that part of it on which
I have thought it right to go into greater detail ; for these reasons it
appears to me that the present judgment is right, and I shall move
your Lordships that the judgment of the court below be affirmed.
I do not propose to your Lordships to give any costs in this case ; it
appears that the money went to the uncle of the wife, upon her death ;
the husband probably was advised that there was a serious question
whether he was not entitled to it ; and I think, under these circum-
stances, your Lordships are not called upon to give costs.
Judgment affirmed, without costs.*
MORGAN V. GRONOW.
(Court of Chancery, 1873. L. R. 16 Eq. 1.) s
This was a suit to administer the trusts of a settlement dated the
27th of October, 1821, and made upon the marriage of Thomas Gro-
now and Mary Ann Lettsom, whereby a sum of £32,500 £3 10s. Bank
Annuities was settled upon certain trusts for the benefit of Mr. and
Mrs. Gronow during their joint lives and the life of the survivor of
them, and after the death of the survivor, in trust for the child or
children of the marriage or any one or more of such children, in ex-
clusion of the others of them, as Mr. and Mrs. Gronow should joint-
ly appoint, and in default of such appointment, as the survivor of Mr.
and Mrs. Gronow should by deed or will appoint, and in default for
the children of the marriage equally, the shares of sons to be vested
at twenty-one, and those -of daughters at that age or on marriage ;
and there was the usual hotchpot clause. The settlement contained
a power to invest in land ; and part of the Bank Annuities was sold
and invested under this power in the purchase of two estates, the
Lanharry estate and the Ash Hall estate; and the unsold residue of
the Bank Annuities amounted to about £14,000.
The joint power of appointment was not exercised. Mrs. Gronow
died in 1832, leaving her husband Thomas Gronow her surviving.
There were seven children of the marriage, the eldest of whom was
the defendant William Lettsom Gronow, who had become of unsound
mind. Of the others, it is only necessary to name two daughters,
Louisa Lettsom Gronow and Elizabeth Lettsom Gronow.
4 Accord : In re Teague's Settlement, L. R. 10 Eq. 5G4 (1870) ; Mifflin's
Appeal, 121 Pa. 205, 15 Atl. 525, 1 L. R. A. 453, 6 Am. St. Rep. 781 (1888).
5 Statement of tlie case abridged, and part of opinion omitted.
Ch. 7) POWERS 567
Subsequently to 1832, Thomas Gronow executed divers appoint-
ments under the power in that behalf contained in the settlement. Of
these appointments, three only, made by deeds poll dated respectively
the 12th of November, 1846, the 5th of December, 1860, and the 20th
of March, 1867, need be mentioned for tlie purposes of this report.
By the deed poll of the 12th of November, 1846, Thomas Gronow
appointed, first, that after his death the trustees of the settlement
should, out of the stocks, funds, securities, and property which might
have arisen from the sum of £32,500 Bank Annuities originally com-
prised in the settlement, and which might then be subject to the trusts
thereof, raise such a sum as would be sufficient for the purchase of a
government annuity of £300 during the joint lives of William Lett-
som Gronow and Catherine Anne his wife, and the life of the survivor
of them, and should apply the same for the benefit of William Lett-
som Gronow in manner therein mentioned; and, secondly, that the
trustees should, after his death, out of so much of the said stocks,
funds, shares, and property as should remain after answering the pur-
poses aforesaid, raise two several sums of £7000; and should as to one
of the said sums of £7000 invest the same in manner therein men-
tioned, and should stand possessed of the investments and the income
thereof upon such trusts, to take effect only after the marriage of
Louisa Lettsom Gronow, as she should, by any deed or deeds execut-
ed either before or after her marriage, appoint ; and in the mean time,
and until any such appointment, and so far as any such, if incomplete,
should not extend, should pay the income of such investments to
Louisa Lettsom Gronow during her life for her separate use without
power of anticipation ; and after her decease should hold the said in-
vestments and the income thereof upon such trusts as she should by
will appoint ; and should as to the other sum of £7000 invest the same
and stand possessed thereof upon the trusts therein mentioned, being
trusts for the benefit of Elizabeth Lettsom Gronow similar to those
thereby declared for the benefit of Louisa Lettsom Gronow with re-
spect to the first sum of £7000.
Louisa Lettsom Gronow died on the 23d of January, 1868, without
having been married. By her will she appointed the £7000 first men-
tioned in the deed poll of the 12th of November, 1846, to her sister
Elizabeth Lettsom Fisher for her separate use.
Thomas Gronow died on the 17th of August, 1870.
The cause now came on for further consideration. One of the
questions was: whether either of the sums of £7000 and £7000 was
validly appointed.
Lord Selborne, L. C. * * * The next question is as to the
interest of Louisa, with respect to whom the matters stands simply in
this way — that no interest in any part of the capital of £7000 beyond
the mere life interest is given to her, except by virtue of a power to
appoint the capital of that sum by will contained in the deed of the
12th of November, 1846. If she had been living at the date of the
5G8 RULE AGAINST PERPETUITIES (Part 4
instrument creating the power, I should have thought that was within
the terms of the power. She was not, however, then Hving ; and,
inasmuch as nothing could vest in her, or her representative, or
in any one else, under an exercise of the power, except at a time
which might be beyond the limits allowed by the rule as to perpetui-
ties, not only WoUaston v. King, Law Rep. 8 Eq. 165, but principle,
obliges me to hold, however reluctantly, that that is void. It is the
same thing as if there had been a gift to her for her own benefit
dependent upon a condition that could only be ascertamed at the
moment of her death, which would clearly be beyond the permitted
limit of time. If there had been a gift in the deed to her when she
attained the age of twenty-five, to vest then and not earlier, it would
have been too remote; a fortiori, such a gift as this, depending up-
on the exercise of the power, must be too remote also.
With regard to the i/OOO given to Elizabeth, if the matter had rest-
ed upon the original deed I should have been of the same opinion, be-
cause marriage in the case of an unmarried' and unborn child is an
event as uncertain with regard to the time at which it may take place,
if it ever does take place, with reference to lives in being, as death is ;
and the case is not one in which there is any gift of the absolute in-
terest in the capital to her independently of the exercise of the power,
or of the other power to be exercised by will only. Nothing is given
independently of those powers and the exercise of them except a life
interest.
I cannot accede to the view that the cases, of which White v. St.
Barbe, 1 V. & B. 399, and Langston v. Blackmore, Amb. 289, are ex-
amples, in the least degree touch such an instrument as this. Lang-
ston V. Blackmore, which is one of the strongest cases in its circum-
stances, was, after all, only an example of exactly the same principle
as White v. St. Barbe ; that is to say, that when there is an instrument
which is made with the concurrence of the object of the power to
whom the whole might be validly appointed (which was the case in
Langston v. Blackmore), if the instrument goes on to settle the fund,
as there, in strict settlement upon the object of the power for life,
with remainder to such wife as that object of the power should mar-
ry, remainder to the children of that object of the power, and, for
want of such children, over to other persons, so as to make it a strict
settlement, out and out, which would be absolutely operative, and
leave nothing to be done if they were all objects of the power, it shall
be held to be in substance, if the facts warrant it, the object of the
power concurring, an appointment absolutely to the object of the
power and a settlement by him on those particular limitations. Here
there is no appointment to the object of the power of the capital at
all, unless it is to be got at through the medium of these powers of
appointment ; nor is there any settlement, except by the same exercise
of those future powers of appointment, upon any one whatever. The
whole thing remains in abeyance, and can vest in nobody till those
Ch. 7) POWERS 5G9
powers are exercised, the one of which is dependent, not upon the
mere will of the person to whom it is given, but upon the future un-
certain event of marriage, uncertain as to the fact and uncertain as
to the time, and the other upon the equally uncertain event, as to
time, of death.®
At first my impression was that nothing was shown to have taken
place afterwards which would mend the case in favor of Elizabeth ;
but more careful attention to the particular terms of the subsequent
document has altered that impression, and I now think, although the
original appointment was bad, except as to the life estate, as far as
Elizabeth was concerned, that the subsequent deed of the 5th of De-
cember, 1860, followed up, I think, ten years afterwards by the deed
of the 21st of October, 1870, have had the effect of validly vesting that
i7000 in the trustees of that deed of the 21st of October, 1870. [Bal-
ance of opinion relating to this point omitted.]
WILKINSON v. DUNCAN.
(Court of Chancery, 1S61. .30 Beav. 111.)
George Wilkinson, the uncle, died in 1836, having by his wall be-
queathed the residue of his personal estate, and the produce of real es-
tate to trustees, upon trust for his nephew George Wilkinson for his
life, and from and after his decease upon the following trusts for his
children :
"Upon trust for all and every, or such one or more exclusively of
the others or other of the children or child of George Wilkinson, in
such manner and form, and if more than one, in such parts, shares and
proportions, and with such limitations over and substitutions in favor
of any one or more of the others of the said children, and to vest and
be payable and paid, transferred and assigned, at such time or times,
age or ages, and upon such contingencies, and under and subject to
such directions and regulations for maintenance, education or advance-
ment, as George Wilkinson" by deed or will "shall from time to time
direct and appoint; and in default of and subject to such direction or
appointment, and so far as any such, if incomplete, shall not extend,
upon trust for all and every the children and child of the said George
Wilkinson, who being a son or sons shall live to attain the age of
twenty-one years, or being a daughter or daughters shall attain that
age or be married, to be equally divided between such children, if more
than one, in equal shares and proportions, as tenants in common."
6 So where A., under a marriage settlement having power to appoint a
fund in favor of the children of the marriage, by her will and execution
of the power appointed to C. for life, with remainder to .such persons as C.
should by will appoint, the power in C. was void for remoteness. WoUaston
V. King, L. R. S Eq. 1(j5 ; Tredennick v. Tredennick, L. R. [1900] 1 I. R. 354.
570 RULE AGAINST PERPETUITIES TPart 4
The will contained no hotchpot clause.
George Wilkinson the nephew made his will in November, 1858,
whereby, after reciting his uncle's will, and the power of appointment
over his residuary estate therein contained, and that the residuary es-
tate consisted of il4,v^00 more or less, he proceeded as follows:
"Now in exercise of the same power and of every other power so
enabling me, I do hereby direct and appoint, that the trustees for the
time being of the said will shall, after my decease, stand possessed of
the said residuary estate, upon trust, after my decease, as to the in-
come thereof, and until the portions of my children in the capital shall
become payable and divisible as hereinafter directed, to pay the same
to the trustees of my will, for the maintenance, education or advance-
ment of my children, in such manner as they, in their uncontrolled di-
rection, shall think most beneficial to them, such application of the in-
come to cease, as to each child, as and when he or she shall become
entitled to his or her portion of capital. And as to the capital of such
residuary estate, upon trust for the benefit of my children in the man-
ner hereinafter mentioned, viz., to pay £2,000 to each of my daughters,
as and when they shall respectively attain twenty-four years of age ;
and in the event of my daughters dying under twenty-four years of
age then to pay the said sum of i2,000 to her surviving sister (as the
case may be). And as to the residue of such capital, to divide the same
between my sons equally (if more than one) as and when they shall
respectively attain twenty-four years of age, and if only one then the
whole to such only son.
"And if my son George shall succeed me in my business, and on this
condition only, then his share shall be paid to him at twenty-one years
of age, instead of twenty-four, but not otherwise. And in tlie event of
no son attaining twenty-four years of age, and in the event of the
above provision for my daughters taking efifect, then to divide the same
between them, as soon as and when they shall severally attain twenty-
four years of age."
George Wilkinson, the nephew, died in November, 1859, leaving ten
children, two of whom were under the age of three years at his death.
A question had arisen whether the appointment to the children at
twenty-four was to any extent invalid on the ground of remoteness. .
The Master of the Rolls [Sir John Romilly]. I will state the
view I take, and I will look at the authorities, and hear the defendants
if necessary,
I think that the bequest is distinct from that in Leake v. Robinson,
2 Mer. 363, and that Sir William Page Wood correctly states the prin-
ciples in Cattlin v. Brown, 11 Hare, Zll . He states the 5th rule thus:
"Where there is a gift or devise of a given sum of money or prop-
erty to each member of a class, and the gift to each is wholly inde-
pendent of the same or similar gift to every other member of the class,
and cannot be augmented or diminished, whatever be the number of
the other members, then the gift may be good as to those within the
Ch. 7) POWERS 571
limits allowed by law. This was settled in the case of Storrs v. Ben-
bow, 2 Myl. & K. 46."
That appears to me to be a very accurate statement of the law. The
distinction between the case of Leake v. Robinson and the present is
this : In Leake v. Robinson the property was given to A. for life, and
afterwards to pay to such of his children as should attain twenty-five.
It was therefore impossible to ascertain the class until it was known
how many children attained twenty-five, and consequently the period
for ascertaining the class was beyond the time allowed by the rule of
law, and too remote. But if the testator had said, that upon the death
of the tenant for life, the estate should be divided into as many shares
as the tenant for life had children, and that one share should be vested
in each child on his attaining twenty-five, then I apprehend the bequest
would be good as to those children who were of such an age at the
testator's death that they must necessarily attain twenty-five within
twenty-one years from the death of the tenant for life.
If the testator here had said, "and as to the capital of such residuary
fund, to pay it to my daughters when and as they shall attain the age
of twenty-four years," then it would come within the case of Leake v.
Robinson, but here the terms of the execution of the power are, "as
to the capital of such residuary estate upon trust for the benefit of my
children" [that is, sons and daughters] "in the manner hereinafter
mentioned, viz., to pay i2,0(X) to each of my daughters as and when
they shall respectively attain the age of twenty-four years."
Upon the death of the second testator, who executed the power, as
many sums of £2,000 were to be ascertained as he had daughters, and
with respect to those who are within the period or limit of the rule
against perpetuity, that is, with respect to those who had attained the
age of three years at their father's death, why should not their lega-
cies of £2,000 each be paid to them, why are they to be affected by the
invalidity of the gift to the others?
The circumstance that there is a gift over in case a daughter should
die under twenty-four does not affect the matter.
What I stated in Seaman v. Wood, 22 Beav. 591, was this: Where
there is a class to be ascertained, which consists partly of persons who
are clearly within the limits allowed by law, and partly of those who
are not within such limits, then, as you cannot ascertain the members
of the class until after the period permitted by the doctrine against
perpetuities, the whole gift is void, for you do not know, and cannot
ascertain, within the proper limit of time, what each person is to take.
I intended to draw that distinction in Webster v. Boddington, 26
Beav. 128, and that was the distinction taken in Griffith v. Pownall,
13 Sim. 393, and by Vice-Chancellor Wood in Cattlin v. Brown, 11
Hare, 372.
The view I take of the case generally is that which I have stated,
viz., where the share of each person is ascertained, the gifts to those
who happen to be within the limits of the rule against perpetuity may
572 RULE AGAINST TERPETUITIES (Part 4
be good as to them, though the gifts be invalid as to the others who
are beyond that limit, because the number and amount of the shares
are ascertained at the proper period and within the proper limit of
time.
The Master of the Rolls. I have looked at the cases, but I do
not think I can add anything to wdiat I stated yesterday. I think that
the principle of the case is clearly laid down by Vice-Chancellor Sir
William Page Wood in the fifth proposition which he states in Cattlin
V. Brown.
I think this will afford instances of both the rules stated by the \'^ice-
Chancellor Wood. In the gift to the daughters a sum is specifically
given to each, which is not dependent on the gift to the others, and
consequently those will take who can take it within the time allowed by
the law against perpetuities. With respect to the gift to the sons, it
illustrates the other rule. I am of opinion that it is a gift to a class
which cannot be ascertained until all the members of it shall have at-
tained twenty-four, and therefore, wath respect to them, the appoint-
ment of the residue is wholly void for remoteness. With respect to
the daughters, as the number of sums of ;£2,000 were ascertained at the
death of the nephew, I think that those wdio attain their age of twenty-
four within the period of twenty-one years from the death of the neph-
ew are entitled to their shares, and the residue wall go as unappointed»
I will make a declaration to that effect.'^
In re POWELL'S TRUSTS.
(Court of Chancery, 1S69. 39 L. J. Ch. N. S. 188.)
This was a petition by Mrs. Littlehales, for payment out of court of
certain sums of stock, subject to the trusts of the will of her grand-
father, James Powell.
James Powell, by his will dated December 6th, 1830, gave all his
moneys, securities for money, stocks and other funds, to trustees upon
trust, after the deaths of his wife, Mary Powell, and her sister, Hannah
Male, to stand possessed of a sum of £2,000 Consols, in trust, to pay
the interest and dividends thereof to the testator's daughter Hannah,
the wife of John Hall, for her life, and after her death "in trust to and
for such person or persons as his daughter, Hannah Hall, in and by
her last will and testament, should direct or appoint ; and in default
of such direction or limitation, in trust for all and every such child or
children of his said daughter as therein mentioned, share and share
alike if more than one, and if there should be only one such child, in
trust for such only child ; and in default of any child or children, then
to her own right heirs ; and as to a further sum of £3,000 stock, upon
7 Accord: In re Thompson, L. R. [1900] 2 Ch. 199; Gray, Rule Against
Perpetuities (od Ed.) § 32oC et aeq.
Ch. 7) POWERS 573
trust that the said trustees should, after the death of testator's wife,
stand possessed thereof upon like trusts as the said sum of £2.000."
The said testator died in February, 1831. In January, 1860, the tes-
tator's wife and her sister, both being then dead, the trustees of the
testator's will paid into court, under the Trustee Relief Act, a sum of
£6,930 Consols, as representing^ (less certain deductions) the said two
sums of £2.000 and £3,000 stock bequeathed by the testator's will as
aforesaid, together with a further sum of £2,000 stock bequeathed by
his will to Hannah Hall for her life, with power to her to appoint the
same by deed. The stock representing such last-mentioned sum had
been paid out by an order of court, and there was left a sum of £4,936
13s. 4d. Consols, representing the said two bequests of £2,000 and
£3,000 standing in court "ex parte the legacies given to Hannah Hall
for life, with remainders over."
Hannah Hall duly made her will, dated December lltli, 1868,
whereby she appointed Edmund Stainton Day and John Frederick
Hall the executors and trustees thereof, and after certain specific and
pecuniary legacies, and a bequest of her furniture and other household
effects to her daughter, Sarah Maria Littlehales, she proceeded as
follows : "As to all the rest, residue and remainder of my estate and
efTects, I give, devise and bequeath the same unto my said executors,
upon trust : in the first place, to convert the same, or such part there-
of as they shall think fit, into money, and to invest the proceeds to
arise from such sale in their joint names in government securities, and
to pay the annual income thereof, and also of the rest of my estate,
unto my said daughter, during her life, for her sole and separate use
and independent of her present and any future husband ; and from and
after her decease, upon trust, to stand possessed of the same in trust
for all and every the children of my said daughter, who being a son
or sons, shall live to attain twenty-one, or being a daughter or daugh-
ters, shall live to attain that age, or marry under that age ; and if there
shall be but one who shall live to attain that age, or marry as afore-
said, then in trust for such one child absolutely." The said will also
contained powers of maintenance and advancement in favor of Mrs.
Lfttlehales' children.
The will of Hannah Hall contained no mention of or reference to
the will of her grandfather, James Powell, or her power of appointment
thereunder. Hannah Hall died July 15th, 1869, and her will was duly
proved. She had issue one child, viz., the petitioner, Sarah Maria
Littlehales, born after the death of the testator, James Powell, and
now the wife of Frederick Littlehales. !Mrs. Littlehales had six chil-
dren, infants. There was no settlement or agreement for a settlement
on her marriage affecting this fund. She now presented this petition
for payment of the said sum of £4,936 13s. 4d. Consols to her husband.
^Ir. Speed, for the petitioner.
' JamKS, V. C, said, he was clearly of opinion that the power of ap-
pointment given to Mrs. Hall by her father's will, fell within the 27th
574 RULE AGAINST PERPETUITIES (Part 4
section of the Wills Act, so that the general bequest contained in Mrs.
Hall's will operated as a valid execution of such power. But the gen-
eral power vested in Mrs. Hall of appointing by her will the remainder
in the fund, after the termination of her life interest, being exercisable
only on her death, was not equivalent to her having the absolute own-
ership of the fund which was tied up for the whole of her life. The
interests in the fund purported to be conferred by INIrs. Hall's will on
Mrs. Littlehales and her children, must therefore be taken to be in-
terests created by the will of James Powell. Hence the rule against
perpetuities must apply to this case, and the gift to the children of
Mrs. Littlehales was void for remoteness. Mrs. Littlehales was en-
titled to the fund, and (subject to her assent on being examined) the
order would be made for payment of it out to her husband. The costs
of all parties to come out of the fund.^
ROUS v. JACKSON.
(Chancery Division, 1885. 29 Ch. Div. 521.)
By a settlement dated the 12th of July, 1800, made on the marriage
of John Abdy and Caroline Hatch, certain sums of bank stock and
bank annuities were assigned to trustees upon trust to pay the income
to John Abdy during the joint lives of John Abdy and Caroline Hatch,
and after his decease to paylhelncome to Caroline Hatch, and after
her decease upon trusts in favor of the children of the marriage as
therein mentioned, with a proviso that if there should not be any
child or children of the marriage (which event happened), then the
trustees should stand possessed of the bank stock and bank annuities
upon trust, if Caroline Hatch survived John Abdy, to transfer the
same to her executors, administrators or assigns, but that if she
should die in his lifetime (which event happened), then upon trust to
transfer the same to such person or persons, upon such trusts, and for
such intents and purposes, and subject to such provisos and declara-
tions as she should by her will, notwithstanding her intended cover-
ture, direct or appoint, and in default thereof, or in case any such di-
rection or appointment should be made which should not be a complete
and entire disposition of the whole of the bank stock and bank annui-
ties, then upon trust that the trustees should stand possessed of the
same, or so much thereof as should remain unappointed or undisposed
of, in trust for John Abdy, his executors, administrators or assigns,
and should transfer the same to him or them accordingly.
By her last will, dated the 7th of April, 1838, Caroline Hatch, then
Caroline Abdy, in pursuance and by virtue of the power and authority
8 See Genet v. Hunt, 113 N. Y. 158, 21 N. E. 91 ; Lawrence's Estate, 136
Pa. 354, 20 Atl. 521, 11 L. R. A. 85. 20 Am. St. Rep. 925; Gray, Rule
Against Perpetuities (Sd Ed.) §§ 948-969.
Ch. 7) POWERS 575
given and reserved to her in and by the above indenture of settlement,
and of all other powers and authorities in her vested, or her thereto
enabling-, and in exercise and execution thereof, directed and appoint-
ed that the trustees of the settlement should as soon as might be after
her decease transfer the funds then subject to the trusts of the settle-
ment into the names of Thomas Mills and Charles Druce, to whom
the testatrix also appointed and gave all the moneys, stocks and funds
which she had power to dispose of by virtue of the settlement, upon
trust to lay out and invest the same in the purchase of land to be con-
veyed to the use of John Abdy for life, and after his decease to, for,
and upon the uses, trusts, intents and purposes, and with, under, and
subject t o th e powers, provisos, declarations and agreements limited,
expressed, declared and contained in and by an indenture of settlement
bearing even date with, but executed before, the execution of that her
will (of which settlement the said Thomas Mills and Charles Druce
were also trustees), and the testatrix appointed the said Thomas Mills,
Charles Druce, and her husband, trustees and executors of his will.
By the indenture so referred to in the will of Caroline Abdy, and
dated the 7th of April, 1838, it was agreed and declared that the here-
ditaments and premises thereby appointed should from and after the
decease and failure of issue of Caroline Abdy (but subject to the
prior uses and estates therein mentioned), go, remain and be to the
use of James Mills and his assigns during his life, and after his decease
to the use of his issue in tail as therein mentioned, and in default of
such issue to the use of Christopher John Mills for his life, and after
his decease to the use of the plaintifif William John Rous for life, and
after his decease to the use of his first and other sons in tail male, with
divers remainders over.
Caroline Abdy died on the 4th of May, 1838, without ever having
had any issue, and her will was proved by her husband and the other
two executors, and the funds then subject to the trusts of the inden-
ture of the 12th of July, 1800, were transferred into the names of the
said Thomas Mills and Charles Druce.
John Abdy died on the 1st of April, 1840, having by his will given
all the residue of his personal estate and efifects to Thomas Abdy for
his own use and benefit, who died on the 20th of July, 1877, having by
his will appointed the defendants Cartmell Harrison and James Crofts
Ingram executors thereof.
Christopher John Mills died on the 4th of October, 1855.
James Mills died on the 18th of December, 1883, without ever hav-
ing had any issue. James Mills and the plaintiflf were both born sub-
sequently to the execution of the indenture of the 12th of July, 1800.
The trust funds appointed by the will of Caroline Abdy were never
invested in the purchase of land pursuant to the direction in that be-
half in her will, and were when this action was commenced standing
in the name of the trustees of her will.
576 RULE AGAINST PERPETUITIES (Part 4
The plaintifif claimed a declaration that the will of Caroline E. H.
Abdv operated as a valid execution of the power of appointment re-
served to her by the indenture of the 12th of July, 1880, and that the
trust funds subject to the indenture of settlement were validly appoint-
ed, and that the plaintiff was entitled to the income thereof.
ChiTty, J. (after stating the facts of the case proceeded as follows) :
Mrs. Abdy by her will expressly exercised the power of appointment
given her by the settlement, directing the trustees of that settlement
to transfer the funds comprised in the power to two trustees named by
her, to whom she also appointed and gave "all other moneys, stocks,
and funds of which she had power to dispose by virtue of the said in-
denture of settlement or otherwise howsoever" upon the trusts and to
and for the intents and purposes therein mentioned.
The principle laid down by Wilkinson v. Schneider, Law Rep. 9 Eq.
423, is firmly established, that under a general testamentary power_of_
appointment such as this the trustees of the settlem^nr creaITrig"the
power are bound to hand over the trust funds in their haiTds to the
persons named by the donee of the powef,~and''tTi'efefc)fe the trusts in
default of appointment cannot arise. ~ ~
In the case of the exercise of such a power by a man the rule is
clear. In the case of a married woman, which is the case before me,
the late Master of the Rolls has decided in the case of In re Pinede's
Settlement, 12 Ch. D. 667, that the married woman can make the fund
her own by exercising the power, and in this case if all the trusts lim-
ited by Mrs. Abdy had failed, I have no doubt that her husband would
be entitled to take the property by virtue of his marital right.
On the part of the representatives of the husband it is argued that
the trusts of the will and settlement of even date are to be incorpo-
rated with and read as part of the settlement of 1800, and that then,
according to the decision of James, V. C, in In re Powell's Trusts, 39
L. J. (Ch.) 188, they are invalid as contravening the rule against perpe-
tuities : that is so, and the question therefore arises whether the de-
cision in In re Powell's Trusts is consistent with the course of authori-
ties. James, V. C, in that case decided that such a general testamen-
tary power of appoiritment given to a married woman is not equivalent
to ownership, so that as regards the rule against perpetuities the in-
terest arising under the execution of the power by her will must be
considered as created under the deed or will conferring the power.
This decision is reported in the Law Journal reports, and also in
the Weekly Reporter, but it is not reported in the Law Reports, but I
am not entitled to say on that account that it is not properly reported,
or an authority to which I need pay no attention. The case is report-
ed, and I must attend to it and deal with it as best I can. I think the
Vice-Chancellor in that case fell into an error. I can find no distinc-
tion between the case of capacity to alienate existing by reason of a
general power and general capacity to alienate property. For the pur-
Ch. 7) POWERS 577
poses of the power, the person exercising it, whether a man or a mar-
ried woman, stands in exactly the same position with reference to the
disposition purported to be made under the power.
Mr. Butler and Lord St. Leonards both treat a general power of
appointment as outside the rule against perpetuities. Lord St. Leon-
ards in his work on Powers says (8th ed., p. 394): "A general power
is, in regard to the estates which may be created by force of it, tanta-
mount to a limitation in fee, not merely because it enables the donee
to limit a fee, which a particular power may also do, but because it
enables him to give the fee to whom he pleases." He draws no dis-
tinction between a power exercisable by deed or will or by will only,
and it appears to me to make no difference by what instrument the
power is made exercisable. Lord St. Leonards also says. Ibid., p.
395 : "Therefore, whatever estates may be created by a man seised in
fee may equally be created under a general power of appointment ;
and the period for the commencement of the limitations in point of
perpefurfy,'~ls the time of the execution of the power, and not of the
creation of it." He goes on to quote Mr. Powell's note to Fearne's
Executory Devises (page 5), in favor of the contrary opinion, and in
the result states that there appears to be no solid principle upon which
the distinction taken by Mr. Powell can be supported, because the
question whether the limitations are good does not depend on the fact
that the donee of the power has also the fee in default of appointment,
and that you can create the same estates and limitations under a gen-
eral power of appointment as you can where you have the fee.
There are remarks of other text-writers to the same effect, and I
refer particularly to those of Mr. Butler, who says that this proposi-
tion is established "after a series of cases :" Butler's Coke upon Little-
ton, 272a.
I think, therefore, there must be some error, some slip in the deci-
sion of James, 'V.C., in In re Powell's Trusts, and that the case w-as
wrongly decided, and consequently that I must treat a feme covert as
capable of creating the same limitations under a general power of ap-
pointment as she could under a will of her separate estate. The re-
sult, therefore, is, that I hold the appointment by Mrs. Abdy valid,
and I give judgment for the plaintiff in the terms asked for by the
statement of claim.*
8 Accord: In re Flower, 55 L. J. Ch. N. S. 200 (1SS5) ; Stuart v. Babiugton,
27 Jj. R. (Ireland) 551; 26 H. L. R. 64.
As TO Powers of Sale in Trustees. — Lautsbery v. Collier, 2 K. & J. 709
(1856) ; Goodier v. Edmunds, [1893] 3 Ch. 455 ; Gray, Rule Against Perpetui-
ties, §§ 481-509 (2d Ed.) §§ 509a-509r.
4 Kales Prop. — 37
578 KULE AGAINST PERPETUITIES (Part 4
CHAPTER VIII
CHARITIES
CHRIST'S HOSPITAL v. GRAINGER.
(Court of Chancery, 1S49. 1 Macn. & G. 460.)
The material facts and circumstances of this case, which has been
already reported in the court below (16 Sim. 83), and the several points
raised on the hearing of the appeal, are sufficiently stated for the pur-
pose of this report in the following judgment.
The Lord ChancEIvIvOr [Lord Cottenham]. This is an appeal by
the Attorney-General, who is a defendant in the cause, and the first
question to be considered is the position which the Attorney-General
has assumed by this rehearing.
The Corporation of London, as governors of Christ's Hospital, by
the bill claimed certain property which had been left by the testator,
John Hendricke, in 1 624, to t^e corporation of Reading, for certain
rha jjitable purpose s in that town, with a direction that if the donees
sh ould for a year neglec t, omit, or fail to perform the directions of his
will, such gift should be utterly void, and should f orthwith be paid and
trans ferred to the corporation of London f or the benefit of Christ's
H ospital . The strict execution of the directions of the will having
been found inconvenient, an information was filed by the Attorney-
General in the Court of Exchequer against the corporations of London
and Reading, which led to a decree in 1639, varying the purposes and
application of the charity, but still confined to Reading ; and providing,
as in the will, that if the corporation of Reading should neglect to
perform the directions of the decree, or should misemploy the trust
property, and such neglect and misemployment should continue for a
year, the legacy should be void and of no effect as to Reading, and that
the property should be forthwith paid and transferred to the corpora-
tion of London, for the benefit of Christ's Hospital.
That the directions of this decree as well as those of the will have
been neglected and unperf orii Ted_ for the perio d of far more than on e
yean is a tact clearly established, and not in dispute on this rehearing.
Upon this fact the corporation of London by their bill sought to re-
cover the property for the benefit of Christ's Hospital, and this the
decree of the Vice-Chancellor directed. The Attorney-General was
properly a party to this suit, but, as it appears, took no part in the dis-
cussion. To this there could be no objection, there being before the
court parties, the trustees for the town of Reading, immediately inter-
Ch. 8) CHARITIES 579
ested in resisting the claim of the plaintiffs; but that course could only
be unobjectionable upon the Attorney-General's having considered that
he might properly, not only leave the discussion to the other defend-
ants, but abide by the decision upon it. I cannot approve of any party
after a decree, which he did not oppose, reopening the discussion by a
rehearing. As to such a party the proceeding is in effect an original
hearing. What might be the result of such an attempt by an ordinary
party, I need not now decide; because in cases of charities the court is
less strict in enforcing its rules of proceeding, and will not upon such
an objection refuse to hear such case as the Attorney-General may
have to make.
This leads to the consideration of what the case is that the Attorney-
General can make upon this rehearing. The only case he can make,
and what he has attempted, is to show that the bill ought to have been
dismissed ; that so far as this cause is concerned, the court ought to
have decided that, although the directions of the will and of the decree
of the Exchequer have been wholly neglected, and the charity property,
therefore, misapplied, the town of Reading is nevertheless to continue
in the enjoyment of the property. Such in point of form must be
the contention of the Attorney-General; but such is not and cannot be
his real object; but he, finding that the decree shuts out the case which
he had thought it right to present to the court upon an information,^
takes this step to remove that impediment out of his way. This again
shows how unfortunate it was he did not raise the whole case in the
court below, which might and ought to have been done by the cause
and the information being heard together. This court is well justified
in regretting, and possibly in complaining, that this was not done ; but
I do not think it right upon these grounds to decline giving my opinion
upon the points raised now for the first time by the Attorney-General,
and I proceed, therefore, to consider them, bearing in mind that this
is a gift to a corporation upon certain charitable trusts, with a pro-
viso that in a certain event such gift shall cease, and the property be
transferred to another corporation for certain other charitable trusts ;
and that the event, upon which such cesser and transfer were directed
to take place, has happened.
Brown v. Higgs, 8 Ves. 574, was indeed cited, as proving that the
gift over could not take effect from the act of the trustees. That
case not only does not support that proposition, but proceeds upon a
principle inconsistent with it ; for it only upon this point decided, that
the object of a testator should not be disappointed by the neglect of a
trustee; but in this case the testator has made the gift over to depend
1 Previously to the institution of tliis suit, an information liad been tiled
by tlie Attorney-General on the recommendation of the charity commission-
ers (but to which the present plaintiffs were not made parties), praying a
scheme for the futux-e regulation of the charity, and suggesting a cy pres
application of its funds to the building and endowment of schools in the
town of Reading. — Rep.
5S0 RULE AGAINST PERPETUITIES (Part 4
upon the act of the trustee ; and to hold that the act of the trustee was
inoperative for that purpose, would be to defeat and not to forward his
object. The Attorney-General, however, further contends that this
provision for cesser and transfer was void as repugnant to the original
gift. This is so, if the original gift was indefeasible, but not otherwise,
and that is the question ; the proposition therefore is only a conse-
quence of the point in dispute, if decided one way, and not an argument
for the decision.
It was th en argued that it was void , as contrary to the rules against
perpetuit ies. These rules are to prevent, in the cases to which the y
apply, property from being inalienable beyond certainperiods! Is tliis
ettect produced, and arelHese rules invacled by the transfer, in a cer-
tain event, of property from one charity to another? If the c orporation
of Reading might hold the property for certain charities in Readin g,
why may not the co r pora tiorLof Lon don hold it for the charity of
ChjjsFsT Jospita Mri London ? The propeii;y_js_neitHer more nor less
The next argument was, that the forfeiture created by the will was
destroyed by the decree, and that the forfeiture created by the decree
was inoperative, being beyond the jurisdiction of the court. These
arguments are not very consistent. If the court exceeded its juris-
diction in the provision for the transfer, the provisions of the will were
not affected by it; but in fact the decree only varied the first trusts
prescribed by the will, substituting others ; but preserved the forfei-
ture ; and whether the forfeiture under the will or under the decree be
the operative provision is not material, it being established that the
event has happened which under either was to create the cesser and
transfer. To meet this answer, it was contended, that the bill sought
relief only under the provisions of the will; but that is not so, for the
bill alleges that "the plaintiffs are advised that under the circumstances
before stated the limitation over in favor of the plaintiffs contained in
the will has taken effect, and that the plaintiffs are now entitled under
the provisions of the will and of the decree to have the estates and
property transferred to them."
But lastly, it was contended, that the plaintiffs' claim was barred by
time, more than twenty years having elapsed since the facts which are
said to have created the forfeiture, and since the plaintiffs knew of
these facts. Time is permitted to create a bar in order to quiet titles.
Is then the Attorney-General contending that time has sanctioned
the breaches of trust committed by the corporation of Reading, and
that the purposes to which they applied the trust property are not to be
disturbed? This cannot be, and is not the object of the Attorney-
General. His object is to let in the jurisdiction of the court for the
purpose of having the property applied to purposes distinct from any
provisions of the will or decree. He repudiates the purposes to which
the corporation of Reading were directed to apply the property, as
Ch. 8) CHARITIES 581
much as he does those to which the corporation of London were direct-
ed to apply it. Is this quieting the title of the corporation, or of those
who now claim in their place? ^ The question is not whether time is
a bar to any claim adverse to the title of the original donee ; but wheth-
er such title is to be superseded in favor of those to whom upon fail-
ure of such title the testator has given the property, or in favor of
general charity unconnected with any expressed object of the testator.
If, indeed, there were adverse claims between cestui que trusts, time
might create a bar as between them, though it could not as between a
cestui que trust and a trustee, upon the principle ultimately established
in Cholmondeley v. Clinton, 2 J. & W. 1 ; but that is not the case here :
both tlie contending parties, the Attorney-General and the plaintiffs,
under the same facts, claim the property which up to the present time
has remained in the hands of the forfeiting party who no longer dis-
putes the forfeiture. As between the Attorney-General and the plain-
tiffs, there has not been any adverse title or possession.
Some confusion may have arisen from the use of the word forfeiture.
In one sense, the cesser of one set of trusts, and the commencement
of the other may be considered as a forfeiture, but the form and sub-
stance of the provision is rather a substitution of one trust for another.
The property was vested in the corporation of Reading, but in a certain
event they were to become trustees of it for Christ's Hospital. Now
if the effect of these provisions was to constitute the corporation of
Reading, in the event which happened, trustees for Christ's Hospital,
until they transferred the property as directed, (and such it would seem
was the only interest they had, and the only duty they had to perform,)
there could not have arisen, as between them and the plaintiff's, any
question of time or adverse possession: but that is not the question I
have to consider.
It appears to me that the Attorney-General cannot maintain the
points he has attempted to establish upon this rehearing, and that the
decree of the Vice-Chancellor must be affirmed.^
- i. e. The defendants, Grainger and others, who had been appointed by
the Lord Chancellor tnistees of the charity estates under the provisions of
the Municipal Reform Act. — Rep.
3 Accord : Storrs Agricultural School v. Whitney, 54 Conn. 342, 8 Atl. 141
(1SS7) ; MacKenzie v. Tnistees of Presbytery of Jersey City, 67 N. J. Eq.
652, 61 Atl. 1027, 3 L. R. A. (N. S.) 227.
582 KULE AGAINST PERPETUITIES (Part 4
In re TYLER.
(Chancery Division, Court of Appeal. L. R. [1S91] 3 Ch. 252.)
Appeal from Mr. Justice Stirling. Sir James Tyler, who died on
the 5th of April, 1890, by his will, dated the 18th of April, 1882, after
appointing his brothers, William Tyler and Charles Tyler, his execu-
tors, made the following bequest :
"I give to the trustees for the time being of the London Missionary
Societ y the~s um ot ±42,UUU Russian 5 .per Cent, ^tock," witl i~a reht^
ch aTge to my brother, Charles Tyler, Esq., o f £ 1000 a year for life!
Also I commit to their keeping of the keys of my family vault at
Highgate Cemetery, to the (sic) care and'^harge, my brothers to be "
buried in the vault if they wish, and to use the same, if they wish, for
any member of the family, the same to be kept in good repair and
nam^Je gible, and to rebuild when i ^ shall req uifg ^ failin g Lo comply
with this request, the money left to go to _ the Bl ue Coat School, New-
gate Street, Loiidon." "^""^ ""^
THs was an originating summons to obtain the opinion of the court
as to whether (among other questions arising on the will) the condi-
tion attached to the above legacy, for keeping up the testator's family
vault, was vaHd and binding on the legatees, the trustees of the Lon-
don Missionary Society.
The summons was heard before Mr. Justice Stirling on the 21st of
February, 1891.
Stirling, J. The question I have to consider is, whether the con-
dition attached by the testator to the legacy to the London Missionary
Society is binding on the trustees of that society, or is void. No
doubt a tr ust or gift for keepin g^p ,a- tQmb not forming part of a
church is bad, sinc e such a purpose is not charitable, and t he trust j ^r
gift create s a perpeFuit v. TKomson v. Shakespear, 1 D. F. & J. 399;
Rickard v. Robson, 31 Beav. 244; Hoare v. Osborne, Law Rep. 1 Eq.
585. Here, however, the question is not whether the gift or trust
for the purpose of keeping up the tomb is good or bad, but whether
the gi ft over, in the event of failu re tn kfpp in rcyVT^, ^^ annthpr rbpri-.
t>^~can be held to b e bad . The rule against perpetuities has no ap-
phcation to a transter m a certain event from one charity to another,
as is expressly laid down by Lord Cottenham in the case of Christ's
Hospital V. Grainger, 1 Mac. & G. 460, 464. It is said that the con-
dition tends to produce or bring about a misapplication of funds de-
voted to charitable purposes, and the case of Wilkinson v. Wilkinson
was referred to as showing that the gift must, therefore, be held to be
bad. I am, however, u nable tn spp fhnf t h p rnndit inn ■impn'^pH here
tends necessarily to a bre ach of trus_t on the part of the trustees of
the Society, "^uch societies depend largely on the voluntary contri-
butions of their supporters; and the funds required for keeping the
Ch. S) CHARITIES 583
family vault in repair may readily, I doubt not, be obtained from per-
sons willing to subscribe for the purpose of retaining the administra-
tion of this large fund in the hands of the society, and without in the
least trenching on any funds devoted to charitable purposes.
I am of opinion, therefore, that the condition is good.
From that decision the defendants, the trustees of the London Mis-
sionary Society, appealed, asking that it might be declared that the
condition attached to the legacy was void, and that the gift over of
the legacy to the defendants, the Governors of Christ's Hospital, upon
the breach of such condition, was not a good gift.
Since the commencement of the proceedings the plaintiff had died,
the defendant, Charles Tyler, thus becoming the testator's sole legal
personal representative.
The appeal came on for hearing on the 17th of July, 1891.
LiXDLEY, L. J. In this case Sir James Tyler, by his will, made a
disposition which is not in very artificial language, but it is tolerably
plain. It runs thus : "I give to the trustees for the time being of the
London Missionary Society the sum of £42,000 Russian 5 per Cent.
Stock, with a rent-charge to my brother Charles Tyler, Esq., of ilOOO
a year for life. Also I commit to their keeping of the keys of my
family vault at Highgate Cemetery to the care and charge." Then
comes a clause which is parenthetical : "My brothers to be buried in
the vault if they wish, and to use the same, if they wish, for any mem-
ber of the family, the same to be kept in good repair, and name legible,
and to rebuild when it shall require."
Leaving out the parenthetical clause as to the brothers, it runs
thus : "I commit to their keeping" — that is, the London Missionary
Society's keeping — "of the keys of my family vault at Highgate to
the care and charge" — I suppose that means "their" care and charge
— "the same to be kept in good repair, and name legible, and to
rebuild when it shall require : failing to comply with this request, the
money left to go to the Blue Coat School, Newgate Street, London."
j\lr. Justice Stirling has decided that the condition on which the gift
over is to take effect is valid, and the appeal to us is against so much
of his order as d eclares that the condition of repairing and rebuildi ng
the fa mily vault is a v alid condition and binding on the defendants, the
London Missionary Society; the defendants asking that that may be
reversed.
There is no doubt whatever that this condition, in one sense, tends
to a perpetuity. The tomb or vault is to be kept in repair, and in re-
pair for ever. There is also no doubt, and I think it is settled, that a
gift of that kind cannot be supported as a charitable gift. But, then,
this case is said to fall within an exception to the general rule relating
to perpetuities. It is common knowledge that the rule as to perpetui-
ties does not apply to property given to charities ; and there are rea-
sons why it should not. It is an exception to the general rule ; and
584 RULE AGAINST PERPETUITIES (Part 4
we are giiided in the application of that doctrine by the case which
has been referred to of Christ's Hospital v. Grainger, 1 ]\Iac. & G. 460.
It is sufficient for me to refer to the head-note for the facts. The
bequest there was "to the corporation of Reading, on certain trusts
for the benefit of the poor of the town of Reading, with a proviso that,
if the corporation of Reading should, for one whole year, neglect to
observe the directions of the will, the gift should be utterly void, and
the property be transferred to the corporation of London, in trust for
a hospital in the town of London." It was argued that that gift over
was invalid, and Lord Cottenham disposes of the argument in this
way (1 Mac. & G. 464) : "It was then argued that it was void, as con-
trary to the rules against perpetuities. These rules are to prevent, in
the cases to which they apply, property from being inalienable beyond
certain periods. Is this effect produced, and are these rules invaded
by the transfer, in a certain event, of property from one charity to
another? If the corporation of Reading might hold the property for
certain charities in Reading, why may not the corporation of London
hold it for the charity of Christ's Hospital in London ? The property
is neither more nor less alienable on that account."
Guided by that decision, and acting on that principle, Mr. Justice
Stirling held that this condition was a valid condition ; and it appears
to me that he was right. What is this gift when you come to look at
it? It is a gift of i42,000 Russian 5 per Cent. Stock to the London
Missionary Society. What for? It is for their charitable purposes.
It is a gift to them for the purposes for which they exist. Then there
is a gift over to another charity in a given event — that is to say, the
non-repair of the testator's vault. It seems to me to fall precisely
within the p rincip le on which C lirist's Hospital v. Grainger w^as de-
cided. A gif t to a^ ch antv for"cHaritable purposes, with a gi^ t _over on
an event whTcli mav __be beyond the ordinary limit of per pet uities t o
another ^larity^^Tcannot see that there is anything ille^gaT in this.
J\Ir. Buckley has put it in the strongest way he can. He says that, if
yo u give eltect to this condition, you will be enabling people to evacte"
the law relatingJo jjerpetuTt ics. Ttalce Tt^ffiis decision will not go the
length — certainly I do not intend it should, so far as I am concerned — •
that you can get out of the law against perpetuities by making a
charity a trustee. That would be absurd ; but that is not this case.
Th is propert y is given to the L ondon Missionary Society for th eir
ch aritable purposes. Then, there is a conditi on that, if the tonTb is
not kept in order, the fund sha ll g^ _ovpr to another rhnrity. — That
appears to me, both on principle and jtuthority^ to be valid ; and I do
not think it is a suf^cient answer to say that such a conclusion is an
inducement to do that which contravenes the law against perpetuities.
There is nothing illegal in keeping up. a tomb; on the contrary, it is a
very laudable thing to do. It is a rule of law that you shall not tie up
property in such a way as to infringe what we know as the law against
Ch. 8) CHARITIES 585
perpetuities; but there is nothing illegal in wha t the testator has done
here.,^ The appeal must be cTismissed with costs.
Fry, L. J. I am of the same opinion.
In this case the testator has given a sum of money to one charity
with a gift over to another charity upon the happening of a certain
event. That event, no doubt, is such as to create an inducenie nt or
motive on' the p¥Ft of the first donee, the Lon d on Missionary S ociety,
to~1fepairthe f amily tomb of the testator . Inasmuch as both the do-
nees ofThisTund, the first donee and the second, are charitable bodies,
and are created for the purposes of charity, the rule of law against
perpetuities has nothing whatever to do with the donees. Does the
rule of law against perpetuities create any objection to the nature of
the condition ? If the testator had required the first donee, the Lon-
don ]^Iissionary Society, to apply any portions of the fund towards the
repair of the family tomb, that would, in all probability, at any rate, to
the extent of the sum required, have been void as a perpetuity which
was not charity. But he has done nothing of the sort. He has given
the first donee no power to apply any part of the money. He has only
created a condition that the sum shall go over to Christ's Hospital if
the London Missionary Society do not keep the tomb in repair.
Keeping the tomb in repair is not an illegal object. If it were, the
condition tending to bring about an illegal act would itself be illegal ;
but to repair the tomb is a perfectly lawful thing. All that can be
said is that it is not lawful to tie up property for that purpose. But
the rul e of law against perpetuities applies to prope rty , not m otives ;
an in know of no rule -wh ich says th at_>xiu_may jiot tr y to enforce a
condition creating a perpetu al inducement to jdo a thing whi ch is law -
ful; ThaOs this case.
■~Tlien it is said by Mr. Buckley, "But if the gift had been to the
London Missionary Society simply, they might have spent the money;
by imposing this condition you require them to keep that invested,
because it may have to go over at any moment to Christ's Hosj^tal."
What is the harm of that? Being a charity, and not affected by the
rule against perpetuities, whether you direct them to keep the money
invested in plain Avords, or whether you impose the condition which
renders it necessary to keep it invested, seems to me the same thing
and to be equally harmless, and not affected by the law against
perpetuities.
I think the learned Judge in the court below was quite right, and
that this appeal must be dismissed.
Lopes, L. J. I am of the same opinion.
586 EULE AGAINST PERPETUITIES (Part 4
In re BOWEN.
(Chancery Division, 1893. L. R. [1893] 2 Ch. 491.)
Adjourned summons. The Rev. Daniel Bowen, of Wann-I-for, in
the county of Cardigan, by his will, dated the 3d of September, 1846,
bequeathed to trustees two sums of £1,700 and £500, respectively, upon
trust to invest the same, and in the next place to establish in each of
certain parishes in Wales, a We lsh day-school to be called the "Wann-
I-for Charity School," and to continue the same schools for ever there -
after; and he declared that " if at any tim_e_hereaf ter the Governmen t
of this kingdom shall estab lish a general systern of e ducat ion, the sev-
eraTTrusts ot the said several sums of £1,700 and £500 shall cease and
determine, and I bequeath the s aid several sum s in the same manner
as I have bequeathed t he residue of my personal estat e."
^The testator appointed his sisters, Jane Lloyd, Ann Phillips, and
Rachel Rees, to be his executrixes and residuary legatees.
The testator died in October, 1847, and after his death the two sums
of £1,700 and £500 were duly applied for the purposes of the charities.
This was an originating summons taken out by the personal repre-
sentatives of the residuary legatees raising the following questions :
(1) whether the Government had by the Elementary Education Act,
1870, and the Acts amending it, established a general system of educa-
tion; (2) whether the trusts by the will declared of the two sums of
£1,700 and £500 had ceased and determined; and (3) whether, if so,
those sums had fallen into the residue of the testator's estate. The
summons was opposed by the trustees of the charities and the Attor-
ney-General.
Stirling, J. (after stating the facts, continued). According to the
law as stated by Sir G. Jessel, M. R., in London and South- Western
Railway Co. v. Gomm, 20 Ch. D. 562, 581, if the gift in favor of the
residuary legatees is one which is not to vest until after the expiration
of, or will not necessarily vest within the period fixed and prescribed
by law for the creation of future estates and interests, then the gift is
bad, unless the circumstance that the prior gift is in favor of a charity
makes a difference. It has been decided that the rule against perpetui-
ties has no application to the transfer in a certain event of property
from one charity to another. Ch rist's Hospital v.^_ ^rainger, 1 Mac.
& G. 460; In re Tyler, [1891] 3 Ch. 252. The principle of those de-
cisions, however, d oes not exte nd, in my opinion, to cases where (1)
an immediate gift in favor of_griyale_individAJ is followed by an
exe^tory^giftln f avoFof charity, or (2) arTimmediate gift m tavorbf
charily Ts foTToWedriJylifrexecutory gift in Tavor of private^mdividuals.
Of tTiFTormer class of cases" Lord Chancellor Selborne, in gu'ing the
judgment of the Court of Appeal in Chamberlayne v. Bockett, Law
Rep. 8 Ch. 211, says: "If the gift in trust for charity is itself condi-
tional upon a future and uncertain event, it is subject, in our judgment,
Ch. 8) CHARITIES 587
to the same rules and principles as any other estate depending for its
coming into existence upon a condition precedent. If the condition is
never fulfilled, the estate never arises ; if it is so remote and indefinite
as to transgress the limits of time prescribed by the rules of law against
perpetuities, the gift fails ab initio." The second class of cases does
not seem to have fallen under the consideration of any court in this
country; but the Supreme Court of Massachusetts has in Bratde-
Square Church v. Grant, 3 Gray, 142, 63 Am. Dec. 725, and Theologi-
cal Education Society v. Attorney-General, 135 Mass. 285, held that
the rule against perpetuities applies to them. For the knowledge of
these decisions I am indebted to the very learned and able treatise of
Professor J. C, Gray on the Rule against Perpetuities (see sect. 593),
to which I was referred in argument. On the other hand, as property
may be given to a charity in perpetuity, it may be given for any shorter
period", however long; and tlie interes^undisposed of, even irTt~cannOT~"
be ^trre'subj ect ot_a dii"ect""executofy gift, may beTe Tt to d evelop as~tri e
la w prescrib es. Of this an example is to be found in In re Randell, 38
Ch. D. 213, 218, in which the head-note is as follows: "A testatnx be-
queathed i 14,000 on trus^to pay the income to_ the i ncu mben t of th e
church at H. for the time being so long as he permitted the sittings to
be ^ occupied' Tr ee! in case p ayment for sittiiigs ^ was evejL de manded ,
she directed the i 14,000 to fall into her residue :-^Held, first, that the
testatrnTTiad noTexpressecTa general intention to devote the i 14,000
to charitable purposes, so that in case of failure of the trust for the
benefit of the incumbent the fund would be applied cy pres ; secondly,
that the clir ection that the fund should fall into the residue, bein^ a d i-
re ction that the fund sho uld go as the law would otherwise carry it,
did not ofifend the rule agamst perpetuities ." In giving judgment ]\Ir.
Justice North said: "On the construction of the will, it is a charitv fo r
a particular limited purpose, and nothing beyond that is declare d ; as
soon as that particular purpose comes to an end, the fund which was
subjected to that particular trust falls into the residue of the estate;
and it would do so just as much if there was no such limitation as this
in the will, as it does when the limitation exists. The limitation is that,
in that case, 'the trust moneys, and the interest, dividends, and annual
income arising therefrom shall fall into and be dealt with as part of
my residuary personal estate.' If she had said that it would fall into
and form part of her residuary personal estate, she would simply have
been saying what the law is ; and saying that it shall do so is simply
saying what the law would do without such a statement. In m v^opin -
i on a direction that in a particul ar event a fund shall go in the way in
which the la w would make it go in the absence of such a dire ction,
canno r'&e^i d--tQ-J ie an invalid gift, or contrary to the policy^of^ jthe
law,"
The qu estion which I have to decide, therefore, appears to me to re-
duce itself to one of the construction of the testator's will — i. e., wheth-
er the testator has given the property to charity, in perpetuity, subject
588 RULE AGAINST PERPETUITIES (Part 4
to an executory gift in favor of the residuary legatee, P^_^^^^^^iL^
has given it for a limited period, leaving th e undisposecToITnterest tQ^
faTTinto re sidue . In construing the wilfthe rule to be applied is that
stated by Lord^Selborne in Pearks v. Moseley, 5 App. Cas. 714, 719:
"You do not import the law of remoteness into the construction of the
instrument, by which you investigate the expressed intention of the
testator. You take his words, and endeavor to arrive at their mean-
ing, 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 which are obscure
and ambiguous, 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 I do say, that, if the construction
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." Now, the sums of il,700 and i500 are
bequeathed to trustees who are obviously selected with a view to the
efficient administration of the charitable trusts created by the will, and
were not intended by the testator to be charged with any duties as re-
gards any other portion of his property. He directs the trustees named
in the will, by means of the funds paid over to them by his executors,
to establish certain schools, "and to continue the same schools for ever
thereafter." He contemplates a perpetual succession of trustees in
whom the execution of the trusts is to be vested. I think that on the
true construction of the will the re is an immediate disposition in fav or
of "chanty m perpeiuiiy, a nd not tor any shorter period . That is f ol-
lowed by a gilt over i t at any time the Government should establish
a general syst em 6t educati on ; and u nder that gift over the residuary
legatees t ake a iuture interest conditional on an event which need not
necessarily occu r within perpetuity limits . It follows that the giit over
is bad; and, consequently, the summons must be dismissed.*
4 Where the gift to the charity comes to an end at too remote a time,
there is a resulting trust, and the fact that at that time those are entitled
who would take under the residuary clause makes no difference. In re
Blunt's Trusts [1904] 2 Ch. 767; Hopkins v. Grimshaw, 1G5 U. S. 342. 355.
17 Sup. Ct. 4.01, 41 L. Ed. 739; Gray, Rule Against Perpetuities (2d Ed.) §
603i.
Ch. 8) CHARITIES 589
SIXXETT V. HERBERT.
(Court of Chancery, 1872. L. R. 7 Ch. 2.32.)
This was an appeal from a decision of Vice-Chancellor Bacon, Law
Rep. 12 Eq. 201.^
Mary Moine, by her will, dated the 7th of April, 1865, after giving
certain annuities and disposing of her real estates, bequeathed to Fred-
erick Rowland Roberts and John Sinnett, whom she appointed her ex-
ecutors, £3.000, "to be by them applied in aid of an endowment for a
Welsh church now in course of erection at Aberystwith. And as for
and concerning the residue of my personal estates and effects, subject
to the payment of my debts, funeral and testamentary expenses, and
the legacies hereinbefore by me bequeathed, I bequeath the same to
the said F. R. Roberts and J. Sinnett upon trust to be by them applied
in aid of erecting or of endowing an additional church at Aberystwith
aforesaid."
The testatrix died on the 10th of December, 1866.
A suit having been instituted for the administration of the testatrix's
estate, an inquiry was directed by the decree whether there was any
church answering the description in the will of "an additional church
at Aberystwith" being erected or being about to be erected at the time
of the death of the testatrix.
By his certificate, the chief clerk found that there was not any
church answering the description in the will of an additional church at
Aberv^stwith bemg erected or being about to be erected at the time of
the testatrix's death.
It appeared from the evidence of the vicar of Aberystwith, that at
the date of the will there was at Aberystwith the church of St. Michael,
which was constituted by Order in Council in 1861 the district church,
and that there was also a church then in course of erection as a chapel
of ease to St. Michael's, and known as the "Welsh church," from its
being intended to hold the services therein in Welsh. This church was
opened for public worship in August, 1867. Beyond these two church-
es, there was no other church at Aberystwith, and there was not any-
church being erected or being about to be erected there, although, as
the vicar stated, he had often talked with the testatrix respecting the
endowment of the AVelsh church, and the necessity during the sum-
mer season of additional church accommodation, either by enlarging
St. Michael's, or by building an additional church, or by having an ad-
ditional service for visitors at the Welsh church.
The Vice-Chancellor held that the gift of the residue was not intend-
ed to provide an endowment, except in the event of a church being
erected or in course of erection at the testatrix's death, and that the
gift, therefore, failed.
5 Part of the case is omitted.
590 RULE AGAINST PERPETUITIES (Part 4
From this decision the Attorney-General appealed.
Lord HatherlEy, L. C. I entertain no doubt as to what ought to
be done in the present case. Very able arguments on both sides have
been addressed to me this morning with respect to the application of
the doctrine of cy pres, but I do not think that tliere is any necessity
for going into that question at present. As far as I can judge from
what has been stated there is a possibility of a church being built at
Aberystwith, and therefore I think it is extremely probable that we
may never arrive at the application of that doctrine at all.
I think it is plain in the first place that upon the true construction of
the will the bequest must be taken to be a bequest for the purpose of
aiding in the erection of any additional church in Aberystwith. I differ
so far from the Vice-Chancellor, who thought that the testatrix in-
tended to confine her executors to the case of an actual church erected
and requiring endowment, or a church in progress of erection at the
time of her death.
As to the difficulty from the possible remoteness of the time when
her intention can be carried into effect, I think the case of the Attorney-
General V. Bishop of Chester, 1 Bro. C. C. 444, is a complete answer.
In that case the ver}^ point which arises here was suggested. There
was a sum of £1,000 left for a good charitable purpose, namely, for the
purpose of establishing a bishop in the king's dominions in America.
There was no bishop in America. The sum, being only £1,000, was
not very likely in itself to be sufficient to establish a bishop. Nothing
could be more remote, or less likely to happen within a reasonable pe-
riod, than the appropriation of that fund to that particular object. But
the court did not direct any application of the fund According to the
cy pres doctrine ; it would not allow the fund to be dealt with immedi-
ately, but directed the fund to remain in hand for a time, with liberty
to apply, because it was not known whether any bishop would be es-
tablished. But that the court would continue to retain it forever, wait-
ing until a bishop should be appointed, I think is a very doubtful propo-
sition.
There have been numerous cases of gifts to charities where an in-
quiry has been directed, whether there is anything in esse to which the
fund of the testator can be properly applied so as to carry out his
wishes. One of the last of such cases was that cited by Mr. Bristowe,
R ussell v ^_Jackson, 10 Hare, 204, in which the testato r wished a
socialist school to be establi shed . The court held the gifTas to the inv-
purFT5CTs6naTtyl:o be bad under the Statute of Mortmain. It then di-
re cted^ n inquiry what the principles of socialism were, in order to see"
whether they contained anything really objectionable. A ^sirmlaf~in-
quiry appears to have been directed in the case of Thompson v. Thomp^
son, 1 Coll. 395, where the testator left a fund for the appoin tment of
a professor to teach his opinions as contained in the testator^j)rinted
books^ which nobody at that time had read. It being found on in-
quiry that there was nothing contrary to morality or religion in~the
Ch. 8) CHARITIES 591
opinions contained in those books, the trust was ordered by the court
to be^^rned_TiiTt7 ^
The course, therefore, that seems to me the correct one, upon the
first part of the case, is to direct an inquiry at chambers whether or not
the funds which are effectually given to the trustees for the purpose
of aiding in erecting or endowing a church at Aberystwith, or any and
what part thereof, can be so laid out and employed.
CHAMBERLAYNE v. BROCKETT.
(Court of Chancery, 1872. L. R. 8 Ch. 206.)
This was an appeal by the Attorney-General from a decision of the
Master of the Rolls.
Sarah Chamberlayne, by will dated the 13th of January, 1858, after
giving various legacies, mostly for charitable purposes, proceeded as
follows :
"As I consider all my family the same to me, I wish to make no
difference, and as I could not select any of them that I confidently
could feel would not spend my money on the vanities of the world, as
a faithful servant of the Lord Jesus Christ I feel I am doing right in
returning it in charity to God who gave it. I therefore give and be-
queath all the rest, residue, and remainder of my personal estate and
effects, whatsoever and wheresoever, after payment of all my just
debts, my funeral expenses, and legacies as aforesaid, unto my said
brothers, William Chamberlayne, John Chamberlayne, and H. T.
Chamberlayne, and to the survivors and survivor of them, and to the
executors, administrators, and assigns of such survivor upon trust that
they do and shall, with all convenient expedition after my death, invest
the same and every part thereof in the stock called £3 per Cent. Con-
solidated Bank Annuities after selling such parts of the said residue
as may be necessary for that purpose ; and my will and desire is that
the said trustees do and shall stand possessed of the said residue so in-
vested as aforesaid upon the trusts, intents, and purposes following:
(that is to say) upon trust to pay out of the annual dividends or pro-
ceeds of the said residue so invested as aforesaid the sums following,
yearly and every year forever (that is to say) : " [Here followed a list
of small annual payments]. "And my further will and desire is, when
and so soon as land shall at any time be given for the purpose as here-
inafter mentioned, that an almshouse or almshouses, consisting of ten
rooms with suitable appendages for ten poor persons, should be built
in the parish of Southam, in the county of Warwick; also an alms-
house or almshouses, consisting of five rooms with suitable appendages
for five poor persons, in the parish of Long Itchington, in the county
of Warwick" [similar directions as to two other almshouses], "all to
be built in a plain substantial manner, no expensive ornament what-
592 RULE AGAINST PERPETUITIES (Part 4
ever." [Here followed directions as to the inmates.] "And my will
and desire further is, that the surplus remaining after building the
almshouses aforesaid should be appropriated to making weekly allow-
ances to the inmates of each ; and my will and desire is that each room
in the several almshouses aforesaid should be supplied with a suitable
Bible of a large type."
The above trustees were named executors.
William and John Chamberlayne predeceased the testatrix. Henry
Thomas Chamberlayne, the sole surviving executor, proved the will,
and filed his bill against the other next of kin for the administration
of the personal estate. The Attorney-General was served with the de-
cree. The residuary estate, which consisted of pure personalty, was
found, on taking the account, to amount to upwards of i 10,000. The
Master of the Rolls, on the case coming on for further consideration,
held that the residue was not effectually given in charity, but was di-
visible among the next of kin of the testatrix.**
Lord Selborne, L. C. The only question which appears to us to
require decision in this case is whether, upon the true construction ot
the will, a trust for charitable purposes of the whole residuary per-
sonal estate was constituted immediately upon the death of the testa-
trix, or whether the charitable trust as to the residue not required to
make the fixed payments mentioned before the directions as to the
almshouses and almspeople was conditional upon the gift of land at
an indefinite future time for the erection of almshouses thereon. If
there was an immediate gift of the whole residue for charitable uses,
the authorities mentioned during the argument (Attorney-General v.
Bishop of Chester, 1 Bro. C. C. 444 ; Henshaw v. Atkinson, 3 Madd.
306 ; and Sinnett v. Herbert, Law Rep. 7 Ch. 232 ; to which may be
added Attorney-General v. Craven, 21 Beav. 392) prove that such gift
was valid, and that there was no resulting trust for the next of kin
of the testatrix, although the particular application of the fund di-
rected by the will would not of necessity take effect within any as-
signable limit of time, and could never take effect at all except on the
occurrence of events in their nature contingent and uncertain. When
personal estate is once effectually given to charity, it is taken entirely
out of the scope of the law of remoteness. The rules against per-
petuities (as was said by Lord Cottenham in Christ's Hospital v. Grain-
ger, 1 Mac. & G. 464) "are to prevent, in the cases to which they ap-
6 Lord Eomilly, M. R., after giving his reason for holding some of the
legacies void, continued:
I am of opinion that the gift of the residue is also void, not as being af-
fected by the INIortmain Act, but as being a perpetuity. Suppose a testator
gave £1,000 to be accumulated until some heir of John Jones should select a
descendant of A. B. to receive it. That would be void on the ground of per-
petuity, because an indefinite period might elapse before the selection was
made. So here there is no gift in charity unless and until some person gives
land for the purpose of the charity, which may not happen for an indclinite
period. I am, therefore, of opinion that there is an intestacy as to the res-
iilue.
Ch. 8) CHARITIES 593
ply, property from being inalienable beyond certain periods." But
those rules do not prevent pure personal estate from being given in
perpetuity to charity ; and when this has once been effectually done,
it is (to use again Lord Cottenham's language) "neither more nor less
alienable" because there is an indefinite suspense or abeyance of its
actual application or of its capability of being applied to the particular
use for which it is destined. If the fund should, either originally or
in process of time, be or become greater in amount than is necessary
for that purpose, or if strict compliance with the wishes and directions
of the author of the trust should turn out to be impracticable, this court
has power to apply the surplus, or the whole (as the case may be) to
such other purposes as it may deem proper, upon what is called the
cy pres principle.
On the other hand, if the gift in trust for charity is itself conditional
upon a future and uncertain event, it is subject, in our judgment, to
the same rules and principles as any other estate depending for its com-
ing into existence upon a condition precedent. If the condition is never
fulfilled, the estate never arises ; if it is so remote and indefinite as to
transgress the limits of time prescribed by the rules of law against
perpetuities, the gift fails ab initio.
We agree with what was said by the Master of the Rolls in Cherry
V. Mott, 1 My. & Cr. 132, that "there may no doubt be a conditional
legacy to a charity as well as for any other purpose ; " and we think
that the question wdiether this is so or not ought to be determined, like
all other questions of construction, by the application of the ordinary
rules of interpretation to the language of each particular will. We
do not assent to the suggestion made by the Solicitor-General that
Cherry v. Mott, and other cases of the same class which have followed
it, were ill-decided. If w'e thought (as appears to have been the view
of the Master of the Rolls) that the case now before us was really the
same as if the testatrix had left her residuary personal estate to de-
volve on her next of kin, subject to a contingent gift to trustees "when
and so soon as land shall at any time hereafter be given for the pur-
pose," for the erection of almshouses upon the land to be so given, and
the maintenance of almspeople therein, we should probably have con-
curred in the conclusion of his Lordship that such a contingent gift
to trustees (although for a 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 with-
in 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 than char-
itable objects.
If, therefore, we differ (as we are compelled to do) from the decree
at the Rolls, it is not on any principle of law, but upon the construc-
tion of this particular will. In this case the testatrix expressly declares
her intention to "return" her whole residuary estate "in charity to God
4 Kales Pbop. — 38
594 RULE AGAINST PERPETUITIES (Part 4
who gave it ; " and she "therefore" gives and bequeaths it immediately
upon her death to trustees to invest the whole in Consols, proceeding
to direct various specified payments to be made out of the trust fund
so created, and adding the directions on which the present question
arises for the erection of almshouses and the maintenance of almspeo-
ple therein "when and so soon as land shall at any time hereafter be
given for that purpose." According to Green v. Ekins, 2 Atk. 473 ;
Hodgson V. Lord Bective, 1 H. & M. 376, 397, and other similar cases,
a gift of the residue of personal estate carries with the corpus the whole
income arising therefrom and not expressly disposed of as income, or
expressly directed to be accumulated, from the day of the death of the
testator. Here, therefore, nothing is undisposed of, there is no result-
ing trust for the next of kin. The intention in favor of charity is ab-
solute, the gift and the constitution of the trust is immediate ; the only
thing which is postponed or made dependent for its execution upon
future and uncertain events is the particular form or mode of charity
to which the testatrix wished her property to be applied. Taking this
view of the proper construction of the will, we hold the present case
to be completely governed by Attorney-General v. Bishop of Chester,
Sinnett v. Herbert, and the other authorities of that class ; and we pro-
pose accordingly to vary the decree of tlie Master of the Rolls by a
declaration that the residue of the personal estate of the testatrix
(which we assume to be all pure personalty) is well given to charity,
and by directing an inquiry similar in principle to that in Sinnett v.
Herbert, whether any land has been given or legally rendered available
for the purposes intended by the testatrix, further consideration being
reserved. The costs of all parties of the suit and of the appeal will be
paid out of the residuary estate, and the deposit will be returned.
The Lords Justices concurred.
In re LORD STRATHEDEN.
(Chancery Division. L. R. [1894] 3 Ch. 265.)
William Lord Stratheden and Campbell, by his will, dated the 16th
of January, 1892, appointed the defendant and two~other persons his
executors, and thereby he bequeathed "an annuity of £100 to be pro^-
vided to the Central London Rangers on the appointment of the next
lieutenaiit:£olQnel."
The testator died on the 21st of January, 1893, and his will was
proved by the defendant alone, who was the sole residuary legatee
under the will.
The plaintiff was the lieutenant-colonel of the 22d Middlesex Rifle
Volunteer Corps, otherwise known as "The Central London Rang-
ers," which position he held both at the date of the will and of the
death of the testator, and the property of the said volunteer corps
Ch. 8) CHARITIES 595
was vested in him. The plaintiff claimed a declaration that the said
annuity was a valid bequest, and was vested in him as the command-
ing officer of the said volunteer corps, and that a sufficient part of the
testator's estate might be appropriated to provide for the same.
The defendant, by his statement of defence, alleged that the bequest
was void for uncertainty, and also because it infringed the rule against
perpetuities.
RoMER, J. I am sorry I do not see my way to uphold the validity
of this gift. As was pointed out by Lord Selborne in Chambcrlayne
v. Broc'kett, Law Rep. 8 Ch. 211, "If the gift in trust for charity is
itself cojiditiojial^u pon a futur e and^uncertain event, it is subject, in
our judgment, to the same rules and principles as any other estate de-
pending for its coming into existence upon a condition precedent. If
the condition is never fulfilled, the estate never arises ; if it is so re-
mote a nd ind efinite as to transgress the limits of time p rescribed by
ther u!?s~oTT aw against perpet uities , the gift fails ab initio." Apply-
ing that to the present case, I look to see, in the first place, Is this
gift conditional, and what is the condition? Well, unfortunately, it
appears to me that it clearly is conditional. The annuity is not to be
paid except on the appointment of the next Heutenant-colonel ; and if
a lieutenant-colonel is not appointed, the annuity is not to commence
or be paid. That being so, it being conditional, can I say that the
condition must arise within the time that is prescribed by the rules of
law against perpetuities ? I am sorry to say I cannot. If I could con-
strue it as a gift on the death of the present lieutenant-colonel, the
difficulty would be got over ; but I do not see my way to construe the
will so. It is a gift conditional on the appointment of the next lieu-
tenant-colonel. Now, the n ext li eutenant-colonel may not be appoint-
ed for some time after the death of the present commanding officer ;
he ne ver may be appointe d at all ; and, consequently, it appears to me
that this is a gift conditional upon an event which transgresses the
limit of time prescribed by the rules of law against perpetuities.
Therefore, reluctantly, I feel myself bound to hold that this gift fails,
and I must dismiss the action, but I do so without costs.'
MARTIN V. MARGHAM.
(Court of Chancery, 1844. 14 Sim. 230.)
Samuel Butler, by his will dated in May 1821, bequeathed the whole
of his property to trustees in trust to convert the same into money
and to invest the proceeds in the three per cents, and after paying cer-
tain annuities, to add the dividends to the capital until it should pro-
7 See, also. Worthing Corp. v. Heather, [1906] 2 Ch. 532 ; Girard Trust
Co. V. Russell. 179 Fed. 446, 102 C. C. A. 592 (1910).
596 RULE AGAINST PERPETUITIES (Part 4
duce an income of £600 a year ; when he hoped that every five years'
receipt of that income would produce an increase of income of £150 a
year; and his will was that every such increase of income should be
appropriated as he should thereafter specify, for the benefit of the
parish charity-schools ot this country, in the following order, namely,
the first school to receive the benefit, was to be St. Ann's, Limehouse ;
the second, St. Paul's, Covent Garden; the third, St. Mary's, Sand-
wich ; the fourth, St. Paul's, Shadwell. The testator then named nine
other parishes, and left it to his trustees to fix, appoint and establish,
in regular rotation, the remaining parish charity-schools, taking al-
ways the nearest parish to the last establishment.
The testator died in May 1837.
A suit for the administration of his estate came on for further di-
rections.
The Vick-Chancellor [Sir Lancelot Shadwell]. Although
the particular mode in which the testator meant the benefits to be
doled out to the objects of his bounty cannot take effect, yet, as there
is, confessedly, a devotion of his personal estate to charitable purpos-
es, my opinion is that his next of kin have no claim at all to his prop-
erty. I conceive that, if a testator has expressed his intention that his
personal estate shall be, in substance, applied for charitable purposes,
the particular mode which he may have pointed out for efifecting those
purposes, has nothing to do with the question whether the devotion
for charitable purposes shall take place or not : and that, whatever
the difficulty may be, the court, if it is compelled to yield to circum-
stances, will carry the charitable intention into effect through the
medium of some other scheme.
I shall, therefore, declare, that subject to the annuities, there is a
good gift of the residue to charitable purposes to be carried into effect
according to a scheme to be settled by the master; and I shall direct
the master, in settling the scheme, to have regard to the objects speci-
fied in the will.*
8 Part of the case, relating to another point, is here omitted.
See, also, In re Swain, L. R. [1905] 1 Ch. 669; Odell v. Odell, 10 Allen
(Mass.) 1 (1S65).
Effect on a trust for accumulation where the ultimate gift is void for
remoteness, Southampton v. Hertford, 2 Ves. & B. 54 (1S13) ; Curtis v. Lukin,
5 Beav. 147 (1842).
On the status of a trust for accumulation for a charity where the gift to
charity is valid, Wharton v. Masterman, [1895] App. Cas. 186 (H. & L.) ; St.
Paul's Church v. Attorney General, 164 Mass. 188, 41 N. E. 231 (1895).
PART V
ILLEGAL CONDITIONS AND RESTRAINTS
CHAPTER I
FORFEITURE OF ESTATES OF INHERITANCE
SECTION 1.— ON ALIENATION
LIT. § 360 : Also, if a feoffment be made upon t his condition, that
the feoffee shall not alien_tlie land to any, this condition is void, be-
cause when a man is enfeoffed of lands or tenements, he hath power to
alien them to any person by the law. For if such a condition should
be good, then the condition should oust him of all the power which the
law gives him, which should be against reason, and therefore such a
condition is void.^
CO. LIT. 223 a: "Also, if a feoffment be made, &c." And the
li ke law is of a devise in ^fee upon condition that the devisee shall not
alien, the condition is void, and so it is of a grant, re lease,^onfirma-
ti on, or any other conveyance whereby a fee simple doth p ass. For it
is absurd and repugnant to reason that he, that hath no possibility to
have the land revert to him, should restrain his feoffee in fee simple of
all his power to alien. And so it is if a m an be possessed of a lease
for_years, or of a horse, or of a ny other chattel reaj _o r persona l, and
giveo]rseTrhts~WlTole mterest or'property therein upon condition that
the donee or v endee shall not a lien the same, the same is void, because
his whole interest and property is out of him, so as he hath no possi-
bility of a reverter, and it is against trade and traffic, and bargaining
1 Co. Lit. 206b: "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 (whereof more shall be said in his proper place).
But if the feoffee be bound in a bond, that the) feoffee or his heirs shall not
alien, this is good, for he may notwithstanding alien if he will forfeit his
bond that he himself hath made."
See, however. Gray, Restraints on Alienation (2d Ed.) § 19, note 1, and § 77.
4 Kales Pbop. (597)
598 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
and contracting between man and man : and it is withm the reason of
our author that it should ouster him of all power given to him. Ini-
quum est ingenuis hominibus non esse liberam rerum suarum aliena-
tionem ; and rerum suarum quilibet est moderator, et arbiter. And
again, regulariter non valet pactum de re mea non alienanda. But
these are to be understood of conditions annexed to the grant or sale
itself in respect of the repugnancy, and not to any other collateral
thing, as hereafter shall appear. Where our author putteth his case
of a feoffment of land, that is put but for an example : for if a man be
seised of a seigniory, or a rent, or an advowson, or common, or any
other inheritance that lieth in grant, and by his deed granteth the same
to a man and to his heirs upon condition that he shall not alien, this
condition is void. But some have said that a man ma y grant a r ent
chargeji evyly crea ted out oTIands t o~alTTaiT~a nc rto his heirs up on con-
ditio n that he sha l Tnot alien that, that is good, because the rent is o f
hi s own creation ; buttliis is against the r eason and opinion of ou r
a uthor, and ag ainst the height and purity of a f ee^ simplp7
A fnan beforethe Starui e ot Uuia emptq res terrarum might have
made a feoffment in tee, and added further^that if he or his heirs d id
a lien without licens e, tha^ he sh o uld pay a fine, then this had been
good. And so it is said, that then the lord might have restrained the
alienation of his tenant by condition, because the lord had a possibility
of reverter; and so it is in the king's case at this day, because he may
rese rve'a tenu re toliimseTT^ "' ^'
If A. be seised of Black Acre in fee, an d B. enf eoff eth him of White
A cre upoii co nditiorTtKat^.^shalljTo;^ aHen BlaclTAcre, the condition
is good,* for the condition is annexed to other Tand, and ousteth not
the feoTfee of his power to alien the lamTwrTereof the teoffment~ls
mad^Tand so no repugnancy to the^state passedlSy theTeoffment; and
soltls of gifts, or sale of chattefs real bf]personal.
LIT. § 361 : But if the condition be^^nch^t hat the feoffee shall, not
ali en to su ch a one, naming his name, or to any of his heirs, or of
the issues of svich a one, &c., or the like, which c onditions do not take
a way all power of alienation from the fenffp e, Rrc , then such conditio n
is good.
2 Gray, Restraints on Alienation (2d Ed.) §§ i:3-30. See, also, De Peyster
V. Michael, 6 N. Y. 467, 57 Am. .Dec. 470 (1852), where the land was charged
with a sum of money upon its alienation.
3 Gray, Restraints on Alienation (2d Ed.) § 21, note 1.
4 See Camp v. Cleary, 76 Va. 140, where, however, the lands correspond-
ing to Blackacre and Whiteacre were passed by the same deed.
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 599
CO. LIT. 223 a, 223 b : If a feoffment i n fe e be made upon condi-
tion that the feoffee shall not enfeof? IT^S. or a n y o f his heirs or issue s,
et c., thi s is goo^T^Tor he doth not restrain the feoffee of all his power:
the reason Fere yielded by our author is worthy of observation. And
in this case if the feoffee enfeoff I. N. of intent and purpose that he
shall enfeoff I. S., some hold that this is a breach of the condition, for
quando aliquid prohibetur fieri, ex directo prohibetur et per obliquum.
If a fcofif nient be_ made up on, condit ion-lhat the_feoffee shall not
alien in mortmai n, t hi s is good^_because such alienation is pfbliibtted
by (aw, andl^gularly whatsoever is prohibited by the law, maylBe pfD-
hibited by condition, be it malum prohibitum, or malum in se. In
ancient deeds of feoffment in fee there was most commonly a clause,
quod licitum sit donatori rem datam dare vel vendere cui voluerit,
exceptis viris religiosis et judseis.
LIT. § 362 : Also, if lands be given in tail u^oji condidQlUiha t the
ten ant in tail nor his heirs shall not alien in fee, nor in t ail, nor for
ter m of another^ hfe, FiiF o hTy for thefr o wnjives. &c.. such condition
i s good . And the reason is, for that when he maketh such alienation
and discontinuance of the entail, he doth contrary to the intent of the
donoi^Jor vvhich the Statute of W. 2, cap . TTwas^ade, b ^Jadikh Stat-
ute the estates in tail are ordained.
CO. LIT. 223 b, 224 a : Note here, the double negative in legal con-
struction shall not hinder the negative, viz., sub conditione quod ipse
nee haeredes sui non alienarent. And therefore the grammatical con-
struction is not always in judgment of law to be followed,
"But only for their own lives, &c." And yet if a man make a gift
in tail, upon condition that he shall not make a lease for his own life,
albeit the state be lawful, yet the co ndition is good,*^ beca use the re-
version isinthe_donor. As if a man make a lease for lile or years
upon condition, that they shall not grant over their estate or let tlie
land to others, this is good, and yet the grant or lease should be lawful.
If a man make a gift in tail upon condition that he shall not make a
6 Accord : Overton v. Lea, 108 Tenn. 505, 554-556, 68 S. W. 250.
S ome cases have gone further, n "^^ ^i^^i'"" th;|f, ^y^^'^'"'^ r rovi^^ion of forfeiture
w as upon alienation to any one except a small class, it was valid . Doe v.
Pearson, 6 East, I'i'S (1805) ; in re Macleay L. R. 20 Eq. 186 (187")."
See Attwater v. Attwater, 18 Beav. 330 (1853) ; Gallinger v. Farlinger, 6
U. C. C. P. 512 (1857). See, also, In re Rosher, 26 Cli. Div. 801 (1884).
c But in Mildniay's Case, 6 Co. 40a, 42b, 43a, it was said: "So if a man
makes a gift in tail, on condition that he shall not make a lease for his own
life, it is void and repugnant."
See In re Rosher, L. R. 26 Ch. D. 801.
600 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
lease for three lives or 21 years according to the Statute of 32 H. 8, the
condition is good, for the Statute doth give him power to make such
leases, which may be restrained by condition, and by his own agree-
ment ; for this power is not incident to the estate, but given to him
collaterally by the Act, according to that rule of law, quilibet potest
renunciare juri pro se introducto.
"When he maketh such alienation and discontinuance of the en-
tail." And therefore if _a gift in tail be made upon condition, that the
donee, &c.. shall not alien, this condition is good to some mtents, ancl
void to some ; for, as~to all those alienations which amount to any dis-
co i^tinuan ce of the estate tail~(as LittleToiniere sp^aEeth ;) oT Is
against tHe~S TaLLiLe uf Westatinst o r 2, t he co rrditionTs good witnoilt
quesjtiQnTJ B ut as tu a L u i i ««Ott-^recovery the comhtion is void,Jbe-
cause this is no discontinuance, but a bar, and this common recovery
is not restrai ned by the said Statute of W. 2 . Ami theretore~such a
con dition is repu gnant to the estate tail ; for it is to be observed, that
to this estate tail there be divers incidents. First, to be dispunished
of waste. Secondly, that the wife of the donee in tail shall be endowed.
Thirdly, that the husband of a feme donee after issue shall be tenant
by the curtesy. Fourthly, that tenant in tail may suffer a common re-
covery : and therefore if a man make a gift in tail, upon condition to
restrain him of any of these incidents, the condition is repugnant and
void in law. And it is to be observed, that a collateral warranty or
a lineal with assets in respect of the recompense, is not restrained by
the Statute of Donis conditionalibus, no more is the common recovery
in respect of the intended recompense. And Littleton, to the intent
to exclude the common recovery, saith, such alienation and discontinu-
ance, joining them together.
If a man before the Statute of Donis conditionalibus had made a
gift to a man and to the heirs of his body, upon condition, that after
issue he should not have power to sell, this condition should have been
repugnant and void. Pari ratione, after the Statute a man makes a
gift in tail, the law tacite gives him power to suffer a common recov-
ery ; therefore toadda conditi on, that he shall have no power to suf-
fer a common recovery, is repugnant and void.^
7 In Anonymous, 1 Leon. 292 (15S4), "A. gave lands in tail to B. upon
condition, that if tlie donee or any of liis heirs alien, or discontinue, &c., the
land or any part of it, that then the donor re-enter." The donee had issue
two daughters, and died. One of them levied a fine. It was held that there
was a forfeiture.
8 In Mil dmay's Case , 6 Co. 40a (lGO.j), and in Mary Porting ton's Case, 10
Co. 35b (liHo), It was held that a condit ion attached to an estate" tan that
th e tenant should not agree to sufFCT a rel 'overy or do any act tcrwgrcts it was
YOuT See, also, Cor bet's Case ,~SHir(1599). In King v. Burchell, Amb. 379
(1739). upon the devise ol an estate tail to John Harris, the proviso "that
if John Harris or his issue, or any of them, shall alienate, mortgage, en-
cumber, or commit any act or deed, whereby to alter, change, charge, or de-
feat the beciuests,.shall pay or cause to be paid, and he did thereby charge
the premises witrfj the payment of £2,000 unto such person or persons, and
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 601
If a man make a feoffme nt to a baron and feme in fee, upon c ondi-
tion, tha^theyjhall not alie n, to some intent this is good, and to some
intent it is void : for t o res train an alienation ^y feoffment, or aliena-
tidn by deed, i t is go od^ because such 'an aTienalion Ts tortTo us a nd
voidable : but t o restrain their alienation by fi ne is re pugnant and
void, because it is lawful andjinavoidable.
ITls'said, that if a'man enfeoff an infant in fee, upon condition that
he shall not alien, this is good to restrain alienations during his
minority, but not after his full age.
It is likewise said, that a man by license may give land to a bishop
and his successors, or to an abbot and his successors, and add a condi-
tion to it, that they shall not without the consent of their chapter or
convent, alien, because it was intended a mortmain, that is, that it
should forever continue in that see or house, for that they had it en
auter droit, for religious and good uses.
"The Statute of W. 2, cap. 1." Hereby it appeareth, that what-
soever is prohibited by the intent of any Act of Parliament, may be
prohibited by condition, as hath been said.
his or their heirs, wlio could, should, or ought to take next, by virtue or
means of any of the be(iuests or limitations." Held: "The proviso was
repuenant to the estate." See, also, Stansbury v. Hubner, 73 Md. 228, 20
Atl. 904. 11 L. R. A. 204, 25 Am. St. Rep. 584.
In Mildmny's Case, supra, the reporter states: "And in this case some
points on great consideration were resolved, which were not moved in Cor-
bet's case: 1. That all these perpetuities were against the reason and policy
of the common law ; for at common law all inheritances were fee-simple,
as Littleton saith, lib. 1. cap. Estate-tail ; and the reason thereof was. that
neither lords should be defeated of their escheats, wards, &c., nor the farmers
or purchasers lose their estates or leases, or be evicted by the heirs of the
grantors or lessors ; nor such infinite occasions of troubles, contentions and
suits arise. But the true policy and rule of the common law in this point,
was in effect overthrown by the statute de donis conditionalibus, made anno
l.j E. 1. which established a general perpetuity by act of Parliament, for
all who had or would make it, by force whereof all the possessions of Eng-
land in effect were entailed accordingly, v/hich was the occasion and cause
of the said and divers other mischiefs. And the same was attempted and
endeavoured to be remedied at divers Parliaments and divers bills were ex-
hibited accordingly (which I have seen) but they were always on one pre-
tence or other rejected. But the truth was, that the Lords and Commons
knowing that their estates-tail were not to be forfeited for felony or trea-
son ; as their estates of inheritances were before the said act, (and chiefly
in the time of H. 3. in the Barons' war), and finding that they were not
answerable for the debts or incumbrances of their ancestors, nor did the
sales, alienations, or leases of their ancestors bind them for the lauds which
were entailed to their ancestors, they always rejected such bills: and the
same continued in the residue of the reign of E. 1. and of the reigns of E.
2. E. 3. R. 2. H. 4. H. 5. H. 6. and till about the 12th year of E. 4. When
the Judges on consultation had amongst themselves, resolved, that an es-
tate tail might be docked and barred > by a common recovery; and that by
reason of the intended recompen.se, the common recovery was not within the
restraint of the said perpetuity made by the said act of 13 E. 1. By which
it appears, that many mischiefs arise on the change of a maxim, and rule
of the common law, which those who altered it could not see, when they
made the change : for rerum progress. C)ffendunt multa, qute in initio prte-
caveri seu prievideri non possunt."
602 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
BRADLEY V. PEIXOTO.
(Court of Chancery, 1797. 3 Ves. 324.)
This cause arose upon the following disposition by the will of
Thomas Bradley :
"I give and bequeath to my son Henrv^_Bradlev thejdiy idends ar is-
ing from £1620 of my bank~stock Tor his support during the term of his
life: but at his decease the said £1620 bank stock, principal and inter-
est, to devolve to his heirs, executors, administrators and assigns.
Having observ^edduring the^term of my life so many fataTexamples of
parents having left their children in a state of opulence, who have
afterwards been reduced to want the common necessaries of life, my
principal view in this will is, that my wife and children may have a
solid sufficiency to support them during their lives. For this purpose
I will and most strictly ordain, that if my wife or any one of my chil-
dren_s hall attempt to ^sppse o f all or^any part o f the bank stock, the
dividends from which is bequeathed to them in this wall and testament
for their sUppoft durm g their Iive s^^such an attempt ]by my wife or any
of my cHTldren shall exclude them, him or her, so attempting, from any
benefiFiiTthis will an d testamen t, andTshall forfeit the whole of their
share, prmclpaFand interest; which shall go and be divided unto and
among my other children in equal shares, that will observe the tenor of
this will and testament."
The bill was filed by Henry Bradley against one of the daughters of
the testator, who had taken out administration. The prayer of the
bill was, that the defendant might be decreed to transfer the £1620
bank stock to the plaintiff. The other children were out of the juris-
diction.
Master of the Rolls [Sir Richard Pepper Arden]. The first
clause is an absolute gift of the principal and dividends. But then
comes this clause, with which the plaintiff does not comply; and the
question is, whether by the rules of this court he can demand the leg-
acy, not complying with the injunction, the testator has laid upon him;
or rather whether the condition is consistent with the gift. Seeing the '
father's intent so clearly and strongly expressed I have taken some time
to consider this case ; and have endeavored to satisfy myself, that I am
at liberty to refuse the plaintiff the demand, which he now makes.
Indeed another reason for delaying my judgment was, that there ap-
peared to be other children, who were interested in this question and
were not parties to the cause. The reason given for not having them
before the court is, that they are all out of the jurisdiction. Had they
been in this country, I should have expected them to have been made
defendants, to sustain their interests : but as they live abroad, the cause
has proceeded without them ; and according to the opinion, I have
formed of this case, they are not necessary parties ; because I feel my-
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE G03
self obliged to say, that the proviso I have before stated is of no
effect.
I have looked into the cases, that have been mentioned ; and find it
laid down as a rule long ago established, that \ yhere th ere is a gift with
a conditi oninconsistent with and _i:eEugnant to^such gift, the condition
is'wholly^voTd] A condition, that tenant in fee shall not alien, is re-
pugnant; and there are many other cases of the same sort: Piers v.
Winn, 1 Vent. 321. Pollexf. 435. The report in Ventris is very con-
fused : but it appears clearly from the report of this case in PoUexfen,
as well as from many other cases, that the court meant to say, that
where there is gift in tail with condition not to suffer a recovery, the
condition is void. There are several cases of this kind collected in 2
Danv. Ab. 22, which show, that a condition repugnant to the nature of
the estate given is void : Co. Lit. 223 a, Dy. 264. JMildmay's Case, 6
Co. 40. Stukeley v. Butler, Hob. 168, is of the same kind; where it
was held, that an exception of the very thing, that is the subject of
the gift, is of no effect. In all these cases the gift stands, and the con-
ditionor^xcgp tion is rejertpd . In this case then I am under the neces-
sity ofdeclaring, that this is a gift with a qualification inconsistent
with the gift ; and the qiia litication must therefore beTejected. This is
not like Sockett v. Wray, ^TBro. C. (J. 483 ; lor there the gift was to a
feme covert for life ; and then to such uses as she should by will ap-
point. She could only appoint by will ; and could not bind her execu-
tors by any deed in her life-time; and I declared in determining that
case, that I should think otherwise in the case of a man or any person
having an absolute interest. A man could bind his executors ; but not
a feme covert. If this had heei i a gift to ^the sorL.for life, and after
his death as he should appoint, and in default of appointme ntthen to
o t h ei'~persoTi57irHesireInQFTo^
if fn detault ofappointment it was to go to his executorsri should
doubt, whether it would be so : but I give no opinion upon this. Upon
the whole, I am obliged to hold this condition repugnant to the gif^t_and
therefore void . Declare, that the conditioiTannexed to the^legacy of
il62CrbaiTk stock is repugnant to and inconsistent with the interest giv-
en to the legatee of the stock, and therefore void; and upon payment
of the costs of this suit by the plaintiff let the stock be transferred to
him.
In Peixoto v. The Bank of England, Chan. 3d of June, 1797, the
subject of which was a disposition of stock by the same will in precisely
the same manner, the Lord Chancellor [Lord Loughborough] was very
clearly of opinion, that it was an absolute, not a limited, interest ; and
decreed accordingly.^
9 Accord: In re Dugdale, 28 Ch. Div. 176 (1S8S) ; Ware v. Cann, 10 B. &
C. 4.3.3 (1S30) ; Latimer v. Waddell, 119 N. C. 370. 26 S. E. 122, 3 L R A (N
S.) 668 ; Potter v. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721 (1891).
But see Camp v. Cleary, 76 Va. 140.
GOi ILLEGAL COXDITIOXS AND RESTRAINTS (Part 5
DOE d. NORFOLK v. HAWKE.
(Court of King's Bench, 1802. 2 East, 481.)
On the trial of an ejectment for a certain messuage and lands in
Yorkshire, at the last York assizes, a verdict was found for the plain-
tiff on the demise of John Ibbotson, and for the defendants on the
demise of the Duke of Norfolk, subject to the opinion of the court on
the following case.
Joseph Whiteley was lessee of the premises in question for the term
of 21 years commencing from the zyth J^eptember 1789, under a lease
granted to him by the Duke of Norfolk, dated 25th January 1790.
Whiteley entered into possession of the premises under this lease, and
made his will dated 10th October 1790, whereby he disposed of the
premises iiTqliestion as follows : "I give and bequeath to my nephew
Abraham Ibbotson, with submission to the Duke of JNortolk, the tenant_
ri ght ol my farm at the Edgefield, which I hold by lease under his
Grace, he paying the rent and conforming to the covenants in the
lease ; but no t to dispose of or sell the ten ant right to any other person :
but if he refuses to dwell there himself, or k eep in his own pos session,
then my will is, that rny nep hew John Ibbotso n (one of the lessors of
the plaintiff), shall have the tenant right of the farm at the Edgefield."
And the testator directe3~(amongst oTher things) that the said farm
should be delivered up as before willed a year and a day after his de-
cease by his executrix : and he appointed his niece, Sarah Ibbotson, sole
executrix, and gave the residue of his effects to her. The testator
Whiteley died in January 1799, having continued in possession of the
premises till his death. The executrix married Rowland Hartley, and
duly proved the will, and administration was granted to her, and she
and her husband entered into the possession of the premises on White-
ley's death. And in February 1800 possession of the premises was
duly delivered by them, together with the lease, to A. Ibbotson, in
pursuance of Whiteley's will, and A. Ibbotson continued in such pos-
session till he quitted the same as after-mentioned. When_ A. Ibbot son
was in possession of the premises J. Crookes lent him i25 on his note
of I ra r iid , and thcrc trptm A. I bb uls -ott-deposited 'Vvith'- Crookc s the tSase
of tliFpTHmsEs-as-^arftrTtlTCr security. ^rArthe time^t lendmg the~£25
it was'agree'd between'Crookes and A. Ibbotson, that Crookes should
have the first chance for the farm ; but no actual valuation was made.
Crookes made further advances to A. Ibbotson, amounting in all to
£60; but Crookes knew nothing of Whiteley's will until the whole of
the £60 had been advanced. Afterwards A. Ibbotson was arrested
at the suit of R. Hartley, to whom he (A. Ibbotson) had given a warrant
of attorney ; and thereon Crookes paid for A. Ibbotson, at his request,
£60 more, to effect A. Ibbotson's liberation. After this Crookes took
from A. Ibbotson a warrant of attorney to confess a judgment, and a
Ch. 1)
FORFEITURE OF ESTATES OF INHERITANCE
605
bill of sale of A. Ibbotson's goods; but never entered up judgment on
such warrant of attorney. Then one William Greaves, at A. Ibbotson's
request, paid off the moneys a^vajice3_by_(Jrookes, and took from A.
Ibbotson a^ffe^h warranTof attorney to confess a judgment; ancPat
the^'sanie time the lease, and a copy of Whiteley's will (which had been
inXrookes' po^ession), were delivered by Crookes. Judgment was
entered up on the warrant of attorney so given to Greaves, and exe-
cution thereon issued in Trinity Term 1801 ; but before the entry with
Greaves' execution, one Joseph Schofield, another creditor of A. Ib-
botson, had levied an execu tion upon part of the goods of A. Ibbot-
son, which execution being satisfied by Greaves, was withdrawn, and
possession was taken under his execution, and the lease^ of the prem-
ises in question was on the 18th June 1801 publicly_soId an^~assighed
B)Qhe yimfflunderTTireaves' exe cution to ^jhe^defendants, who were
immediately put into possession of the premises, and now continue
solely possessed thereof. A. Ibbotson quitted the premises in the
morning before Jhe sale, and has ever since ceased^ to dwell there o7
have any possession thereof . John Tb"bbrson" (the lessor of the pTain-
tifT) attended at the time and place of sale (which was public), and be-
fore the actual sale gave_not ice oTTT7s~cIaim under Whitele y's will to
th e defen dants. The question was, Whether the plaintiff were entitled
to recover on the demise of John Ibbotson. If he were, the verdict to
stand ; if not, a nonsuit to be entered.
Lord Ellenborough, C. J. The terms of thi sj levise a re to bejcon-
sidered_ as a conditional limita tion, jn which t he^terest of Abraham
Ibbotson in the _premises is Umited on certam events, on the h appening
of~whicn itTTgiy en over to j^hn^ And the question is, Whether^e
acts oTlhe'ljarty whose incapacity is to be incurred on his refusal to
dwell on the farm or keep it in his own possession, have not deter-
mined his interest? When he deposi^ted _tlie lease with Crookes as a
further security for tlie several loans of money advanced~by him, was
this not a voluntary act ? and when the le ase was afterwards delivered
over to another cred itor who took up the first deman^TaiTd to whom a
wa rrant of attor ney__was at the same time given, and considering that
by so giving up the lease he thereby disabledTitmself from mortgaging
the premises, and by giving the warrant of attorney he enabled the
creditor to dispossess him at his option, must he not be taken to have
contemplated at the time the legal consequence of these acts which
afterwards ensued? That these were yoluntary acts t here can be no
doubt. He pu t the cre jditorjn^posjessio n of the document of the farm ;
and by all the authorities he thereby gave a specifi c lien on th eleise^
For'a^cordTng'to'Russerv. Kussel, 1 Bro. Chan. Cas. 269, and several
other cases tliere mentioned, the making of such a deposit gives juris-
diction to a court of equity to compel a sale of the lease in discharge of
the lien. As it then enables the other to turn the party out of posses-
sion in default of payment, it shows a purpose in the latter to part with
606 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
the possession, and therefore the subsequent proceeding and execution
is not strictly in invitum, so as to bring the case within that of Doe v.
Carter. And there need not be fraud in the transaction ; it is enough
if there be a manifest intention to depart with the estate, followed by-
acts to that end, which if not produced immediately by the procure-
ment of the party, may yet be said to be done with his assent. Upon
the whole therefore it is enough to say that here was a voluntary de-
parting with the estate.
Lawrence, J. The lease was given by the testator to Abraham
Ibbotson, so long as he lived on the farm; the material words of the
bequest are, "that he should not dispose of or sell the tenant-right to
any other person : but if he refused to dwell there himself, or keep it
in his own possession," then it was to go over to the lessor of the plain-
tiff. Now the word refused is only a figurative expression ; meaning
if the first taker ceased to dwell there. There was certainly no occa-
sion for any person previously to inquire of him whether he would re-
side there or not, and that he should expressly refuse it.
Le Blanc, J. This would be a strong case if it rested even on the
first point ; for here are strong circum stances to show that this was a
departing with the po ssess ionLoiJJie. estate^bxl^^ party's own act. Be-
sid es which, on the construction of the will it clearly appears to have
been the intention of the jestato r t hat i f A. IbboJ^son ceased to live on
the premises or keepTthe m in his o wn^possession, they should go over to
John Tbbotson. "
Postea to the plaintiff. ^°
Grose, J., was absent from indisposition.
10 In Williams v. Ash, 1 How. 1, 11 L. Ed. 25 (1843), male and female
slaves were bequeathed to A., provided he should not sell them, in which
ease they should be free. A. sold a male slave. Held, that he was free.
See Potter v. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721.
Regarding the Validity of Provisions fob Forfeiture upon Alienation
OF Future Interests, Whether Contingent or Vested Subject to be Di-
vested, OR Vested but not Subject to be Divested. — See Large's Case, 2
Iveon. 82, 3 Leon. 182 (1588) ; Powell v. Bog?is, 35 Beav. 535 (1866) ; In re
Porter, [1892] 3 Ch. 481; In re Goulder, [1905] 2 Ch. 100; Mandlebaum v.
McDonell, 29 Mich. 78, 18 Am. Rep. 61 (1874) ; Gozzard v. Jobbins, 14 N. S. W.
R. Eg. 28 (1S93).
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 607
SECTION 2.— ON FAILURE TO ALIENATE
ROSS V. ROSS.
(Court of Chancery, 1819. 1 Jac. & W. 154.)
William Ross, a native of Scotland, but domiciled in England, made
his will, dated 5th May, 1790; containing, amongst others, the follow-
ing bequest.
"I give to my son James Hislop Ross the sum of £2000, lawful
money of Great Brftain, to be paid to him at his age of t^wenty-fiv£
years, or at any time betwixt the age of twenty-one and twenty-five,
should my executors think proper so to do, and the interest thereof, in
the mean time, to be applied towards his maintenance and education ;
and in case the said James Hislop Ross should not receive or dispose
of by will or otherwise, in his lifetime, the aforesaid sum of i2000,
then the said^um sInaTI ret itrn, aiid be pa id and payable t o the heir en-
tail, in po ssession o Fthg_estate^of Shandwick for the time being."
~ 'i'he estate mentioned in this bequest, situate^in tlie County ^ Ross,
had previously been settled by the testator, by a deed of entail, in favor
of Jean Ross, his eldest daughter.
James Hislop Ross survived the testator, and died intestate, in the
year 1810, having attained the age of twenty-five years. He had not
received the £2000 legacy, but in a suit instituted by Jean Ross, against
the executors, to which J. H. Ross was not a party, the accounts of
the testator's estate had been taken, and a sum of £1182 had been found
by the master, to be the proportion payable to J. H. Ross, in respect of
his legacy: this sum was accordingly carried over to his separate ac-
count, and invested in the purchase of £1891 3 per cent, annuities.
J. H. Ross being illegitimate, administration of his personal estate
was, at the nomination and on the behalf of the Crown, granted to
George Maule, Esq., who now petitioned for a transfer of the sum of
£1891, and the dividends which had accumulated upon it.
The: Maste;r of the; Rolls [Sir Thomas Plumer]. The ques-
tion, I think, is, w hether this will vests t he absolute property of the
le gacy in the legat ee! If _it do give th e absolute property, {heTigHFof
disposing of it, or it s devolution up o n his represe ntatives would follow
as a matter of course^ unless there'^be something'el se whiclrcuts~'doWn
th e gift ; nothirig^t th at^an prevent the le gal consequenc es ot prop-
erty from ensuing.
It seems to me, that I cannot put an interpretation on the words of
this will, by considering that it is very likely that the testator was re-
ferring to other circumstances; to the imbecility of his son, or to the
effect of the Scotch law. It is probable that he may have contemplated
these circumstances ; but being bound to take this as tlie will of a domi-
608 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
ciled English subject, I must construe it without reference to them,
and determine the consequences of what appears on the face of the
will itself.
Now eve ry word he has used tends to ves t the leg acy. First it is
given to be paid at twenty-five ; if it stopped there, it would clearly
be vested, the time of payment not being annexed to the substance of
the gift ; it then proceeds, "or at any time betwixt the age of twenty-
one and twenty-five ; " this was only to accelerate the payment ; the
executors were to pay it before the first period if they thought fit; the
interest, in the mean time, is to be applied to his maintenance : another
feature of vesting. If the bequest had stopped here, then, if he had
died between twenty-one and twenty-five, or even during his minority,
it would, according to the cases, have been vested in him ; but the event
renders it unnecessary to consider what would have been the conse-
quences of his dying under age.
The legatee then acquired a n absolute intere st ; and then comes the
second part of the bequest, by means of w^iich, you must endeavor to
get it back again ; you must say, that if he does not dispose of it, it
is to return from him; but I do not recollect any instance of a will,
w here an absolute property is^ first given ^ with a cundition,~That if the
part y does n ot make use of it. it shall go~oy er. Uut it was neces^sary
to argue it to that extent.
T his dij fers _from a power, an d a remainder over in default of its
exercise : tlie£igh£_ofdisposing of "fhe^tegacy is given hini, not in ter-
minis, but as~a consequen ce~ot property: fftrvT'^DifsHte-Trcqirire the
power ? Tt lji^flJL ^iven as a pow£fp^g^ ^totrows~tfOm property^e-
ingTTsT^^ The testator assumes that he would have aTightTo'tfat
11 In The Attorney-General v. Hall (3d July, 1731) Fltzg. 9, 314, W. Kel.
13, the testator gave to his son and the heirs of his body, all his real and
personal estate, to his and their own use ; and in case his son should die
leaving no heirs of his body living, he gave all and so much of his estate
as his son should be actually possessed of at the time of his death to the
Goldsmiths' Company, for certain charitable uses ; and he directed them,
not to give his son any trouble during his life concerning his estate. The
son suflered a recovery of the real estate, and it was held by Lord Chan-
cellor King, Sir J. Jekyll, M. R., and Reynolds, C. B., that as to the personal
property, "the limitation, over was void, as the absolute ownership was given
to Francis Hall, the son ; for it is to him and the heirs of his body, and the
company are to have no more than he shall have left unspent, and there-
fore he had a power to dispose of the whole, which power was not expressly
given him, but it resulted from his interest." [In Fitzg. 321, this sentence
follows: "The words that give an estate tail in the land must transfer the
entire property of the personal estate, and then nothing remains to be given
over." In W. Kel. 16 (with which accords 2 Eq. Cas. Ab. in marg.), we have
in addition the following: "In regard the ownership and property of the
personal estate was vested in Francis Hall, and not the use only ; this was
held to be a void limitation to the Goldsmith's Company. It is giving a
man a sum of money to spend, and limiting over to another what does not
happen to be spent." To this the reporter adds: "And so note a difference
between a devise of chattels real and personal." — Ed.] See, also, Brian v.
Cawsens, 2 Leon. GS; Flanders v. Clark, 1 Yes. 9; 3 Atk. 509; Bland v.
Bland, Prec. in Ch. 201, n. (Ed. Finch), and 2 Cox, 349; Le Maitre v. Ban-
nister, Tree, in Ch. 201, n. ; Beachcroft v. Broome, 4 T. R. 441 ; Wynne v.
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE *609
twenty-five ; therefore, if he should have received it, and not have
disposed of it, the capital in solido being his property, and remaining
in his hands, was to go over to another. But if you give absolute prop-
erty to a person, you cannot subject it for his lifeToTaT proviso, that
if he ^oes not spend it, his interest sha l l cease. One of the conse-
quenceswoukf be, that if h e had not spent it, and were to d ie ^n^
debfed^toany amouni;, his creditors would be e xcluded from i t. It^is
quite^a novel attenTpt_to^ sepa rate the devolu tion of property from the
property itself. ^^
DOE d. STEVENSON v. GLOVER.
(Court of Common Pleas, 1845. 1 C. B. 448.)
Ejectment by the lessee of the customary heir of Ann Stevenson
claiming under the will of Mordecai Glover, the father, against Mor-
decai Glover, the son.^^
TiNDAL, C. J. This case appears to me not to fall within the doc-
trine that has been relied on by my Brother Gaselee for the purpose
Hawkins, 1 Bro. C. C. 179; Strange v. Barnard, 2 Bro. C. C. 586; Pushman
V. Filliter, 3 Ves. 7; Bull v. Kingston, 1 Mer. 314. — Hep.
12 Accord: In re Wilcocks' Settlement, 1 Ch. D. 229; Perry v, Merritt,
18 Eq. 152; Henderson v. Cross, 29 Beav. 216; In Bowes v. Goslett, 27 L,.
J. Ch. 249, the same rule was applied to leaseholds.
The same result was obtained in the following cases: Lightburne v. Gill,
3 Br. C. I*. 250 (die unmarried or intestate) ; In re Yalden, 1 D., M. & G.
53 (die without leaving issue and without having disposed of the sum by
will or otherwise).
In Watkins v. Williams, 3 Macn. & G. 622, at 629, Lord Chancellor Truro
said: "Now, it __is a rule th at, where a mone y fund is given to a person ab-
sol utely a condition cann ot Pe annexed to^he gift, that so much as he
sh all not dispose of shall go ^ver to anotlierjjeiisoiii. ApaiiTfrbm any sup-
posed incongruity, a notion which savours of metaphysical refinement rather
than of any thing substantial, o_n e reason which may be assigned in support
of the expediency of this rule isTtnat in many cases it migbt be very diffi-
cu U. and even impossible, to ascerta in wnettrer any part of fhe fund i^mMneH
uiidisiiospa of or not : ,. s^ince. ~lt ttie~person to whom the absolute interest is
given left any personalty, it might be wholly uncertain wliether it were a
part of the precise fund which was the subject of the condition or not. An-
n tlyr rpnsnn may be. that it would be c ontrary to the well being of the
pa r_tyal)sol ut ely entitled to lead him profuse l y to spe nd nil t hat was give n
h i m^ wMrh^j n many cases m iglv^ be ail that he had in the world ; for al-
though, indeed, he might provide against leaving himself destitute by buying
an annuity yet even if he did this it might be at the exi>euse of those for
whom he might be under a moral obligation to riake eome provision. In_
Ross V. Boss , S ir Tliomas Plum or with refereiice to such limitations ilb^
served in effect 'that one consequence of permitting such limitations over
woultl be, that if the party entitled to the absolute interest had not spent
the money, 'and were to die indebted to any amoun t, his creditors would be
exclu ded f rom it;^ the va lidity of this reason may"ljg~dtnthtful 7 -as-4 t-«my
perhaps M said, tha t a nniir nnght l^roperly b e deemed to have spent thg ~
amount of debts whicTTTie has contract ed, and which he has laid him self
unde r an obll gatloir t o payT ^ ~ " ~ '
i"3 The case'is^ufBciently stated in the opinion of the Chief Justice.
4 Kaij-.s Prop. — 39
610 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
of showing that the provision in the will of Mordecai Glover, the fa-
ther, upon which the claim of the lessor of the plaintiff is founded, is
in the nature of a condition that is repugnant to, and incompatible
with, the prior absolute gift to Mordecai Glover, the son. Strictly
and properly it is an executory devise, cutting down the interest which
the son was to take, upon the happening of certain events, which have
happened. The only question, therefore, for our consideration is,
what was the intention of the testator. Upon that point, also, the
case appears to me to be free from doubt. After giving to his wif e an
estate for life in all his customary or copyhold and real estates, the
te'stator^proceeds : "And, from and immediately after her decease ,
then I give and devise all and singular my aforesaid messuages, lands,
&c., unto my son Mordeca i Glov_e r, an d his heirs and a ss igns forever ,
to hold to him and his heirs and assigns forever ; but, in case my said
son Mordecai Glover shall jiappen to depart this life wTtlTout leaving
any issue of his body lawfully begotten then living, or being no siTcli
issue, anS he my said son sh all not ha ve d isposed^and parted with his
i nterest o f, in, and to the aforesaid copyhold estate and premises,
then, and in such case, I give and devise the same customary or copy-
hold messuages, &c., and real estate, unto and to the use of my illegiti-
mate daughter Ann Stevenson, and of her heirs and assigns forever."
The w ords "parted witli,'^^ETcliare~in apposition to, seem to me to
be explanatory of, the prior and more general word "dispose," and
clearly to in djcate a dispos jtionxLiLpaxting w ith the est at£J)y the devi-
se e, by a convevance that was to have its complete effect and opera-
tion in his l ifetime. If "parted with" had been the sole phrase used,
it cauI3"miry have~been satisfied by a conveyance by a deed executed
by the party in his lifetime : and, when we find the two expressions
thus coupled together, I think we cannot give a more extended inter-
pretation to the word "disposed" than the sentence would have been
susceptible of if that word had not been found in it. But, even if it
had rested upon the word "dispo sed," I sh ould hav e inclined to hold,
upoh'^tTie principle that a will is ambulalory, ancl speaks only from
the time" of the te stator's death, th at a devisFof tlie estate in question
was not a disposing of it within thelneaning of this will. The fair in-
ference arising Trom the whole scope' of the will tenls to the same
conclusion. The testator, in the first place, gives the estate to the son
and to his heirs, should he have any ; and he gives him full power to
dispose of it in his lifetime. But he goes on to evince, in the event of
his son dying and having no issue, a natural desire that the estate
should go to his illegitimate daughter, provided his son's wants should
not have made it necessary for him to part with it in his lifetime.
And this was by no means an unreasonable mode of dealing with the
property. For these reasons, I am of opinion that the plaintiff is en-
titled to judgment.
CoivTMAN, J. I am unab le to perceive any objecjion to the gift over
in this case, as arTexecutory deviseT There is nothing in it that is
Ch. 1) FORFEITURE OF ESTATES OF INHERil^ANCB 611
repugnant to, or inconsistent with, the prior devise : nor does it op-
erate any restraint on alienation ; on the contrary, it expressly recog-
nizes the power of the son to alien the estate during his lifetime.
Then comes the question whether oj^ notjthe__SQn has disposed and
partedjwith the estate, according to the intention of the testator.
Construing those words grammatically, they clearly point to an act to
be done, andToHtake effect, in the life tim e of the sonT" The words
are — "incase my said son shall not have disposed and^arted with his
interest of, in, and to the aforesaid copyhold estate and premises, then
and in such case I give and devise the same customary or copyhold
messuages, &c., and real estate, unto, and to the use of, my illegiti-
mate daughter Ann Stevenson, and of her heirs and assigns forever."
To what period do these words "disposed and parted with" apply?
Clearly, to the time of the son's death : and at that time he had not
done anything to divest the estate out of him. The construction,
therefore, upon which the lessor of the plaintiff relies, is evidently the
true one. And this construction leads to no incongruity or absurdity :
it is a very rational and proper mode of disposing of the estate. If, as
was suggested by my Brother Cresswell, the son, having no children,
sh ould w ish t o dispose of t he estate itl his lifetime, the testator leaves
h im a jt_full liberty to do so ; but, in the event of his not having exer-
cis ed th at j)ower^ and dying childless, the intention of the testator
was, that his own illegitimate daughter:r-whom he was under a moral
obligation to provide for — should have the estate^ and not that the
so n should h ave power to dispose oj it by will^in the manner he has*
assumed to do.
CrESSWeIll, J. I am entirely of the same opinion. It has hardly
been denied that the disposition in favor of the testator's illegitimate
daughter was a good executory devise, in the first instance. There
was no condition that was repugnant to, or inconsistent with, the
prior devise to the son. T he soii rnight_ have prev ented the devise
over fro m taking effec t, by disposing of the property in his lifetime.
B ut, in the event of his not exercismg that power, th e estateTs'giyen~
over, and nothing remaijisjorjiim to_part_with by his will.
ErlE, J. 1 also am of opinion that the plaintiff~is entitled to judg-
ment. The intention of the testator evidently was, to give to his son
absohxte ^ omim onlS yier-HTe-^^ he chose to exercise t hat
dominion in his l if etime ,_bu t not to leave to him the selection of]t Ke
obje ct of hi s bo unty by his wTIT Such appears to me to have been the
intention oFllTe testafor; and I think the words he has used are in-
compatible with any other construction. The restriction imposed up-
on the power of alienation became effectual by the son dying seised.
For these reasons, I am of opinion that the case of the defendant,
who claims under the son's will, fails.
Judgment for the plaintiff.^*
14 See, also, Andrews v. Roye, 12 Rich. (S. C.) 5.36,
613 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
HOLMES V. GODSON.
(Court of Chancery, 1S5G. 8 De Gex, M. & G. 152.)
Th^ Lord Justice Turnkr.^^ The plaintiffs in this case claim to
be entitled to certain real estates devised by the will of Thomas Yates
Ridley under a conveyance from Thomas Yates Ridley, the son of the
testator and a devisee under his will.
The testator by his will, after giving his wife his plate and so on,
proceeded thus: "I give and bequeath unto my dear wife Jane, and
Richard Godson, Esq., and the survivor of them, and the executors,
administrators, and assigns of such survivor, upon trust that they shall
with all convenient speed call and convert into money all s uch parts of
m y residuar y estate as do not consist of money or security for mon-
e}'^ upon trusl^ for my son Th om as Yates Ridl ey to v est iriTiIm on h is
att aining the ^age of twenty-one years ; but in ca se my said son shall
not live to attain a~veste^ interesPth erein, then in trust for my dear
wife Jane during her natural life." Then tliere is a dispostfTon of
book?, prints, and manuscripts In favor of the son. Then there is a
bequest of the advowson at Heysham in trust for the benefit of the son.
Then follows tliis clause : "But in case my dear s on Thomas Yates
Ridley shall not live to attain the age of twenty-one years, oF"ha virig^
attained tlie'^e of twenty-one years shall not have made a will, I
hereby dir ect my said executoi' s or trustees ^to^seTTari my property both
real and personal at their discretion, and to investthe proceeds lor the
beneHFoFmy^ said wife Jane for her natural life ^nd after her death
all the sa id investment 1 bequeath to my tri enH~Richard Godson. Es q.''
There is a codicil to the ~Avill, by'^wTTich the testator devises all his
property, both real and personal, to his wife and ]\lr. Godson to car-
ry into effect the trusts of his will created, and to sell his real prop-
erty to pay his debts or for the advancement of his son.
Now, upon the construction of this will and codicil, I think it rea-
sonably clear that the real estates vested in the son at the age of twentvr
,,one years, which he att ained^ The testator give^'all such parts of his
residuary" estafe^ as Tfo^not consist of money or securities for mone}«f*
•^'-^\\"hatever doubt there might have been upon those words if they had
stood by themselves as to whether they would extend beyond a dis-
position of the personal estate only, that doubt is, I think, removed
by the ulterior clause in the will, by which the testator has said, that in
case his son shall not live to attain twenty-one, or having attained
twenty-one shall not have made a will, he directs his executors and
trustees to sell all his property both real and personal. It is, I think,
quite plain that the testator in that clause meant to dispose, in the,
15 As the opinion of Tui-ner, L. J., sufliciently gives the facts, the separate
statemmit in the report is here omitted, as is also the concurring opiii'-on of
Knight-Bruce, L. J.
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE G13
event of the son dying under twenty-one, of the property which the
son was to take if he attained twenty-one, and that the disposition ex-
tends to all the testator's property both real and personal. I think,
also, that the_ words of the will are sufTicien t t o vest t Jie_fee Jn th e son
upon hi s attaining twenty-on e. ~
Th^Jsole q uestion, therefo re, on the ^ainti ff's title is^ whether the
fee whichjvas thus vested jn_the_soiL, wa <; defeatprl and t he estate ~car-
ried over to the widow and Mr. Godson by tli e event which happened
of tHF~s^irTiaving aftenvards die d w ithout havi ng made a w ill. Fain
of opinion that it was not.
^'his isln te rms a disposition of r eal estate in favor of other devisees
in the^ ^enfof a devis ee in f ee dy mglntestafe^ and I think that such
a gi sposlt ion is^^ repugnant and void. Thejaw^ which is founded on
prliTc iples'of public policy fo r the benefit of all whcTare subject to its
proj nsion s ^as said that m the event oPgji^wner in f ee dying iiv-
testTte, the~estate shall go to his heir ; and this disposition tends di-
rectly tQ~cohtravene I Ke law aiigr to"H eTeat~th e polic> n3n~\v'Hichr"it is
fo unded : Oji ^rinciple, therefore, I think the dispositio n bad ; and
the cases which were cited in the argument appear to me to be con-
clusive upon the point.
In addition to those cases which were referred to, there is the
case of LiglUburne v. Gill, 6 Bro. P. C. 36, to which my learned broth-
er has referreci, and which I have before me, where there was a sum
of £500 wiiich the testator left to his daughter, to which he was en-
titled under a settlement, and all the rest of his worldly goods, effects,
and substance real and personal to dispose of as she should think fit.
But i f his said daughter should die unmarried or intestate, then what
was thereby leFt'lo~Tief'~should go to and be equally^^ivided among
the children of his brother the Rev. Stafford Lightburne. The daugh-
ter having died intestate, the bill was filed in the Court of Chancery
by the children of the brother, claiming to be entitled under the dis-
position over in the event of the daughter dying unmarried or intes-
tate, and it was held that the bill could not be maintained. The bill
was dismissed, there w^as an appeal to the House of Lords, and the
House of Lords confirmed the decree dismissing the bill.
It was ob jected to these c ases and to R oss v. Ross, 1 Jac. & W.
154, and otliers which 1 do~not think it necessar}' to go through, and
to this case of Lightburne v. Gill, that they al Lreferred to pers onal
estate. But, upon this question, I confes s_ myself unable to see~thi
distinction_biet\veen cases relating to personal ^nd^ cases r ela ting to
real estate. Such dispositions of personal estate are void because they
are inconsistent with the absolute interest and defeat the course
of devolution which the law has provided. L"pon what ground can
it be held that the same principle does not reach to the like disposi-
tions of real estate? I should feel great difficulty in maintaining such
a distinction even if authority were wanting upon the point; but au-
thority is not wanting upon it.
G14 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
I may refer to the case of jMuschanip v. BUiet, in Sir John Bridg-
man's Reports (J. Bridg. 132); although the case is not exactly in
point in this case, yet I find some obsenations which are of great im-
portance, as it strikes me, bearing upon the present question. There
was this clause in the will : "And, as touching my lands at Totten-
ham, my son Matthew is joint purchaser with me of the most, and
the rest of all my houses and lajid there which is freehold I give tP
Henry and Michael Lock upon jliis condi tion,_that_ii_the y shall se ll
i f'to any niaii JjUlJojy^ifEew^ock my son^ then he to^nter upon
it as of ^g ift by this my w ill." The question arose first, whether the
fee passed under the disposition to Henry and Michael. Cases are
gone into on that subject affecting such dispositions by grant. Then
the court enters into the question of the effect of this in a devise, and
says: "But I agree that in case of a devise, although the apt words
to make an estate of inheritance to pass are omitted" (the devise was
merely to Henry and Michael without any words of inheritance), "yet,
if the intent of the devisor does appear by any express matter contained
in the will, an estate of inheritance shall pass, for it is sufficient to
pass the inheritance. If one deviseth land to another in perpetuance,
the devise by these words shall pass an estate in fee. So, if one devise
land to another to give, dispose, or sell at his pleasure, this is an es-
tate in fee-simple." Then there follows this: "But yet the law hath
restrained such intent. For, first, it ought to be agreeable to law
and not repugnant to it; for, alt hough in Sc holastica^s_Case^ Plowd .
403, in the comment, it is said that_a jwill is like to"an Act ofTarTT^ -
meiiM'et a"wiircaiihot al ferlEeTa ^^r makej^jiew forrnof^n estate,
which is~not allowed by Fhe rules of law, as~airAcrof Parliament is ^
and so adjudged in~tRe Common BendHT Hil. T. 37 Eliz., between
Jermin and Ascot, Coke's Reports, in Corbet's Case, 1 Rep. 85a, that
by a devise a man cannot give an estate and determine part thereof
by a condition and make the residue to continue. And if land be
devised to one in tail he cannot determine the estate as to the devisee
himself, and yet preserve the estate to the issue. And, 28 & 29 Hen. 8,
Dyer (Anon. Dyer, 33), if land be devised to one in fee, and if he
does not perform such an act, the land shall remain to another, the
remainder is void, for no such remainder can be limited by the rules
of law."
In another part of the same report there is a reference to Baker's
Case, cited J. Bridg. 137, in which it is said, "A devise to the hus-
band and wife, with remainder to their two sons, upon condition that
if they or their heirs go about to alien, &c., is a fee-simple ; also for
the heirs being restrained to alien, does show fully that the heir shall
have the land, for otherwise he cannot alien it."
But there is another very much more important case, for which we
are indebted also to the great research and knowledge which ]\Tr. Lee
has brought to our aid in the present case. I refer to t^2£JlSP2I^Ji}
Serjeant Hill's manuscrip t, and which is really a most important case
Ch. 1) FORFEITrRE OF ESTATES OF INHERITANCE G15
in my view of it as bearing on the present case. It is the case of Gul-
liver V. Vaux, 8 De G., M. & G. 167. In that case Thomas Turney^
was seised iif f ee and made his will on the 29th of December, 1712,
"and therein devised the premises to Thomas Turney his second son,
and his heirs, provided he should live to attain the age of twenty-one
years and not otherwise, and charged the estate with £350 payable to
the testator's daughter Dinah Turney at her age of twenty-four. And
if his said son Thomas Turney should die before twenty-one, then he
devised the premises to his eldest son Tawyer Turney and his heirs
when he should attain the age of twenty-one years, and charged the
estate with £550 payable to his daughter Dinah at her age of twenty-
three. And if it should so happen that his son Thomas and his son
Tawyer should both die before they should severally attain the age of
twenty-one years, then he devised the premises to Dinah Turney and
her heirs, and gives his wife the profits of the premises till her chil-
dren should attain to their several ages above expressed, and after that
gives her an annmty of £100 a year for life issuing out of the estate.
Then follows this clause : "And for prevention of any difference
which may hereafter arise concerning the inheritance of my real estate,
in case it shall so happen that aU my^j;ee^chijdren_shall depart this
lne~ widiouTTeavrng issue lawfully begotten and born of any of tReir
bodies ah^ without appointing the disposal of the same, then and in
such case I give" to Ann my wife £500 yearly over and above the £100
already mentioned, payable out of my said estate. Also I give £10
yearly to the ministers and churchwardens of Cransfield to be dis-
posed in charitable uses. Also I give all my said lands unto my loving
cousins Robert Perrott, Richard Perrott, Thomas Dell, and Robert
Dell." The sons and the daughter all died under twenty-one, and all
died wit hout making a ny dispos it ion of th e estate^a nd in the terms
of this will without appointing the disposal of the same. The devisees,
however, brought ejectment, and upon that two questions appear
to have arisen: first, whether according to the true construction of
the will the sons and the daughter took estates tail or estates in fee;
and secondly, supposing they did take estates in fee, then, whether
the executory devise over in the event of their all dying without leav-
ing issue lawfully begotten and without appointing the disposal of
the same was a good executory devise. All the judges, Lord Chief
Justice Willes, Mr. Justice Abney, and Mr. Justice Burnett, agreed
in opinion it was g^ee in favo r^f the son ; and then came the ques-
tion, whether the executory devise over was good. Lord Chief Jus-
tice WiTIes "and Air. Justice Abney delivered their opinions that the
executory devise was good upon this ground, that it fell within the
period allowed by law. That was the opinion which they gave in
the first instance. Mr. Justice Burnett, however, agreeing that the
sons and the daughter would take in fee and that the case was one of
executory devise, and agreeing also that the executory devise would
take effect within a limited period, addressed himself to this question,
016 ILLEGAL COXDITIOXS AND RESTRAINTS (Part 5
what was the effect of the clause in the will by which the executory
devise was made to depend upon the sons and the daughter dying
without appointing the disposal of the estate? and he expressed him-
self thus : "But I am clearly of opinion that this conditio n or con-
tingency" (it isjye ry impor tantTperhaps, Jo_observe those words) "an-
nexed^To^e estate of the children, and precedenf t^ that of the dev-
isees' estate, is "a^voU^cbh^ition, and consequently the devise de-
pendent on ft can never take place. A condition or contingency re^
pugnant to the estate devised must be void. Thus, a devise to one
in fee upon conditiotTlhat he shall not alien is void. So a devise in
fee, upon condition that the wife shall not be endowed, or the hus-
band be tenant by the curtesy, is void, because repugnant to the estate
devised. So feoft'ment in fee, upon condition that feoft'ee's daughters
shall not inherit, is void, because repugnant to the nature of the es-
tate. What is the condition here? That if Thomas dies without is-
sue, his heirs shall not take by descent but b)^ appointment, whereas
a devise to a man's heir-at-law, or grant to heirs, is void and he will
take by descent. In this case, therefore, a devise in fee upon the
co ndition that his heirs shall no t take by des cent unles sJig__sp£cTally
appoints them is a vo id cond ition, and^ consequently the devise subsist-
ing~on that condition is void." Then the case Concluded ThusT~Lord
Chief Justice Willes and Mr. Justice Abney both changed their opin-
ion and concurred with Mr. Justice Burnett in the opinion he expressed.
There cannot be a higher authority than that case, either as applicable
to the present or with reference to the weight which it derives from
the judges by whom it was decided. ^°
These cases pf Muschamp v. Bluet, Gulliver v. Vaux, Ware v. Cann,
10 B. & C. 433, referred to, are all cases of real estate, and they seem
to me clearly to prove that, upon this point, there is no distinction be-
tween the cases relating to real and personal estate. In truth, the
decisions in both cases turn, as I apprehend, on this : the law has said,
that if a man dies intestate, the real estate shall go to the heir, and
the personal estate to the next of kin, and any disposition which
tends to contravene that disposition which the law would make is
against the policy of the law, and therefore void.
In the argument of this case, great reliance was placed, en the part
of the defendants, on the case of Doe v. Glover, 1 C. B. 448; but in
that case the court seems to me to have proceeded upon the ground,
that the devise over was not repugnant to or inconsistent with the
prior devise, and the court, therefore, certainly did not intend to dis-
turb the previous authorities on the principle on which they proceeded.
The devise was there ji_devise_in_fee, and in case the devisee should
n ot have parted with or disposed of tlie~sanie, the iTov er. The court
was of opinion that he could not, under thaC dispose of it by will,
18 As in accord with Gnlliver v. Vaux, see In re Dixon, L. R. [1903] 2 Ch.
458 ; Green v. Harvey, 1 Hare, 428 (leaseholds) ; O'Callaghan v. Swan, 13
Vict. L. II. 676.
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 617
but that the testator meant, unless there was a parting with or disposi-
tion of the estate by deed in the Hfetime of the first devisee, the dev-
isees over would take, and the executory devise over to them would
be good. I may observe, too, that the attention of the court seems
hardly to have been drawn to the point, that the devise over, as it
was construed, took away the testamentary power which was incident
to the fee first devised. Not one word seems to have fallen from the
court or from counsel in the course of the argument as to the effect
of that decision being to contravene the rule of law by which every
devisee in fee has a testamentary power. But it is plain, on looking at
the cases, that if a man says the estate shall go over it you do not ^
disjDose ^bf it T)y d eedj, Jie says, you shaJLnot have thatL-power-wliich >^(X. •^^ ^'■^^'^■^*^
the law^givesoj disposition _by_will. That jgojntseei'ns riot to^ have ^-jnU^^S
been drawn to the attention^ of the court^_and, I will ven ture t o add
that , if th at case of Doe v. Glover is to JDe considered as conflicting
with the other authoritieSj^I^ think that the other authorities, an d espe-
cially the case^of Gulliver v. Vaux, ought tj) prevail against it.
Another case was referred to, Borton v. Borton, 16 Sim. 552, where
the disposition was to the daughter, to be made subject to her dis-
position ; and then there followed a power to her to dispose of the
property by will. But that case proceeded entirely on the particular
words of the will. The Vice-Chancellor of England evidently con-
sidered the words "to be subject to her disposition thereof," as mean-
ing to be subject to her testamentary disposition and as referring to
tlie ulterior power of testamentary disposition given to her. The case,
therefore, depends entirely upon the particular language of the will,
and without saying whether it is consistent or inconsistent with the
case of Doe v. Thomas, 3 A. & E. 123, and the principle to which ]\Ir.
Justice Coleridge referred in Doe v. Thomas, it is not material to the
present case.
My opinion therefore is, that the answer to this case must be in
favor of the plaintiffs. ^^
IT Accord: In re Mortlock's Trust, 3 K. & J. 450 (personal property);
Moore v. Sander.s, 15 S. C. 440, 40 Am. Rep. 703.
In Ba rton v. Barto n, 3 K.. «& J. 512, W. Page AVood. Vice Chancellor, on
the authority of Holmes v. G ^ r ^ oa , held that aft er an absolute freehold in- '^<tv'^(r^^
tei' est in realty a gift over on the first taker dyiiig inresfale was void . He
saiJ: "ir is unrortunate that a decree was allowea to De maae m tnis cause,
without discussion, in the face of an authority which shews that, as to per-
so nal estate at least, a gift ov e r in the ev ent of the legatee dying mtesfatfe,
is repugnant and void . It has been sinceniectded Tn— the T!rtse ot Holmes v.
Godson, determined by the Lords Justices in March, 1856, that a like con-
struction is to be pu t upon^ a similar devise of real estate; and that, wheth-
er the subject of the gift be reM'oF'persouaT property, ~a gift joyer in the
event o f the dece ase ^ nd inte stacy of t he par ty j to whom" an a^bsolute~uP
tercsfts^given by' th e wiUi Is repngnant and void/^~^
G18 ILLEGAL CONDITIONS AND RESTRAINTS CPatt 5
SHAW V. FORD.
(Chancery Division, 1S77. 7 Ch. Div. 669.)
William Shaw, by his will, dated the 31st of March, 1836, devised
as follows:
"I do hereby give, devise, and bequeath u nto my four so ns, Thomas
Shaw, John Shaw, William Shaw, and Jesse Shaw, share and share
alike, all and every of tliose my thirteen_dwelling-houses situate in
Wood Street and Perry Bank, Lane End, in the parish of Stoke-upon-
Trent, together with a pew in the south aisle of Lane End Church, to
have and to hold subject to the following conditions. First, it is my
will an d desire that none of the afore-mentione d houses or lands, witH
the exception of my large garden in Perry Bank, be disposed of ^erFtTeT"
by division, assignment, trans fer, or saie ,^wItHouFTlie written consent
and approbation ofjeach_ and ever y_ of ~th^em m y tour sOns, ThomSs
Shaw, John Shaw, William Shaw, and Jesse Shaw, theirTieirs, assigns,
or representatives. Secondly, it is my will and desire that if need be,
the afore-mentioned garden be sold to meet contingent expenses ; and
furthermore, it is my will and desire that, until the before-mentioned
distribution of the property is made, the rents and proceeds shall come
into one comr'on- f und, and be divided equally amongst my four sons,
Thomas Shaw, John Shaw, William Shaw, and Jesse Shaw, namely,
at Midsummer and Christmas, first deducting all reasonable and neces-
sary charges for the proper maintenance and good repair of the afore-
said property which repairs are to be deducted out of the rents. Fur-
thermore, it is my will and desire that, if there should be no l awful
distribution of this my prop ertx_d uring tITe~n atural Jif e"of them my
f oiir sons, Thomas^haw, John Shaw, William Shaw, and Jesse Shaw,
it shall then d evolve to_ the c hildren Jawfully begotten_ofjhenijmy_jo^
sons!! AndjTn casa any^oFTliese iny four sons'^houkFdiewithout is-
sueTthen it is my further will and desire that the half-yearly share of
the rents so possessed or intended to be possessed by them or him shall
in that case devolve to the widow or widows of such deceased son or
sons, to be by them received and enjoyed so long as they retain their
widowhood, and afterwards it shall devolve to the survivor or sur-
vivors of my other sons, that is to say, to my grandchildren and to
their heirs and assigns, to be divided equally amongst them, share and
share alike * * * And, as to all the rest, residue, and remainder
of all my estate and effects whatsoever and wheresoever not hereinbe-
fore effectually disposed of, I do hereby give, devise, and bequeath the
same to be equally divided amongst my four sons, Thomas Shaw, John
Shaw, William Shaw, and Jesse Shaw, share and share alike." And
the testator appointed his sons Thomas Shaw and John Shaw execu-
tors of his will. The testator died in August, 1837, and his will was
afterwards proved by the executors. All the four sons survived him.
By a deed dated the 4th of October, 1838, and made between Jesse
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 619
Shaw and Eleanor his wife of the first part, John Shaw of the second
part, WilHam Shaw of the third part, Thomas Shaw of the fourth
part, and Frederick Bishop of the fifth part, and duly acknowledged
by Eleanor Shaw, Jesse Shaw (with the written consent of Thomas,
John, and William) granted, and Eleanor Shaw released to Bishop and
his heirs, the undivided share of Jesse Shaw under the will of the tes-
tator in the thirteen dwelling-houses, with the land thereunto belong-
ing, to hold the same unto Bishop and his heirs, to the use of Thomas
Shaw, his heirs and assigns forever. And by the same deed Thomas
Shaw (with the written consent of John, William, and Jesse) granted
unto Bishop and his heirs all the undivided share of Thomas under
the will of the testator in the same hereditaments, to hold the same
unto Bishop and his heirs, to the use of Thomas Shaw, his heirs and
assigns forever. William Shaw died in 1846 intestate, leaving the
plaintiff George Shaw, his eldest son, and three other children him
surviving. John Shaw, by his will, dated the 3d of February, 1851,
devised all his real estate to trustees on certain trusts, and he died on
the 4th of November, 1853. Thomas Shaw, by his will, dated the 14th
of September, 1858, devised his real estate to trustees on certain trusts
for the benefit of his wife and children, and he died in 1859.
The bill in the suit was filed in April, 1874, by George Shaw against
grandchildren and great-grandchildren of the testator, and it prayed
that the rights and interests of all parties interested in the thirteen
houses, with the land attached thereto (other than the garden at Perry
Bank), devised by the testator's will, might be ascertained and declared
by the court ; that the houses might be sold under the direction of the
court, and the proceeds of sale divided among the persons interested
therein according to their respective interests, or that a partition of the
property might be made.
Fry, J. The question in this case arises on the will of a testator of
the name of William Shaw, and it is shortly this : whether or not a
certain executory devise is valid or invalid, the plaintiff asserting its
invalidity, and some of the defendants asserting its validity. [His
Lordship stated the provisions of the will, and continued:]
Now, the first question is what estate do the four sons take in this
specifically devised property, before we come to that portion of the will
which gives it over in the event of there being no lawful distribution?
In my opinion the sons take estates as tenants in common in fee simple.
I think that it is clear they take, if at all, as tenants in common, be-
cause they are to take "share and share alike." The only question
which requires any attention is, whether they take for life or in fee sim-
ple. I am of opinion that the expression of the testator's desire that
none of the houses be disposed of either "by division, assignment,
transfer, or sale without the written consent of each and every of the
four sons, their heirs, assigns, or representatives," shows that the tes-
tator considered the heirs of the four sons as having an estate in the
property, which they could only have in the event of its being a fee
(JL'O ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
simple estate. There is, in my opinion, a devise of this particular
property to the four sons as tenants i n common in fe e.
Then comes the devise over which i have already read. It will be
observed that the terms are, "if there should be no lawful distribution
of this my property during the natural life of these my four sons,"
and then it is given over in a certain way the details of which I will
not repeat.
Now, it is to be observed that the period during which the contin-
gency there referred to may arise is "the natural life of the four sons,"
that is to say, the period of the joint lives of all the four sons. The
next inquiry is, what is the nature of the event which constitutes the
contingency upon which the executory devise is to take effect. It is if
there is no lawful distribution of the property amongst the four sons,
in other words, in the absence of a partition during their joint lives.
Now the right of all the tenants in common of an estate is, if they so
think fit, to enjoy it, not in severalty, but as tenants in common of an
undivided estate ; and therefore the contingency, in its nature, is the
exercise of a right which attaches to every tenant in common of an
undivided estate.
The next inquiry is, at what period is that executory devise over to
take effect, if at all. The answer is that it is to take effect at the death
of each of the four sons. It is quite true, as I have already pointed
out, that the period during which it may arise is that of the joint lives,
and therefore it will take effect with regard to the son who dies first
at the very moment when the contingency is determined ; but with re-
gard to the other sons the contingency will be determined at an earlier
period than their deaths, though the devise will come into operation at
the death of each of them respectively.
Now that being so, I have to inquire what are the general principles
of law applicable to such a case? They may, I conceive, be stated in
this way. Prima facie, and speaking generally, an estate given by will
may be defeated on the happening of any event ; but that general rule
is subject to many and important exceptions. One of those exceptions
may, in my opinion, be expressed in this manner, that any executory
devise, defeating or abridging an estate in fee by alteriiig~tRe~^mTr5'e
of 'iIs'~dev^TLiTion7wlTtdris~to^akF^ at the moment of devolution
and at no other tim e, is bacT TheTea^un alleged for that is the con-
tradiction or'^ontrariety^etween the principle of law which regulates
the devolution of the estate and the executory devise which is to take
effect only at the moment of devolution, and to alter its course. I am
not bound to inquire into the logical sufficiency of the reason given,
because it appears to me that the exception is well established by the
cases of Gulliver v. Vaux, 8 D. M. & G. 167, n. ; Holmes v. Godson,
Ibid. 152; and Ware v. Cann, 10 B. & C. 433. Another exception to
the general proposition which I have stated is this, that any executory
devise which is to defeat an estate, and which is to take effect on the
exercise of any of the rights incident to that estate, is void ; and there
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 621
again the alleged reason is the contrariety or contradiction existing be-
tween the nature of the estate given and the nature of the executory-
devise over. A very familiar illustration is this, that any executory de-
vise to take effect on an alienation, or an attempt at alienation, is void,
because the right of alienation is incident to every estate in fee simple
as to every other estate. Another illustration of the same principle is
that which arises where the executory devise over is made to take ef-
fect upon not alienating, because the right to enjoy without alienation
is incident to the estate given. Now that exception is fully justified
by the cases of Bradley v. Peixoto, 3 Ves. 324; Ross v. Ross, 1 Jac.
& W. 154; and In re Yalden, 1 D- ^I- & G. 53. It is true that in
some of the earlier cases, such as D og v.^love r, 1 C. B. 448, and Wat-
kins V. Williams, 3 Mac. & G. 622, a d istinction was taken between
realty and personalty, but that was overruled in Holmes v. Godson,
and It never Tiad anything^ the nature of p xiiiciple-ap-4xasQn to-sup-
port it. 1 think,~^therefore, that these exceptions to the general rule
are~well established.
That being so, it only remains to be observed that the executory
devise in the present case is within both of these exceptions. It is
within the first, because, as I have pointed out, although the period
during which the contingency is to be determined is that of the joint
lives of the four sons, the time at which the devise over is to take effect
is the death of each of the sons, that is, the moment when the estate
devolves. It takes effect at the moment of devolution, but at no other
time, and altering, as every executory devise must alter, the course of
devolution, it is bad upon that ground. It is equally bad under the
second exception, because the event upon which it is to take effect is
the exercise of a right w-hich is incident to the estate in fee simple
already given to the tenants in common, namely, the right to enjoy
without alienation. It is bad as being a g ift over upon the exercise of
t hat rig ht.
For these reasons I hold that the plaintiff's contention is correct. I
make a declaration to the effect that the devise over is bad, and that
the four sons took estates as tenants in common in fee simple. There
will be a decree for sale and distribution of the fund.^^
1 8 See, also, In re Jones, [1S9S] L. R. 1 Ch. 4.38 ; Lloyd v. Tweedy, [1898]
1 Ir. 5 (?ift over of what remains at the first taker's death) ; In re Jenkins'
Trusts, 23 L. R. Ir, 162; May v. Joynes, 20 Grat. (Va.) G92.
622 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
JACKSON V. ROBINS.
(New York Court of Errors, 1819. 16 Johns. 537.)
Tiir, CHANCEI.LOR [Kent].^^ This is an action of ejectment
brougl t by, or on behalf of Catharine Neilson, formerly Catharine
Duer, and one of the daughters of Lord Stirling.
It appears, by the special verdict, that Lord Stirling was, on the 1st
of January, 1771, seised in fee, of a tract of 3,000 acres of land in
Wallkifl, in the now county of Orange, and of which the premises in
question are a part. That in that year, Ann Waddell recovered a
judgm';nt against him, for £7,790 of debt, and which judgment, upon
the derith of Ann Waddell, was revived by scire facias, in 1775. That
Lord Stirling died in 1783 ; and, in 1788, the executors of Ann Wad-
dell, imdertook to revive and enforce the judgment against the repre-
sentatives of Lord Stirling. A scire facias was, accordingly, sued out
of the Supreme Court in that year, directed to the sheriff of N^ew
York, and commanding him to give notice to the heirs of Lord Stir-
ling, and to the tenants of the lands in his bailiwick, which were bound
by the judgment, to show cause, if any they had, why the debt should
net be levied on those lands. To this writ of scire facias the sheriff
returned, that he had made known to Mary Watts and Catharine
Duer, who were daughters and heiresses of Lord Stirling, to appear
i 1 the Supreme Court, and show cause, if any, why the debt should
lot be levied on those lands. The sheriff further returned, that there
kvere no other heirs of Lord Stirling nor any other tenants, or any
lands in his bailiwick, bound by the judgment. The heirs did not ap-
pear according to the summons, but made default, and judgment was
thereupon awarded, that the executors of Waddell should have execu-
tion against those heirs of the lands which were of Lord Stirling, in
1771, and in their hands and possession. In the same year, execution
issued upon the judgment so revived, to the sheriff of Ulster, com-
manding him to levy the debt and costs of the lands in his bailiwick,
whereof Lord Stirling was seised in 1771, and in the hands and pos-
session of those heirs. The sheriff stated, that he had seized certain
lands which were of Lord Stirling, and of which he was seised in
1771, in the hands and possession of those heirs, and sold them to
John Taylor. The premises in question were part of the lands so
seized and sold, and John Taylor, in 1794, conveyed them to Samuel
Harlow, who entered into possession, and iri 1795, sold them to the
father of the present defendant, who continued in possession from
1795 to 1814, when he died, and the estate descended to the defendant,
as his son and heir at law.
From this state of facts, it appears that here has been an actual
bona fide possession, under the sheriff's deed, of 25 years, and it is 31
19 The facts are stated in the opinion of the Chancellor^
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 623
years since Catharine Duer was personally summoned, as one of the
heirs of Lord Stirling, to show cause why the judgment debt against
Lord Stirling should not be levied. The defence set up against this
action is twofold, and consists, L Of a title under the sheriff's deed:
2. Of a legal protection under the Statute of Limitations. If this de-
fence should prove ineffectual, then the lessor of the plaintiff, Catha-
rine Neilson, as one of the daughters and heirs of Lord Stirling,
would be entitled to an undivided moiety of the premises. But she
sets up a claim to the whole land, not as heir, but as devisee under her
father! Lo rd Stirli ng, by^iis will, devTsed "all his real and personal
estaT^e, whatsoever,"unto His wile Sa raF, to hold the same t o her, he r
executors, administrators and assigns ; out in case of her death", with-
oii T'giving, devi si ng, arid^beqT rea ttTi ng^T-' mii7T5r '6t1ier\vise sehing^or
as signing t he said estate, or an y part thereof , then he devised all such
estate, or all such parts thereof as should so remanrunsord, undevised
or unbequeathed, unto his daughter Catharine Duer, to hold the same
to her, her executors, administrators and assigns." The claim, how-
ever, whether as heiress, or as devisee, is still under Lord Stirling, and
subject to the judgment of Ann Waddell. In whatever shape Catha-
rine Duer, now Catharine Neilson, may put forward her claim, she
still is the very person who was personally summoned in 1788, to
show cause why that judgment should not be levied, and who, by her
silence and default, admitted she had nothing to say.
None of the facts in the case, are the subject of dispute. The ex-
istence and validity of the judgment debt, at the time of the scire fa-
cias, and of the sheriff's sale, is not questioned. That the premises
were owned by Lord Stirling, in 1771, and legally bound by the judg-
ment, is not denied : that they were unoccupied in 1788, and that
there was no actual tenant upon the land to summon, is granted.
Neither the original judgment, nor the judgment upon the scire fa-
cias, nor the execution thereon, have ever been impeached, either by a
writ of error, or by application to the Supreme Court, on the ground
of irregularity. They all stand, to this moment, and after a lapse of
upwards of thirty years, as valid proceedings, upon record. The de-
fence, therefore, in any view of the case, is very imposing: and if,
in the face of all these facts, the claim of the heir or devisee could be
sustained in an action of ejectment, against the present defendant, I
should apprehend that it would communicate a very injurious inse-
curity to title under judgment and execution.
1. The first point to be considered is, whether the defendant has
not a good title under the sheriff's deed.
[This part of the opinion is omitted. The learned Chancellor was
of opinion that the defendant had a good title under the sheriff's
deed.]
If I am correct on this branch of the defence, it would be unnec-
essary to go farther. The judgment of the Supreme Court must be
affirmed. But, perhaps, my opinion may not meet with the entire
624 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
concurrence of the court, on this point ; and as the other head of the
defence arising upon the Statute of Limitations, occupied the largest
and most intricate part of the argument of the counsel, I should not
feel satisfied with myself, if I did not pay some attention to so learned
a discussion.
If Lady Stirling took an estate in fee under the will of Lord Stir-
ling, then at her death, Mrs. Neilson would have been entitled, as one
of her heirs, to an equal undivided moiety of all her interest in the
premises. But if Lady Stirling took a fee, then an adverse possession
commenced when Harlow entered into possession under John Tay-
lor, in 1794, and the Statute of Limitations began to run against her,
for she was then under no disability. When the Statute once begins
to run, it continues to run until the twenty years have expired, and,
therefore, not only Lady Stirling, but all who claim under her by
will or by inheritance, were bound in 1814, and before the commence-
ment of this suit. The question, therefore, as to what estate Lady
Stirling took under the will, becomes material only by its influence
upon this other question of the Statute of Limitations ; and it was
quite entertaining to see how industriously and profoundly the coun-
sel were obUged to labor upon the one question merely to bring it to
bear upon the other.
This question is also supposed to have been decided by this court
in the former cause of Jackson v. Delancy, 13 Johns. 537. But, I ap-
prehend, that the decision of this court in that case does not rest at
all upon this point, and I barely mentioned in the opinion which I
then delivered, that Lady Stirling did take a fee under Lord Stirling's
will, and that the devise over to his daughter Catharine Duer was not
a good limitation by way of executory devise. I relied for this upon
the decision of the Supreme Court in Jackson v. Bull, 10 Johns. 19,
and observed, that nothing had been urged to show why that decision
was not to be regarded as correct. It is that decision, then, and not
the one in this court, which I think governs this question. If that de-
cision be sound, then, according to the principle of it, Lady Stirling
did take an estate in fee ; and, notwithstanding all that has been said
or suggested to the contrary in the court below (vide 15 Johns. 171,
172), I am obliged still to be of the opinion, that it was a well-founded
decision.
Suffer me, for one moment, to re-examine its foundations. Redit
labor actus in orbem.
The testator, in that case, devised to his son Moses, and to his heirs
and assigns forever, a lot of land, and then added, that in case his son
should die without lawful issue, the property he died possessed of, he
gave to his son Young. Moses, the son, did die in possession of the
property, and without lawful issue, but he devised it by will, to his
wife and others, under whom the plaintiff claimed, in opposition to the
devise over to the other son.
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 625
The counsel for the plaintiff, contended, that the limitation over by
way of executory^evise^yas^yojd, because repugnairt to the absolute
po wer of disposa l give n by the will tD_J Moses. wh o was thereby en-
abl ed to defea tTt. The court unanimously acceded to that principle,
and cited authorities in support of it, and gave judgment for the plain-
tiff.
The first case that the court then relied upon, was that of The At -
torney-General v. Hall, Fitzg. 314, decided in 1731 by Lord Chancel-
lor KTngTassisTecrbyThe Master of the Rolls and Chief Baron Reyn-
olds. Hall, the testator, owning real and personal estate, gave it, by
will, to his son, and to the heirs of his body, and if he should die,
leaving no heirs, then he gave so much of the real and personal es-
tate as his son^hould be_possessed of at his^death,^to the^oldsmij:hs*
Company^t London, for charitable purpo^ses. A limitation over for
such a purpose Tiad strong claims upon the protection of a court of
chancery, and I hope that I may be excused for making, as a passing
remark, that the will awakens interesting associations from another
circumstance, which is, that Sir Isaac Newton was one of the execu-
tors. The son alienated the real estate by a common recovery, and
bequeathed the personal estate by will to his wife, and died without
issue. The question arose between the wife, claiming under the will,
and the Goldsmiths' Company claiming by virtue of the limitation
over on the event of the son dying without issue. The case was fully
and ably argued, and there was no distinction made between the real
and the personal estate, as to the validity of the limitation over.
The court were unanimousl y of the opinion, that the Goldsmiths'
Company had no_Valid clajm^jid^ thatjthe lim ita^ tion o ver was Void,
because the absolute ownership had been given to the son ; for the
property was given to -him and the heirs of his body, and the com-
pany were to have no more than he should leave unspent, and, there-
fore, he had a power to dispose of the whole. The words that gave
him an estate tail in the land, gave him the entire property in the per-
sonal estate, and nothing remained to be given over by the testator.
The p oint of that case then was, that where an est ate is given to a
m an^ and tne neirs ot ni s bod y, with a power of disposal, at his own
will and pleasure, it carr ies with it an absolute ownership, repugnant
t o'ahy limitation o ver. anfrT lestmctivp of it . The court did not make
any distinction between the real and personal estate, and say, that the
hmitation over was good as to the one, and void as to the other.
They said, generally, that the limitation over in the will was void, be-
cause the testator gave the son an unqualified power to spend the
whole.
The other case that the court relied on in Jackson v. Bull, was Ide
V. Ide, 5 Mass. 500, decided in the Supreme Court of Massachusetts,
in 1805. There the testator gave by will, to his son, and to his heirs
and assigns forever, certain real and personal estate, and then added,
4 Kales Prop. — 40
626 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
that if the son died without heirs, the estate which he should leave
was to be equally divided between two other persons. The son did
die without leaving heirs, and the question arose between those claim-
ing the real estate under the limitation over, and those claiming it
under a conveyance from the son. The opinion of the court was de-
livered by the late Ch. J. Parsons, whose character, as a lawyer and a
judge, is held in universal reverence. He cited and relied upon the
case of The Attorney-General v. Hall, and said, that "whenever it is
the clear intention of the testator that the devisee should have an ab-
solute property in the estate devised, a limitation must be void, be-
cause it is inconsistent with the absolute property supposed in the first
devisee. And a right in the first devisee to dispose of the estate de-
vised, at his pleasure, and not a mere power of specifying who may
take, amounts to an unqualified gift." He then applied the rule to
the case before him, and observed, that "the absolute unqualified in-
terest in the estate devised, was given to the son, which was incon-
sistent with the limitation over, and, consequently, the limitation was
void." 20
The error, in the case of Jackson v. Bull, said the learned counsel,,
was in applying the English case to the real estate, when it was appli-
cable only to chattels. But the Supreme Court of Massachusetts were
then in the same error, for they equally so applied it. "The limitation
over," says Chief Justice Parsons, "makes no distinction between the
real and personal estate, operating only on such part of either, as the
first devisee should leave." In both of those cases, the devise was of
real and personal estate in the same sentence, and the same limitation
over was created as to each ; and neither the English, nor the Massa-
chusetts court, admitted any difference in the rule of construction, or
in the operation of the power of alienation, whether applied to the
limitation of the real or of the personal estate.
I do not know that either of those two last decisions have ever
been questioned in any court, or by any author. They were pro-
nounced by the highest judicial authorities ; and Lord Hardwicke (1
Ves. 10) gives his sanction to the accuracy of the English case.
Beachcroft v. Broome, 4 Term, 441, decided in the K. B. in 1791, is
in confirmation of the doctrine of the prior case. That was the case
of a devise to B. and his heirs, and if he die without having settled,
or otherwise disposed of the estate, or without leaving issue of his
body, then the devise over. B. sold the premises in fee, and died
without issue, and the question was, whether the purchaser took an
estate in fee, and the K. B. held clearly that he did. The decision is
20 In accord with Jackson v. Bull and Ide v. Ide, see the following: Flinn
V. Davis, 18 Ala. 132; Kelley v. Meins, 135 Mass. 231; Annin's Ex'rs v.
Vandoren's Adm'r, 1 McCart. (14 N. J. Eq.) 135 (Personal property) ; Van
Hornc v. Campbell, 100 N. Y. 287, 3 N. E. 316, 771, 53 Am. Eep. 166; Rid-
dicli V. Cohoon, 4 Rand. (Va.) 547 (personal property ; only ground of de-
cision was uncertainty in the subject-matter which would go over) ; Melson
V. Cooper, 4 Leigh (Va.) 408.
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 627
entirely conformable to the doctrine in The Attorney-General v. Hall,
and Ide v. Ide, and Jackson v. Bull ; but a single expression of Lord
Kenyon is seized upon, and great reliance was placed upon it by the
counsel for the plaintiff in this cause. Lord Kenyon said (and it must
have been in loose conversation on the bench), that if the case had
turned on the question whether that was an estate tail in B., he should
have thought it extremely clear that on failure of the first limitation,
the second ought to have taken effect as an executory devise. Per-
haps, the meaning of Lord Kenyon is not to be clearly understood.
It was an observation not required by the decision, nor applicable to
the point ; but let it mean what it may, are we to permit such a loose
remark to be of any weight or consideration, in opposition to the de-
liberate and solemn judgments of the courts? It is enough, I ap-
prehend, merely to mention such a dictum, and then to pass it by in
silence.
If we now apply these cases to the will of Lord Stirling, we can-
not but be struck with their perfect and controlling application. He
does, in the first place, devise and bequeath unjto ^ his wife Sarah, all
his real and jpersonal estat e whatsoever, to hold the same to her, her
e xecutors, a dministrators and assigns. This was a gift in fee . THe
word estate, in a will, carries the land and all theTest"ator's''interest
in it. It is genus generalissLmum, said Lord Holt, Countess of Bridg-
water V. Duke of Bolton, 1 Salk. 236, and includes all things real and
personal. The words all his estate are, in a will, descriptive of his
fee ; and in a subsequent case, Barry v. Edgworth, 2 P. Wms. 523, the
Master of the Rolls, referring to this opinion of Holt, said, that the
law was then settled on the point, and that the word estate compre-
hended not only the thing, but the interest in it ; and as it had been
agreed and settled to convey a fee in a will, it would be dangerous to
refine upon it. So again, Lord Mansfield observed, Roe v. Harvey,
5 Burr. 2638, that the word estate in a will, carried everything, unless
tied down by particular expressions. And in a subsequent case.
Holdfast V. ]\Iarten, 1 Term Rep. 411, Mr. J. Buller said, that the
word estate was the most general word that could be used, and words
of restraint must be added to make it carry less than a fee. And
lastly (for I will not fatigue myself with further citations on the
point), Mr. J. Paterson, of the Supreme Court of the United States,
declared, Lambert v. Paine, 3 Cranch, 134, 2 L. Ed. Z77 , that the
word estate was the most general, significant, and operative word,
that can be used in a will ; and it comprehends both the land and the
inheritance.
We may say, then, that Lord Stirling, by the first part of his will,
gave an estate in fee to his wife. So he, also, repeated this gift of a
fee, by the next_cl ause in t hejvill. when he admits^^expressl ^ that s he
has the power and the rigjjt to giv£, devi a£j_and__ bequeath7or sel l "or
assi^nTlTe^sHte^I^Qr^QV^paHlfHer^ This power, of itself, is an at-"
tribute of ownership, and carries with it a fee. Thus, as early as 6
G28 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
Eliz., Dalison's Rep. 58, it was held by the judges, that if a man de-
vises land to his wife, to dispose of and employ it upon herself and
her son, at her pleasure, she takes a fee. So again, Lord Coke says,
Co. Lit. 9, 6, that if a man devises land to another, to give and to sell ;
this amounts to a devise in fee ; for, in a will, the word heirs is not
necessary to create an estate of inheritance. There are many other
cases to the same effect, which I need not particularly mention (Moor.
57; 2 Atk. 102; 2 Johns. Rep. 391), and we may lay it down as an in-
controvertible rule, that where an estate is given to a person gener-
ally, or indefinitely, with a power of disposition, it carries a fee ; and
the only exception to the rule is, where the testator gives to the first
taker an estate for life only, by certain and express words, and an-
nexes to it a power of disposal. In that particular and special case,
the devisee for life will not take an estate in fee, notwithstanding the
distinct and naked gift of a power of disposition of the reversion.
This distinction is carefully marked and settled in the cases. Tom-
linson v. Dighton, 1 Salk. 239; 1 P. Wms. 149, s. c. ; Crossling v.
Crossling, 2 Cox, 396; Reid v. Sbergold, 10 Ves. 370; Goodtitle v.
Otway, 2 Wils. 6.
The question then o ccurs, was the limitation over to Mrs. Duer
valid, after the creatT orTof such an es tate in fee. The words ol the"
win~were. that "m case of the death o't his wife, without giving, de-
vising, and bequeathing by will, or otherwise selling or assFgning flie
estat^7or any part thereof, he doth give and devise all such estate as
should so remain unsold, undevised, or unbequeathed to his daughter,
Lady Catharine Duer," &c. This limitation over, must b e_either as
a r emainder, or as an executory dev ise, and it is_[mpossible that it
shcujld _be_either, upon any laio\yn principles of law. ^^^ToT^iTiaindeF
can be limited after an estate in fee, and, therefore, if a devise be to
A. and his heirs, and if he die without heirs, then to B., the remain-
der is repugnant to the estate in fee, and void. Preston v. Funnell,
Willes' Rep. 164; Pells v. Brown, 2d point, Cro. Jac. 590. Nor can
the limitation over operate by way of executory devise, because the
p ower t o dispose of the estate by will or deed, whi ch Lord Stirling
gave to his wife, is fatal to the ex i stence of th at species of interest.
It IS a clear and settled rule M laTw, t hat an executory^_^|vise]^annot
be preve nted"or^e7eated by any alteration of the estate out of winch,
or after \vhTch, it is l imited, or^ by any^ode oT~corrveTaTn:g: — It cs m — --
not be~crealecl, and iTcannot llveunder suc h a~power~ m tlie tirst takei T^
"These Timitatiohs," says Mr. J. Powell, Scatterwood v. Edge, 1 SallcT^
229,''^^make estates unalienable, for e very_executory jleyiseis a per-
petuitj^^:^g-"faT^iasiit_gpes, _t hat"~Ts" to sayT^t is an estate unalien able,
th ough all m ankind^join in the conveyance." Vide also, 2 Fearne, p.
51, by Powell; 2 Saun(1388, d. note^ We are obliged, therefore, to
have recourse to the explicit and settled doctrine, in the cases of The
Attorney General v. Hall, and of Ide v. Ide, and of Jackson v. Bull,
and say, that an absolute ownership or capacity to sell, in the first
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE G29
taker, and a vested right by way of executory devise in another, which
cannot be affected by such ahenation, are perfectly incompatible es-
tates, and repugnant to each other, and the latter is to be rejected as
void.
Lord Stirling clearly intended to give his wife an estate in fee. The
words amount to demonstration of that intention. If she sold the
land, she was not accountable for the proceeds. She could not be
chargeable with waste, and she might mortgage, or encumber the land,
for that is included in the right to give, and sell, and assign. And
when he attempted to engraft an executory devise or limitation over,
upon a fee with such an absolute power of control, he did what was
incompatible ~with~M^ oth&r~arid" principar~inte litron, andT wHTcTi the
courfs^musf^oT'necessity, "reject as repugnant and void! '
TEerei^T Tpt^aTcase'to'be found, in w hich a valTd^executory devise
was heldtoj ubsist under an absolute power ot a lienation in the first
talker! Thave looked at the cases so~industriously collected I5y~lhe
plamTiff's counsel, and there are none of them that reach tliis point.
All executory devises may be said, in some degree, to depend upon the
will or discretion of the owner of the precedent estate. If a devise be
to A. in fee, but if he die without issue living at his death, then over to
B., it is in his volition and power (morally speaking), not to marr}% or
to marry, and have issue, and so avoid the devise over. So, if the lim-
itation over be made to depend upon the contingency, that the first
taker marry without the consent of B., or marry a prohibited person,
he may, undoubtedly, avoid marrying without the requisite consent, or
avoid marrying against the prohibition, and so defeat the limitation.
But these distinctions have nothing to do with the simplicity and good
sense of the general rule we are discussing. The first taker, in these
special cases, has not an absolute discretion and free agency, within the
meaning of the rule. The sound d octrine on the subject is, that an
ex ecutory devise u nder the salutaiy^checks^providfid^forit^s a stable^
and unalienable interest, and the first taker has only^ the use of the land
or c hattel, pending tEe conting en cy mention ed_in the will j_and he~can-
not con vert the pr operty to his own use, a nd def eat the subsequent
estat e by a volu ntary alienation. This is the rule for which we con-
tend, and it was not so wTthXady Stirling. She could give and devise,
and she could sell and assign the estate when, and to whom, and for
what purpose she pleased. She was a free moral agent, and an abso-
lute and independent owner, in respect to the estate. This is what we
understand by a right, incompatible with an executory devis e, and this
is what we are to understand by the books, when they speak of a lim-
itation over as being void, because inconsistent with such an absolute
power and dominion in fee.
But it is time that this discussion should draw to a close. The result
of my inquiry, is a belief that the defendant has a good title under the
judgment and execution, and that if he had not, he is, nevertheless,
630 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
protected by the Statute of Limitations, because Lady Stirling was
seised in fee, so as to enable the Statute to run against her, when the
adverse possession commenced, in 1794. Upon either ground, if cor-
rect, the judgment must be affirmed. During the examination of this
subject, I have not been insensible to the weight of the inquiry, and
more especially, as one of the judges of the court below seems to think
the law in favor of the claim. The counsel for the plaintiff, and one
of them a son of a lessor of the plaintiff, have, indeed labored the
points, in their argument annexed to the case, as well as at this bar,
with a diligence and painful anxiety, and, no doubt, with a sincere con-
viction, that has excited my sympathy. The descendants of Lord Stir-
ling appear to feel, that a rich inheritance has been Injuriously snatched
from their enjoyment, but I think it was fairly lost by the inability
or neglect of their ancestor, or his representatives, to redeem the en-
cumbrance. And if the law was with the plaintiff, would not our sym-
pathies be as properly directed to this defendant, whose father was a
bona fide purchaser under the execution, and cultivated the premises as
his own for 20 years, and died in possession, and transmitted the fruit
of his labor to his son? The truth is, that judges are bound to declare
the rules of law strictly, without regard to consequences. They must
follow the conclusions of the understanding, and not the dictates of
the heart. If the argument on the part of the plaintiff has made a more
favorable impression upon others than it has upon me, I shall be per-
fectly contented. I am, however, obliged to say, as the case strikes
me, that the law is with the defendant, and that the judgment ought to
be affirmed.
This being the unanimous opinion of the court, it was, thereupon,
ordered, adjudged and decreed, that the judgment of the Supreme
Court be affirmed, and that the plaintiffs in error pay to the defend-
ant in error, fifty dollars and fifteen cents, for his costs and charges,
in and about his defence in this court ; and that the records be remit-
ted, &c.
Judgment of affirmance.^^
WILLIAMS V. ELLIOTT.
(Supreme Court of Illinois, 1910. 246 111. 548, 92 N. E. 960, 138 Am. St.
Rep. 254.)
CartwrighT, J. John Laughrin died on March 11, 1901, leaving a
last will and testament dated February 26, 1884, which was admitted
to probate in the county court of Jo Daviess county. By the will he
devised about 260 acres of land in said county to his wife, Margaret
Laughrin, fo j; life , and devised the remainder after the said life estate
as follows : "Subject to the provisions of the said second clause of my
21 Contra: Andrews v. Roye, 12 Rich. 536 (1860).
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 631
will and the rights of my wife as therein specified, I give, devise and
bequeath unto my niece, Phoebe W. Price, a nd unto my children ,
Mary Fitzsimmons, ivrontana I^aughrin and Ra'cHael Laughrin, share
and share alike, al l my estate, real, per s onal and rm xed, of every name
and kind and wherever situated, t hat exists after t he decease_ofmy
wife, aforesaid, to have and to hold the same unto~t:he said PhoeBe
WrPric"e,~Mary Fitzsimmons, Montana Laughrin and Rachael Laugh-
rin, and their heirs and assigns forever. But in case the said Phoebe
W. Price shall not dispose of the said estate devised to her, by wilLor
otherwise, before her de ath, a nd should die without issue, seised of
saidTstate, tTien said estate herein by this will devised to said Phoebe
W. Price shall go to and vest in the said Mary Fitzsimmons, M ontana
Laughrin andTTacTiaerLaughrin, share and share alike, to be held by
them a^d their heirs and assigns forever." Rachael Laughrin, one of
the daughters, became the wife of Alvin O. Elliott, and died on No-
vember 10, 1899, intestate, leaving her husband and her children. True
Elliott and Edna Elliott, surviving her. The testator left surviving
him Margaret Laughrin, his widow ; Montana, his daughter, who had
been married, and whose name was then Montana Williams ; Mary
Fitzsimmons, his daughter; Edna Elliott and True Elliott, his grand-
children ; and Phoebe W. Price, his niece — devisees under the will ;
the grandchildren taking the place of their mother by virtue of the
statute. Phoebe W. Price died intestate in June, 1903, without having
disposed, by will or otherwise, of the land devised to her, and she left
her sister, Eliza Green, her only heir at law. Margaret Laughrin died
on February 15, 1907, and her life estate terminated.
On May 15, 1909, Montana Williams filed her bill in the circuit
court of Jo Daviess county, alleging that the title to said lands had
become vested in herself and Mary Fitzsimmons, Edna Elliott, and
True Elliott in fee simple, making Eliza Green and all other parties
interested defendants, and praying for partition. Eliza Green an-
swered, alleging that Phoebe W. Price became seised, by virtue of the
will, of an estate in fee simple to an undivided one-fourth of the lands,
subject to the life estate of the widow; that the limitation over in case
slie should die without issue, seised of the estate and not having dis-
posed of the same by will or otherwise, was void ; and that said estate
was then vested in the said defendant, Eliza Green, as only heir at
law of said Phoebe W. Price. Eliza Green also filed a cross-bill, mak-
ing the same averments and praying for partition accordingly. The
chancellor sustained exceptions to the said answer and a demurrer
to the cross-bill, and ruled said defendant to file a sufficient answer in-
stanter. She stood by her answer and cross-bill and refused to answer
further, whereupon the original bill was taken as confessed by her, and
the cause was referred to the master in chancery. Upon the coming
in of the report of the master, the chancellor found and decreed in
accordance with the allegations and prayer of the original bill. Eliza
032
ILLEGAL CONDITIONS AND RESTRAINTS
(Part 5
Green sued out a writ of error from this court to bring the record here
for review, and joined her codefendants with her as plaintiffs in error
by virtue of the statute. The parties having all been brought into court,
an order of severance was entered, and Eliza Green prosecutes the writ
of error alone.
By the will the testator devised to his niece and his three daugh-
ters, and their heirs and assigns, forever, the real estate in question in
equal shares, subject to the life estate of his wife, Margaret Laughrin.
This devise was in fee simple, but was followed by a provision that
the estate devised to Phoebe W. Price should go to the three daughters
in equal shares, in fee simple, if the said Phcebe W. Price should not
dispose of said estate, by will or otherwise, before her death, and
should die without issue, seised of said estate. If the executory de-
vise was valid, the plaintiff in error, Eliza Green, has no interest in
the real estate ; but, if it was void, the undivided one-fourth descended
to her as the heir at law of Phoebe W. Price.
Although an estate in fee simple is devised, it may be limited by a
subsequent valid provision that the estate shall go over to others upon
the happening of a certain contingency. The estate, when so limited,
is still a fee, for the reason that it will last forever if the contingency
does not happen ; but so long as it is possible that the contingency may
happen it is a base or determinable fee. One of the contingencies upon
which such a limitation may lawfully rest is the death of the first
devise© without issue, and s o far as the executory devise in this case
depended upon the death of P hoebe W. Price withoufj ssj.ip it wg^,
valid" Ackless v. Seekright, Breese, 76; Summers v. Smith, 127 111.
645^21 N. E. 191; Smith v. Kimbell, 153 111. 368, 38 N. E. 1029;
Strain v. Sweeny, 163 111. 603, 45 N. E. 201 ; Lombard v. Witbeck, 173
111. 396, 51 N. E. 61 ; Gannon v. Peterson, 193 111. 372, 62 N. E. 210,
55 L. R. A. 701 ; Johnson v. Buck, 220 111. 226, 77 N. E. 163.
There is, however, an equally unquestioned rule of law that an ex-
ecutory devise^cpn nnf hp cr eated if the estate devised to_the_first
devisee is such that he can, b
virtue of his ownership , alienale--the-
An executdrv" devise Is indestructible by anyact
estat e in fee simpl e^
ofTlie owneFoF^e^ precedin g estate ; and, if the owner of a deter-
minable fe e conveys in fee, the deter minable equality: ojjthe_fee_follo:^s
the transfer. 4 Kent's Com. 10; Smith v. Kimbell, supra. It neces-
sarily follows that if_the_first_de\'is£ ^iasjin estnte which he can convey
in feesirnple ^ so as to destro y an attempted limitation o ver, such limi-
tation IS void! If theTe^ aiT absolute" power of disposition^ the first
devisee", fhe limitation over is void as a remainder, because of the pre-
ceding fee, since a remainder implies something left, and there can be
nothing left after a devise in fee simple. It is also void as an executory
devise, because the limitation ie inconsistent with the absolute estate
or power of dis positi on. 4 KTent'sXTom. 270; 2 Redfield on Wills, 69;
Welscli ^. Belleville Savings Bank, 94 111. 191 ; Hamlin v. United
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE G33
States Express Co., 107 111. 443 ; Wolfer v. Hemmer, 144 111. 554, 33
N. E. 751.
The majority of the court in the case of Burton v. Gagnon, 180 111.
345, 54 N. E. 279, did not agree that a simple devise to the heirs at
law of the testator, who were his two children, coupled with the limi-
tation over, carried with it a power of alienation free from the lim-
itation, as stated in the opinion filed ; but the decision is authority for
the doctrine that where there is an absolute power of disposition an
attempted executory devise is void. By the will in this case Phoebe
W. Price had an absolute power of disposition of the estate devised
to her, by will or otherwise, as she might choose, freed from the lim-
itation over, and the attempted executory devise was based upon the
contingency that she should be seised of the estate at her death and
should not have disposed of the same, by will or otherwise. The
attempted executory devise was therefore void, and she was vested
with an estate in fee simple in the lands, subject only to the life estate
of the widow.
In the case of Friedman v. Steiner, 107 111. 125, there was a devise
of the rest and residue of the estate to the testator's wife and unto her
heirs and assigns, forever, to the total exclusion of any and all person
or persons whatsoever, but upon the condition that, if she should die
intestate and without surviving lawful issue, said estate should be con-
verted into money by the executor and paid as directed by the will.'
The court recognized the rule that an executory devise is void where
there is an absolute power of disposition given by the will, but adjudged
that the widow had not only a determinable fee, but was clothed with
unlimited power of alienation in fee simple, and by necessary impli-
cation from the language of the will had a power other than that in-
cident to the ownership of a base or determinable fee. The court
found in the will the power annexed to the estate, and, of course, a
power of sale added to an estate does not increase the estate. Ducker
V. Burnham, 146 111. 9, 34 N. E. 558, 37 Am. St. Rep. 135 ; Walker v.
Pritchard, 121 111. 221, 12 N. E. 336. In determining the estate of
Mrs. Steiner the court held that one who is merely the owner of a base
fee can convey no more but that she had power to convey in fee sim-
ple, or declining to exercise the power, might convey the determinable
fee which she held. Her power to convey in fee simple was not re-
garded as an incident of her ownership, but was a power distinct from
the right of property.^^
22 Hubbard v. Rawsou, 4 Gray (Mass.) 242 (Devise in trust for Lucy abso-
lutely "if said T.ucy should make auy disposition by will or other writing of
said property, which she is at liberty to do, he pay, convey and deliver over
said timst property to such person or persons as she may name ; and if
she does not make any such disposition, that he pay, convey and deliver
over said trust fund, or what may remain in his hands, to her children, to
be e(iually divided between them, meaning hereby that he shall pay and
distribute what may remain of said fund at her decease, in case she make
no will, in the same way and manner the same would have been distribut-
C34 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
In Orr v. Yates, 209 III. 222, 70 N. E. 731, the court said that so far
as the opinion in the Friedman Case announced a doctrine different
from the estabhshed one concerning the power of the owner of a deter-
minable fee to make a conveyance it had not be^en approved, and in
the case then being considered it was held that the language, "if not
disposed of by Mary Maria Yates," could not be construed to give her
an unqualified power of disposition or any power whatever, and that
ed had she died intestate, sole and unmarried, to her children, if she leave
any, and if not, to such as would inherit when the intestate leaves no chil-
dren." In holding the gift over to the children valid, the court, by Dewey,
J., said: "In the view we take of the case, this part of the devise cannot
be treated as a nullity. The cases, cited by the plaintitf, of Ide v. Ide, 5
Mass. 504, and Newhall v. Wheeler, 7 Mass. 189, are not parallel cases, and
the same reasons do not exist here, as existed in those cases, for holding
the conveyance to be that of an absolute title. * * * The result to
which we come is, that Mrs. Morris had only an equitable fee simple con-
tingent, liable to be defeated upon her dying before her husband, in case the
estate was not conveyed by her order, and she had made no disposition of
the property by will or other writing; that it was competent for the testa-
tor to make the devise over ; and that, the estate given to Mrs. Morris hav-
ing terminated by her death, her children held the land as purchasers by force
and effect of the will of Daniel Rawson, and not as an estate acquired by
inheritance from their mother.")
Randolph v. Wright and Wife, 81 Va. 60S (Devise to A. absolutely "should
either son die without a will or lawful issue, the surviving son must heir
all the property given by me to him." The court in holding the gift over
upon the death of one son without issue valid, said by Lacy, J.: "Upon the
best consideration we can give this case we are of opinion that, while it is
true that the power of disposal by will or otherwise is incident to an abso-
lute fee simple estate, and therefore adds nothing when annexed, which was
not already an incident inhering in that degree of estate ; yet that the
power of absolute disposal by will is not an incident inhering in an estate
for life only, nor in a defeasible fee, nor in any limited estate; and that ia
this case if the power of disposition had not been granted by the will it
would not have been an incident inhering in the limited estate granted, to
wit, a defeasible fee, liable to be defeated and determined by the happen-
ing of a contingency of the failure of issue, which contingency actually tiap-
pened, and determined such limited estate; and that the power of disposing
by will did not annex an incident of the estate already granted, and there-
fore to be held to be nugatory, but did annex a power not otherwise grant-
ed, and not otherwise attached to the estate granted ; a power of appoint-
ment by will, added to an estate devised subject to an express limitation,
whereby such estate is defeated and. determined upon the contingency of
his dying without issue. Such an estate can be held to be an absolute es-
tate in fee simple only by disregarding the plain words of the will, to say
nothing of that regard to the intention of the testator, to be gathered from
the whole will, and then followed as the polar star in all effort to construe
the wills of the dead. It is plain in this case that the intention of the
testatrix was, and the plain and clear effect of the words used is, to be
held to devise to her son Edward an estate liable to be defeated and de-
termined upon his dying without issue. That contingency happened. The
power of appointment was never exercised.")
See. also, Eaton v. Straw, 18 N. H. 320.
It is clear that where there is a gift to A. for life, with power to appoint
IaXiL >/ "^(tUJU.ji^ t>y <i^6d or will and in default of appointment to B., the gift over to B. is
n valid. In so holding in Welsh v. Woodbjinr, 144 Mass. 542, 11 N. E. 762,
l^lj- tYU4^ fif'y the court, by Holmes, J., sauTi
"The testator's wile, ISIary .Tacks, took a life estate coupled with a power,
and the limitation to his sister, Lydia Hobbs, was valid. Ayer v. Ayer, 128
Mass. 575, 577; Smith v. Snow, 123 Mass. 323; Kuhn v. Webster, 12 Gray,
Ch. 1) FORFEITURE OF ESTATES OF INHERITANCE 635
counsel in the case did not so contend. In the Friedman Case, and
perhaps other cases, an executory devise depending upon intestacy and
the faikire of issue has been considered vahd ; but there has been no
one in which such a devise has been sustained if there was an absohite
power of alienation in fee simple by the first devisee at his own discre-
tion and as owner of the estate.
The decree is reversed, and the cause is remanded to the circuit
court, with directions to overrule the exceptions to the answer of the
plaintiff in error, Eliza Green, to overrule the demurrer to her cross-
bill and require an answer thereto, and to proceed further in accordance
with the views expressed in this opinion.
Reversed and remanded, with directions.^'
3. The PUffSPstion which has been made, that i t is h ard to distingnish be-
tween ^n lon^e5 |]3Qr— l^f6~"^vith— absohrte lyo^ absolute
owag^Bp (BradTy v. Westcott, 13 Ves. 445, 451), i s met T)^- ITies e cases, ana
by the testator's clear expression of his inte nt to give all opiate iur li fer
only:: — See, also, Kelley v. Meins, 135 Mass. 231, 234; Anon. 3 Lieon. 71, pi.
it)8; 13 Ves. 453; Reith v. Seymour, 4 Russ. 263; Sugd. Powers (7th Ed.)
123-125. And the technical do ctrine of Kelley v . AIeins_2S_avQided - by this ^^If- ^. ^ t^i-i
technical distinctiotr: — For thfe'ground of Kelley~vr'Meins~an(l that class of "^^^TZZ — E^
casesr w ' helher <iUhCt;rm ng~gersonaI or real'estate, iS'thal the limi t a t ion over - ' ■* ^ '^■'^<^^ '-^ I
is ah'~nTtg g^tjto_ta Be'lnvay"one"of tfae^iPcirie n t ^^ to say
that, it the owner ^does not dispose of his prop ertyin ms nre or "at his death,
it sl igll devo l ve"~otherw ise^ than as the Tnw~~ELas~T ) i ' uv ided. T his^ ^^objeetion
doe^^ nol apply to a rem"a inder after a life est ate, ev^ when~the life estate
is couinea wim a power. ' ~ ■
"Tne objecttntrto the uncertainty of what will be the subject of the limita-
tion over, which was once thought to be a further ground for the doctrine of
Kelley v. Meins, as applied to personal property, seems to be discredited by
the later English decisions cited in that case, and never has been applied to
a life estate, coupled with a power. Cases supra; Surman v. Surman, 5
Madd. 123 ; In re Thomson's Estate, 13 Ch. D. 144 ; Burleigh v. Clough, 52 N.
H. 267, 13 Am. Rep. 23. See Ross v. Ross, 1 Jac. & W. 154, 158 ; Cuthbert v.
Furrier, Jac. 415, 417 ; Green v. Harvey, 1 Hare. 428, 432."
23 Accord: Combs v. Combs, 67 Md. 11, 8 Atl. 757, 1 Am. St. Rep. 359;
Armstrong v. Kent, 1 Zab. (21 N. J. Law) 509.
In Hall v. Robinson, 3 Jones, Eq. (56 N. C.) 348, the limitations were to A.
absolutely, but if he dies "leaving no wUl nor issues" then over to B. In
holding the gift over valid the court, by Pearson, J., said : "The only dif-
ference between the present case and the ordinary cases of conditional lim-
itations and executory devises and bequests is that here the future con-
tingent estate is made to depend, not only upon the event of the death of
the taker of the determinable fee under age, and if of age without leaving
issue, but upon the additional event of his dying intestate, so as to make
three instead of one, or two, contingencies; but there is no inconsistency
between the existence of this contingent estate and the estate of the first
taker; for, in order to make an absolute inconsistency, which the rule re-
quires, the first taker must have the absolute estate, or a general power
of disposition, so as to leave nothing in the testatrix capable of being given
over to a third person. We are of opinion that the limitation over was
valid."
636 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
CHAPTER II
FORFEITURE ON ALIENATION OF ESTATES FOR LIFE
AND FOR YEARS
LOCKYER V. SAVAGE.
(Court of Exchequer, 1733. 2 Strange, 947.)
The plaintiffs brought a bill as assignees of a commission of bank-
ruptcy against Norris, to have an account of the personal estate which
the bankrup t's wife's f ather^ died possessed of, he being a freeman of
London.
The defendants insisted, that by articles between the bankrupt and
Freeman and his ja ughte r, previous to the marriage, she Tiad^n conT
sideration of £4000 advanced by the father in his lifetime, released her
right to any further demand out of the personal estate; and that the
i 4000 was settled to t he use of the bankru pt for life, but if he failed
in the world, the trustees were not to pay the produc e to him, but
apply itt o the separate mamtenance of the wife and children.
tJpon the hearing two points were ruled : iTTTiat a chiTd of full age
might, for the consideration of a present advancement, bar herself of
the customary share. And that it was stronger in the case of a child
who had a right, than in the case of an intended wife, which had been
allowed. 2 Vern. 665. 2. That the p rovision for her maintenance in
c ase the hu sband fai l ed, wa s_g ooB against cr editors ; it no.t being_ j^
pro vision otit of the bankrupt's estate, but th e settTem eji^ of h er ow n
f ortun e. Abr.^qu. CasT~5or^54. And though it was objected, that
the profits were forfeited by the act which was to vest the separate
right in the wife, viz., bankruptcy; and when two rights concur,
fortior est dispositio legis quam hominis : yet the court compared it
to the case of a lease, where the lessee is restrained from assigning
without consent of the lessor, and the assignment has always been
held to be void. The bill was dismissed with costs. Strange pro
defendente.
ROE d. HUNTER v. GALLIERS.
(Court of King's Bench, 17S7. 2 Term R. 133.)
In this ejectment a special verdict was found before Gould, J., at the
last assizes at Hertford, which stated that John Hunter being seised in
fee of the premises in question, demised the same by two several leases
dated 24th December, 1778, to Green, who for some time before had
been and afterwards continued to be a dealer in horses, for twenty-one
Ch. 2) FORFEJITURE ON ALIENATION G37
years from Michaelmas, 1778, at rack rents for both farms of £150 a
year, without any fine or other consideration than the yearly rents ; in
each of which leases is contained the following proviso : "that if the
said yearly rents thereby reserved, or either of them, or any part there-
of, shall be behind or unpaid for twenty days next after the respective
days of payment, being lawfully demanded ; or if the said j. Green,
his exec utors, or administrators, shall assign over the indenture of lease
or assign of let tlie premises thereby demiseHT^or any part thereof, to
any person whatsoever for any time or times whatsoever, without the
license or consent of the said J. Hunter, his heirs, and assigns, first had
or obtained in writing under his or their hands for that purpose ; or if
the said J. Green, his executors, or administrators, shall commit any
act of bankruptcy within the intent anH^ meaning of any Statutes niaHe
or to be made in relation to bankrupts, whereon a commission shall
issue, and he or they shall be found or declared to be a bankrupt or
bankrupts; or if he or they shall make any composition with his or
their creditors for the payment of his or their debts, though a commis-
sion of bankrupt doth not issue, or if he or they shall make any assign-
ment of his or their efte cts in trust fo r the benefit of liis or thelFcredi-
tors_[ thaFthen and^TronTthenceforth in any of tKese cases it shall and
may be lawful to and for the said J. Hunter, his heirs, and assigns, into
the said demised premises to j;e2ent.£r^ and the same again to have, re-
possess, and enjoy, as in his or their former estate, anything therein
contained to the contrary notwithstanding." It is then found that coun-
terparts of the said leases were executed. That the two farms after
such demise and before the bankruptcy of Green were improved by the
bankrupt £30 per annum. It then stated the act of bankruptcy; that
a commission issued thereon on 3d February, 1787; that Green was
duly found and declared a bankrupt; and that the defendants after-
wards entered into the premises, and were possessed as assignees under
the commission and the usual assignment; upon whom the said John
Hunter afterwards entered. But whether, &c.
AsHHURST, J. The only question is, whether a proviso in a lease,
that if the lessee commit an a ct of bankruptc y, or, in other words, do
any oFthose acts upon wliicE'a commission of bankrupt may be sued
out, t he landlord shall have a rig ht to re-enter, be legal or not ? The
general principle is clear, that theTandlord, having the jus disponendi,
may annex whatever conditions he pleases to his grant, provided they
be not illegal or unreasonable. Then is this proviso contraiy to any
express law ; or so unreasonable as that the law will pronounce it
to be void ? That it is not against any positive law is admitted ; and no
case has decided it to be illegal. In the case of Lord Stanhope against
Skeggs, the court were divided in opinion upon the question which
arose there ; therefore that is no authority either way : but considering
what the ground of that difference was, it is some authority in support
of this proviso ; for the doubt arose upon considering whether a clause
638 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
of restraint could operate upon executors to prevent them from assign-
ing land which was expressly leased to the original tenant and his
executors, eo nomine, when that was the only means by which they
could exercise their trust. Now that doubt does not occur in this case,
this question turning on a different point. This proviso then not being
against any express authority of law, it remains to be considered
whether it be void or unlawful as against reason or public policy ; now
it does not appear to me to be against either. First, it is reas onable
th at a landlord sh ould exercise his judgment with respect to the person
to whom he trusts thejnanagement of his estate ; a covenant therefore
not to assign is legal ; covenants to that effect are frequently inserted
in leases; ejectments are every day brought on a breach of such cove-
nants. The landlord may very well provide that the tenant shall not
make him liable to any risk by a voluntary assignment, or by any act
which obliges him to relinquish the possession. If it be reasonable for
him to restrain the tenant from assigning, it is equally reasonable for
him to guard against such an event as the present, because the conse-
quence of the bankruptcy is an assignment of the property into other
hands. Perhaps it may b e more n ecessary for the landlord to guard
against this latter event, as there is greater danger to be apprehended
by htm in this than in the former case. Persons who are put into
possession under a commission are still less likely to take proper care
of the land than a private assignee of the first tenant. Neither is there
any reason of public policy to be urged against allowing such a proviso.
It conduces to the security of landlords, which can never be urged as a
ground of objection on that head. On the whole therefore I am of
opinion that this is a jvalid ^ oviso ; and, the lease having been forfeited
by the tenant's becoming a bankrupt, the lessor of the plaintiff is en-
titled to recover.
BuLLKR, J., after commending the conciseness of the special verdict,
and recommending it as an example in future, said, the question lies
in a very narrow compass ; whether a proviso in a lease for twenty-one
years, that it shall be void if the lessee become a bankrupt, be good in
law? The defendant's counsel has commented much upon the different
parts of this proviso. I cannot say whether any part of it may or may
not be objectionable with reference to the Statutes concerning bank-
rupts ; we are now to decide upon the construction of a proviso at
common law, and not on any Statute. There is a great difference
between them : Lord Chief Justice Wilmot took the distinction in a
case before him in the Common Pleas, in which his Lordship said,
where the question depends on a Statute, that mows down all before it,
and it acts like a powerful tyrant that knows no bounds : but the
common law operates with a more lenient hand ; it roots out that which
is bad, and leaves that which is good. The question here is, whether
this proviso be good according to the principles of the common law as
to that part of it on which this question arises, namely, the act of bank-
Ch. 2) FORFEITURE ON ALIENATION 639
ruptcy, which is the only point necessary to be considered. The cases
cited by the defendant's counsel have not the least analogy to the
present question. That which was cited from Equity Cases Abridged
proves nothing to this purpose. It was there taken for granted that a
clause to prevent alienation by the tenant was good ; but the court con-
sidered that the particular alienation in question was not within the
terms of the covenant, because the covenant only extended to the act
of the party, and that was an alienation in law, for the assignment was
by virtue of a Statute. This case has also been argued on general prin-
ciples of inconvenience, because the possession of an estate on such
terms enables tenants to hold out false colors to the world. But that
sort of observation does not apply to the case of land ; for a creditor
would not rely on the bare possession of the land by the occupier,
unless he knew what interest he had in it. If he were desirous of
knowing that, he must look into the lease itself ; and there he would
find the proviso that the tenant's interest would be forfeited in case of
his bankruptcy. The stock upon a farm may indeed induce a credit ;
but that will not govern the present case. It is next urged that this is
equivalent to a proviso that the lease shall not be seized under a com-
mission of bankrupt ; the defendant's counsel having first supposed the
lease to be granted absolutely for a certain term, and then that a subse-
quent proviso is added to that effect. Such a proviso as that indeed
would be bad, because it would be repugnant to the grant itself : but
here there is an express limitation that the lease shall be void upon the
fact of tlie lessee's becoming a bankrupt. It is clear that the landlord
in this case parted with the term on account of his personal confidence
in his tenant ; that is manifestly the case in all leases where clauses
against alienation are inserted. The landlord perhaps relies on the
tenant's honesty; or he approves of his skill in farming, and thinks he
will take more care of the farm than another; and therefore he has a
right to guard against the event of the estate's falling into the hands of
any other person, who may not manage it so well as the original tenant.
Suppose a lease were made for twenty-one years, on condition that the
tenant shall so long continue to occupy the land personally ; there could
be no objection made to such a condition, for the personal confidence is
the very motive of granting the lease ; and that is like the present case.
Lord Stanhope's Case does not apply at all to this. In the first place,
the court were equally divided, and therefore the case is of no author-
ity. In mentioning this, I do not mean to say, or even to insinuate, that
tlie opinion which I then held was right. But there is a great difference
between the two cases : for there the lease was granted to the tenant,
his executors, and administrators : they were to take as such, which
gave rise to the doubt in that case ; and Lord Mansfield there said, the
difficulty is, that, as by the terms of the lease the executors were to
take, the subsequent proviso that they should not assign seems to be
repugnant to the grant itself. Again, that was not a husbandry lease
G40 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
for twenty-one years, like the present, but for forty-one years ; and
there may be great reason for a distinction between the two terms ; for
if such a proviso as this were inserted in very long leases, it would be
tying up property for a considerable length of time, and would be open
to the objection of creating a perpetuity. But the principal ground is,
that this is a stipulation not against law, not repugnant to anything
stated in the former part of the lease, but merely a stipulation against
the act of the lessee himself, which I think it was competent for the
lessor to make.
Grose, J. The question is, whether the landlord may not stipulate
that he will let his land only to the tenant, or to such assignee of tlie
tenant as the landlord shall approve of. I know of no Statute or case
which says that such a stipulation is bad. The defendant's counsel has
called to his assistance the 21 St. Jac. 1, but that has never been con-
strued to extend to lands, it only relates to goods and chattels. The
argument of the tenant's obtaining credit by holding out false colors,
does not apply to the case of land, but merely to goods ; for a man
does not get credit merely from the occupation of land, but from the
interest which he has in it ; in order to know which it is necessar}^ that
the creditor should see the lease, which, when produced, would show
that the estate would be defeated upon the tenant's becoming a bank-
rupt. Therefore the argument derived from the credit which the ten-
ant is likely to get by being in possession of the land, can have no
weight in this case. As to the inconvenience which it has been contend-
ed will arise from establishing the validity of this proviso, it rather
bears the other way ; for this cannot be determined to be illegal on any
principle which would not equally extend to leases which are every day
granted in large towns, restraining the assignment of houses to persons
exercising obnoxious trades ; that not only diminishes the value of the
particular house so assigned, but also the adjoining houses, belonging
probably to the same landlord.
Judgment for the plaintiff.
SHEE V. HALE.
(Court of Chancery, 1807. 13 Ves. 404.)
John Mootham by his will, dated in March 1803, gave and be-
queathed all the residue of his'real and personal estate to trustees, upon
trust, to pay to his son John Mootham the yearly sum of £200, clear of
all deductions, during the term of his natural life, or until such time as
his said son should actually sign any instrument, whereby OT in which
he " should~contract or agree to sell, as sign, or oth erwise paft~with, the
same or alTy^part thereof, of any'way charge the same, or any part
thereof, as a secufifyTor any sum or sums of money, to be advanced or
lent to him by any person or persons whomsoever, or in any other
Ch. 2) FORFEITURE ON ALIENATION 641
manner whatever charge or dispose of such annuity, or any part there-
of, by anticipation ; or whereby or in which he should authorize or em-
power, or intend to authorize or empower any person or persons whom-
soeveno receive such annuity, or any part thereof, except only as to
the then next quarterly payment, after such authority or power should
be given : such annuity or annual sum to be paid to his said son John
Alootham by four equal quarterly payments ; and he declared his will
to be, that in case his said son should at any time sign or execute any
such instrument or writ^g for tTie purposes or any of the purposes
aforesaid, (except as aforesaid,) then and from thenceforth the same,
and every part thereof, should cease to b e paid or payable to him ; and
should sink jnto the_general_residue ofjiis jpersonaI_estate.
By a codicil, dated the 27th of December, 1803, the testator be-
queathed the residue of his estate and effects to the same trustees, upon
trust to pay the interest and produce thereof unto his wife Elizabeth,i
during her life ; and after her decease directed them to transfer such
residuary personal estate to other persons.
The testator died on the 6th of July, 1804. J ohn M o otham , the son,
being in confinement for debt, took^the benefit of an Insolvent Act,
passed on the 30th of July, 1804; and the annuity ori200 undeFtHe
will of his father was ins erted in the scheduTe~oT his property delivered
in, and signed by him.
*Trhe~5iTrwas filed by the assignees under the Insolvent Act, claiming
the annuity. The answers raised the question, whether the annuity was
forfeited and sunk into the residue.
The Master of the Rolls [Sir William Grant]. The intention
of the testator, to make this annuity personal to his son, cannot be
doubted. The question is, whether that intention is sufficiently express-
ed. He has gone awkwardly about it, by expressing particular acts.
His son was not to have this as a fund of credit. The testator sup-
posed he had sufficiently guarded against that. It appears to me, that
t he son has don e an act within this will, to aut horize or e mpower qth-
ers to receive this arinuTty! This^iffers from the case of the bankrupt.^
The bankrupt had not^one anything. The insolvent debtor was not in
a situation to be compelled to part with this annuity. He might have
enjoyed it for his life. The signing of the petition and schedule appear
to me to be clear acts. As to the intention there can be no doubt.
1 See, also, Dommett v. Bedford, 6 T. R. 684 (1796), where the annuity
ceased upon the bankruptcy and attempted transfer by the annuitant.
4 Kales Prop. — 41
642 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
ROCHFORD V. HACKMAN.
(Court of Chancery, 1852. 9 Hare, 475.)
A claim, filed by William James Rochford and Martha Ann his wife,
against Hackman and another, the personal representatives of William
Rochford, the testator in the cause, — English the assignee under the
insolvency of Richard Rochford the elder, the son of the testator, and
Richard Rochford the younger, the son of Richard Rochford the elder,
for the purpose of having the trusts of the will of the testator, so far
as respected the sum of il900 Consols, executed under the direction
of the court, and to have one moiety of that sum transferred to the
plaintiffs, and the other moiety secured in court for the benefit of the
parties interested therein. The plaintiff Martha Ann Rochford was
one of the children of Richard Rochford the elder, the insolvent, and
had attained twenty-one. The defendant Richard Rochford the young-
er was his only other child, and was still an infant.
William Rochford the testator, by his will, dated the 15th of August,
1822, gave and bequeathed the residue of his personal estate to Samuel
Groves and Thomas Hackman, upon trust, to permit and suffer or au-
thorize and empower his wife to receive the income for her life, and
after her decease, as to one fourth part of the residue, upon trust, to
pay to, or permit and suffer, or authorize and empower, his son Richard
Rochford (the insolvent) to receive the income for his life, and after his
decease to transfer and pay the same to the child, if only one, and if
more than one, unto, between, or amongst the children of his son
Richard, share and share alike, to be vested interests in such child or
children, as and when he, she, or they respectively should attain
twenty-one, with survivorship as to the shares of children dying under
twenty-one, and with a direction that the income of the shares of the
children, or so much thereof as the trustees should think fit, should be
applied for their maintenance during their minorities ; and as to the
other three fourths of the residue, after the death of the wife, the tes-
tator declared similar trusts, — as to one fourth, in favor of his son
James and his children; as to another fourth, in favor of his son
William and his children ; and as to the remaining fourth, in favor of
his son John and his children. And he then provided, that, in case
any or either of his said four sons should die without leaving any child
or children him or them surviving, or, being such, in case all of them
should happen to die under the age of twenty-one, that the part or
share, parts or shares, intended for such of his said son or sons so
dying as aforesaid, and his or their respective issue as aforesaid, should
be divided into as many shares as should be equal to the number of his
son or sons who should be then living, or, being then dead, should
have left a child or children living at his or their death or respective
deaths ; and thereupon, such shares should be and remain upon such
Ch. 2) FORFEITURE ON ALIENATION 643
trusts for his said surviving other sons and their children respectively
as were thereinbefore declared with respect to the original shares. And
the will contained the following clause : "And my further will is, and
I do hereby expressly declare and direct, that in case my said wife, or
any of my said four sons, shall in any manner sell, assign, transfer,
encumber, or otherwise dispose of or anticipate all or any part of her,
his, or their share and interest of and in the said dividends, interest,
and annual proceeds aforesaid, then and in such case, and from and
immediately after such alienation, sale, assignment, transfer, or dispo-
sition shall be made, the said several bequests so hereinbefore made to
or in trust for him and them as aforesaid shall cease, determine, and be-
come utterly void to all intents and purposes, as if the same had not
been mentioned in or made part of this my will, and as if my said wife
or either of my said sons were dead."
The testator died in September, 1831 ; and his wife in October fol-
lowing. Two of the sons, William and John, subsequently died with-
out leaving any issue.
The residue of the testator's estate was invested in the purchase of
£3800 Consols, and the moiety of that sum (which was the subject of
the claim), in the events that had happened, stood limited by the will
to Richard Rochford, the insolvent, and his children. Richard Roch-
ford, the insolvent, received the dividends of this moiety up to the
10th of October, 1850; but, on the 14th of December, 1849, being
then a prisoner in actual custody for debt in the debtors' prison for
London and Middlesex, he presented his petition to the Court for Re-
lief of Insolvent Debtors for his discharge from such custody, accord-
ing to the provisions of the Act 1st & 2d Vict. c. 110. By an order
of that court, dated the 17th day of December, 1849, his estate and
effects were vested in the provisional assignee, and by a subsequent
order of the same court the defendant English was appointed to be
the assignee under the insolvency. It was admitted at the bar, that
in the schedule filed by Richard Rochford in the Insolvent Court,
especial reference was made to his life interest in a moiety of the
residue under the testator's will, and to the provisions of the will with
reference to the assignment of that interest.
Thu Vice-Chance;llor [Sir George; James Turner]. In the
circumstances of this case it is contended by the plaintiffs, and the
defendant Richard Rochford the younger, that the insolvent's life
interest in the il900 Bank Three per Cent. Annuities has ceased, and
that they have become presently entitled to that fund in equal shares :
as to the share of the plaintiff's absolutely, and as to the share of the
defendant Richard Rochford the younger, contingently on his attaining
twenty-one ; but the defendant English, on the other hand, insists that
he is entided to the income of the £1900 Consols during the remainder
of the life of Richard Rochford the insolvent.
In determining this question, the first point for consideration ap-
644 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
pears to me to be, whether there are any fixed rules by which the
court can be guided in its determination; and upon examining the
cases upon the subject, I think it will be found that there are two such
rules: First, tliat p roperty cannot be_g:iA^en^lor ijfe any more than
;|hgn1ntp1y^jw|thr)iit the power of alienation being incident to the gift;
anUThat any mere attempt to restrict the power of alienation, wheth-
er applied to an absolute interest or to a life estate, is void, as being
inconsistent with the interest given ; and secondly, that although a l[f e
interest may be expressed to be given, it may be well determijied by^ an
apt hmitatjon over.
That property cannot be given for li fe any more than absolutely,
without t^ e power "of alienation being~T ncKlent to the'gitt;'~appears to
me to be well settled by the cases of Brandon v. Robmsbn, 18 Ves.
429; and Graves v. Dolphin, 1 Sim. 66. In both those cases there
were gifts for life, with provisions which were directed against aliena-
tion, but in neither of them was there any proviso for determining the
life interest, or any gift over in the event of alienation ; and the court
in each of those cases held that the life interest continued ; and these
cases are not, so far as I am aware, contravened by any other au-
thority.
That, i n cases Avhere a life int er est is ^expressed to b e given, it
may be well determined by an aptlimitation over, is, I t hink, "equaT ly
well settled by many authorities^, Wilkmson v. Wilkinson, 3 Swanst.
515TXo^irvrWyattr3'Maddr482; Yarnold v. Moorhouse, 1 Russ.
& My. 364; Kearsley v. Woodcock, 3 Hare, 185; IMartin v. Marg-
ham, 14 Sim. 230; Brandon v. Aston, 2 Y. & C. C. C. 24; and Church-
ill V. Marks, 1 Coll. 441.
It was insisted, however, at the bar, that a further rule was to
be deduced from the cases, namely, that a limitation over was in all
cases essential to the determination of the life interest ; and the case
of Dickson's Trust, 1 Sim. N. S. ^1 , was relied on for that purpose.
For the reasons wliich I shall presently give, I do not think it nec-
essary now to decide that point; but it may be well to observe upon
it, that I do not understand the case of Dickson's Trust to have de-
cided that the life interest would not be well determined by a proviso
for cesser, though not accompanied by a limitation over; and that
I do not think that any such rule is to be collected from the cases. The
true rule I take to be this : The court is to collect the intention of the
testator, whether his intention was that the life interest should not
continue ; and it is to collect that intention from the whole will, look-
ing to the primary disposition, for the purpose of seeing to what ex-
tent the interest is given, and to the ulterior disposition, for the pur-
pose of seeing to what extent and in what events the primary disposi-
tion is defeated. If, on the one hand, the court, upon this examina-
tion, finds that there is a limitation over, and that it meets the event
which has occurred, it is plain that the testator did not intend tlie life
Ch. 2) FORFEITURE ON ALIENATION 645
interest to continue in that event, and it ceases accordingly, as in the
cases to which I have referred ; but, if , on the other hand, the court,
upon the examination, finds that the limitation over does not meet
the event which has occurred, there is no evidence of the testator's
intention that the life interest should not continue in that event, and
it therefore continues, as in Lear v. Leggett, 1 Russ. & ISly. 690, and
Pym V. Lockyer, 12 Sim. 394. This view of the cases appears to me
to remove all difficulty upon tliem, and it falls in with the case of
Dommett v. Bedford, 6 T. R. 684, in which the life interest was held
to cease upon the proviso for cesser without any gift over. I think,
indeed, it would be difficult to hold that any greater effect can be due
to the limitation over than to the express declaration of the testator
that the life interest should cease.
Some observations which fell from Lord Eldon upon this question
in the leading case of Brandon v. Robinson, 18 Ves. 429, appear to
me to have been to some extent misapprehended, and I will venture
therefore to make some few observations upon that case. Lord Eldon,
in that judgment, first observes, that a disposition to a man until he
shall become bankrupt, and after his bankruptcy over, is quite different
from an attempt to give to him for his life, with a proviso that he shall
not sell or alien (Id. 432, 433) ; and the distinction between the two
cases is obvious. In the former case the disposition could not possibly
endure beyond the bankruptcy. In the latter, it would, if the law did
not allow the proviso, or if the proviso was not couched in terms
calculated, in the events which happened, to defeat the life interest;
but I do not understand Lord Eldon to say, that the law does not al-
low the proviso. On the contrar}', he expressly says, that if the pro-
viso be so expressed as to amount to a limitation reducing the inter-
est short of a life estate, neither the man nor his assigns can have it
beyond the period limited; and we have here, therefore, his distinct
opinion that upon a proviso so expressed the life interest would cease,
lie then passes to the case of Foley v. Burnell, 1 Bro. C. C. 274, and
to the old form of trusts for the separate use of married women, for
the purpose of showing that the power of disposition accompanied the
interest unless an available restriction was imposed ; and he then pro-
ceeds to the particular case which he had under his consideration, and,
having first shown that the life interest was the propert}' of the bank-
rupt, goes on to inquire whether there was enough in the will to show
that it could not be assigned under the Commission of Bankruptcy;
on which he observes, that, "to prevent that, it must be given to some
one else," meaning, as I understand the judgment, not that in all cases
there must be a gift over to prevent the assignees from taking; but
that, under the provisos of that particular will the assignees must
take in the absence of such a gift over; as was clearly the case, ac-
cording to the tenor of the previous part of his judgment, there be-
ing no proviso determining the life interest; and that this was Lord
646 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
Eldon's meaning is, I think, apparent, both from what precedes and
what follows upon the passage in question; for in what precedes he
refers to the provisions of the whole will, and in what follows he ad-
verts to the question whether the restrictions contained in the will could
be construed into a limitation giving the interest to the residuary lega-
tee. Lord Eldon's judgment in Brandon v. Robinson does not, there-
fore, appear to me to go to the extent of deciding that in all cases there
must be a gift over in order to determine the life interest.
In the present case, however, I do not, as I have already observed,
think it necessary to determine that question. I am of opinion that
the testator in this case has not merely provided for the cesser of the
life interest, but has made a valid gift over; and I think so for this
reason: According to the general rule, some effect must, if possible,
be given to all the words of a will ; and I see no effect which can be
given to the words which follow on the cesser of the life interest, unless
they be construed to operate the limitation over, for the cesser or de-
termination of the life estate was effected by the previous provisions.
Some observation was made in the course of the argument upon the
terms in which this limitation over is expressed, "as if the same had
not been mentioned in or made part of this my will, or as if my said
wife, or either of my said sons were dead ;" but on looking at the
previous provisions of the will, I think there is no difficulty in under-
standing what the testator here intended. In the event of any of the
sons dying without leaving children, he had given over their fourths to
the other sons and their children ; and what I take him to have meant
by this clause is, that the words "as if the same had not been mentioned
in the will" should apply to the event of there being no children, and
the words "as if they were dead" to the event of there being chil-
dren. I am also of opinion that the event has occurred on which this
limitation over was to take effect. I think the case in that respect is
completely governed by Shee v. Hale, 13 Ves. 404; Martin v. Marg-
ham, 14 Sim. 230; Brandon v. Aston, 2 Y. & C. C. C. 24; and Church-
ill v. Marks, 1 Coll. 441 ; and is not affected by Lear v. Leggett, 1
Russ. & My. 690, and Pym v. Lockyer, 12 Sim. 394; the alienation
in the two latter cases being compulsory, and in the former voluntary.
A learned text writer has, I observe, expressed some doubt upon
the soundness of this distinction between compulsory and voluntary
alienations; but I see no reason for the doubt. It cannot, I think, be
said that a man has alienated when the alienation is made by the act
of the law and n ot by his own^ actj. and- if he has not alienated, there
is no breach of the condition, and the life estate is not determined.
The conch.isiOTI7therefore7at which I have arrived in this case is, that
the life interest of the insolvent is determined ; and the remaining
questions then are, whether the capital ought now to be divided, and
how the income of it from the date of the insolvency is to be dealt
with.
Ch. 2) FORFEITURE ON ALIENATION 647
1 think that the capital cannot now be divided ; for I think that the
determination of the Hfe interest does not aUer the class who are
to take the capital, and that any after-born child of the insolvent at-
taining twenty-one will be entitled to share in it. The object of the
proviso is to determine the life interest as to the beneficial enjoyment
of the insolvent ; and to hold it to be determined so as to alter the
rights of his children would be to carry it beyond its object. The re-
sult, I think, is, that the plaintiff Mrs. Rochford has a vested interest
in a moiety of the il900 Consols, and the defendant Richard Rochford
has a contingent interest in the other moiety ; but that both these in-
terests would open, so as to let in any after-born children of the in-
solvent: and this being the result, I think that Mrs. Rochford is en-
titled to receive the interest of her moiety. The case, in this respect,
seems to me to stand upon the same footing as the case of a vested in-
terest liable to be divested, and in that case the party entitled to the
vested interest is, as I apprehend, entitled to the income. The income
of the other moiety must, I think, be accumulated. -
2 See Hurst v. Hurst. 21 Ch. Div. 278 (1882).
For cases where the settlor settles his own property upon himself for life,
with a provision of forfeiture in alienation, see Higinbotham v. Holme, 19
Ves. 88 (1812) : Lester v. Garland, 5 Sim. 205 (1832) ; Synge v. Synge. 4 Ir. Ch.
337 (18.5.5) ; In re Pearson, 3 Ch. Div. 807 (1876) ; In re Holland, [1901] 2 Ch.
145, [1902] 2 Ch. 360 ; Phipps v. Ennismore. 4 Russ. 131 (1829) ; Brook v. Pear-
son, 27 Beav. 181 (1859) ; Knight v. Browne. 30 L. J. Ch. N. S. &49 (1861), 4
L. T. R. N. S. 206 ; In re Detwold, 40 Ch. Div. 585 (1889).
64:8 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
CHAPTER III
RESTRAINTS ON THE ALIENATION OF ESTATES OF
INHERITANCE
PIERCY V. ROBERTS.
(Court of Chancery, 1S32. 1 Mylue & K. 4.)
Thomas Roberts, by his will dated the 18th of January, 1829, be-
queathed to his executors the sum of i400 upon trust, to pay, apply,
and dispose thereof, and of the interest and produce thereof, to and
for the sole use and benefit of his son, Thomas Jortin Roberts, in such
smaller or larger portions, at such time~ofTirnes^mmediaFe^or remote,
and m such way or m'anher as they the said executors, or the survivor
of them, or the executors or administrators of sucF survivor, ^lould
in tEeir^jmlgment and" discretion think Best :" and, after bequeathing to
his" execLiLui s Ure ' further "stmr of '£400'Tipon similar trusts, for the
benefit of his son John Prowting Roberts, the testator proceeded as
follows : "And, in case of the deaths of either or both of my said
sons, Thomas Jortin and John Prowting, before the whole of the said
several sums of £400 and i400, and the interest thereof respectively,
shall have been paid or applied for the purposes aforesaid, then I will
and direct that the unapplied part or parts thereof respectively shall
sink into and become part of my residuary personal estate, and go
and l5e applied therewith as hereinafter mentioned :" and the testa-
tor thereby appointed his wife, Ann Roberts, his residuary legatee,
and the said Ann Roberts and John Jortin executors of his said
will.
The testator died in July 1829, and in May 1830 the testator's son
Thomas Jortin Roberts took the benefit ^fjthe_InsolvervLD-£btoxsl^ct.
Previously to May 1830, 'fliomas~Jortin Roberts had received several
sums from the executors, amounting in the whole to £156; and since
that period, and before the filing of the bill, he had receive d sev eral
othex-SiimSj jimountiiTg_together to £112. The bill was filed by the as-
signee of the insolvent's estate agamit the executors of the testator,
to recoyer_the^ l egacy o f £ 400 and the interest thereof, or so much
thereof as remain ed unpaid ^^3ilg--iini'SJjT^^~^^scHarge of the Tegatee
under the Insolvent Debtor sj^ct.
The"~1Ta5TTvR of the: R0LI.S [Sir John Le;ach]. The question
i s, whethe r this legacy passed to the assi gnee of t he insolvent up on the
in solvency ot t he le'gatee; olPwliefher it may remain in the hands of
the executors, to be applied, atTEerr 3iscrefIon7 for the_benefit"Df the
Ch. 3) RESTRAINTS ON ALIENATION 649
legatee. The insolvent being the only person su bsta ntially entitled
to thtsHegacy, the attempf to continue in hijri^the enjoyment~onT7 not-
witHsfahding his insolvency, is in fraud of the law. The discretion of
the executors determined by the insolvency, and^the propert}^ passed
by the assignment.
/^preliminary objection was taken to this suit by the defendants, on
the ground that it had been instituted without the consent of the major
part in value of the creditors, at a meeting convened by advertisement
for that purpose, as required by the 1 G. 4, c. 119. The bill alleged,
that the plaintiff had been duly authorized to institute the suit with
such consent, but this allegation was not proved ; and it was objected
at the hearing, by the defendants, that the consent of the creditors not
being proved, the bill must be dismissed.
His Honor would not allow the suit to be stopped by this objection,
but directed the point to be argued on a future day.
On this day (Nov. 12) the point was accordingly argued by Mr.
Bickersteth, for the plaintiff, and by Mr. Pemberton, for the defend-
ants.
The Master of the Rolls said he had a strong recollection of
having been spoken to by Chief Baron Alexander on this point. His
opinion wa s very much in favor j i L the plaintiff . By the clause in
qiiFstibn the legislature plainly intended to benefit the creditor ; not to
give an advantage to the debtor. H the suit were successful, the cred-
itors would take the be^nefit; if it were unsuccessful through the fault
of the assignee, they would have their remedy against the assignee.
As it was desirable, however, that the rule should be uniform, he would
not decide the point without conferring with some of the judges of the
common law courts.
On this day (Dec. 14) his Honor delivered judgment to the follow-
ing effect :
I have had the opportunity of conversing with some of the judges at
common law upon the point, and their impression is, according to the
inclination of opinion which I expressed at the hearing, that the pro-
vision made in the Statute is to be considered as made for the benefit
of the creditors alone, and that it is not competent to the defendants
to take advantage of the objection that the suit has been instituted
without the consent of the creditors. Upon the whole, I do not now
hesitate to decide that this suit can be well sustained by the assignee,
and that he is entitled to the decree sought by this bill.
If there be collusion between the plaintiffs and defendant in a suit
instituted by the assignees without the previous consent of the credi-
tors, the judgment of the court will bind the interest of the creditors;
but the assignees, in such case, take upon themselves the responsibility
that the suit has been properly instituted and properly conducted.
650 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
BAGGETT v. MEUX.
(Court of Chancery, 1846. 1 Tbil. 027.)
On the hearing of an appeal in this case from the decree of Vice-
Chancellor Knight Bruce ^ the argument turned chiefly on the ques-
tion, w hether a clause in restraint of alienation, annexed to a legal
devise, in fee, of real estate To a rriarried woman for her separate use ~
was efifectual during the co^verture.
The; Lord^Chancellor [Lord Lyndhurst], after disposing of
the other points of the case in a few words, said, with respect to this :
After the case of Tullett v. Armstrong, 4 My. & Cr. 377, there can
be no doubt about the doctrine of this court respecting the property
given to the separate use of a married woman : and it is clear that
that doct rine applies as much to an estate in fee as to a life estate.
The object of th e doctrine wa s^to give a married woman the_ enjoy -
ment of property independent of her husband ; butjo s ecurel:h at ob-
ject, it was absolutely necessary to restrain iier during coverture Trom
alienation; The feasoning evidently ap pliesTo a lee as^miiciras to a
life estate, to real property asmuch as~to personal.- The^)ower of a
married womanTm^ependent ol the trust for separate use, may be
1 See 1 Coll. 138, where a detailed statemeut of the case will be found. —
Rep.
2 Where, however, gifts of vested personal property or of money are made
directly to a married woman, with a restraint on alienation, it seems to be
assumed that, if the subject of the gift is paid to her, she may deal with
the property, and the clause against anticipation will be practically inef-
fective. The question therefore arises whether the subject of the gift must
not remain in the hands of the trustee, who is directed to pay it over. In
Gray's Restraints on Alienation (2d Ed.) § 131b et seq., the cases are sum-
marized as follows:
"(1) When the settl or or testator shows an intention that the property
shall continue in the bauds of truiJlees", and tK efe is a cl ause~agalhst antici-
pationr~'A niiirried woma n "Will not be enU lled~to have the property fraus-
f erred to lier,~altTiou glT her interest be a bsoliTFe ; that is, the courts wHt,
in tKe~ca?e of a mariied wonmn, give that effect to the intention of the
settlor or testator, which on the ground of public policy, they refuse to give
in the case of other persons. Re Benton. 19 Ch. D. 277 ; Re Spencer, 30
Ch. D. 1S3; Re Grey's Settlements, 34 Ch. Div. 85, 712; Tippetts & New-
bould's Contract, 37 Ch. Div. 444. See Re Bown, 27 Ch. Div. 411 ; Re Wood,
61 L. T. N. S. 197.
"(2) When there is a direction to pay and d ivide mo neys and securities,
after an interveiiiug life estate or other intervening interest, iutoTIie~lTah'd§^
of a^marriM^vomaBrTiTiil that bet^-receTpt alone sliall be snflrcl enl dis cllirfge;~
the clause jigaiggt anticlpatiou 'wilL be considered as meant to be coiTHned
to^ FBeg ontinuance of~tlTe life- OF-©ther-jiiter«-sf . and as intended trT rest rTfln^
anticiimtiou of the triisf ^ prDlJ5rty only duriiiL: that period^ Ke Svkes's^
Trusts, 2 J. & 11.-415, § 127, ttirtei Re ( ivn^hioiis Trust, 8 Ch. D. 460, §
131, ante ; Re Bown. 27 Ch, Div. 811 ; Re Holmes, 67 L. T. N. S. 335. See
Re Hutchings, 58 L. T. N. S. 6. The case of Re Caskell's Trusts, 11 Jur. N.
S. 780, § 129, ante, seems contra." In re Coombes, W. N, (1883) 169, sup-
ports the same rule.
"(3) Whenjhei'e is an immediate g ift to a married woman, and yet there
is a clause against ahficrpation, wliat is to Be done? Tlere are two irreoon-
Ch. 3) RESTRAINTS ON ALIENATION 651
different in real estate from what it is in personal : but a court of
equity having created in both a new species of estate, may in both
cases modify the incidents of that estate.
Appeal dismissed, with costs. ^
ANDERSON v. GARY.
(Supreme Court of Ohio, ISSl. 36 Ohio St. 506, 38 Am. Rep. 602.)
This action was commenced on December 26, 1874, by the plaintiff,
in the Court of Common Pleas of Ashland County, to subject certain
real estate, as the property of Thomas C. Cary, to the satisfaction of
certain alleged liens, by mortgage and leyy of execution, which the
plaintiff claimed to have secured for certain indebtedness of said
Thomas to him. The liens claimed by plaintiff are upon the undivided
half of a certain tract of land devised to said Thomas and his brother,
Charles L. Cary, by the eighth item of the will of their father, George
W. Cary, executed in the year 1867, at which time both Thomas and
Charles were minors, Charles, the younger, being about fourteen
years of age.
The defendants are said Thomas and Charles, Mary Elizabeth Gary,
their mother, and widow of said George W. Cary, and divers others,
claiming liens on said undivided half of said lands. The principal
cilable provisions, and yet the settlor or testator was apparently uncon-
sciotrs-xrf the inconsistency." — .
~tn a_number of cases the court has refused to order the transfer of the
fund tothe~married woman. ~"Re Ellis's TrTrgfgrl7^CIr.~ D. 409; Re Currey,
S^Cnrrr.-Seir-Re f^larbeV-Trusts 21 Ch. D. 748; Re Sarel, 10 Jur. N. S.
876. In re Spencer, 30 Ch. D. 183, the married women were not allowed
to have accumulations of income paid over to them. Compare In re Taber,
51 L. J. N. S. Ch. 721.
3 See, also. Bell v. Bair, 89 S. W. 732, 28 Ky. Law Rep. 614 (1905) ; In
re Dawbin, 12 Vict. L. R. 477 (1896) ; In re Adamson, 2 N. S. W. St. R. Eq.
67 (1902). In Jeanneret v. Polack, 15 N. S. W. R. Eq. 102 (1894), it was
held that a contract by a married woman to convej- her separate estate when
she should become discovert was in violation of the restraint on alienation
attached to her separate estate, and unenfoi'ceable.
A fortiori, the restraint when attached to a married woman's separate
equitable interest for life is valid, and an attempted alienation in defiance
of the restraint is void. Jackson v. Hobhouse, 2 Mer. 483 (1817) ; Bateman
V. Faber, L. R. [1897] 2 Ch. 223, L. R. [1898] 1 Ch. 144.
But after the death of the husband the widow and those entitled after
her death may join in requiring a termination of the trust and the pay-
ment of the principol to the widow. Barton v. Briscoe, Jac. 603 (1822).
But if the trust is not so terminated, and the widow marries again, the
clause against anticipation again becomes operative. ToUett v. Armstrong,
4 Myl. & Cr. 377 (1840). As to the law on this point in Pennsylvania, see
Gray, Restraints on Alienation (2d Ed.) § 276.
The restraint on alienation attached to a married woman's separate es-
tate is clearly effective, though it is created by the act of the woman in
settling her own property upon herself. Clive v. Carew, 1 J. & H. 199 (1859) ;
Arnold v. Woodhams, L. R. [1873] 16 Eq. 29,
652 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
defence, however, is made by Charles L. Cary, who claims to be the
owner of the entire tract free from all encumbrances, as will hereafter
appear.
The claim of the plaintiff, James Anderson, may be stated thus :
On January 1, 1872, Thomas C. Cary, being then of full age, in con-
sideration of money loaned, executed to the plaintiff his promissory
note for $1,500, payable in one year, with interest at the rate of eight
per cent. ; and to secure the payment thereof executed (with his wife)
a mortgage upon the undivided half of said tract of land, which was
duly recorded in Ashland County, where said lands were situate.
Afterwards, in December, 1874, the plaintiff obtained judgment on
said note by confession, under a cognovit, against said Thomas, in the
Court of Common Pleas of Richland County, and caused execution
thereon to be levied on said undivided half.
Thereupon, the mortgages having been executed by said Thomas
upon his interest in said lands, and other executions against him hav-
ing been levied thereon, this suit was brought to marshal liens and
sell the property to satisfy the same.
After the commencement of this action, and after service of sum-
mons, to wit: on March 22, 1875, by contract in writing, Thomas C
agreed to sell and convey his undivided half of said lands to Charles
L., in consideration whereof Charles L. agreed to pay to Thomas the
sum of $7,125, to be applied chiefly to the satisfaction of the debts of
said Thomas, which he had secured by mortgage or judgment liens on
said premises. In this contract, however, the lien of the plaintiff (if
lien he had) was postponed to junior liens, so that the purchase-
money was exhausted before the claim of plaintiff was satisfied.
By this contract of purchase Charles claims that, under the will
of his father, by which alone the estate of Thomas in said lands was
created, his right to the undivided half devised to Thomas is inde-
feasible and unencumbered by any lien or claim in favor of the plain-
tiff.
In the Court of Common Pleas judgment was rendered against the
plaintiff, whose petition was dismissed. From this judgment the
plaintiff appealed to the District Court, where the case, with an
agreed and certified statement of facts, was reserved for decision in
this court.
McIivVAiNK, J. The decision of this case depends on the construc-
tion and effect to be given to the last will and testament of George W.
Cary. The question to be decided is, did the plaintiff, by his mort-
gage from Thomas C. Cary, or by his levy upon the same premises,
acquire a lien thereon? The _plaintiff claims that the intere sL^r es-
tate_of_ Thomas C ^ devised to him in the eighth item of his father's
will ^s to the farm on~which the te s tator resided, was subject to a lien
un der both th e mortgage a nd execution ; andT that the subsequent sale
of this interest or estate,~by Thomas to Charles, did not displace the
lien either of the mortgage or the levy. These claims of the plaintiff
Ch. 3) RESTRAINTS ON ALIENATION 653
are contested by Charles. What, then, was the true intent of the tes-
tator? And, what, the force and effect of this devise?
The provisions of the will which at all affect the question before us
are as follows :
"Item Fourth. — I give and bequeath to my beloved wife, Mary
Elizabeth, the sum of six hundred dollars, to be paid out of my per-
sonal estate, one hundred dollars of the same to be paid over to her
out of the first moneys collected by my executor.
"Item Fifth. — I give and bequeath to my two sons, Thomas C.
Cary and Charles Lincoln Cary, the residue of moneys and the pro-
ceeds of my obligations after giving the legacies aforesaid, the same
to be divided equally between them, share and share alike.
"Item Sixth. — The balance of my personal estate, consisting of per-
sonal property, farming implements, stock, cattle, sheep, and all other
property, personal, except one top buggy and such surplus of grain
on hand as shall not be needful for the purposes of the farm, which
are to be sold by my executor, I give and bequeath to my wife afore-
said, and to my children before named for the purposes of carrying on
my farm, until my oldest son, Thomas C. Cary, arrives at full age,
they, the said family, to use the said property in common for the pur-
poses of carrying on said farm and enjoying the proceeds of the same,
and when my oldest son arrives at the age of majority, then I desire
that my said daughter, Mary Elizabeth, shall sell her interest in the
said property so held in common to my said wife and sons, before
named. Then the said Mary to have for her said interest in said last
named property the appraised value of such property as has been
appraised and such property as has been accumulated from said farm
during said period, prior to the said majority of said Thomas, to be
equally divided, and the said Alary Elizabeth to be paid such amount
for her interest as shall be agreed upon between them, she to sell to
them, the said sons and my said wife, her interests in said property as
aforesaid.
"Item Seventh. — I give and bequeath to my said wife all my house-
hold and kitchen furniture, beds, bedding of every kind whatever, and
wdien my said son Thomas shall have arrived at the age of majority as
aforesaid, from and after that time I give and bequeath and so direct
that my said wife shall have in lieu of dower one-third of the rents and
profits of the farm on which I now reside in Green township aforesaid,
as long as my said wife shall remain my widow, and in the event of her
marriage then I order and direct that she shall forfeit her said dower as
aforesaid, and in lieu thereof I direct that my two sons, Thomas and
Lincoln, shall pay to her the sum of tw^enty-five hundred dollars, one
thousand of wdiich shall be paid within sixty days after such marriage
and the balance in three equal annual payments without interest. This
last item and the six-hundred-dollar item and the former provisions
made in the foregoing specifications are to be in lieu of all her dower in
654 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
all my real estate, including three hundred and twenty acres of land I
own in the State of Iowa.
"Item Eighth. — I give and bequeath the farm on which I now live,
of two hundred and eighty-five acres, to my two sons, Thomas and
Lincoln, upon the following conditions: 1. I direct that th ey, the sa id
sons, shall not be allowe d to sel l and dispose of said farm until the^
expiration o f ten ^^yearilfrgm the time my son,^harles Lincoln, arrives
at full age, except to^one_another^nor shall either of my said sons have
authority to rhortgage or encumber said farm in any manner whatso-
everTexcept in th'e^sale to one another as aforesaid. I also give and be-
queath to my twoTorTs~aToresaid, two hundred and forty acres of land
lying in the south-east corner of Fayette County, Iowa, which I receiv-
ed by deed from Richard Probert, and the same is now on record in
said county; also eighty acres of land in Chickasaw County, Iowa,
which I received by deed from A. H. Crawford."
What estate in the home farm did the testator intend, by the eighth
item, to give to his sons ? By section 55 of the Wills Act of 1852, in
force when this will was made, it was provided, "every devise of lands,
tenements and hereditaments, in any will hereafter made, shall be con-
strued to convey all the estate of the devisor therein, which he could
lawfully devise, unless it shall clearly appear by the will that the de-
visor intended to convey a less estate." The estate of the devisor in
these lands was an absolute fee sj mple. By other provisions in this will,
it is clear that the testator intended that, from the majority of Thomas,
his widow, so long as she remained a widow, should have one-third of
the rents and profits of said farm. Whether the right thus given to the
widow was an interest in the land, or an interest in the rents and
profits as such, it is quite clear to our minds that the fee simple abso-
lute, subject to the right of the widow, passed to the sons, as fully and
amply as the testator "could lawfully devise" it. It is true, the testa-
tor coupled with the devise the words : "Upon the following condi-
tions : I direct that they, the said sons, shall not be allowed to sell and
dispose of said farm until the expiration of ten years from the time
my son, Charles Lincoln, arrives at full age, except to one another, nor
shall either of my said sons have authority to mortgage or encumber
said farm in any manner whatsoever, except in the sale to one another
as aforesaid." But by these conditions (so nominated) we d^_not
understand that the testator intended a forfeiture upon breac h ; there
is lioTlmrEatloh^oveFln favor of anyone ; and if a forfeiture for the
benefit of his heirs was intended, the devisees, being two of his three
heirs, would each have inherited a third part; so that, as heir of the
testator, Thomas C. had full power to charge one-third of the land by
mortgage to the plaintifif. But there is no indication in the will, or in
the circumstances of the testator, that he intended, in any event, to die
intestate as to this property ; while, on the other hand, it seems clear
to us that the testator intended, in all events, that his sons should take
Ch. 3) RESTRAINTS ON ALIENATION 655
this farm, subject to the rights given to their mother, to have and to
hold the same to them and their heirs forever. Instead of giving to his
sons an estate in the land less than a fee simple, his i ntent and p urpose
was t o give them the f ee simple, but to eliminate th e refrom its inh erent
ele menFof alienability, for a limit edj3eriodj_or to in cajpachate hls_ devi^-
sees , although sui juris, from disposing of their property for the same
limited period7"to win~TintTr the^ y oungeF^shouTd 'arrive' at thirty-one
years of age — each and both of which purposes are repugnant to the
nature of the estate devised.
By the policy of our laws, it is of the very essence of an estate in fee
simple absolute, that the owner, who is not under any personal disabili-
ty imposed by law, may alien it or subject it to the payment of his
debts at any and all times ; and any attempt to evade or eliminate this
el ement from a f eesimple estate, eithein5y deed orTjy will, musf^Be"
declared void and of no force. Hobbs v. Smith, 15 Ohio' St. 419.
Of course, we do not deny that the owner of an absolute estate in fee
simple may by deed or by will transfer an estate therein less than the
whole, or may transfer the whole upon conditions, the breach of which
will terminate the estate granted, or that he may create a trust whereby
the beneficiary may not control the corpus of the trust, or even antici-
pate its profits. But as we construe this will, nothing of the kind has
been here attempted. The attempt here was to fasten upon the estate
devised a li mitation r epugn ant tn the estate , which limitation, and not
the devise, must be for that reason declared void.
It is contended on behalf of defendant, Charles L. Gary, that by this
devise an estate in trust, until the younger son should arrive at the age
of thirty-one, was created for the benefit of the widow and children of
the testator. That such was the effect of the so-called "conditions,"
when construed in connection with other clauses of the will. We do
not so understand the will.
When the elder son, Thomas, arrived at age, the daughter ceased to
have any right whatever in the devised premises.
The right of the widow to one-third the rents and profits of the farm
was not affected by the arrival of Charles at thirty-one years of age,
and did not affect the absolute character of the devise to the sons. If
she took during widowhood one-third of the lands, the sons took a
vested remainder in that portion, and a present vested estate in the other
two-thirds. If her right was to rents and profits as such, and the same
was made a charge upon the lands, the estate of the sons nevertheless
vested in them and for their own benefit, subject to the encumbrance.
The relation of trustee and cestui que trust existed between them in no
proper sense. The grantees of the sons would have stood in the same
relation to the widow. No relation of personal confidence or trust was
created, but one growing out of property rights alone — strictly legal
rights. Whatever may have been the desire of the testator as to his
widow remaining on this farm after the majority of the elder son, it is
656 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
quite clear tliat the rights of the devisees were not made to depend on
that event. The personal relations of the members of his family were
not provided for after the arrival of Thomas at age, but their property
rights, respectively, were defined ; and the rights of neither were sub-
jected to the control or supervision of the other. There was no trust
created.
If we could find in this devise a trust in favor of the widow, until
Charles should arrive at thirty-one years of age (and certainly there was
none before, if not after), so that no absolute estate vested in the sons
previous to the termination of such trust estate, or if we could find a
condition which prevented the vesting of the fee for such limited peri-
od, or a condition subsequent upon the happening of which tlie estate
devised could be defeated, a different conclusion, no doubt, would be
reached.
But the case before us, is the devise of an absolute fee, with a clause
restraining the alienation and encumbering of the estate for a limited
period, intended, no doubt, for the protection of the devisees, who
alone are interested in the estate devised. In holding that such restraint
is repugnant to the nature of the estate devised, and is void as against
public policy, which in this State, in the interest of trade and com-
merce, gives to every absolute owner of property, who is sui juris, the
power to control and dispose of such property, and subjects the same
to the payment of his debts, we are fully aware of the fact that many
authorities may and have been cited to the contrary. Others, however,
support the view we have taken, but I shall not attempt either to
review or reconcile the cases, being content to rest the decision upon
what we conceive to be sound principle and sound policy. The owner
of property cann ot_transfer it absolutely to another, and at the same
ti me keep it himself. We fully admit tha t he may^restrain or lirnit its
enjoymentby tr usts, conditions or c ovenants, but we den y that he can
take from a fee simp le estate its inherent alienable quality, and still
transTer it as a fe e simple ! ' ~~~~
Decree^ for plaintiff.^
4 See, also, Mebane v. Mebane, P,9 N. C. 1.31, 44 Am. Dec. 102 (1S45) ; Key-
ser's Appeal. 57 Pa. 2.36 (ISGS) : ^landlebaum v. McDonell. 29 Mich. 78, 18 Am.
Rep. 61 ; Kessner v. Phillips, 189 Mo. 515, 88 S. W. 66, 107 Am. St. Rep. 368,
3 Ann. Cas. 1005.
Ch. 3) EESTRAIXTS ON ALIENATION 657
BOSTON SAFE DEPOSIT & TRUST CO. v. COLLIER."
(Supreme Judicial Court of Massachusetts, 1916. 222 Mass. 390, 111 N.
E. 163.)
Bill in equity, filed in the Probate Court on Xovember 25, 1914, by
the trustee under the will of Maturin ISl. Ballou, late of Boston, for in-
structions as to whether, under the ninth clause of the will, set out
in the opinion, a distributive share of Franklin B. Ballou should be
paid to him or to his trustee in bankruptcy, the defendant Forrest F.
Colher.
In the Probate Court, where the suit was heard upon the plead-
ings and an agreed statement of facts, Grant, J., ordered a decree di-
recting that the share be paid to Franklin B. Ballou. On appeal from
that decree the case was reserved for this court by Braley, J., upon
the pleadings and the agreed statement of facts. .The material facts
are stated in the opinion.
Braley, J. The testator, in the n inth clause of his wil l, provided :
"It is my will that e very payment of income or principal hereinbe fore
d irected or devised to be made shall be made personally to the person s
to whom they are d evised or upon their order or receipt in writing,
in ~every case free from the interference or control of creditors of
such persons ^nd never b}" wav of anticipation or assignm ent."
By other clauses he left the residue of his estate in trust to pay to
his widow and to his son Murray R. Ballou, in equal shares, the net
income for life and upon the death of his son the income coming to
him is to be divided equally among his surviving children or the is-
sue then living of deceased children until the first child reached or
would have reached, if living, the age of forty, but in any event not
before twenty-one years after the son's death, when the principal is
to be distributed in equal shares among the then surviving children and
the issue then living of any deceased child.
The widow is still living, but Murray R. Ballou has died, leaving
three children and the issue of a deceased child surviving, among
whom full distribution has been made except as to Franklin B. Ballou,
a son, who at the date of filing the petition was more than forty years
of age.
But as he had been adjudged a bankrupt befo re distribution , the
respondent, his t rustee in bankruptcy contends , that although a dis-
charge has been granted he is entitled to the share coming to the bank-
rupt because a testator cannot nullify a bequest of an absolute legal
interest in personal property by a provision_thaLthe_l£gate£'s_int£re^
sha ll not b e alienated, nor taken tor his debts .
ft is urged that the restriction is repugnant to the gift or bequest,
5 The consideration of this case might well be postponed until after the
consideration of Claflin v. Claflin, post, p. 698.
4 Kales Pbop. — i2
658
ILLEGAL CONDITIONS AND RESTRAINTS
(Part 5
and the English rule undoub tedly is: "That if prope rty is given it
must rernain_subject to the^incidents of property and it could not b"e~
jireserved from tlie^redito rs unle ss givenj o some one else. " Brandon
V. Robinson, 18 Vesey, 433.
But in Lathrop v. Merrill, 207 Mass. 6, 9, 92 N. E. 1019, from which
this proposition is taken, it is also said : *'On the other hand it must
be taken now to be settled i n^ th is commonwealth that in case of the
devise of an equitable fee in lan d^or the be^iest"of an equita ble in-
terest m personal property therule which originated IrTlBroadway Nat.
Bank v. Adams, 133 Mass. 170 [43 Am. Rep. 504], obtains, and lim-
it ation s against alienation and forbidding the property to be taken loF
th e deists' of the d evisee "or~teg:atee- ar€ A^alixL Clafltn^v. CI aftrn7 149
Mass. 19 [20 N. E. 454, 3 L. RT A. 370, ITAm. St. Rep. 393] ; Young
V. Snow, 167 ]\Iass. 287 [45 N. E. 686] ; Danahy v. Noonan, 176 Mass.
467, 57 N. E. 679 ; Hoffman v. New England Trust Co., 187 Mass.
205 [72 N. E. 952]»; Dunn v. Dobson, 198- Mass. 142 [84 N. E. 327]."
It is nevertheless now pressed in argument that this court never
has gone so far as to say that an equitable fee can be placed beyond
the reach of creditors. The reasoning in Bj;oadway^at. Bank v. Adams,
133 Alass. 170, 173 [43 Am. Rep. 504], is not thus HmitedT^aid Chief
Justice Morton, speaking for the court: " We do n ot see why the
founder of a trust may not directly provide th aOiis property shall go
to His benefi ciary with the restriction t li at it' s halfnot be ali enable by
anticip ation^ _arid_thatJii s cre ditors shall not have the right lo^attacF "it
in"^Hvance7jnstead__or[in(^ reaching the same result by a pro-
vision ToiTa cesser or limitatjo n^aver, o"Fby giving his trustees a cTTscfe-
tion"as~t o paying it. He has, the entire jus disponeiidi7 which imparts
that he may give it absolutely, or may impose any restrictions or fet-
ters not repugnant to the nature of the estate, which he gives. Under
our system, creditors may reach all the property of the debtor not ex-
empted_by law^ but they__^cannoEIeQlafge; JtheZgift^
* "^ * and take more than he has given. * * * It is argued ^that
in vestin g ajiTan_with_jipparent jwealth tends to mislead creditors and
rive him credit.
to i nduce them rto give him credit. The answer is that creditors have
no right to rely upon property lHus~held7~an"drTo"give him credrmpTjn
the basfs of an estate which, by the instrument creating it,Ts declared
to be ^^al^enable T)y Ihim _and not liable for h is_debts. B}?" tfre exercise
of proper diligence they can ascertain the nature and extent of his es-
tate, especially in this commonwealth, where all wills and most deeds
are spread upon the public records. There is the same danger of their
being misled by false appearances, and induced to give credit to the
equitable life tenant when the will or deed of trust provides for a ces-
ser or limitation over, in case of an attempted alienation, or of bank-
ruptcy or attachment."
The trust in question is not within the rule against perpetuities or
open to the objection of the accumulation of property by corporations
or ecclesiastical bodies of which the common law was exceedingly jeal-
Ch. 3) RESTRAINTS ON ALIENATION 659
ous. And whether income or principal is placed beyond the power
of alienation or of attachment, the result to creditors of the beneticiary
is merely a question of degree.
T he owner, o f course, can not set tkjiis property in tr ust, putting his
right to the income which is Reserved to himself for life beyond the
reach of creditors. If, however, the founder is not the debtor, the prop-
erty held inTrusTis not the debtor's except in so far as the founder
has provided. Pacific Nat. Bank v. Windram, 133 Mass. 175, 176.
We are manifestly dealing with a rule of property which there is
every reason to believe has been accepted and acted upon by the bar,
settlors and testators for thirty-three years, since the leading case stat-
ing the law governing the creation of equitable estates was decided.
It therefore becomes necessary to review our own cases subsequent to
Broadway Nat. Bank v. Adams in order to determine whether there
has been any departure from the doctrine enunciated in that case,
which has been referred to and followed in: Pacific Nat. Bank v.
Windram, 133 Mass. 175; Foster v. Foster, 133 Mass. 179; Forbes
V. Lothrop, 137 Mass. 523 ; Potter v. Merrill, 143 I\Iass. 189, 9 N. E.
572; Baker v. Brown, 146 Mass. 369, 15 N. E. 783; Sears v. Choate,
146 Mass. 395, 15 N. E. 786, 4 Am. St. Rep. 320; Claflin v. Claflin,
149 Mass. 19, 20 N. E. 454, 3 L. R. A. 370, 14 Am. St. Rep. 393 ;
Maynard v. Cleaves, 149 Mass. 307, 21 N. E. 376; Slattery v. Wason,
151 Mass. 266, 23 N. E. 843; 7 L. R. A. 393, 21 Am. St. Rep. 448 ; Bil-
lings V. Marsh, 153 Mass. 311, 26 N. E. 1000, 10 L. R. A. 764, 25
Am. St. Rep. 635; Wemyss v. White, 159 Mass. 484, 34 N. E. 718;
Nickerson v. Van Horn, 181 Mass. 562, 64 N. E. 204; Alexander v.
McPeck, 189 Mass. 34, 75 N. E. 88; Huntress v. Allen, 195 ^lass.
226, 80 N. E. 949, 122 Am. St. Rep. 243 ; Dunn v. Dobson, 198 Mass.
142, 84 N. E. Z27; Berry v. Dunham, 202 Mass. 133, 88 N. E. 904;
Lathrop V. ^lerrill, 207 Mass. 6, 92 N. E. 1019 ; Shattuck v. Stickney.
211 Mass. 327, 97 N. E. 774; and Hale v. Bowler, 215 Mass. 354,
102 N. E. 415. We do not propose, however, to comment on all of
them.
In Claflin v. Claflin, 149 Mass. 19, 20 N. E. 454, 3 L. R. A. 370, 14
Am. Sfr~Repr~395,~the bequest was one-third of the residue of the
personal estate to trustees in trust, "to sell and dispose of the same
and to jpay the proceeds thereof to my son in the mann er following,
viz. : $1 0,000 w hen he is__o f the age of twentv- oii£_j^:e ars ; $10.000 .
\v lien heis of th e age oftwenty-five y ears, and the balan ce jvyhen^ e
i s of the age of thirty years." The trustees paid over the first $10,-
000, and thereupon the son, claiming that he had the entire beneficial
interest both in the income and the property itself, brought a bill in
equity to obtain the residue. It was held that the testat or ha d a right
to impose restrictions, and there was no reason why" his Tntention
shoukT^eJhwaitedT^rid that th e provisions of the will should be ca r-
ried out.
GGO ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
The gift comprised not only income, but principal ; and it is signifi-
cant that when referring to Broadway Natl. Bank v. Adams, the court
say : "The rule contended for by the plaintiff in that case was founded
upon the same considerations as that contended for by the plaintiff in
this. * * *"
In Huntress v. Allen, 195 :\Iass. 226, 80 N. E. 949, 122 Am. St. Rep.
243, the testator created a trust for the benefit of his children giv-
ing absolute discretion to the trustees as to payment of income until
the youngest child should reach twenty-five, the property then to be di-
vided among those surviving and the issue of any deceased child, with
a provision that the share of any child in the body or income of the
fund should not be liable to or for his or her debts or subject to trus-
tee process. It is stated in the opinion that the exemption of the
shares of the children from interference by creditors v/as valid and
enforceable.
In Dunn v. Dobson, 198 Mass. 142, 84 N. E. 327, after reference to
the rule of the common law, it was said, Broadway Nat. Bank v. Adams
and Clafiin v. Claflin decided : "That in creating an equitable estate
a donor may carve out and create such equitable rights in property
as his fancy may dictate and his imagination devise, without regard
to the rights appertaining to the several estates known to the law. This
conclusion was stated to rest on the doctrine that in such a case the
donor 'does not give them an absolute estate and then impose restric-
tions and conditions repugnant to the estate, but gives an ownership
qualified by the directions' adopted by the donor; see Barker, J., in
Young V. Snow, 167 Mass. 287, 288, 289 [45 N. E. 686]." "This must
be taken to be a settled rule of property not now to be questioned."
We have already referred sufficiently to Lathrop v. Merrill, 207
Mass. 6, 92 N. E. 1019, which reiterates the same doctrine, and ex-
pressly affirms Dunn v. Dobson.
The testator in Shattuck v. Stickney, 211 Mass. 327, 97 N. E. 774,
devised and bequeathed one-seventh of the residue of his estate "to
my said executors as trustees for my nephew * * * ^nd I author-
ize and direct my said executors as such trustees to invest the said
share, both the principal and the income thereof as it shall accrue,
Avith full authority to them to sell and to reinvest the said principal and
income as often as they may deem it expedient for the interest of the
trust. Whenever, and not before, they shall in their discretion be
satisfied that it is safe and proper to do so, they may pay to the said
[nephew] any part or the whole of the accumulation of the said trust.
If any balance of such trust fund shall be remaining in the hands of
my executors as such trustees upon the death of said [nephew] then,
in that event, the same shall be paid by them as follows. * * * "
The opinion holds that "accumulation" meant the fund accumulated,
and included both the original principal and the increase from arrears
of income, and that the trustees were empowered in their discretion to
pay a part or the whole to the nephew. "The reasons which induced
Ch. 3) RESTRAINTS OX ALIENATION 661
the testator to place the share of this nephew beyond the control of
himself and of possible creditors do not appear. It may be significant
that the case of Broadway Nat. Bank v. Adams, 133 Mass. 170, 43 Am.
Rep. 504, had been recently published at the date of the will, but it
is quite enough that the testator intended to treat alike all of his heirs,
including this unmarried nephew, and that the restraints upon the
nephew's power to control his one-seventh portion was placed there
solely for his benefit. It is also apparent that the testator regarded as
this nephew's share the original fund and any income the trustees
might deem it best to withhold from him and reinvest. Throughout
item ten the testator treats this share, including the original prin-
cipal as well as the accumulated income, as a single fund, not only
for purposes of investment, but also for those of distribution."
It would seem beyond question from this examination, that if words
are given their ordinary meaning, a trust of the nature under dis-
cussion has been repeatedly recognized and conformed to until the
legal principle involved has become a safe and well-established rule
afifecting the practical administration of justice.
If as the respondent argues a change is advisable, taking away or
limiting this testamentary power, it should come through legislative
action and not by overruling or substantially modifying our former de-
cisions. New England Trust Co. v. Evans, 140 Mass. 532, 545, 4 N.
E. 69, 54 Am. Rep. 493 ; Goodtitle ex dem. Pollard v. Kibbe, 9 How.
471, 475, 13 L. Ed. 220.
We have not deemed it requisite to discuss cases from other juris-
dictions. Th e validity of su ch t rusts is recogni zed by the great weigl it
of Am ericatTauthor^ y. Mason~vrRhode~Islalid Hospital Trust Co.,
7S^Cgnn. 81, 61 Atiro7, 3 Ann. Cas. 586; Olsen v. Youngerman, 136
Iowa, 404, 113 N. W. 938; Wagner v. Wagner, 244 111. 101, 91 N. E.
66, 18 Ann. Cas. 490; Roberts v. Stevens, 84 Me. 32o, 24 Atl. 873, 17
L. R. A. 266; Maryland Grange Agencv v. Lee, 72 Md. 161, 19 Atl.
534; Lampert v. Haydel, 96 Mp. 439, 9 S. W. 780, Th. R. A. 113,
9 Am. St. Rep. 358 ; Hardenburgh v. Blair, 30 Nj;. Eq. 645 ; Mat-
tison V. :Mattison, 53 On 254, 100 Pac. 4, 133 Am. St. Rep. 829, 18
Ann. Cas. 218; Siegwarth's Appeal, 226 Pa. 591, 75 Atl. 842, 134 Am.
St. Rep. 1086; Jourolmon v. j\Iassengill, 86 Tenn. 81, 5 S. W. 719;
Nichols V. Eaton, 91 IL_S-716, 23 L. Ed. 254; Shelton v. King, 229
U. S. 90, 33 Sup. Ct. 686, 57 L. Ed. 1086; 39 Cyc. 240, 241, 242, and
cases cited in the notes; 3 Ann. Cas, 588, 1 Ann. Cas. 221, and Perry
on Trusts (6th Ed.) § 386a.
The decree of the probate court, that the bankrupt is entitled to his
share of the estate of his grandfather in the possession of the petition-
er, should be affirmed.
Ordered accordingly.^
6 See. also, Wallace v. Foxwell, 250 111. 616, 95 N. E. 9S5, 50 L. R. A. (N.
S.) 632 (1911) ; 7 111. L. R. 445.
662 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
CHAPTER IV
RESTRAINTS ON THE ALIENATION OF ESTATES FOR
LIFE AND FOR YEARS
BRANDON V. ROBINSON et al.
(Court of Chancery, 1811. 1 Rose, 197.)
Stephen Goom, by his will, bearing date the 1st of August, 1808,
devised and bequeathed to the defendants, Robinson and Davies, all
his real and personal estate upon trust, to sell and dispose of the same ;
and after payment of his debts, and some few legacies, upon trust to
divide the residue of the produce of such sale, amongst his children,
Thomas Goom, William Goom, Mary Wright, Esther Fuller, Elizabeth
Goom, Stephen Goom, and Margaret Goom ; and he directed that the
eventual share and interest oj his son Thomas G oom. of and in his
estate and effects should be laid out in the public funds, or on Govern-
ment securities at interest, byand in the nanTes of his trustees d uring
h is life : and that the d ividen ds, interest, and produce thereof, as the
same became payable, should be paid by them, from time to time, into
his_^wiLJgroper_hands, or on his proper order and receipt, subscribed
with his own proper hand; t o the in t ent that the same sh ould not be
gr antable. trans fera ble, or otherwise assig nable, by way of anticipation
of any unreceived payment or payments thereof, or of any part there-
of ; and that uporL his decease, the principal o f such share, together
with the dividends and interest, and produce thereof, should be paid
and applied by his trustees, unto and amongst such person or persons,
as in acours e of administrati on would be entitled to any personal estate
o f^^H is said son Thnmag Goom ^ jjid as if the samp h^A he^^ n person al
esta^teJjdLQng4ogJxLiiis_said_SQn, and he had died intestate.
The testator died shortly after the date of the will.
On the 15th of June 1811, a co mmission ofjjaiikru pt issued agai nst
Th omas Goom . under which the plaintiff was the surviving assignee.
The bill prayed, that the will might be established ; that the clear resi-
due of the estate and effects might be ascertained ; and that the plain-
tiff might have the benefit of such part, as in the character of assignee
he should be found entitled to. To this bill there was a general
demurrer, that the plaintiff' had no right or title.
The; Lord Chancellor [Lord Eldon]. Wit hout d o ubt a testato r
may limit his prop erty, until the object of his b ounty shall become ban k-
ruptjBut_iLisj equally clear, that it he give it for life, he cannot take
away the incidents to that estate. The difference is very great be-
Ch. 4) RESTRAINTS ON ALIENATION 663
tween giving aii jnteresMo a personj\vh ile he shall remain solvent, and
then over ; and giving it for Hfe. If there be a limitation over in the
eve nt ofmsoTvency or hanlc ruptcy, then neither the person so"5ecoming^
banTcrupt or insolvent, nor his assignees, can take any benefit beyond
t heTerms of the w^ilL In the case which arose upon Lord Foley's will,
6 Ves. 364, it was argued, and I thought admitted, that if the es-
tate w^ent to the sons as property in them, all the consequences must
attach.
In regard to property given to th e_separate use of married women,
the directions originally were, that the money was to be pai^ into their
proper hands, and their receipts alone to be a discharge ; it was held
that a married woman might dispose of property so given to her, and
that her assignee might take it, as this court would compel her to give
her own receipt, in affirmance of her own contract. In Miss Watson's
Case , the words, an d_ not by a nticipation, jwerfi__ijti troduced by Lord
Thurlow : his reasoning was this ; I do^o^ her eby_take away any of
the incidents of property at law ; this jnter est w hich a marxied woman"
is^uffere^tojtake^is ajgreature of equity, and equity mayjGQOdifyLJthe
power of alienation.
But it is quite different if the po wer is for life ; supposing that the
bankrupt makes out, thathe neveFhas an interest, till he attends per-
sonally; the act of his receipt being absolutely necessary: yet if he
, was never to attend, or to give that receipt, and arrears were to accu-
mulate, it is clear that those arrears would be assets for his debts. Jt^
is not en ough that the testator has s aid, the fun d shall not be tran s-
f erred; in order to prevent that, it must be given over to somebody
else ! Unless therefore by implication, it falls into the residue, it is an
equitable interest, to which the assignees are entitled.
As tothe_pri ncipal fund after the death of the bankrupt, the con clu^
si on IS different; the intention of the testator is, "this is my gift my
perso nal estate," not that of the bankrup t's ; to go as my property^tb
ce"r fain~persons whom I pomt out by the description of his, the ban k-
rupt's next of kin. This demurrer must be overruled.^
GREEN V. SPICER.
(Court of Chancery, 1S30. 1 Russ. & M. 395.)
Robert Pinning the elder, by his will, devised certain real estates
to John Spicer and Daniel Robertson, and their heirs and assigns,
"upon trust to let and manage the same, and receive the rents, issues,
and profits thereof, and to pay and a pply the same rents. iss ues,_and
])rofits to or for the board, lodging, maintenance, and support, an d
benefit of my son Robert Pinning at such times and in such manner as
1 S. C. 18 Ves. 429.
GG4: ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
the^^jh:^]]jh'm\t prnpprj fnr and rlnjnripr the term of his natural lifcj it
being my wish that the appHcation of the rents and profits for the bene-
fit of my said son may be at the entire discr etion of the said John
Spicer and Daniel Robertson, and the survivor of them, and the heirs
aticl assigns of such 'survivor, and that my said son shall not have any
power to sell or mortgage, o r anticipate In any way The same re ht^
issues, and profits, or any rents, issues, and profits, dividends or in-
terestFTderlved under this my will." '
Robert Pinning the younger had taken the benefit of the Act for the
Relief of Insolvent Debtors ; and the bill_vyas filed by the assignee,
praying that he might be declared entitled to the rents and profits
of the devised hereditaments during tlie life of Robert Pinning the
younger.
'I'he Master of the: Rolls [Sir John Leach]. The question in
the cause is, whether the testator's son Robert Pinning takes any
estate or interest, under the will, other than by the exercise of the
discretion of the trustees.
Robert Pinning takes aj vested life estate of which the trustees can-
noLdeprive him by any .exercise of their^scretion : they arFbound "to
appl y the rents, is sues, a nd profits Tor the benefit of ^oberT Pinning,"^
and their discretion applies only to the manner of the appIxcatTonT
Decree for the plaintiff.
SNOWDON V. DALES.
(Court of Chancery, 1834. 6 Sim. 524.)
By a deed-poll of the 7th of December 1821, after reciting two in-
dentures by which J. Crosby assigned two mortgage-sums of £1,000
each, to trustees upon such trusts, &c. as he should appoint: It was
witnessed, and Crosby did thereby appoint that the trustees should
stand possessed of those sums, in trust for himself for life, and, after
his decease, in trust to pay thereout £500 and £700 to his wife's daugh-
ters, Susannah Hepworth and Anne Thompson, respectively; and,
as to the remaining £800, in trust, during the life of John Doughty
Hepworth, his wife's son, or during such part thereof as the trustees
should think proper, and at their will and pleasure but not other-
wise, or at such other time or times, and in such sum or sums, por-
tion and portions as they should judge proper and expedient, to al-
low and pay the interest of the £800 into the proper hands of the
said J. Doughty Hepworth, or otherwise if they should think fit, in pro-
curing for him diet, lodging, wearing apparel and other necessaries ;
but so that he sho uld not have any right, title, claim or demand in or
to such interest, other than the trustees should, in their or his abso lute
an^ unconfrblled power, disc retion and inclination, th ink proper or
expedient, andHso as no creditor of his should or might have any Iien"of
Ch. 4) RESTRAINTS ON ALIENATION 665
claim thereon in any case, or the same be, in any way, subject or liable
to his debts7"3isposition or engagements; and, in case he should marry
and leave a widow him surviving, then, after his decease, to pay the
interest to his widow during her life, for her separate use, in such man-
ner as the trustees should judge proper: and Crosby thereby declared
and appointed that a proportionate part of the interest should be paid
up to the day of the decease of J. D. Hepworth and his widow ; and
that, from and after the decease of him or his widow, the £800 and all
savings or accumulations of interest, if any, should be in trust for his
children in equal shares, with benefit of survivorship on any of them
dying under 21 ; but, if he should have no child who should attain 21,
then one moiety of the £800, and all savings and accumulations of in-
terest, if any, should be upon such trusts, &c. as Anne Thompson
should appoint, and, in default of appointment, in trust for her abso-
lutely ; and that the other moiety should be in trust for Susannah Hep-
worth absolutely : and the trustees were empowered to apply the
interest and capital of the shares of J. D. Hepworth's children, for their
maintenance and advancement respectively.
Crosby died in October 1822. In April 1832 J. D. Hepworth be-
came bankrupt. The trustees had paid or applied the interest of the
iSOO to him or to his use, down to the time of his bankruptcy.
The bill which was filed, by the assignees, against the bankrupt and
his infant children, and against the trustees and Anne Thompson and
K: Susannah Hepworth, prayed that the plaintiffs might be declared to be
entitled to the bankrupt's life-interest in the £800, for the benefit of his
creditors, and that the trustees might be decreed to pay, to the plain-
tiffs, the interest of the £800 become due since the bankruptcy and to
accrue due during the bankrupt's life.
The defendants put in a general demurrer.
The; Vice-ChancelIvOR [Sir Lancelot Shadwell]. It is plain
that the grantor did intend to exclude the assignees : and that objec t
might have been e ffected if there had been a clear gift over .
Tjut the question is whether there is anything in the deed that amounts
to a direction that the trustees shall withhold the payment of the in-
terest and accumulate it, during the lifetime of J. D. Hepworth, if
they shall think fit. Although the words : "savings and accumulations,"
as they first occur, might bear that construction ; yet taking the whole
of the instrument together, I think that the better construction is that
those words do not enable the trustees to withhold and accumulate any
portion of the interest during the life of J. D. Hepworth.
Declare that the plaintiffs are entitled to the bankrupt's life-interest
in the £800.
G66 ILLEGAL CONDITIONS AND RESTRAINTS ("Part 5
LORD V. BUNN.
(Court of Chancery, 1843. 2 Yoiinge & C. Ch. Cas. 9S.)
By an indenture of settlement dated the 30th March, 1822, Thomas
Lord duly appointed and conveyed a freehold messuage and lands situ-
ate in the Edgeware-road to Alathew Norton and David Henderson
and their heirs, upon trust for the settlor for his life, with remainder to
his wife for her life, and after the decease of the survivor of them upon
trust to pay or permit Thomas Lord, the son of the settlor, to receive
the clear rents and profits of the premises for his life ; provided always
that, in case any commission of bankrupt should be issued against the
said Thomas Lord the son, whereupon he should be found or declared
a bankrupt, or in case he should make any composition with his cred-
itors for the payment of his debts, though a commission of bankrupt
should not issue, or should make any conveyance of his estate and
effects for the benefit of his creditors, or should be discharged under
any insolvent or other Act or Acts of Parliament then already or there-
after to be made or passed for the relief or benefit of insolvent debtors,
then and in such case nothwithstanding the trusts aforesaid they the
said trustees, their heirs or assigns, should, during the life of the said
Thomas Lord the son (subject to the life estates of the said Thomas
Lord the settlor and Amelia Elizabeth his wife), stand and be possessed
of the said hereditaments and premises upon trust to apply, lay out,
and expend the clear surplus rents, issues and profits thereof in and
towards the maintenance, clothing, lodging and support of the said
Thomas Lord the son, and his then present or any future wife, and
his children, or any of them, or otherwise for his, her, their or any
of their use and benefit, in such manner as they the said trustees, or the
survivor of them, or the heirs or assigns of the survivor, should in
their or his discretion think proper; and from and immediately after
the decease of the survivor of them the said Thomas Lord the set-
tlor, and Amelia Elizabeth his wife, and Thomas Lord the son, upon
trust that they the said trustees, their heirs and assigns, should, during
the life of the widow of the said Thomas Lord the son, if he should
leave any, pay, apply and dispose of the surplus of the said rents, is-
sues and profits unto such person or persons, and for such intents and
purposes as any such widow, notwithstanding any future coverture,
should from time to time (but not by way of anticipation) by any writ-
ing, as therein mentioned, under her signature appoint; and in de-
fault of such appointment, into her own proper hands for her sole
and separate use ; her receipts to be sufficient discharges : and from
and immediately after the decease of the survivor of them, the said
Thomas Lord the settlor, and Amelia Elizabeth his wife, and the said
Thomas Lord the son, and his widow, if he should leave a widow, upon
trust for all and every the children of the said Thomas Lord the son.
Ch. 4) RESTRAINTS ON ALIENATION 667
who being a son or sons should Hve to attain the age of twenty-one
years, or who being a daughter or daughters should live to attain
that age or be married, which should first happen, in equal shares
and proportions, if more than one, as tenants in common and not as
joint tenants, and for their several and respective heirs and assigns
forever; and in case there should be but one such child, then upon
trust for such one or only child, his or her heirs and assigns for-
ever.
By an indenture bearing even date with the preceding indenture,
certain leasehold property situate in the New Road was duly assigned
by Thomas Lord, the settlor, to the same trustees, their executors, ad-
ministrators, and assigns, to hold upon trusts similar to those declared
by the before-mentioned indenture, allowing for the difference of ten-
ure of the respective properties.
Thomas Lord the settlor, and Amelia Elizabeth his wife, died many
years since, leaving Thomas Lord, the son, surviving them. Thomas
Lord, the son, married, and had several children.
The original trustees, undeT the indentures of settlement, having been
discharged from their trusts, two persons, named respectively Bunn and
Burgoyne, were duly appointed trustees in their room.
Some time after the Stat. 1 & 2 Vict. c. 110 came into operation,
Thomas Lord, the son, was committed to the Queen's Bench prison,
charged in execution for debt, at the suit of one Silver. Satisfaction
not having been made for the debt within twenty-one days after such
committal, application in pursuance of the above-mentioned Act was
made by the creditor to the Court for Relief of Insolvent Debtors for
the usual vesting order, and such order was accordingly made in
July, 1841. Silver was a few months afterwards appointed by the
Insolvent Debtors' Court assignee of the estate and effects of the
insolvent.
The trustees having, under these circumstances, refused to pay to
any person the rents and profits of the property comprised in the in-
dentures of settlement, a bill was filed in January, 1842, by the children
of the insolvent, one of whom, a daughter, had attained her age of
twenty-one, and the insolvent's wife, the mother of those children,
against the trustees, the assignee under the Insolvent Act (Silver), and
the insolvent, praying that the trusts of the indentures of settlement
might be carried into execution, the rights of all parties therein ascer-
tained, and the rents and profits secured.
By an order of the Insolvent Debtors' Court, dated the 19th May,
1842, the Insolvent, having duly complied with the provisions of the
75th section of the Statute 1 & 2 Vict. c. 110, was discharged from
custody ; and the fact of such discharge was brought before this court
by supplemental bill.
The cause now came on for hearing, the principal question being as
to the manner in which the rents and profits of the settled property
GG8 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
were to be disposed of during the lifetime of Thomas Lord, the son,
from the time of his insolvency.
The Vicd-Chancellor [Sir J. L. Knight Bruce]. According
to my construction of the instruments and the Act of Parliament, the
right of those who were to take in substitution for the husband's life
estate, does not arise till the actual discharge of the husband under
the Insolvent Act. The rents of the property, therefore, until such
discharge, formed part of the husband's estate, and belong to his as-
signee.
It has been admitted on the part of the assignee, and the admission
must be entered by the registrar, that what was required under the Act
of Parliament to be done to obtain the order of the 19th May, 1842,
was done, and that thereupon Thomas Lord obtained his discharge.
That being admitted, I am of opinion, that the trust from the time of
the discharge took effect in favor of the husband, wife, and children, or
some of them.
With regard to the question which has been agitated, whether the
discretionary power created by the settlement yet remains in the trus-
tees, I am of opinion that it does. In the first place, I think that, upon
the true construction of the whole settlement together, the meaning to
be collected is, that a discretion was to be vested in the trustees of the
settlements for the time being. It would, I think, be haesio in litera if
I were to hold otherwise. Assuming that these trustees were duly ap-
pointed in the room of the. former trustees, I think that the discretion-
ary power created by the settlements is vested in them. It has been
suggested, that, as one of the objects who are to take in default of the
execution of the power, has become an insolvent, the discretionary
power is gone. I apprehend, however, that the discretionary power has
not gone from the trustees. If an individual have a power over an es-
tate, which estate, in default of execution of the power, is vested in
others — as, if the person having the power be A., and the persons to
take in default of execution be B. and C, it is immaterial in the con-
sideration of A.'s right to execute the power, what may have become
of the interest of B. and C, because it is a mere defeasible interest.
The assignee can only take such defeasible interest as the bankrupfhad.
No authority has been stated to me which seems to have proceeded
upon a contrary notion, and I think that the trustees have a right under
the power to appoint in favor of the insolvent and his wife, or in favor
of the children, or any of them, with or without the insolvent and his
wife or either of them,
I am also of opinion upon these settlements (without saying what
might be done under other settlements), that any benefit which the
bankrupt may take will belong to his assignee.
Ch. 4) RESTRAINTS ON ALIENATION 6G9
YOUNGHUSBAND v. GISBORNE.
(Court of Chancery, 1844. 1 Coll. 400.)
Francis Duckinfield, by his will, dated the 17th June, 1823, gave
certain real estates to trustees, upon trust to levy and raise yearly,
during the life of his brother John .William Astley, one annuity or
yearly sum of £400; and, in case of his death in the interval between
any of the days therein mentioned for payment thereof, then a propor-
tional part thereof up to the time of death. And he directed, that the
annuity and proportional part aforesaid should be held by his said
trustees, upon trust for the personal support, clothing, and mainte-
nance of his said brother, so as not to be subject or liable to the claims
of any person or persons to whom he should attempt to charge, antici-
pate, or otherwise encumber the same, nor to his creditors under a
commission of bankruptcy or any Act for the relief of insolvent debt-
ors, or to his own control, contracts, debts, or other engagements.
And the testator declared, that the said annuity should be paid to his
said brother himself from time to time, when and after the same
should become due, until he should attempt to charge, anticipate, or
otherwise encumber the same, or until any other person or persons
might claim the same ; and from and after such attempt or claim, the
same should be applied by his said trustees, or some person under
their direction, for or towards the personal support, clothing, and
maintenance of his said brother, and for no other purpose whatsoever.
The testator died in July, 1835, and the trustees duly paid the an-
nuity to John William Astley up to the 25th December, 1841.
On the 31st of May, 1842, John William Astley took the benefit of
the Insolvent Debtors Act, and the plaintiffs, as his assignees, institut-
ed this suit for the purpose of obtaining the annuity.
The VicE-Chancellor [Sir J. L. Knight Bruce]. I wish to
be understood as not giving any opinion, whether the two cases cited
by Mr. Beales are, or are not, materially distinguishable from the
present. If they are not so, then I must respectfully dissent from
them. In the present case, I must say that I have no doubt. There
is no clause of forfeiture, no clause of cesser, no limitation over. It is
merely a wordy trust for the benefit of the insolvent, attempted to be
guarded from alienation, but vainly and ineffectijally.
Considering the language of the will and the state of the authorities,
I think it reasonable that the costs should be paid out of the fund.^
2 Cf. Bland v. Bland, 90 Ky. 400, 14 S. W. 423, 9 L. R. A. 599, 29 Am.
St. Kep. 390 (1890).
G70 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
In re COLEIMAN.
(Court of Chancery, 1SS8. 39 Ch. Div. 443.)
Alfred Coleman, by will dated the 5th of August, 1875, gave his
residuary estate to trustees upon trust to pay the income to his wife
during widowhood, "but in the eyent of her death or second marriage
then I direct my said trustees to apply such rents, interest, dividends,
and annual proceeds in and towards the maintenance, education, and
advancement of my children in such manner as they shall deem most
expedient until the youngest of my said children attains the age of
twenty-one years, and on his or her attaining that age then I direct my
said trustees to distribute the whole of my said estate between my said
children in such shares and proportions as my said wife, if then Uving,
shall by deed or will appoint, or if dead, then equally between all my
children then living, the shares of any females to be for their sole and
separate use and free from the control, debts, or engagements of any
husband."
The testator died on the 17th of May, 1880, leaving a wife and four
children. The widow died in May, 1884, without exercising the power
of appointment. At her death two of the children, of whom John Soy
Coleman was the eldest, had attained twenty-one. The other two
were minors at the time of these proceedings, the youngest being in
the seventh year of his age at the widow's death.
On the 13th of April, 1886, John Soy Coleman, who was resident in
Australia, sold and assigned absolutely to David Henry "all and singu-
lar the part or share, and all the income, property, moneys, securities,
estates, and interests to which the said J. S. Coleman was or is entitled
to, or which he may at any time hereafter become entitled to under the
said will of his said father, the said Alfred Coleman, deceased, or in
any other manner howsoever by reason of his decease, and all stocks,
funds, and securities in or upon which the same, or any part thereof,
were or are, or is now, or shall or may at any time hereafter be invest-
ed, and all interest to become due in respect thereof."
From the death of the widow the trustees had applied the income in
equal shares for the benefit of the four children, paying one-fourth
directly to each of the two adults. In June, 1886, formal notice of the
above assignment was given to the trustees, with a request by D. Hen-
ry and by J. S. Coleman that the payments might thenceforth be made
to Henry. The trustees were advised not to make any further pay-
ments in respect of J. S. Coleman without the sanction of the court.
They continued to apply three-fourths of the income for the benefit of
the children other than J. S. Coleman, and kept the remaining fourth
in hand.
In March, 1887, Henry took out an originating summons to have it
decided whether the gift of capital to the children was contingent on
their being alive at the period of distribution, and if so, whether J, S.
Ch. 4) RESTRAINTS ON ALIENATION 671
Coleman had an interest in the income which would pass by his as-
signment.
The summons were heard before IMr. Justice North on the 8th of
February, 1888.
Everitt, O. C, and Clayton, for Henry: There is a complete trust
for the benefit of a person sui juris, the benefit of that is capable of
assignment notwithstanding that the trustees here are under the terms
to apply the subject of the trust themselves: Rippon v. Norton, 2
Beav. 63 ; Green v. Spicer, 1 Russ. & 'My. 395 ; Kearsley v. Wood-
cock, 3 Hare, 185 ; Younghusband v. Gisborne, 1 Coll. 400. Here
the trustees have in effect appropriated the income of three quarters to
three of the children, and one quarter to J. S. Coleman ; if appropria-
tion is required to complete the title of the assignee nothing more can
be necessary than what has been done.
North, J. I think here the trust created was a good trust, and that
the assign, until the youngest child attains the age of twenty-one, is
not entitled to have anything paid over to him.
I am asked, on the authority of certain cases, to deal with the ques-
tion as if there had been a separate single trust for one person, but I
think the cases referred to have nothing whatever to do with the pres-
ent. In Kearsley v. Woodcock and Younghusband v. Gisborne there
was a trust for the benefit of the persons entitled, and that being so,
there was an interest which passed to the assignees. The present case
seems to me entirely distinct. Here there is a gift after the death or
the second marriage of the widow, in these words, "to apply such
rents, dividends, interest, and annual proceeds in and towards the
maintenance, education and advancement of my children in such man-
ner as they shall deem most expedient, until the youngest of my said
children attains the age of 21 years," and then there is a trust for di-
vision, W'hen that time comes, among those who are living at that time.
It seems to me there is a trust there under which the trustees mav, if
they like, exclude one person altogether; and they certainly have
power, if they please, to apply unequal portions of the income for the
maintenance of the children as they may deem necessary or desirable.
There is a trust to do this in such manner as they shall deem most
expedient, and "most expedient" means most for the benefit of the
children for whose benefit the income is to be applied. In my opinion
it is necessary to apply the rents for these children's benefit, and if the
trustees think it expedient to apply more for a daughter than a son, or
more for an elder child than for a younger child, it is in their discretion
to do so, and in such manner as is most expedient.
There are some observations of Vice-Chancellor Shadwell in the
case of Godden v. Crowhurst, 10 Sim. 642, 656, which seem to me to
apply. He says : "Then the property is given for 'the maintenance
and support of my said son, and any wife and child or children' (which
672 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
is the event that has happened) 'he may have, and for the education of
such issue or any of them, as they, my said trustees for the time being,
shall, in their discretion, think fit.' Now there is nothing, in point of
law, to invalidate such a gift, that I am aware of. It does not follow
that anything was, of necessity, to be paid ; but the property was to be
applied ; and there might have been a maintenance of the son, and of
the wife and of the children, without their receiving any money at all.
For instance, the trustees might take a house for their lodging, and
they might give directions, to tradesmen, to supply the son and the
wife and the children with all that was necessary for maintenance;
and, therefore, my opinion is that I am not at liberty to take this as a
mere gift for the benefit of the son, simply; but it is a gift for his
benefit in the shape of maintenance and support of himself jointly with
his wife and children, and, if that is the true construction of the gift
in question, the result is that the assignees are not entitled to any-
thing ; but the consequence is that, if the trust was a perfect trust for
accumulation, for the second period, the whole of the accumulated
fund will, at the end of that period, be applicable for the maintenance
and support of the son, the wife and the children collectively, and the
assignees have no interest at all."
Under these circumstances I am of opinion that the assign is not
entitled to call upon the trustees to hand over to him the one-fourth
share of the income. It is said that it has been appropriated to the
share of the son. I do not so understand from the evidence. There
is no dispute about the application of three-fourths of the income.
That has been applied for the benefit of the persons as to whose in-
terest there is no dispute, who haye not assigned, but inasmuch as a
question has been raised as to anything that may be coming to the
son, who has assigned, that money has been very properly and wisely
kept in hand until that dispute has been settled.
Under these circumstances it seems to me that there is a good and
valid trust to apply such part of the income as the trustees may think
fit for the maintenance, education, and advancement of the children
(including the son in question, if they think it expedient). Then I
think this further follows — if they in the exercise of tliat discretion
appropriate a part of it to him for his benefit, and propose to apply it
for his benefit by handing it over to him, I think that would be an in-
terest which would pass by the assignment, but if, instead of doing
that, they think fit to apply it in some other way for his benefit, then in
my opinion the assignee does not take the benefit of that provision by
way of maintenance, or whatever it is, at all.
The order as drawn up declared that no child of the testator is en-
titled, prior to the time when the youngest of his children attains the
age of twenty-one years, to payment of, or has a transmissible interest
in, one-fourth share or any part of the income of the residuary estate of
Ch. 4) RESTRAINTS ON ALIENATION 673
the said A. Coleman, or the proceeds thereof, and that the plaintiff has
no claim, present or future, prior to that event, against the trustees of
the will of the said A. Coleman for income, and that the trustees are
entitled to employ the income for the benefit and maintenance of the
children, including the said J. S. Coleman, at their absolute discretion.
Henry appealed from this decision. The appeal was heard on the
10th of August, 1888.
Everitt, Q. C, and Clayton, for the appellant: We say that each
child takes a vested interest in one-fourth of the income, and whatever
comes in the w^ay of property to an adult who is sui juris can be as-
signed. In Rippon v. Norton, 2 Beav. 63, under a very similar trust
to the present, the assignee in insolvency of one of the beneficiaries
was held entitled to an aliquot share.
[Cotton, L. J. That case does not help us, for no reasons are given.
Fry, ly. J. I do not see my way to supporting the decision.]
In Lord V. Bunn, 2 Y. & C. (Ch.) 98, it was held that the trustees
had a discretion, and they had a power of excluding any of the objects
of the trust, but that so far as the insolvent took anything it would go
to his assignee.
[Thd Court here intimated a doubt whether more was meant than
that whatever interest the insolvent had if the trustees did not exercise
any discretion would go to the assignee.]
In Godden v. Crowhurst, 10 Sim. 642, the power was not exclusive,
but the provision was for a man and his wife and children, who were
all living together, and it was held that the man's assignee in bank-
ruptcy was not entitled to anything, but this was on the ground that
the provision was not severable. In Twopeny v. Peyton, Ibid. 487,
the trustees had power not to give the bankrupt anything, and on that
ground his assignees could not take. In Younghusband v. Gisborne, 1
Coll. 400, a trust of income for the support, clothing, and maintenance
of an adult was held to be a trust for his benefit, and to entitle his as-
signee in bankruptcy to the income. In this case Godden v. Crowhurst
and Twopeny v. Peyton were disapproved of. There cannot be an
inalienable provision for an adult sui juris.
[Fry, L,. J. Suppose a person elected as an inmate to an almshouse
with an allowance of provisions.]
That is not property coming under a deed or will. In Green v.
Spicer, 1 Russ. & My. 395, where there was no power to apply other-
wise than for the benefit of one person, the manner only being left dis-
cretionary, the income was held to pass to the assignee in insolvency.
In Hayes's Conveyancing, 5th ed. vol. i. p. 506, it is stated that some
conveyancers had thought that there could be an inalienable trust for
the personal maintenance of a person sui juris, but the cases to which
he refers show that there must be a power to give the property to some
one else or it will pass to an assignee. The policy of the law is against
4 Kales Pkop. — 43
G74 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
inalienable trusts. To allow maintenance to be inalienable would be
against the policy of the law : Tudor's Leading Cases on Real Property,
3d ed. p. 978.
Decimus Sturges, for the infant children : The order does not seem
to be happily worded, for a transmissible interest there certainly is,
though only a contingent one. The case I make is this, that the as-
signor has no present property under the will, his interest in the capital
is contingent, and until the youngest child attains twenty-one the in-
come is held by the trustees upon trust to apply it for the benefit of
the children as they think fit, so that no child is entitled to anything
but what the trustees choose to give him. This is not like the cases
where there was a vested gift with a discretionary power to take it
away, still less is it like cases where there was a gift with a discretion
as to the mode of its application.
[Fry, L. J. An assignment for value of whatever A. B. may take
under the will of C. D., who is still living, passes whatever A. B. ulti-
mately takes under the will of C. D. Why may not this assignment
pass whatever J. S. Coleman may take under the exercise of the dis-
cretion of the trustees?]
I do not dispute that if the trustees pay him anything it would pass
by the assignment, and that the payment therefore would be made to
the wrong person, but I contend that the trustees might apply it for
his benefit in other ways without being interfered with, e. g. in paying
his bills. The case, I submit, is covered by authority : Godden v.
Crowhurst; Wallace v. Anderson, 16 Beav. 533. The cases cited
against me do not affect my position. Lord v. Bunn only decides that
the assignee takes whatever the trustees determine to give to the as-
signor.
[Fry, L. J. Should you be satisfied with the following declarations:
1. That no child is entitled prior to the attainment of twenty-one by
the youngest of the testator's children to the payment of any part of
the income of the residuary estate.
2. That the trustees are entitled to apply the said income for the
maintenance, education, or advancement of the children, including J.
S. Coleman, in their absolute discretion.
3. That the plaintiff is entitled to no interest in the said income ex-
cept such moneys or property, if any, as may be paid or delivered, or
appropriated for payment or delivery by the trustees to the said J. S.
Coleman.]
I should be satisfied with those declarations.
Page, for the trustees : We wish it to be decided whether we can
send out goods to J. S. Coleman, and I submit that we may. Where
a gift of income is for the benefit of the whole class with a discretion
how it is to be applied, it has never been held that members of the
class take a vested interest.
Ch. 4) RESTRAINTS ON ALIENATION 675
[Fry, ly. J. A man may assign what he has not got, and the assign-
ment becomes effectual if he gets it. If you send out goods to J. S.
Coleman, why should not his assignee take them?]
No case goes so far as to make an assignment operate on what trus-
tees may in their discretion allot to one of the objects of the trust :
In re Clarke, 36 Ch. D. 348 ; Official Receiver v. Tailby, 18 Q. B. D.
25 ; 13 App. Gas. 523. The interest of J. S. Coleman in the capital
is contingent: Hilliard v. Fulford, 42 L. J. (Ch.) 624; and In re Park-
er, 16 Ch. D. 44, is against vesting by reason of such a trust for main-
tenance as this.
Clayton, in reply. In In re Parker the trust was to apply the in-
come or such part thereof as the trustees should think fit — here the
trust is to apply the whole income.
Cotton, L. J. This is an appeal from an order of Mr. Justice North,
and we think that some alteration in its terms is requisite. The con-
tention of the appellant was that each of the four children took a vested
interest in one-fourth of the income till the youngest child attained
twenty-one. I am of opinion that no child has a right to any share
of the income. The trustees have a discretion to apply the income for
the maintenance of the children in such manner as they think fit. This
excludes the notion of the children being entitled to aliquot shares. I
will assume, though I do not decide, that the trustees have no power
to exclude a child, but I am clearly of opinion that under this power
they could make unequal allowances for the benefit of the children, and
might allow only half-a-crown to one of them. This is not a void at-
tempt to make shares given to children inalienable, so as to exclude
their creditors, it is a power to the trustees to give to each child what
they think fit, and if they cannot altogether exclude a child who has
become bankrupt or assigned his interest, they can allot to him as
little as they think desirable. Then does the assignment include every
benefit which the trustees give to J. S. Coleman out of the income?
I think not. If the trustees were to pay an hotel-keeper to give him a
dinner he would get nothing but the right to eat a dinner, and that is
not property which could pass by assignment or bankruptcy. But if
they pay or deliver money or goods to him, or appropriate money or
goods to be paid or delivered to him, the money or goods would pass
by the assignment. I think that the declaration proposed by Lord Jus-
tice Fry is right, and I am of opinion that the trustees will not be at
liberty to send over money or goods to J. S. Coleman.
The strongest cases referred to by the counsel of the appellant were
Green v. Spicer and Younghusband v. Gisborne, but in these cases
the income was directed to be applied solely for the benefit of the in-
solvent, which made it his property, and an attempt was then made to
prevent its being dealt with as his property if he became bankrupt.
Here no property is given to J. S. Coleman, but only a discretion to the
trustees to apply such part as they think fit of the income for his bene-
676 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
fit. This case, therefore, does not come within the principle of those
cases, and I think tliat the declaration proposed by the Lord Justice
Fry is right.
Fry and Lopes, L. JJ., concurred.^
TILLINGHAST v. BRADFORD.
(Supreme Court of Rhode Island, 1858. 5 R. I. 205.)
Demurrer to a bill in equity, filed by the plaintiff as assignee, under
the "Poor Debtor's Act," of Hezekiah Sabin the younger, against him,
and against Nicholas H. Bradford, trustee under the will of Hezekiah
Sabin, Sen., of certain real estate situated in Westminster Street in
Providence, held by said Bradford in trust for the benefit of said Heze-
kiah the younger.
The bill, in substance, set forth the will of Hezekiah Sabin, Sen., of
the date of February 6, 1853, and his subsequent death ; and it appear-
ed, that in and by said will, the testator devised a certain undivided
share of the real estate in question to Charles F. Tillinghast, Esq. —
whose successor in the trust Bradford was stated to be, — "In trust, to
hold the same, for the said trustee to receive the rents and profits
thereof, and after paying therefrom all the taxes, repairs, insurance,
and other charges thereon, to pay to my said son Hezekiah the net in-
come thereof during his natural life, for his own use, and from and aft-
er his decease to convey the said portion of said real estate according
to the provisions of the last will and testament of the said Hezekiah
Sabin, Jr., and in default of such will, to his heirs at law;" and that
after creating other trusts, in like terms, of his property, real and per-
sonal, to be administered by the same trustee for the benefit of his
children, male and female, including said Hezekiah, Jr., the testator,
in the 10th clause of his will, declared as follows: "Section 10th, I
hereby declare it to be my will, that the payment of the rents, income,
interest, or dividends, to be made by the trustee to my children in pur-
suance of the provisions of my will, shall be made to them from time
to time, as the said rents, income, interest, or dividends accrue or may
be received, and not in the way of anticipation, nor to their assigns,
and that such payments shall be for their sole and separate use." The
bill further set forth, that whilst said Hezekiah Sabin, Jr., was entitled
as aforesaid under the will of his father — being in danger of being
committed to jail in a certain execution for rent, then out against him
— he cited his creditors to appear to show cause why he should not
take the poor debtor's oath ; and, as the condition upon which he was
entitled to be admitted to take the same, on the 24th day of November,
1856, executed to the plaintiff in fee an assignment of "all my (his) es-
8 See, also, In re Bullock, 60 L. J. Cb. N. S. 341 (1S91).
Ch. 4) RESTRAINTS ON ALIENATION 677
tate, both real and personal, not exempt from attachment by law ; to
have and to hold the same in trust for the benefit of all my creditors in
proportion to their respective demands."
The bill prayed, that Bradford might be decreed to pay the rents and
profits of the trust property, as the same might accrue, to the plaintiff,
for the benefit of the creditors of Hezekiah Sabin the younger, and
that the plaintiff might be decreed to be entitled to receive the same
for such purpose; that Bradford might be enjoined from paying over
such rents and profits to Hezekiah Sabin the younger, or to others,
and for further relief.
Ames, C. J. The demurrer to this bill is attempted to be supported,
substantially, upon two grounds: First, that Hezekiah Sabin, Jr., had
not such an equitable interest, under his father's will, in the trust
property in question, that he could aliene the same to the plaintiff in
trust for his creditors ; and, second, that in legal intendment he did
not, by the assignment executed by him under the Poor Debtor's Act,
aliene the same to the plaintiff, upon such trust.
The nature of the debtor's interest in the trust property, under his
father's will, was an equitable estate for life, with a power of disposing
of the remainder in fee by will ; in default of such disposition, such
remainder to be conveyed to his heirs at law ; there being also a clause
in the will against anticipation and alienation of the rents and profits
during the debtor's life. It is quite clear, that it was the intention of
the testator to make an alimentary provision for his son during life,
which should give him all the advantages of an estate in fee, without
the legal incidents of such an estate, — alienability, unless by will, and
subjectiveness to the payment of the son's debts. Such restraints,
however, are so opposed to the nature of property, — and, so far as
subjectiveness to debts is concerned, to the honest policy of the law, —
as to be totally void, unless, indeed, which is not the case here, in the
event of its being attempted to be aliened, or seized for debts, it is
given over by the testator to some one else. This has been the settled
doctrine of a court of chancery, at least since Brandon v. Robinson,
18 Ves. 429 ; and in application to such a case as this, is so honest
and just, that we would not change it if we could. Certainly, no man
should have an estate to live on, but not an estate to pay his debts
with. Certainly, property available for the purposes of pleasure or
profit, should be also amenable to the demands of justice.
The other ground of demurrer taken, is equally without support.
The difference between the prescribed terms of the assignment of an
insolvent and a poor debtor, remarked upon by the counsel for the
respondent, is verbal merely : the words "all my estate, both real and
personal, not exempt from attachment by law," prescribed for the lat-
ter as descriptive of the subject of conveyance, being quite ample
enough to include every equitable as well as legal interest in the real
or personal property of the assigning debtor. The property excepted
G78 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
from the assignment by the words "exempt from attachment," is clear-
ly that expressly exempted from attachment by our Statute relating to
that subject. It can hardly be supposed that the General Assembly
intended that a man should be admitted to the poor debtor's oath,
whilst rolling in the wealth of a trust estate, applicable by law to the
payment of his debts.
It has been suggested, that if the points taken on demurrer be decid-
ed against the respondents, they will decline to answer over, and will
submit to the decree asked ; and we are requested, under such circum-
stances, by the respondent, Bradford, to allow him his costs and neces-
sary expenses of defence out of the trust fund. As this is the first time
that this question has come before the court, and the trustee has
taken the speediest mode of bringing the question of his duty, under
the circumstances, to a decision, we think it but reasonable, that sub-
mitting now to the decree asked by the plaintiff, he should be made
whole out of the trust fund for his costs, and for necessary expenses
in endeavoring to keep it applied according to the will of his testator.
Demurrer overruled.
NICHOLS V. EATON.
(Supreme Court of the United States, 1875. 91 U. S. 716, 23 L. Ed. 254.)
Appeal from the Circuit Court of the United States for the District
of Rhode Island.
The controversy in this case arises on the construction and legal
effect of certain clauses in the will of Mrs. Sarah B. Eaton. At the
time of her death, and at the date of her will, she had three sons and
a daughter; being herself a widow, and possessed of large means of
her own. By her will, she devised her estate, real and personal, to
three trustees, upon trusts to pay the rents, profits, dividends, interest,
and income of the trust-property to her four children equally, for and
during their natural lives, and, after their decease, in trust for such
of their children as shall attain the age of twenty-one, or shall die
under that age having lawful issue living ; subject to the condition, that
if any of her children should die without leaving any child who should
survive the testatrix and attain the age of twenty-one years, or die
under that age leaving lawful issue living at his or her decease, then,
as to the share or respective shares, as well original as accruing, of
such child or children respectively, upon the trusts declared in said will
concerning the other share or respective shares. The will also con-
tained a provision, that if her said sons respectively should alienate or
dispose of the income to which they were entitled under the trusts of
the will, or if, by reason of bankruptcy or insolvency, or any other
means whatsoever, said income could no longer be personally enjoyed
by them respectively, but the same would become vested in or payable
Ch. 4) RESTRAINTS ON ALIENATION 679
to some other person, then the trust expressed in said will concerning
so much thereof as would so vest should immediately cease and de-
termine. In that case, during the residue of the life of such son, that
part of the income of the trust- fund was to be paid to the wife and
children, or wife or child, as the case might be, of such son; and, in
default of any objects of the last-mentioned trust, the income was to
accumulate in augmentation of the principal fund.
There is another proviso, which, as it is the main ground of the
present litigation, is here given verbatim, as follows :
"Provided also, that in case at any future period circumstances
should exist, which, in the opinion of my said trustees, shall justify
or render expedient the placing at the disposal of my said children
respectively any portion of my said real and personal estate, then it
shall be lawful for my said trustees, in their discretion, but without its
being in any manner obligatory upon them, to transfer absolutely to
my said children respectively, for his or her own proper use and benefit,
any portion not exceeding one-half of the trust- fund from whence his
or her share of the income under the preceding trusts shall arise ; and,
immediately upon such transfer being made, the trusts hereinbefore
declared concerning so much of the trust-fund as shall be so transferred
shall absolutely cease and determine ; and in case after the cessation
of said income as to my said sons respectively, otherwise than by death,
as hereinbefore provided for, it shall be lawful for my said trustees, in
their discretion, but without its being obligatory upon them, to pay to
or apply for the use of my said sons respectively, or for the use of such
of my said sons and his wife and family, so much and such part of the
income to which my said sons respectively would have been entitled
under the preceding trusts in case the forfeiture hereinbefore provided
for had not happened."
The daughter died soon after the mother, without issue, and unmar-
ried. Amasa M. Eaton, one of the sons of the testatrix, failed in
business, and made a general assignment of all his property to Charles
A. Nichols for the benefit of his creditors, in jMarch, 1867; and in De-
cember, 1868, was, on his own petition, declared a bankrupt, and said
Nichols was duly appointed his assignee in bankruptcy. Said Amasa
was then, and during the pendency of this suit, unmarried, and without
children. He, William M. Bailey, and George B. Ruggles (a son of
testatrix by a former husband), were the executors and trustees of
the will.
It will be seen at once, that whether regard be had to the assignment
before bankruptcy, or to the effect of the adjudication of bankruptcy,
and the appointment of Nichols as assignee in that proceeding, one of
the conditions had occurred on which the will of Mrs. Eaton had de-
clared that the devise of a part of the income of the trust estates to
Amasa M. Eaton should cease and determine ; and, as he had no wife
or children in whom it could vest, it became, by the alternative pro-
680 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
vision of the will, a fund to accumulate until his death, or until he
should have a wife or child who could take under the trust.
But Nichols, the assignee, construing the whole of the will together,
and especially the proviso above given verbatim, to disclose a purpose,
under cover of a discretionary power, to secure to her son the right to
receive to his ow^n use the share of the income to which he was entitled
before the bankruptcy, in the same manner afterwards as if that event
had not occurred, brought this bill against the said executors and
trustees to subject that income to administration by him as assignee in
bankruptcy for the benefit of the creditors.
Upon a final hearing the Circuit Court dismissed the bill, and Nichols
appealed to this court.
IVIr. Justice Miller, after stating the case, delivered the opinion of
the court.
The claim of the assignee is founded on the proposition, ably pre-
sented here by counsel, that a will which expresses a purpose to vest
in a devisee either personal property, or the income of personal or real
property, and secure to him its enjoyment free from liability for his
debts, is void on grounds of public policy, as being in fraud of the
rights of creditors ; or as expressed by Lord Eldon in Brandon v.
Robinson, 18 Ves. 433, "If property is given to a man for his life,
the donor cannot take away the incidents of a life-estate."
There are two propositions to be considered as arising on the face of
this will, as applicable to the facts stated: 1. Does the true construe^
tion of the will bring it within that class of cases, the provisions of
which on this point are void under the principle above stated? and 2.
If so, is that principle to be the guide of a court of the United States
sitting in chancery?
Taking for our guide the cases decided in the English courts, the doc-
trine of the case of Brandon v. Robinson seems to be pretty well
established. It is equally well settled that a devise of the income of
property, to cease on the insolvency or bankruptcy of the devisee, is
good, and that the limitation is valid. Demmill v. Bedford, 3 Ves. 149 ;
Brandon v. Robinson, 18 Id. 429; Rochford v. Hackman, 9 Hare;
Lewin on Trusts, 80, ch. vii., sect. 2; Tillinghast v. Bradford, 5 R.
I. 205.
If there had been no further provision in regard to the matter in this
will than that on the bankruptcy or insolvency of the devisee, the trust
as to him should cease and determine ; or if there had been a simple
provision, that, in such event, that part of the income of the estate
should go to some specified person otlier than the bankrupt, there
would be no difficulty in the case. But the first tiaist declared after
the bankruptcy for this part of the income is in favor of the wife, child,
or children of such bankrupt, and in such manner as said trustees in
their discretion shall think proper. If the bankrupt devisee had a wife
or child living to take under this branch of the will, there does not
Ch. 4) RESTRAINTS ON ALIENATION 681
seem to be any doubt that there would be nothing left which could go
to his assignee in bankruptcy. The cases on this point are well con-
sidered in Lewin on Trusts, above cited; and the doctrine may be
stated, that a direction that the trust to the first taker shall cease on
his bankruptcy, and shall then go to his wife or children, is valid, and
the entire interest passes to them ; but that if the devise be to him and
his wife or children, or if he is in any way to receive a vested interest,
that interest, whatever it may be, may be separated from those of his
wife or children, and be paid over to his assignee. Page v. Way,
3 Beav. 20; Perry v. Roberts, 1 Myl. & K. 4; Rippon v. Norton,
2 Beav. 63 ; Lord v. Bunn, 2 You. & Coll. Ch. 98. Where, however,
the devise over is for the support of the bankrupt and his family, in
such manner as the trustees may think proper, the weight of authority
in England seems to be against the proposition that anything is left to
which the assignee can assert a valid claim. Twopeny v. Peyton, 10
Sim. 487 ; Godden v. Crowhurst, Id. 642.
In the case before us, the trustees are authorized, in the event of the
bankruptcy of one of the sons of testatrix without wife or children
(which is the condition of the trust as to Amasa M. E^ton), to loan
and reinvest that portion of the income of the estate in augmentation
of the principal sum or capital of the estate until his decease, or until
he shall have wife or children capable of receiving the trust of the tes-
tatrix forfeited by him.
There does not seem, thus far, any intention to secure or revest in
the bankrupt any interest in the devise which he had forfeited ; and
there can be no doubt, that, but for the subsequent clauses of the will,
there would be nothing in which the assignee could claim an interest.
But there are the provisions, that the trustees may, at their discretion,
transfer at any time to either of the devisees the half or any less pro-
portion of the share of the fund itself which said devisee would be en-
titled to if the whole fund were to be equally distributed ; and the fur-
ther provision, that after the cesser of income provided for in case of
bankruptcy or other cause, it shall be lawful, but not obligatory on her
said trustees, to pay to said bankrupt or insolvent son, or to apply for
the use of his family, such and so much of said income as said son
would have been entitled to in case the forfeiture had not happened.
It is strongly argued that these provisions are designed to evade the
policy of the law already mentioned ; that the discretion vested in the
trustees is equivalent to a direction, and that it was well known it
would be exercised in favor of the bankrupt.
The two cases of Twopeny v. Peyton and Godden v. Crowhurst,
above cited from 10 Sim., seem to be in conflict with this doctrine ;
while the cases cited in appellant's brief go no farther than to hold,
that when there is a right to support or maintenance in the bankrupt,
or the bankrupt and his family, a right which he could enforce, then
such interest, if it can be ascertained, goes to the assignee.
682 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
No case is cited, none is known to us, which goes so far as to hold
that an absokite discretion in the trustee — a discretion which, by the
express language of the will, he is under no obligation to exercise in
favor of the bankrupt — confers such an interest on the latter, that he
or his assignee in bankruptcy can successfully assert it in a court of
equity or any other court.
As a proposition, then, unsupported by any adjudged case, it does
not commend itself to our judgment on principle. Conceding to its
fullest extent the doctrine of the English courts, their decisions are all
founded on the proposition, that there is somewhere in the instrument
which creates the trust a substantial right, a right which the appropriate
court would enforce, left in the bankrupt after his insolvency, and after
the cesser of the original and more absolute interest conferred by the
earlier clauses of the will. This constitutes the dividing-line in the
cases which are apparently in conflict. Applying this test to the will
before us, it falls short, in our opinion, of conferring any such right on
the bankrupt. Neither of the clauses of the provisos contain anything
more than a grant to the trustees of the purest discretion to exercise
their power in favor of testatrix's sons. It would be a sufficient answer
to any attempt on the part of the son in any court to enforce the ex-
ercise of that discretion in his favor, that the testatrix has in express
terms said that such exercise of this discretion is not "in any manner
obligator)^ upon them," — words repeated in both these clauses. To
compel them to pay any of this income to a son after bankruptcy, or to
his assignee, is to make a will for the testatrix which she never made ;
and to do it by a decree of a court is to substitute the discretion of the
chancellor for the discretion of the trustees, in whom alone she reposed
it. When trustees are in existence, and capable of acting, a court of
equity will not interfere to control them in the exercise of a discretion
vested in them by the instrument under which they act. Hill on Trus-
tees, 486; Lewin on Trusts, 538; Boss v. Goodsall, 1 Younge &
Collier, 617; Maddison v. Andrew, 1 Ves. Sr. 60. And certainly they
would not do so in violation of the wishes of the testator.
But, while we have thus attempted to show that Mrs. Eaton's will is
valid in all its parts upon the extremest doctrine of the English Chan-
cery Court, we do not wish to have it understood that we accept the
limitations which that court has placed upon the power of testamentary
disposition of property by its owner. We do not see, as implied in the
remark of Lord Eldon, that the power of alienation is a necessary in-
cident to a life-estate in real property, or that the rents and profits of
real property and the interest and dividends of personal property may
not be enjoyed by an individual without liability for his debts being
attached as a necessary incident to such enjoyment. This doctrine is
one which the English Chancery Court has engrafted upon the common
law for the benefit of creditors, and is comparatively of modern origin.
We concede that there are limitations which public policy or general
Ch. 4) RESTRAINTS OX ALIENATION 683
Statutes impose upon all dispositions of property, such as those de-
signed to prevent perpetuities and accumulations of real estate in cor-
porations and ecclesiastical bodies. We also admit that there is a just
and sound policy peculiarly appropriate to the jurisdiction of courts of
equity to protect creditors against frauds upon their rights, whether
they be actual or constructive frauds. But the doctrine, that the owner
of property, in the free exercise of his will in disposing of it, cannot
so dispose of it, but that the object of his bounty, who parts with
nothing in return, must hold it subject to the debts due his creditors,
though that may soon deprive him of all the benefits sought to be con-
ferred by the testator's affection or generosity, is one which we are not
prepared to announce as the doctrine of this court.
If the doctrine is to be sustained at all, it must rest exclusively on
the rights of creditors. Whatever may be the extent of those rights
in England, the policy of the States of this Union, as expressed both
by their Statutes and the decisions of their courts, has not been carried
so far in that direction.
It is believed that every State in the Union has passed Statutes by
which a part of the property of the debtor is exempt from seizure on
execution or other process of the courts ; in short, is not by law liable
to the payment of his debts. This exemption varies in its extent and
nature in the different States. In some it extends only to the merest
implements of household necessity ; in others it includes the library of
the professional man, however extensive, and the tools of the mechanic ;
and in many it embraces the homestead in which the family resides.
This has come to be considered in this country as a wise, as it certainly
may be called a settled, policy in all the States. To property so ex-
empted the creditor has no right to look, and does not look, as a means
of payment when his debt is created; and while this court has steadily
held, under the constitutional provision against impairing the obliga-
tions of contracts by State laws, that such exemption laws, when first
enacted, were invalid as to debts then in existence, it has always held,
that, as to contracts made thereafter, the exemptions were valid.
This distinction is well founded in the sound and unanswerable
reason, that the creditor is neither defrauded nor injured by the ap-
plication of the law to his case, as he knows, when he parts with the
consideration of his debt, that the property so exempt can never be
made liable to its payment. Nothing is withdrawn from this liability
which was ever subject to it, or to which he had a right to look for its
discharge in payment. The analogy of this principle to the devise of
the income from real and personal property for life seems perfect. In
this country, all wills or other instruments creating such trust-estates
are recorded in public offices, where they may be inspected by every
one ; and the law in such cases imputes notice to all persons concerned
of all the facts which they might know by the inspection. When,
therefore, it appears by the record of a will that the devisee holds this
684 ILLEGAL CONDITIONS AND RESTRAINTS (Part 3
life-estate or income, dividends, or rents of real or personal properly,
payable to him alone, to the exclusion of the alienee or creditor, the
latter knows, that, in creating a debt with such person, he has no right
to look to that income as a means of discharging it. He is neither
misled nor defrauded when the object of the testator is carried out by
excluding him from any benefit of such a devise.
Nor do we see any reason, in the recognized nature and tenure of
property and its transfer by will, why a testator who gives, w^io gives
without any pecuniary return, who gets nothing of property value from
the donee, may not attach to that gift the incident of continued use, of
uninterrupted benefit of the gift, during the life of the donee. Why a
parent, or one who loves another, and wishes to use his own property
in securing the object of his affection, as far as property can do it,
from the ills of life, the vicissitudes of fortune, and even his own im-
providence, or incapacity for self-protection, should not be permitted to
do so, is not readily perceived.
These views are well supported by adjudged cases in the State courts
of the highest character.
In the case of Fisher v. Taylor, 2 Rawle (Pa.) 33, a testator had di-
rected his executors to purchase a tract of land, and take the title in
their name in trust for his son, who was to have the rents, issues, and
profits of it during his life, free from liability for any debts then or
thereafter contracted by him. The Supreme Court of Pennsylvania
held that this life-estate was not liable to execution for the debts of the
son. "A man," says the court, "may undoubtedly dispose of his land so
as to secure to the object of his bounty, and to him exclusively, the
annual profits. The mode in which he accomplishes such a purpose is
by creating a trust estate, explicitly designating the uses and defining
the powers of the trustees. * * * Nor is such a provision contrary
to the policy of the law or to any Act of Assembly. Creditors cannot
complain, because they are bound to know the foundation on which
they extend their credit."
In the subsequent case of Holdship v. Patterson, 7 Watts (Pa.) 547,
where the friends of a man made contributions by a written agreement
to the support of himself and family, the court held that the instal-
ments which they had promised to pay could not be diverted by his
creditors to the payment of his debts ; and Gibson, C. J., remarks,
that "the fruit of their bounty could not have been turned from its
object by the defendant's creditors, had it been applicable by the terms
of the trust to his personal maintenance ; for a benefactor may certainly
provide for the maintenance of a friend, without exposing his bounty
to the debts or imprudence of the beneficiary."
In the same court, as late as 1864, it was held that a devise to a son
of the rents and profits of an estate during his natural life, without
being subject to his debts and liabilities, is a valid trust; and, the
Ch. 4) RESTRAINTS ON ALIENATION 6S5
estate being vested in trustees, the son could not alienate. Shank-
land's Appeal, 47 Pa. 113.
The same proposition is either expressly or impliedly asserted by
that court in the cases of Ashurst v. Given, 5 Watts. & S. (Pa.) 323 ;
Brown v. Williamson, 36 Pa. 338; Still v. Spear, 45 Pa. 168.
In the case of Leavitt v. Beirne, 21 Conn. 1, Waite, J., in delivering
the opinion of the court, says, "We think it in the power of a parent
to place property in the hands of trustees for the benefit of a son
and his wife and children, with full power in them to manage and apply
it at their discretion, without any power in the son to interfere in that
management, or in the disposition of it until it has actually been paid
over to him by the trustees ;" and he proceeds to argue in favor of the
existence of this power, from the vicious habits or intemperate char-
acter of the son, and the right of the father to provide against these
misfortunes.
In the case of Nickell et al. v. Handly et al., 10 Grat. (Va.) 336, the
court thus expresses its view on the general question, though not, per-
haps, strictly necessary to the judgment in that case : "There is nothing
in the nature or law of property which would prevent the testatrix,
when about to die, from appropriating her property to the support of
her poor and helpless relatives, according to the different conditions and
wants of such relatives ; nothing to prevent her from charging her
property with the expense of food, raiment, and shelter for such rela-
tives. There is nothing in law or reason which should prevent her from
appointing an agent or trustee to administer her bounty."
In the case of Pope's Executors v. Elliott & Co., 8 B. Mon. (Ky.)
56, the testator had directed his executors to pa}^ for the support of
Robert Pope the sum of ^25 per month. Robert Pope having been in
the Rocky Mountains until the sum of $225 of these monthly payments
had accumulated in the hands of the executors, his creditors filed a bill
in chancery, accompanied by an attachment, to subject this fund to the
payment of their debt.
The Court of Appeals' of Kentucky say that it was the manifest
intent of the testator to secure to Robert the means of support during
his life to the extent of $25 per month, or $300 per year; and that
this intent cannot be thwarted, either by Robert himself by assignment
or alienation, or by his creditors seizing it for his debts, unless the
provision is contrary to law or public policy. After an examination
of the Statutes of Kentucky and the general principles of equity juris-
prudence on this subject, they hold that neither of these are invaded
by the provision of the will.
The last case we shall refer to specially is that of Campbell v. Foster,
35 N. Y. 361.
In that case it is held, after elaborate consideration, that the interest
of a beneficiary in a trust-fund, created by a person other than the
debtor, cannot be reached by a creditor's bill ; and, while the argument
686 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
is largely based upon the special provision of the Statute regulating the
jurisdiction of the court in that class of cases, the result is placed with
equal force of argument on the general doctrines of the Court of
Chancery, and the right of the owner of property to give it such direc-
tion as he may choose without its being subject to the debts of those
upon whom he intends to confer his bounty.
We are not called upon in this connection to say how far we would
feel bound, in a case originating in a State where the doctrine of the
English courts had been adopted so as to become a rule of property, if
such a proposition could be predicated of a rule like this. Nor has the
time which the pressure of business in this court authorizes us to
devote to this case permitted any further examination into the de-
cisions of the State courts. We have indicated our views in this
matter rather to forestall the inference, that we recognize the doctrine
relied on by appellants, and not much controverted by opposing counsel,
than because we have felt it necessary to decide it, though the judg-
ment of the court may rest equally well on either of the propositions
which we have discussed. We think the decree of the court below may
be satisfactorily affirmed on both of them.
Other objections have been urged by counsel ; such as that the bank-
rupt is himself one of the trustees of the will, and will exercise his
discretion favorably to himself. But there are two other trustees, and
it requires their joint action to confer on him the benefits of this trust.
It is said that one of them is mentally incompetent to act ; but this is
not established by the testimony. It is said also that, since his bank-
ruptcy, the defendant, Amasa, has actually received $25,000 of this
fund ; and that should go to the assignee, as it shows conclusively that
the objections to the validity of the will were well founded.
But the conclusive answer to all these objections is, that, by the will
of decedent, — a will which, as we have shown, she had a lawful right
to make, — the insolvency of her son terminated all his legal vested
right in her estate, and left nothing in him which could go to his cred-
itors, or to his assignees in bankruptcy, or to his prior assignee; and
that what may have come to him after his bankruptcy through the vol-
untary action of the trustees, under the terms of the discretion reposed
in them, is his lawfully, and cannot now be subjected to the control of
his assignee.
Decree affirmed.^
4 "It is a settled rule of law, that the beneficial interest of the cestui que
trust, whatever it may be, is liable for the payment of his debts. It cannot
be so fenced about by inhibitions and restrictions as to secure to it the in-
consistent characteristics of right and enjoyment to the beneficiary and im-
munity from his creditors. A condition precedent that the provision shall not
vest until his debts are paid, and a condition subse^iuent that it shall be
divested and forfeited by his insolvency, with a limitation over to another
person, are valid, and the law will give them full effect. Beyond this, pro-
tection from the claims of creditors is not allowed to go." — Per Swayne, J., in
Nichol v. Levy, 5 Wall. 433, 441, 18 L. Ed. 5'JG (ISUG).
r
Ch. 4) RESTRAINTS ON ALIENATION 687
BROADWAY BANK v. ADAPTS.
(Supreme Judicial Court of Massachusetts, 1882, 133 Mass. 170, 43 Am.
Rep. 504.)
Morton, C. J. The object of this bill in equity is to reach and apply
in payment of the plaintiff's debt due from the defendant Adams the
income of a trust fund created for his benefit by the will of his brother.
The eleventh article of the will is as follows : "I give the sum of
seventy-five thousand dollars to my said executors and the survivors
or survivor of them, in trust to invest the same in such manner as
to them may seem prudent, and to pay the net income thereof semi-
annually, to my said brother Charles W. Adams, during his natural
life, such payments to be made to him personally when convenient,
otherwise, upon his order or receipt in writing; in either case free
from the interference or control of his creditors, my intention being
that the use of said income shall not be anticipated by assignment. At
the decease of my said brother Charles, my will is that the net income
of said seventy-five thousand dollars shall be paid to his present wife,
in case she sundves him, for the benefit of herself and all the chil-
dren of said Charles, in equal proportions, in the manner and upon the
conditions the same as herein directed to be paid him during his life,
so long as she shall remain single. And my will is, that, after the
decease of said Charles and the decease or second marriage of his
said wife, the said seventy-five thousand dollars, together with any
accrued interest or income thereon which may remain unpaid, as
herein above directed, shall be divided equally among all the children
of my said brother Charles, by any and all his wives, and the repre-
sentatives of any deceased child or children by right of representa-
tion."
There is no room for doubt as to the intention of the testator. It
is clear that, if the trustee was to pay the income to the plaintiff un-
der an order of the court, it would be in direct violation of the in-
tention of the testator and of the provisions of his will. The court
will not compel the trustee thus to do what the will forbids him to
do, unless the provisions and intention of the testator are unlawful.
The question whether the founder of a trust can secure the income
of it to the object of his bounty, by providing that it shall not be
alienable by him or be subject to be taken by his creditors, has not
been directly adjudicated in this Commonwealth. The tendency of our
decisions, ho\veyer, has been in favor of such a power in the founder.
Braman v. Stiles, 2 Pick. 460, 13 Am. Dec. 445; Perkins v. Hays, 3
Gray, 405 ; Russell v. Grinnell, 105 Mass. 425 ; Hall v. Williams, 120
Mass. 344; Sparhawk v. Cloon, 125 Mass. 263.
It is true that the rule of the common law is, that a man cannot
attach to a grant or transfer of property, otherwise absolute, the con-
dition that it shall not be alienated ; such condition being repugnant to
688 ILLEGAL COiXDITIOXS AND RESTRAINTS (Part 5
the nature of the estate granted. Co. Lit. 223a; Blackstone Bank v.
Davis, 21 Pick. 42, Z2 Am. Dec. 241.
Lord Coke gives as the reason of the rule, that "it is absurd and
repugnant to reason that he, that hath no possibility to have the land
revert to him, should restrain his feoffee in fee simple of all his power
to alien," and that this is "against the height and purity of a fee
simple." By such a condition, the grantor undertakes to deprive the
property in the hands of the grantee of one of its legal incidents and
attributes, namely, its alienability, which is deemed to be against pub-
lic policy. But the reasons of the rule do not apply in the case of a
transfer of property in trust. By the creation of a trust like the one
before us, the trust property passes to the trustee with all its incidents
and attributes unimpaired. He takes the whole legal title to the prop-
erty, with the power of alienation ; the cestui que trust takes the whole
legal title to the accrued income at the moment it is paid over to him.
Neither the principal nor the income is at any time inalienable.
The question whether the rule of the common law should be applied
to equitable life estates created by will or deed, has been the subject of
conflicting adjudications by different courts, as is fully shown in the
able and exhaustive arguments of the counsel in this case. As is stat-
ed in Sparhawk v. Cloon, above cited, from the time of Lord Eldon
the rule has prevailed in the English Court of Chancery, to the ex-
tent of holding that when the income of a trust estate is given to any
person (other than a married woman) for life, the equitable estate for
life is alienable by, and liable in equity to the debts of, the cestui que
trust, and that this quality is so inseparable from the estate that no
provision, however express, which does not operate as a cesser or lim-
itation of the estate itself, can protect it from his debts. Brandon v.
Robinson, 18 Ves. 429; Green v. Spicer, 1 Russ. & Myl. 395; Roch-
ford V. Hackman, 9 Hare, 475; Trappes v. Meredith, L. R. 9 Eq.
229 ; Snowdon v. Dales, 6 Sim. 524 ; Rippon v. Norton, 2 Beav. 63.
The English rule has been adopted in several of the courts of this
country. Tillinghast v. Bradford, 5 R. I. 205 ; Heath v. Bishop, 4
Rich. Eq. (S. C.) 46, 55 Am. Dec. 654; Dick v. Pitchford, 1 Dev. &
Bat. Eq. (21 N. C.) 480; Mebane v. Mebane, 4 Ired. Eq. (39 N. C.)
131, 44 Am. Dec. 102.
Other courts have rejected it, and have held that the founder of a
trust may secure the benefit of it to the object of his bounty, by pro-
viding that the income shall not be alienable by anticipation, nor sub-
ject to be taken for his debts. Holdship v. Patterson, 7 Watts (Pa.)
547; Shankland's Appeal, 47 Pa. 113; Rife v. Geyer, 5,9 Pa. 393, 98
Am. Dec. 351; White v. White, 30 Vt. 338; Pope v. Elliott, 8 B.
Mon. (Ky.) 56; Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254; Hyde
V. Woods, 94 U. S. 523, 24 L. Ed. 264.
The precise point involved in the case at bar has not been adjudi-
cated in this Commonwealth; but the decisions of this court which
we have before cited recognize the principle, that, if the intention of
Ch. 4) RESTRAINTS ON ALIENATION 689
the founder of a trust, like the one before us, is to give to the equitable
life tenant a qualified and limited, and not an absolute, estate in the in-
come, such life tenant cannot alienate it by anticipation, and his cred-
itors cannot reach it at law or in equity. It seems to us that this prin-
ciple extends to and covers the case at bar. The founder of this trust
was the absokite owner of his property. He had the entire right to
dispose of it, either by an absolute gift to his brother, or by a gift with
such restrictions or limitations, not repugnant to law, as he saw fit
to impose. His clear intention, as shown in his will, was not to give
his brother an absolute right to the income which might hereafter ac-
crue upon the trust fund, with the power of alienating it in advance,
but only the right to receive semi-annually the income of the fund,
which upon its payment to him, and not before, was to become his ab-
solute property. His intentions ought to be carried out, unless they
are against public policy. There is nothing in the nature or tenure of
the estate given to the cestui que trust which should prevent this. The
power of alienating in advance is not a necessary attribute or incident
of such an estate or interest, so that the restraint of such alienation
would introduce repugnant or inconsistent elements.
We are not able to see that it would violate any principles of sound
public policy to permit a testator to give to the object of his bounty
such a qualified interest in the income of a trust fund, and thus pro-
vide against the improvidence or misfortune of the beneficiary. The
only ground upon which it can be held to be against public policy is,
that it defrauds the creditors of the beneficiary.
It is argued that investing a man with apparent wealth tends to
mislead creditors, and to induce them to give him credit. The answer
is, that creditors have no right to rely upon property thus held, and to
give him credit upon the basis of an estate which, by the instrument
creating it, is declared to be inalienable by him, and not liable for
his debts. By the exercise of proper diligence they can ascertain the
nature and extent of his estate, especially in this Commonwealth, where
all wills and most deeds are spread upon the public records. There is
the same danger of their being misled by false appearances, and induced
to give credit to the equitable life tenant when the will or deed of trust
provides for a cesser or limitation over, in case of an attempted aliena-
tion, or of bankruptcy or attachment, and the argument would lead to
the conclusion that the English rule is equally in violation of public
policy. We do not see why the founder of a trust may not directly
provide that his property shall go to his beneficiary with the restriction
that it shall not be alienable by anticipation, and that his creditors shall
not have the right to attach it in advance, instead of indirectly reaching
the same result by a provision for a cesser or a limitation over, or by
giving his trustees a discretion as to paying it. He has the entire jus
disponendi, which imports that he may give it absolutely, or may im-
pose any restrictions or fetters not repugnant to the nature of the
4 Kales Prop. — 44
nOO ILLEGAL CONDITIOXS AND RESTRAINTS (Part 5
estate which he gives. Under our system, creditors may reach all
the property of the debtor not exempted by law, but they cannot
enlarge the gift of the founder of a trust, and take more than he
has given.
The rule of public policy which subjects a debtor's property to the
payment of his debts, does not subject the property of a donor to the
debts of his beneficiary, and does not give the creditor a right to com-
plain that, in the exercise of his absolute right of disposition, the donor
has not seen fit to give the property to the creditor, but has left it
out of his reach.
Whether a man can settle his own property in trust for his own
benefit, so as to exempt the income from alienation by him or attach-
ment in advance by his creditors, is a different question, which we are
not called upon to consider in tliis case. But we are of opinion that any
other person, having the entire right to dispose of his property, may
settle it in trust in favor of a beneficiary, and may provide that it
shall not be alienated by him by anticipation, and shall not be sub-
ject to be seized by his creditors in advance of its payment to him.
It follows that, under the provisions of the will which we are con-
sidering, the income of the trust fund created for the benefit of the
defendant Adams cannot be reached by attachment, either at law or in
equity, before it is paid to him.^
Bill dismissed.
PACIFIC BANK v. WINDRAM.
(Supreme Judicial Court of Massachusetts, 1882. 133 Mass. 175.)
Morton, C. J. The defendant, Mrs. Windram, after her marriage,
being possessed in her own right of personal property, conveyed it to
trustees by an indenture dated in March, 1879. The trusts declared
by the indenture are, that the trustees are to pay the net income to
her semi-annually during her life "upon her sole and separate order
or receipt, the same not to be by way of anticipation," and to pay
the principal to her children upon her death, or when, after her death,
they arrive at the age of thirty years, except as to a sum not exceeding
5 Accord: Jourolmon v. Massengill, 8G Tenu. 81, 5 S. W. 719 (1887);
Guernsey v. Lazear, 51 W. Va. 328, 41 S. E. 405 (1902).
As to whether the restraint on alienation can be attached to a legal life
estate, see Gray, Restraints on Alienation (2d Ed.) § 135 et seq. ; also But-
terfield v. Reed, 160 Mass. 361, 35 N. E. 1128 (1894).
In Boston Safe Deposit & Trust Co. v. Luke, 220 Mass. 484, 108 N. E.
64, L. R. A. 1917A, 988, it was held that where trustees were directed to
pay a certain sum to the testator's daughter during her life, "said income
to be free from the interference or control of her creditors," and where the
equitable interest was assignable, yet her trustee in bankruptcy was not en-
titled to the income, but the tru.stee under the will was required to pay it to
her. See, also, Hull v. Palmer. 213 N. Y. 315, 107 N. E. 653; Siemers v.
Morris, 169 App. Div. 411, 154 N. Y. Supp. 1001 ; Eaton v. Boston Trust Co.,
240 U. S. 427, 36 Sup. Ct. 391, 60 L. Ed. 723.
Ch. 4) RESTRAINTS ON ALIENATION G91
twenty-five thousand dollars, over which she retains a power of ap-
pointment by will.
After this settlement in trust, she jointly with her husband bor-
rowed a large sum of money of the plaintiff, and, as security therefor,
assigned and transferred to the plaintiff, by an instrument in which
her husband joined, all her right and interest to and in the income of
said trust fund accruing under the said indenture. The object of this
bill in equity, which is brought under the Gen. Sts. c. 113, § 2, cl. 11,
is to reach and apply, in payment of the plaintiff's debt, the income to
which she became entitled under the indenture after the assignment to
the plaintiff. The provision that the trustees are to pay the net in-
come to her upon her sole receipt, and not "by way of anticipation,"
is clearly intended to restrain the power of the cestui que trust to
alienate the income in advance ; and the case therefore raises the ques-
tion, whether such restraint of alienation is valid as against subsequent
creditors or purchasers with notice.
It was decided in the case of Broadway National Bank v. Adams,
133 Alass. 170, 43 Am. Rep. 504, that the founder of a trust for the
benefit of another may by suitable provisions restrain the power of
the cestui que trust to alienate the income by anticipation, and protect
the income from the claims of his creditors until it is paid over to
him. In that case, it was not necessary to consider whether a man
could settle his own property in trust to pay the income to himself
with a like restraint of alienation which would be valid. It seems to
us that the two questions are quite different.
The general policy of our law is, that creditors shall have the right
to resort to all the property of the debtor, except so far as the Statutes
exempt it from liability for his debts. But this policy does not sub-
ject to the debts of the debtor the property of another, and is not de-
feated when the founder of a trust is a person other than the debtor.
In such case, the founder, having the entire jus disponendi in disposing
of his own property, sees fit to give to his beneficiary a qualified and
limited, instead of an absolute, interest in the income. Creditors of the
beneficiary have no right to complain that the founder did not give
his property for their benefit, or that they cannot reach a greater in-
terest in the property than the debtor has, or ever had. But when a
man settles his property upon a trust in his own favor, with a clause
restraining his power of alienating the income, he undertakes to put
his own property out of the reach of his creditors, while he retains the
beneficial use of it. The practical operation of the transaction is, that
he transfers a portion only of his interest, retaining in himself a ben-
eficial interest, which he attempts by his own act to render inalien-
able by himself and exempt from liability for his debts.
To permit a man thus to attach to a valuable interest in property
retained by himself the quality of inalienability and of exemption from
his debts, seems to us to be going further than a sound public policy
G92 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
will justify. No authorities are cited in favor of such a rule. In
England it is the settled rule that the founder of a trust in favor of
a third person (except married women) cannot, by a clause restrain-
ing alienation, put the income out of the reach of the creditors of the
beneficiar}^ See cases cited in Broadway National Bank v. Adams.
In Pennsylvania, where the English rule is rejected, and the same
rule, as to the power of a founder of a trust in favor of a third per-
son, adopted by us in Broadway National Bank v. Adams, is upheld,
the courts yet hold that a person cannot so settle his own property in
trust, as to put his right to the income retained by him beyond the
reach of his creditors, by a provision against alienation or otherwise.
Johnson v. Harvey, 2 Pen. & W. (Pa.) 82, 21 Am. Dec. 426; Macka-
son's Appeal, 42 Pa. 330, 82 Am. Dec. 517. See, also, Lackland v.
Smith, 5 Mo. App. 153.«
It is true that a man, who is not indebted, may by a voluntary con-
veyance made in good faith transfer his property so as to put it out
of the reach of future creditors. When a man transfers a trust fund,
of which the income is to be paid to him during his life, and the prin-
cipal at his death to be paid or transferred to others, the principal may
be beyond the reach of his future creditors ; but we are of opinion
that his right to the income which he retains in himself may be alienat-
ed by him, is liable for his debts, and may be reached in equity.
Another question, not free from difficulty, arises in this case, and
that is whether this rule applies in the case of a conveyance of her
property in trust by a married woman. In England, where, as we
have before said, the general rule is that restraints of alienation in
wills or deeds are invalid, the Court of Chancery from the time of Lord
Thurlow has recognized an exception to the rule in favor of married
women. Parkes v. White, 11 Ves. 209; Jackson v. Hobhouse, 2 Aleriv.
483 ; Woodmeston v. Walker, 2 Russ. & J\lyl. 197. Numerous other
cases might be cited. '^
6 Accord: Requa v. Graham, 187 111. 67, 58 N. E. 357, 52 L. R A. 641 (1900).
In Holmes v. Penny, 3 K. & J. 90, 100, Sir W. Page Wood, V. C, said:
"I will in this case first consider whether a deed, merely voluntary, is
fraudulent against subsequent creditors, from the fact that it contains a
trust to apply the interest of the property in such manner as the trustees
should think fit, towards the benefit of the settlor or his wife or children.
In such a case, the instrument being merely voluntary, the intention may
have been to take the property from the creditors, and it may be requisite
to have the transaction fully investigated ; but, supposing the settlor to
have parted bona fide, by the deed, with all the control over his property,
and to have vested it in the trustees, in order to give them the absolute
power to deal with it as they please for the benefit of himself or his wife
or children, that could not be held to be fraudulent against subsequent
creditors of the settlor, any more than if it were a settlement simply for
the benefit of the wife and children of the settlor. The distinction is too
thin to authorize the Court to decide, that, because the settlor may possibly
derive some benefit under it. the settlement must therefore be fraudulent.
That I conceive would be the law if this settlement were voluntary."
7 See ante, p. 650.
Ch. 4) RESTRAINTS ON ALIENATION 693
The reason of the exception is, that a married woman is not sui
juris, and that such a restraint of her power of ahenation is neces-
sary as a protection to her against the coercion and influence of her
husband.
By the common law of England, a married woman could not hold
any separate property. The settlement upon her by means of a trust
of an equitable separate estate, was the invention of equity, and the
Court of Chancery allowed the clause against anticipation, in order to
give full effect to the estate itself, and to secure to her, free from the
influence of the husband, the benefit intended by the settler.
But the legislation of this Commonwealth has essentially changed the
common law status of a married woman, especially in respect to her
holding separate property. By our Statutes, a married woman is now
enabled to take, hold, manage and dispose of property, to make con-
tracts, and to sue and be sued, in the same manner as if she were sole.
Pub. Sts. c. 147. Except as to dealings with her husband, she is made
a person sui juris. The Statute intends, what it declares, that she
shall hold her separate property in the same manner as if she were
sole, with the same rights and privileges, and also subject to the same
rules, responsibilities and liabilities, as a feme sole.
Courts of equity upheld the restraint of alienation in favor of a
married woman because of her disability during coverture, and as an
incident of the trust estate necessary for her protection. The Stat-
utes having removed her disability, and having made unnecessary the
creation of a trust estate, the incidents of the trust estate and the
equitable rights growing out of it no longer remain in her favor. She
is put upon the same footing as if she were a feme sole. She no
longer needs any protection against the marital rights of her husband.
It is argued that she still needs protection against his persuasion and
undue influence. The Statutes have made such provisions as were
deemed necessary to meet this danger, by providing that, upon her
application to the Supreme Judicial Court, a trustee may be appoint-
ed, and she may thereupon convey her separate estate to the trustee
upon such trusts and to such uses as she may declare. Pub. Sts. c.
147, § 13.
For these reasons, we are of opinion that the provision in the in-
denture of ]\Iarch, 1879. intended to restrain Airs. Windram's power
of alienating the income of the trust fund, is invalid ; and that the
plaintiff is entitled to the income after the assignment to it, or after
notice thereof was given to the trustees, if they have paid it to Airs.
Windram before such notice.
We need not consider what effect the modification of the trusts made
in September, 1880, may have upon the rights of other parties. By
this modification, the trustees, instead of paying the income to Mrs.
Windram, were to disburse it for her benefit, as they should see fit.
It is clear that it would be a gross fraud to allow it to defeat the rights.
694 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
of the plaintiff under its prior assignment, and the presiding justice
who heard the case rightly ruled that it was incompetent and imma-
terial as against the plaintiff.
The result is, that the plaintiff* is entitled to a decree, the terms of
which must be settled before a single justice.
Decree for the plaintiff.^
8 Accord: Jackson v. Von ZecUitz, 136 Mass. 342 (1884), settlement be-
fore marriage, but in contemplation of marriage; Brown v. Macgill, 87
Md. 161, 39 Atl. 613, 39 L. R. A. 806, 67 Am. St. Rep. 334 (1898).
Contra: Hutchinson v. Maxwell, 100 Va. 169, 40 S. E. 655, 57 L. R. A. 384,
93 Am. St. Rep. 944 (1902).
Ch. 5) INDESTRUCTIBLE TRUSTS 695
CHAPTER V
INDESTRUCTIBLE TRUSTS OF ABSOLUTE AND INDE-
FEASIBLE EQUITABLE INTERESTS
SAUNDERS V. VAUTIER.
(High Court of Chancery, 1841. 1 Charg. & P. 240.)
See ante, page 214, for a report of this case.^
OPPENHEIM V. HENRY.
(Court of Chancery, 1S53. 10 Hare, 441.)
See ante, p. 268, for a report of this case.
SANFORD V. LACKLAND.
(United States Circuit Court for the District of Missouri, 1871. 2 DiU. 6,
Fed. Cas. Xo. 12,312.)
Appeal from the District Court of the United States for the Eastern
District of Missouri.
The plaintiff is the assignee in bankruptcy of Wm. C. Hill. The
defendants are Wm. C. Hill, Lackland and Clark, the executors and
trustees named in the will of James B. Hill, and Edwards, trustee in a
deed of trust for the benefit of ^lathews, executed by William C. Hill
on the property in controversy. The question in the case is, whether,
subject to the IMathews' deed of trust, the assignee in bankruptcy is
entitled to the interest and right of William C. Hill in the property
held by the executors or trustees named in his father's will, consisting
of stocks, notes, and real estate. The essential facts are these: In
1862, James B. Hill, the father, died, leaving five children, three sons
and two daughters. His will, admitted to probate in March, 1862, so
far as material to the present controversy, is in these words : "All the
residue of my estate, real, personal, and mixed, I give, devise, and be-
queath unto Rufus J. Lackland and William G. Clark, and to the sur-
vivor of them, as trustees, in trust, however, to manage, control, and
improve the said estate; to receive and collect the debts due me;
1 See, also, Wharton v. Masterman, L. R. [1895] App. Cas. 186.
69G ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
to receive and collect the rents, issues, and profits of said property;
to reinvest any money that may come into their hands as they may
deem best or therewith improve any unimproved real estate, to rent
or l^ase any portion of said real estate; and I do hereby invest them
with full and complete authority to sell and convey in fee simple
any of my real estate, and to reinvest the proceeds of such sales in
other real estate, or otherwise, in their discretion, and in trust, as
aforesaid, to manage, control, and keep together, my said property
as one entire whole ; and as I now have five children, to wit — James B.
Hill, William C. Hill, Anna M. Hill, Frank W. Hill, and Mary Hill,
upon the further trust. First, Until my children respectively arrive
at the age of twenty-one years, or get married, to provide for their
support, maintenance, and education out of said estate, which support,
maintenance, and education is to be taken as part of the expenses of my
estate; Second. My said trustees shall, out of my said estate, pay to
each one of my children (if in their opinion such advancement shall
not probably amount to more than the equitable share of such child in
my estate) as they respectively arrive at the age of twenty-one years,
the sum of ten thousand dollars as an advancement, and shall, from
the time of such advancement, charge such child with interest thereon
at the rate of six per cent per annum, if such advancement be made be-
fore the partition hereinafter mentioned ; Third. When my eldest
child- shall arrive at the age of twenty-six years, or if he shall not so
long live, then when the next oldest surviving child shall attain that
age, my said trvistees shall, with the approval of the Probate Court of
St. Louis County, make a partition of all said trust estate among my
said children, share and share alike, charging, however, in such divi-
sion and partition, any child whO' may have received an advancement
as before mentioned, with such advancement, with interest tliereon
from the time when received as part and portion of the share coming
to such child, and upon such partition shall forthwith convey to such
eldest child, if such eldest child be a son, the portion allotted to him in
absolute property, but shall hold the shares and portions of the others
of said children until they severally arrive at the age of twenty-six
years ; and as the sons severally arrive at that age they shall convey to
them the share and portion allotted to such son in absolute property."
[And then follows a similar provision as to the share of the estate
coming to the daughters.] "After the said partition shall have been
made, my said trustees shall keep the portion and share of each of my
children separate (except as before), with the rents, issues, and profits
belonging to such portion."
On January 29, 1870, James B., the eldest son, became twenty-six
years of age, and thereupon the trustees in the will, with the approval
of the Probate Court, made partition of all the property held in trust
among all of the children, and there was an order of distribution in
accordance with the terms of the will. The property allotted and set
Ch. 5) INDESTRUCTIBLE TRUSTS 697
apart to the said William C. Hill consisted of specified stocks in certain
banks, promissory notes, and real estate, which are still in the posses-
sion and custody of the trustees. On July 6, 1870, William C. Hill
executed a deed of trust on the property which had been allotted to
him to Edwards, trustee for Mathews, to secure ten thousand dollars,
which is yet unpaid. The trustees under the will advanced to William
C. the ten thousand dollars on his becoming twenty-one years of age.
On November 28, 1870, a petition for adjudication in bankruptcy was
filed against him, and he was adjudged a bankrupt. The property in
the hands of the trustees belonging to him is of the value of $30,760,
and he is now between twenty-four and twenty-five years of age.
The bill sets out the foregoing facts, and prays that the property in
the hands of the trustees allotted to William C. Hill may, subject to
the encumbrance of Mathews, be decreed to belong to the assignee in
bankruptcy. The District Court overruled a demurrer to the bill, and
entered a decree as prayed. The trustees and the bankrupt appeal.
Cline, Jamison & Day, for the complainant.
Slayback & Haussler, and Lackland, Martin & Lackland, for the
defendants.
Dillon, Circuit Judge. The share of the bankrupt in his father's
estate has been duly ascertained and set apart in severalty to him, but
with the exception of tlie ten thousand dollars advanced on his attain-
ing his majority is yet in the hands of the trustees, as he was not
twenty-six years of age at the time he was adjudicated a bankrupt.
By the bankrupt law, all the property of the bankrupt, with certain
exemptions not necessary to be noticed, vests in the assignee (sec. 14) ;
and if William C. Hill owned or had a beneficial interest in the proper-
ty in the hands of the trustees, it passed under the bankruptcy. That
he was the owner of the property which had been allotted to him under
the will can scarcely admit of a doubt. The will directs a partition of
the trust estate to be made among the children, and this has been done,
but it also provides that the trustees shall hold the shares of the chil-
dren until the sons shall severally arrive at the age of twenty-six years,
when they are directed to convey to such son his portion in absolute
property.
This is not the case of a legacy or gift to vest if the legatee shall
arrive at a specified age which has not yet been reached. Nor is the
devise or gift to the son made on any condition ; there is no limita-
tion over in case the son shall, before attaining the age of twenty-six,
become a bankrupt. If William C. had not been adjudged a bankrupt,
and had died intestate before reaching the age of twenty-six, can it be
doubted that his heirs would have taken the estate? It has not been
questioned, nor could it be, that he had the power to mortgage this
property for the money borrowed of Mathews. If the intention of the
testator was to prevent the property from^ being liable for the debts of
his son, his will fails to express that intention. The testator might
698 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
have provided if the son should become bankrupt before reaching
twenty-six, that his estate should then determine and go somewhere
else; but he cannot give the beneficial interest and annex to it the
inconsistent condition that it shall not be liable for the debts of the
devisee. And in fact the father has not attempted to do this. The
estate is given, and the only limitation expressed in the will is that the
trustees shall hold it and its accumulations until he shall reach the
specified age. The trustees have no beneficial interest in the estate
they hold. By operation of the bankruptcy, William C. Hill has no
longer any interest in it. It belongs to and is vested in the assignee
for the benefit of creditors. The trustees now hold the property in
trust for the benefit of these creditors, and as the strict execution of the
trusts in the will have been thus rendered impossible, the court properly
decreed that the property held by the trustees for the bankrupt should,
subject to the Mathews encumbrance, be conveyed to the assignee in
bankruptcy.
The decree of the court is affirmed. v
Affirmed.
KrDksl,, J., concurs.
CLAFLIN v. CLAFLIN.
(S-upreme Judicial Court of Massachusetts, 1889. 149 Mass. 19, 20 N. E. 454,
3 L. R. A. 370, 14 Am. St. Rep. 393.)
Bill in equity, filed November 3, 1888, to terminate a trust for the
benefit of the plaintiff under the will and codicil of his father, Wilbur
F. Claflin, in the residue of his estate, against the trustees under the
will and the plaintiff's mother and brother. The answer of the mother
and brother admitted that the plaintiff had the entire beneficial inter-
est in the principal and income of that portion of the trust fund held
in trust for him, and made no claim to the same adverse to his right.
Hearing before W. Allen, J., who ordered the bill to be dismissed;
and the plaintiff appealed to the full court. The case, so far as ma-
terial, is as follows :
Wilbur F. Claflin at his death left a widow and two sons, of whom
the plaintiff was a minor. The will, which was dated July 27, 1885,
and named William Claflin, James A. Woolson, and Horatio Newhall
as executors and trustees, provided in the second clause that the sum
of $50,000 might remain in the hands of one of the executors for the
period of five years, the income during that time to be equally divided
between the wife and the two sons, the principal at the end of that
period to fall into the residue of the estate ; in the sixth clause, that a
trust company should hold $100,000 in trust to pay the net income of
three several sums of $30,000 to the wife and sons during their lives,
and to pay over the principal of such sums at their death, as they
should appoint by will ; in the ninth clause, that the persons named as
Ch. 5) INDESTRUCTIBLE TRUSTS 699
executors and trustees in the will should hold $60,000 to pay the net
income of $20,000 to his wife for five years, and if she should die be-
fore the end of that time, to pay over the principal as she should ap-
point by will, or if she should live to the end of that period, to pay it
over to her, and further to pay to each son the net income of $20,000
for ten years, and, if either of them should die before the end of that
time, to pay over that amount as he should appoint by will, or, if either
of them should live to the end of that period, to pay it over to him ;
and in the eleventh clause as follows :
"Eleventh. All the rest and residue of all my personal estate I give,
bequeath, and devise to William' Claflin, James A. Woolson, and
Horatio Xewhall, all aforesaid, and to the survivors of them, but in
trust nevertheless for the purposes following, viz. : to sell and dispose
of the same, and to divide the proceeds equally among my wife, ^lary
A. Clafiin, Clarence A. Claflin, my son, and Adelbert E. Claflin, my
son, or their heirs by representation."
The codicil, which was dated August 6, 1885, provided that, "Where-
as in item 'eleventh' in said will I directed the three trustees therein
named, viz. William Claflin, James A. Woolson, and Horatio Newhall,
'to sell and dispose of the same, and to divide the proceeds equally
among my wife, ]\Iary A. Claflin, Clarence A. Claflin, my son, and
Adelbert E. Claflin, my son, or their heirs by representation,' now then
I revoke and annul the provision of said will as above set forth, and
instead thereof I declare the trust in the words following, which words
are to be taken as a part of said will instead of the words revoked and
annulled, viz. : to sell and dispose of the same, and to pay to my wife,
Alary A. Claflin, one third part of the proceeds thereof, and to pay to
my son Clarence A. Claflin one third part of the proceeds thereof, and
to pay the remaining one third part thereof to my son Adelbert E.
Claflin, in the manner following, viz. ten thousand dollars when he is
of the age of twenty-one years, ten thousand dollars when he is of the
age of twenty-five years, and the balance when he is of the age of
thirty years."
The will and codicil were duly admitted to probate, and the execu-
tors proceeded to settle the estate according to their terms ; and when
the plaintiff reached the age of twenty-one years the trustees paid over
to him the sum of $10,000.
The plaintiff contended that he had the entire beneficial interest
both in the income of the third part of the rest and residue of the es-
tate and in the property itself, and that no reasons existed why the
same should be longer held by the trustees, as such further holding
caused him unnecessary inconvenience and expense.
Field, J. By the eleventh article of his will as modified by a codi-
cil, Wilbur F. Claflin gave all the residue of his personal estate to
trustees, "to sell and dispose of the same, and to pay to my wife, Mary
A, Claflin, one third part of the proceeds thereof, and to pay to my son
700 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
the remaining one third part thereof to my son Adelbert E. Claflin, in
the manner following, viz. ten thousand dollars when he is of the age
of twenty-one years, ten thousand dollars when he is of the age of
twenty-five years, and the balance when he is of the age of thirty
years.''
Apparently, Adelbert E. Claflin was not quite twenty-one years old
when his father died, but he some time ago reached that age and re-
ceived ten thousand dollars from the trust. He has not yet reached
the age of twenty-five years, and he brings this bill to compel the trus-
tees to pay to him the remainder of the trust fund. His contention is,
in effect, that the provisions of the will postponing the payment of the
money beyond the time when he is twenty-one years old are void.
There is no doubt that his interest in the trust fund is vested and abso-
lute, and that no other person has any interest in it, and the weight
of authority is undisputed that the provisions postponing payment to
him until some time after he reaches the age of twenty-one years would
be treated as void by those courts which hold that restrictions against
the alienation of absolute interests in the income of trust property are
void. There has, indeed, been no decision of this question in England
by the House of Lords, and but one by a Lord Chancellor, but there
are several decisions to this effect by Masters of the Rolls and by Vice-
Chancellors. The cases are collected in Gray's Restraints on Aliena-
tion, §§ 106-112, and Appendix H. See Josselyn v. Josselyn, 9 Sim.
63; Saunders v. Vautier, 4 Beav. 115, and, on appeal, Or. & Ph. 240;
Rocke V. Rocke, 9 Beav. 66; In re Young's Settlement, 18 Beav. 199;
In re Jacob's Will, 29 Beav. 402; Gosling v. Gosling, H. R. V. Johns.
265 ; Turnage v. Greene, 2 Jones Eq. (55 N. C.) 63, 62 Am. Dec. 208;
Battle V. Petway, 5 Ired. (27 N. C.) 576, 44 Am. Dec. 59.
These decisions do not proceed on the ground that it was the inten-
tion of the testator that the property should be conveyed to the bene-
ficiary on his reaching the age of twenty-one years, because in each
case it was clear that such w^as not his intention, but on the ground
that the direction to withhold the possession of the property from the
beneficiary after he reached his majority was inconsistent with the ab-
solute rights of property given him by the will.
This court has ordered trust property to be conveyed by the trustee
to the beneficiary when there was a dry trust, or when the purposes
of the trust had been accomplished, or when no good reason was
shown why the trust should continue, and all the persons interested in
it w^ere sui juris and desired that it be terminated ; but we have found
no expression of any opinion in our reports that provisions requiring
a trustee to hold and manage the trust property until the beneficiary
reached an age beyond that of twenty-one years are necessarily void
if the interest of the beneficiary is vested and absolute. See Smith v.
Harrington, 4 Allen, 566; Bowditch v. Andrew, 8 Allen, 339; Russell
V. Grinnell, 105 Mass. 425 ; Inches v. Hill, 106 Mass. 575 ; Sears v.
Choate, 146 Mass. 395, 15 N. E. 786, 4 Am. St. Rep. 320. This is not
Ch. 5) INDESTRUCTIBLE TRUSTS 701
a dry trust, and the purposes of the trust have not been accomplished
if the intention of the testator is to be carried out.
In Sears v. Choate it is said, "Where property is given to certain
persons for their benefit, and in such a manner that no other person
has or can have any interest in it, they are in effect the absolute own-
ers of it, and it is reasonable and just that they should have the con-
trol and disposal of it unless some good cause appears to the con-
trary." In that case the plaintifT was the absolute owner of the whole
property, subject to an annuity of ten thousand dollars payable to him-
self. The whole of the principal of the trust fund, and all of the in-
come not expressly made payable to the plaintiff, had become vested
in him when he reached the age of twenty-one years, by way of result-
ing trust, as property undisposed of by the will. Apparently the tes-
tator had not contemplated such a result, and had made no provision
for it, and the court saw no reason why the trust should not be termi-
nated, and the property conveyed to the plaintiff.
In Inches v. Hill, ubi supra, the same person had become owner of
the equitable life estate and of the equitable remainder, and "no reason
appearing to the contrary," the court decreed a conveyance by the
trustees to the owner. See Whall v. Converse, 146 Mass. 345, 15 N.
E. 660.
In the case at bar nothing has happened which the testator did not
anticipate, and for which he has not made provision. It is plainly his
will that neither the income nor any part of the principal should now
be paid to the plaintiff. It is true that the plaintiff's interest is aliena-
ble by him, and can be taken by his creditors to pay his debts, but it
does not follow that, because the testator has not imposed all possible
restrictions, the restrictions which he has imposed should not be car-
ried into effect.
The decision in Broadway National Bank v. Adams, 133 Mass. 170,
43 Am. Rep. 504, rests upon the doctrine that a testator has a right to
dispose of his own property with such restrictions and limitations, not
repugnant to law, as he sees fit, and that his intentions ought to be
carried out unless they contravene some positive rule of law, or are
against public policy. The rule contended for by the plaintiff in that
case was founded upon the same considerations as that contended for
by the plaintiff in this, and the grounds on which this court declined
to follow the English rule in that case are applicable to this, and for
the reasons there given we are unable to see that the directions of the
testator to the trustees, to pay the money to the plaintiff w^hen he
reaches the age of twenty-five and thirty years, and not before, are
against public policy, or are so far inconsistent with the rights of prop-
erty given to the plaintiff that they should not be carried into effect.
It cannot be said that these restrictions upon the plaintiff's possession
and control of the property are altogether useless, for there is not the
same danger that he will spend the property while it is in the hands of
the trustees as there would be if it were in his own.
702 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
In Sanford v. Lackland, 2 Dill. 6, Fed. Cas. No. 12,312, a beneficiary
who would have been entitled to a conveyance of trust property at the
age of twenty-six became a bankrupt at the age of twenty-four, and it
was held that the trustees should convey his interest immediately to
his assignee, as "the strict execution of the trust in the will have been
thus rendered impossible." But whether a creditor or a grantee of the
plaintifif in this case would be entitled to the immediate possession of
the property, or would only take the plaintiff's title sub modo, need
not be decided. The existing situation is one which the testator man-
ifestly had in mind and made provision for ; the strict execution of the
trust has not become impossible ; the restriction upon the plaintiff's
possession and control is, we think, one that the testator had a right
to make ; other provisions for the plaintiff are contained in the will,
apparently sufificient for his support, and we see no good reason why
the intention of the testator should not be carried out. Russell v.
Grinnell, 105 Mass. 425. See Toner v. Collins, 67 Iowa, 369, 25 N. W.
287, 56 Am. Rep. 346; Rhoads v. Rhoads, 43 111. 239; Lent v. How-
ard, 89 N. Y. 169; Barkley v. Dosser, 15 Lea (Tenn.) 529; Car-
michael v. Thompson, 5 Cent. Rep. 500; Lampert v. Hay del, 20 Mo.
App. 616.
Decree affirmed.^
2 Accord: Lunt v. Lunt, 108 111. 307; King v. Shdton, 36 App. D. O. 1
(1910). See Kales' Future Interests (Illinois, 1905) 8§ 2S9, 294.
In Parker v. Cobe, 208 Mass. 260, 91 N. E. 476, 33 L. R. A. (N. S.) 978,
21 Ann. Cas. 1100 (1911), it was held, following the rule of the English cases,
that where a trustee was directed to lay out a given sum in the purchase
of an annuity for A., A. could require the payment of that sum directly to
him. The court, by Loring, J., said : "The case at bar is not a case where
$75,000 was left upon the trust that the income of it should be paid to
Ruth H. Cobe during her life, but it is a case where the !f75,(X)0 was to be
laid out by trustees in the purchase of an annuity for Ruth H. Cobe during
her life. For that reason it is not a case within the rule of Claflin v. Claflin,
149 Mass. 19 [20 N. E. 454, 3 L. R. A. 370, 14 Am. St. Rep. 393]. The $75,000
was to be laid out in the purchase of an annuity in the case at bar by trus-
tees and not by executors. In our opinion that makes no difference. Where
the only duty to be performed by a trustee is to buy a particular piece of
property for the cestui qne trust which piece of property the cestui que
trust can sell as soon as it is bought, the rule of a bequest for a particular
object applies and the cestui que trust is entitled to the money. The pur-
chase is as much a nugatory act in case of a trust as it is in case of a be-
quest, and the same rule governs both cases."
Suppose that the cestui que trust and the trustee agree that the trust
shall be terminated before the time prescribed, can the trustee distribute
without being guUty of a breach of trust? See Welch v. Episcopal Theo-
logical School, 189 Mass. 108, 75 N. E. 139.
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 703
CHAPTER VI
ILLEGAL AND IMPOSSIBLE CONDITIONS
CO. LIT. 206a : If a condition annexed to' lands be possible at
the making of the condition, and become impossible by the act of God,
yet the state of the feoffee, &c. shall not be avoided. As if a man
maketh a feoffment in fee upon condition, that the feoffor shall within
one year go to the city of Paris aboiit the affairs of the feoffee, and
presently after the feoffer dieth, so as it is impossible by the act of
God that the condition should be performed, yet the estate of the
feoffee is become absolute; for though the condition be subsequent to
the state, yet there is a precedency before the re-entry, viz. the per-
formance of the condition. And if the land should by construction of
law be taken from the feoffee, this should work a damage to the feoffee,
for that the condition is not performed which was made for his benefit.
And it appeareth by Littleton, that it must not be to the damage of the
feoffee ; and so it is if the feoffor shall appear in such a court the next
term, and before the day the feoffor dieth, the estate of the feoffee is
absolute. But if a man be bound by recognizance or bond with condi-
tion that he shall appear the next term in such a court, and before the
day the conusee or obligor dieth, the recognizance or obligation is
saved ; and the reason of the diversity is, because the state of the land
is executed and settled in the feoffee, and cannot be redeemed back
again but by matter subsequent, viz. the performance of the condition.
But the bond or recognizance is a thing in action, and executory,
whereof no advantage can be taken until there be a default in the
obligor ; and therefore in all cases where a condition of a bond, re-
cognizance, &c. is possible at the time of the making of the condition,
and before the same can be performed, the condition becomes impossible
by the act of God, or of the law, or of the obligee, &c. there the obli-
gation, &c. is saved. But if the condition of a bond, &c. be impossible
at the time of the making of the condition, the obligation, &c. is single.
And so it is in case of a feoffment in fee with a condition subsequent
that is impossible, the state of the feoffee is absolute ; but if the con-
dition precedent be impossible, no state or interest shall grow there-
upon. And to illustrate these by examples you shall understand. If a
man be bound in an obligation, &c. with condition that if the obligor
do go from the church of St. Peter in Westminster to the church of St.
Peter in Rome within three hours, that then the obligation shall be
void. The condition is void and impossible, and the obligation standeth
good.
704 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
And so it is if a feoffment be made npon condition that the feoffee
shall go as is aforesaid, the state of the feoffee is absolute, and the
condition impossible and void.
If a man make a lease for life upon condition that if the lessee go to
Rome, as is aforesaid, that then he shall have a fee, the condition pre-
cedent is impossible and void, and therefore no fee simple can grow to
the lessee.
If a man make a feoffment in fee upon condition that the feoffee
shall re-enfeoff him before such a day, and before the day the feoffor
disseise the f eoft'ee, and hold him out by force until tlie day be past, the
state of the feoffee is absolute, for "the feoffor is the cause wherefore
the condition cannot be performed, and therefore shall never take ad-
vantage for non-performance thereof." And so it is if A. be bound
to B. that I. S. shall marry Jane G. before such a day, and before the
day B. marry with Jane, he shall never take advantage of the bond,
for that he himself is the mean that the condition could not be per-
formed. ^And this is regularly true in all cases. ^
But it is commonly holden that if the condition of a bond, &c. be
against law, that the bond itself is void.
But herein the law distinguisheth between a condition against law for
the doing of any act that is malum in se, and a condition against law
(that concerneth not anything that is malum in se) but therefore is
against law, because it is either repugnant to the state, or against some
maxim or rule in law. And therefore the common opinion is to be un-
derstood of conditions against law for the doing of some act that is
malum in se, and yet therein also the law^ distinguisheth. As if a man
be bound upon condition that he shall kill I. S. the bond is void.
But if a man make a feoffment upon condition that the feoffee shall
kill I. S. the estate is absolute, and the condition void.^
THOMAS V. HOWELIv.
(Court of King's Bench, 1693. 1 Salk. 170.)
One devised to his eldest daughter, upon condition she should mar-
ry his nephew on or before she attained the age of twenty-one. The
nephew died young, and the daughter never refused, and indeed never
was required to marry him. After the death of the nephew, the
1 Accord: Harwood v. Shoe, 141 N. C. 161, 53 S. E. 616.
2 Accord: Conrad v. Long, .33 Mich. 78 (condition subsequent by way of
forfeiture if the devisee should live with her husband) ; O'Brien v. Barkley,
78 Hun, 001), 28 N. Y. Supp. 1049 (condition subsetiuent of forfeiture if the
first taker live with her husband) ; Cniger v. Phelps, 21 Misc. Rep. 252, 47
N. Y. Supp. 61 (condition of forfeiture if the legatee traveled or resided
outside the continent of Europe during her husband's life and untU she shall
be divorced from him).
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 705
daughter, being about seventeen, married J. S. And it was adjudged
in C. B. that the condition was not broken, being become impossible
by the act of God; and the judgment was afterwards affirmed in error
in B. R.3
PRIESTLEY V. HOLGATE.
(Court of Chancery, 1857. 3 Kay & J. 286.)
Joseph Priestley, by his will, dated in 1850, gave and bequeathed to
James Priestley the sum of £19 19s. ; and also a further legacy of
£2000.
The testator made a codicil, dated in 1852, as follows : "Whereas,
since the making of my will, James Priestley, to whom I had bequeath-
ed £2000, has emigrated to Australia, I therefore hereby revoke that
legacy, and in lieu thereof I give and bequeath to him the said James
Priestley, in case he remains in Australia or out of this kingdom, £600,
to be paid to him twelve months after the decease of my wife ; but if
he return to England before her decease, I give and bequeath to him
the further sum of i400 (making £1000). This last £400 not to be paid
till twelve months after the decease of my wife."
In November, 1852, the testator died. Sarah Priestley, his widow,
died in January, 1856.
At the time of the decease of the testator, James Priestley was at
Melbourne, in Australia, whither he had gone in the year 1852.
On the 9th day of August, 1853, he sailed in a British ship named
the Madagascar from Melbourne on the homeward voyage to England,
and upon the voyage the Madagascar was totally lost, and all her crew
and passengers perished at sea.
The plaintiff was his administratrix, and filed the bill in this suit to
recover the said legacies of il9 19s. and £600 and £400.
Judgment reserved.
VicE-Chancellor Sir W. Page Wood. I delayed giving my judg-
ment in this case, in the hope of finding something to enable me to
decide in favor of the plaintiff's claim to the additional legacy of £400.
[His Honor stated the effect of the will and codicil and continued:]
At the time of making this codicil, James Priestley was in Australia.
It is proved that he embarked to return to England, but the ship in
which he sailed foundered at sea, and all on board perished. The con-
dition on which the legacy was given is personal to the legatee, and
the legacy cannot take effect unless that inchoate return fulfils the
terms of the condition. I was desirous to adopt that construction, if
3 Accord: Union Pac. Ry. Co. v. Cook. 98 Fed. 281, 39 C. C. A. 86 (where
the grantee could no longer perform the condition because the land was
washed away) ; Cincinnati v. Babb, 4 Ohio S. & C. P. Dec. 464 (where the
grantee could no longer use the premises for a church because it was taken
by condemnation).
4 Kales Prop. — 45
706 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
possible ; but I do not think that the words of the condition, which
are very precise, "if he return to England before her decease," can
be satisfied by his embarking on a voyage to this country, in which he
perished at sea.
If the codicil had contained a recital, that, owing to the testator's
displeasure with James Priestley on account of his departure to Aus-
tralia, he attached this condition to the legacy as a penalty, possibly
the inchoate return might have satisfied the condition; but it may be,
that the reason for the condition was, that the testator thought, that,
while away from England, James Priestley did not require so large a
provision as he would if residing in this country. I must, therefore,
decide against the plaintiff's claim as to the i400.*
In re MOORE.
(Chancery Division and Court of Appeal, 1SS7, 1888. 39 Ch. Div. 116.)
John Moore, who died on the 17th of April, 1885, by his will dated
the 2d of April, 1885, after appointing one Trafford his trustee, and
appointing a guardian of his infant son, John William Moore, pro-
ceeded as follows : "I give and bequeath to my trustee all property of
which I am possessed or entitled to, or over which I have any dis-
posing power, upon trust (after payment thereout of my debts, funeral
and testamentary expenses) to pay to my sister Mary Maconochie
during such time as she may live apart from her husband, before my
son attains the age of twenty-one years, the sum of £2 10s. per week
for her maintenance whilst so living apart from her husband : and
upon trust as to one moiety of my said trust estate to pay the same
to my said son on his attaining the age of twenty-one years; and as
to the other moiety thereof upon trust to pay the same to my said son
on his attaining the age of twenty-five years," with a gift over on the
death of his said son under the age of twenty-five years.
Mary Maconochie and her husband were married in 1866, and they
had never lived apart until the latter part of 1886, more than a year
after the death of the testator, when they ceased to live together. The
testator was well aware, at the date of his will, that they were living
together, but he had quarrelled with the husband and had not been for
several years on speaking terms with him.
4 Accord: Stockton v. Weber, 98 Cal. 4.33. 33 Pac. 332 (where the condi-
tion precedent required the securing of legislation) ; Brennau v. Brennan,
185 ]\r:iss. 560, 71 N. E. 80, 102 Am. St. Kep. 363 (where the condition pre-
cedent was that the devisee support the testator during her life, but the
devisee had no knowledge of the condition) ; Boyce v. Boyce (1S49) Ki Sim.
476 (wliere trustees were directed to convey such one of the testator's houses
to M. as she should designate, and all the other of them to C, and where
M. died in the lifetime of the testator, and so made no selection). See 1
Koper on Legacies (4th Ed.) 754-757.
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 707
The testator's son survived him and was still an infant.
This was an originating summons taken out by the trustee of the
will against Mrs. Maconochie for the decision of the question whether
she was entitled to payment of the legacy of 12 10s. per week, dis-
charged from the restriction imposed by the testator.
Upon the summons coming on in chambers, his Lordship directed it
to be adjourned into court for argument; that a guardian ad litem
should be appointed to the testator's infant son, and that the infant
should be separately represented.
The summons was heard before Mr. Justice Kay on the 7th of De-
cember, 1887.
1887, Dec. 14. Kay, J. (after reading the bequest and stating the
facts, continued) :
Before applying rules of law to a provision of this kind it is prop-
er to determine, independently of any such rule, what is the construc-
tion of this bequest.
Independently of any rule of law or decided case, the construction
of the words which I have read is indisputable. It is a gift of a fixed
sum every week during a certain period. To that period there are
two limits: it is not to extend in any case beyond the joint lives of
the husband and wife and the time when the testator's son attains
twenty-one ; but the payments are only to be made during such part
of that period as Mary Maconochie may be living apart from her hus-
band, and for her maintenance while so living apart. As matter of
construction it is impossible to hold that any of these payments are
given to her while living with her husband. The living apart from her
husband is of the essence of the gift in this sense — that it is the meas-
ure of the duration of these payments.
It has been argued that it must be treated as a legacy given upon
a condition precedent, which, being against the policy of the law, must
be rejected, leaving the legacy free from condition. If it be treated
as a gift of an indefinite number of weekly payments of £2 10s., there
being a condition attached to each that in the week for which it is
payable the legatee should be living apart from her husband, if the
condition be rejected, it must fail because the number of payments is
undefined.
In other words, if it be a gift of so many sums of £2 10s. as there
should be weeks in which the legatee was living apart from her hus-
band, then, if you strike out the words "living apart, &c.," there are no
means of computing how many such payments should be made.
The duration of these payments is a limitation, not a condition ; and
to give them any longer or other duration than that prescribed by the
will cannot be done by treating them like a legacy of a sum of money
given subject to a condition which may be discharged. To treat this
gift in that manner would be making an entirely new and essentially
different bequest.
708 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
It may be said, "You do, in effect, make a different bequest when
you reject a precedent condition and establish the legacy discharged
from it." That is so. It is doing great violence to the will. In cases
of real estate the common law of England will not permit such a
construction: and this rule, adopted from the civil law, ought not to
be extended. By rejecting a precedent condition upon which a simple
legacy of a sum of money is bequeathed, the amount of the legacy is
not altered. But in this case the argument requires that an annuity
given during one period should be altered into an annuity for another
and wholly different period.
This is, for the present purpose, the essential difference between a
condition and a limitation.
If the gift were during the joint lives of the husband and wife until
the son attained twenty-one, with a condition defeating it if the hus-
band and wife lived together, it might be necessary to reject the con-
dition and maintain the gift ; but I think it impossible to construe the
will in that way.
Suppose it were a legacy of a sum computed by the number of il-
legal acts committed by the legatee, at 12 10s. for each — obviously such
a legacy must fail if you reject the mode of computing it.
Then, suppose it to be £2 lOs. for every week in which the legatee
should commit an illegal act — if the limitation be rejected the com-
putation would be equally impossible ; and I am not aware of any rule
of construction or rule of law which would justify the court in treat-
ing such a gift as a life annuity.
The argument in its most plausible form is that from the nature of
the gift there are two limits contemplated, and if you take one away
the other only is left, and therefore, in this case, the gift should be
read as though it were of 12 10s. a week during the joint lives of the
husband and wife, until the son attains twenty-one.
But what authority is there for thus removing an essential limit?
There is none, unless it can come under the law as to conditions, or,
what is in some cases equivalent, conditional limitations defeating an
interest previously given. But before this law can be applied it must
be determined, as matter of construction, whether the gift is of that
nature.
In my opinion, the true construction of this bequest is that it is a
' limitation of weekly payments during a specified time, and that it is
not a legacy subject to a condition either precedent or subsequent.
The object of the limitation being obviously to induce the person in
whose favor it is made to live apart from her husband, the whole lim-
itation may possibly be void; but if the event has not happened, the
trust has not arisen at all.
For this construction it seems to me that there is clear and distinct
authority.
In Webb v. Grace, 2 Ph. 701, a covenant to pay to a single woman
during her life, subject to the proviso after contained, an annuity of
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 709
£40, provided that if she married, the annuity should be reduced to £20,
was held to be valid because it was in effect an agreement to pay £40
a year to her during so much of her life as she should remain un-
married, and £20 a year afterwards, and that this was a limitation,
not a condition.
In Heath v. Lewis, 3 D. M. & G. 954, a gift by will to a woman who
had never been married, if she should be unmarried at the death of M.,
of £2 10s. a month during her life if she should so long remain unmar-
ried, was read "as a limitation as distinguished from a condition," and
therefore the payments ceased on her marriage. This gift might have
been construed to be a defeasible life annuity more easily than the pro-
vision in the will now before me, and of course the defeasance would
have been void.
In Evans v. Rosser, 2 H. & M. 190, the testator gave real and per-
sonal estate to his son-in-law during the term of his life or marriage
again, and after his death or marriage, over ; and it was held that this
was a limitation till marriage, and not a gift of a life estate defeasible
on marriage.
The same construction was applied in the well-known case of Roch-
ford v. Hackman, 9 Hare, 475, where a limitation in form determining
a life estate upon alienation, was held to amount to a limitation until
alienation and then over — a construction which has been followed in
a multitude of cases since that decision.
But it is said that the court is bound by authority to hold that the
legatee in this case is entitled to £2 10s. a week, whether she lives
apart from her husband or not. The authorities cited demand a care-
ful consideration. Undoubtedly our law, in dealing with bequests of
personal property, has adopted some doctrines of the civil law which
seem to me much less satisfactory than the rules of the common law
which we apply in the case of devises of real estate. Swinburne (On
Wills, part 4, s. 6, ed. 1611, p. 138; ed. 1590, p. 122) states four sorts
of impossible conditions, of which the second are "those which be
contrary to law or good manners," instancing a gift of £100 to A. B.
if he murder such a man or deflower such a woman. Then he says
(part 4, s. 6, ed. 1611, p. 140; ed. 1590, p. 124) that where a condi-
tion is impossible "such condition hindereth not the * * * lega-
tary, but that he may * * * recover the legacy, as if such had not
been at all expressed." And he further says (part 4, s. 6, ed. 1611,
p. 142; ed. 1590, p. 127), "When the condition is both impossible and
unhonest * * * the disposition is thereby void : and that in dis-
favor of the testator, who added such a condition, whereas if the
condition had been only impossible or unlawful, the disposition had
been good, and that in favor of the testament."
Jarman on Wills ('4th ed. vol. ii, p. 12) states the law, adopted from
the civil law, to be that where a condition precedent is originally im-
possible or is made so by the act or default of the testator, or is il-
legal as involving malum prohibitum, the bequest is absolute, just as
710 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
if the condition had been subsequent: but that, where it is illegal as
involving malum in se, the civil agrees with the common law in hold-
ing both gift and condition void.
This law is recognized in Williams on Executors (6th ed., p. 1174;
8th ed., pp. 1269, 1270).
In Tothill's Reports (ed. 1671, p. 141 ; ed. 1820, p. 78) is the follow-
ing short note of a case — Tennant v. Braie (Nov. 8, 6 Jac.) : "A devise
made to the daughter to pay her a sum of money if she will be di-
vorced from her husband, the gift made good, though the condition
void."
The doctrine that conditions precedent as well as conditions subse-
quent which are against the policy of the law are treated as void in
cases of legacies of personal estate, and that the legacy "stands pure
and simple," is distinctly recognized by Lord Hardwicke in Reynish v.
Martin, 3 Atk. 330, 332; and the rules borrowed from the civil law
were held by the late Master of the Rolls to apply to a mixed fund of
the proceeds of real and personal estate: Bellairs v. Bellairs, Law
Rep. 18 Eq. 510.
I assume, therefore, that if this is to be treated as a legacy given
upon a precedent condition or defeasible by a subsequent condition
which is bad as involving' that which is malum prohibitum, the legacy
must take effect, discharged of the condition.
In Brown v. Peck, 1 Eden, 140, the testator, noticing in his will that
his niece Rebecca had married without the consent of her mother,
directed that if she lived with her husband his executor should pay
her £2 a month and no more ; but if she lived from him and with her
mother, then they should allow her £S a month. Lord Keeper Henley
held that she was entitled to the monthly payment of £S, "and that the
condition annexed being both impossible at the time of imposing it,
and contra bonos mores, the legacy was simple and pure." I have
referred to the registrar's book, and it seems clear that the condition
was only impossible in the sense that everything which is prohibited by
law is so in the contemplation of law. The husband, wife and mother
seem to have been all three living. It is evident that the will was read
as a gift of £5 a month to Rebecca for life upon condition that she did
not live with her husband, or £5 a month for life cut down to £2 if
she should live with him. Such a condition was against the policy of
the law, and was therefore treated as a nullity. It appears from the
Registrar's Book that the point was not argued, the other parties de-
siring that the legatee should have the £S a month.
In Wren v. Bradley, 2 De G. & Sm. 49, one bequest was to pay to
the testator's daughter, in case she should be living apart from her
husband A., and should continue so to do during the lifetime of the
testator's wife, an annuity of £30; but, if she should cohabit with him,
it should cease during such cohabitation. The husband and wife were
living apart at the date of the will, but were living together at the
death of the testator, and the Vice-Chancellor, evidently with consider-
Ch. G) ILLEGAL AND IMPOSSIBLE CONDITIONS 711
able hesitation, held that she was entitled to the gift discharged from
the condition. He came to the same conclusion with respect to a direc-
tion to pay the interest of one-third of the residue to his said daugh-
ter "during such time as she shall continue to live apart from her said
husband," but if she cohabited with him the income was to be paid to
other persons, and after her death the capital was given over. This
latter gift is in the form of a limitation rather than a condition.
I must follow these decisions in any case governed by them : but the
construction of one set of words is not binding when you are con-
struing a different provision. Because the court in those cases held the
words were conditional it does not follow that other words are to be so
construed. The decisions are only binding when the bequest is as-
certained to be conditional by independent construction. They do not
lay down any rule what bequests are to be so considered ; no canon of
construction is established by either of the cases for this purpose.
I confess that I find it difficult to understand these two decisions.
As to Brown v. Peck, 1 Eden, 140, the legatee must have been entitled
to the gift of f2 a month. That was not affected by any illegality. If
the reason given in the short report be good, she was entitled to the
£5 a month as well as the £2. The only mode of arriving at the de-
cision was by treating it as an annuity of £5 a month during the joint
lives of the husband and wife, cut down to £2 a month if they lived to-
gether. I should have had great difficulty in so construing it. But
such a bequest is altogether different from a gift of a weekly payment
during a period only defined by the legatee living apart from her
husband. In that respect the wording of the bequest in this case dif-
fers materially from that in Brown v. Peck.
Here the payments are to be made "during such time as she may
live apart from her husband," and there is no alternative life annuity
or gift for any longer period. In Brown v. Peck it was, if she lived
with her husband £2 a month, but if she lived from him £5 a month,
one or other of those payments being intended to last during the joint
lives.
In Wren v. Bradley, 2 De G. & Sm. 49, however, the gifts more
nearly resembled the bequest in the present case, especially the gift
of interest of one-third of the residue, which was to be paid "during
such time as she should continue to live apart." The gift of residue
was obviously construed as a life-estate, with a conditional limitation
divesting it, which could be rejected. With all respect, I think this
construction doubtful. But, again, the words differ from those in the
present case. It was more possible to construe the gift as a defeasible
life interest than it would be to put that construction upon the words I
have to consider.
In one sense the rule rejecting certain conditions, which is borrowed
from the civil law, is a rule of construction. That is, when you find
a legacy jcoupled with an invalid condition, the will is to be construed
as if the condition was not there. But, obviously, it must first be de-
712 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
termined whether there is a conditional legacy; and the construction
for the purpose is independent of and must precede the application of
the rule.
I hold that the legatee in this case is not entitled to any payment of
£2 10s., because these payments are not legacies given upon a condi-
tion, but are to be made only within certain limits which the court has
no power to alter.
Mrs. ]Maconochie appealed and the appeal was argued on the 7th
and 8th of June, 1888.
June 9th. Cotton, L. J. The question we have to decide is whether
the trustee of the will of Air. John Moore ought to pay the sum of i2
10s. per week to Mrs. Maconochie, a sister of the testator. The tes-
tator by his will gave all his property to a trustee "upon trust (after
payment thereout of my debts, funeral and testamentary expenses) to
pay to my sister Mary Maconochie during such time as she may live
apart from her husband before my son attains the age of twenty-one
years the sum of 12 10s. per week for her maintenance while so liv-
ing apart from her husband." When the will was made, Mrs. Macono-
chie was living wath her husband, and continued to do so until after the
testator's death. The testator did not like the husband, and his ap-
parent object was to induce the wife to live separate from him. If so,
the gift was for a purpose which is contrary to the law of England,
for that law does not allow provisions made in contemplation of a
future separation between husband and wife. The appellant contends
that the gift is to operate as a direction that £2 10s. per week shall
be paid to her from the death of the testator, though she is living with
her husband, thus entirely altering the amount of the gift made to her
by the testator. She contends that the gift is a gift of personalty sub-
ject to an illegal condition precedent, and that according to the doc-
trine of the civil law, which has been adopted by our law as to per-
sonal legacies, the illegal condition may be rejected, leaving the gift
absolute. The rule is thus stated by Mr. Jarman (On Wills, 4th ed.
vol. ii. p. 12) : "But with respect to legacies out of personal estate,
the civil law, which in this respect has been adopted by courts of
equity, differs in some respects from the common law in its treatment
of conditions precedent; the rule of the civil law being that where
a condition precedent is originally impossible, or is made so by the
act or default of the testator, or is illegal as involving malum pro-
hibitum, the bequest is absolute, just as if the condition had been sub-
sequent. But where the performance of the condition is the sole mo-
tive of the bequest, or its impossibility was unknown to the testator,
or the condition which was possible in its creation has since become
impossible by the act of God, or where it is illegal as involving malum
in se, in these cases the civil agrees with the common law in holding
both gift and condition void."
According to English law if a condition subsequent which is to de-
feat an estate, is against the policy of the law, the gift is absolute,
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 713
but if the illegal condition is precedent there is no gift. In the civil
law a distinction is taken between what is malum in se and what is
only malum prohibitum, but in the view I take of this case we need
not consider within which of these two classes the restriction in the
present case falls. Are the words relating to living separate a con-
dition ? In my opinion they are not a condition, but a part of the lim-
itation, and although in some respects a condition and a limitation may
have the same effect, yet in English law there is a great distinction be-
tween them. Here if you give effect to the appellant's contention, you
give her what the testator never intended to give her, an annuity dur-
ing the whole of her life if the son is so long under age. It is wrong
to give to an expression a forced construction in order to prevent a
particular result that follows from the natural construction. The con-
struction does not depend on the civil law, and the civil law is bind-
ing only so far as it has been adopted by our courts. I therefore do
not enter into the question whether the civil law regards this as a
condition or a limitation, for, if it regards it as a limitation and yet
applies the same rules to it as to a condition, no authority has been
cited to show that the civil law has to that extent been followed in
England. Many authorities have been cited, but it has not been laid
down in any of them that a gift in this form is to be treated as a gift
upon condition. In Tennant v. Braie (Toth., ed. 1671, p. 141 ; ed.
1820, p. 78), upon the fair construction of the words, the gift was a
gift upon condition, not a limited gift. A sum was to be paid once for
all if a w'oman w^as divorced. There was nothing imposing a limit on
the duration of the gift. In Brown v. Peck, 1 Eden, 140, the report
is not clear either as regards the facts or the principle laid down. The
testator, after noticing that his niece had married without the consent
of her mother, directed that if she lived with her husband his execu-
tors should pay her i2 per month and no more, but if she lived from
him and with her mother, then they should allow her £5 per month.
Lord Henley treated this as a condition, for he says "the condition
annexed being both impossible at the time of imposing it, and contra
bonos mores, the legacy was simple and pure." What was meant by
"impossible" it is hard to say, but that is not material. All that is of
importance is that it was treated as a condition, and the words could
reasonably be so construed. Wren v. Bradley, 2 De G. & Sm. 49, oc-
casions more difficulty. There was first a gift of an annuity to the tes-
tator's daughter suljject to conditions which were contra bonos mores.
Then there was a gift of the income of one-third of an accumulated
fund to the same daughter, "during such time as she shall continue
to live apart from her said husband Abraham Wren," and then came
a condition in the form of a subsequent condition, that if she should
at any time cohabit w^ith her husband, then during such time as she
should cohabit with him the income should be paid to other persons.
It was proved that at the date of the will she was living apart from
her husband. The Vice-Chancellor appears to have been impressed
714 ILLEGAL CONDITIONS AND RESTRAINTS, (Part 5
by that, and to have looked at the gift of the income as an immediate
gift of it to the wife, subject to a proviso that if she returned to co-
habitation the trust for payment to her should cease. I think this was
the real ground of his decision, though he does not clearly state his
reasons. I think his view must have been that, she being at the time
separated from her husband, the gift was a simple gift to her with a
subsequent condition defeating it if she returned to cohabitation. If
that construction of the will be adopted as correct there is no difficulty
about the decision, for as to the annuity the rule of the civil law clear-
ly applied. None of the cases in my judgment warrant our applying
it here, and in my opinion Mr. Justice Kay came to a correct conclu-
sion. The gift here is not a gift of an annuity subject to a condition,
but a limited gift, the commencement and duration of which are fixed
in a way which the law does not allow.
BowEN, ly. J. I am of the same opinion. At the date of the will
the testator's sister was living with her husband. The testator directs
his trustees to pay to her during such time as she may live apart from
her husband, before the testator's son attains twenty-one, 12 10s. per
week for her maintenance whilst so living apart from her husband.
There can be no question that the object of this gift was to promote
separation, an object which is against the policy of the law, and Mr.
Justice Kay has decided that the gift is bad.
The argument for the appellant was twofold. First, she contended
that the condition was subsequent and might be rejected, leaving the
gift absolute ; secondly, that if it was a condition precedent, this being
a gift out of pure personalty, the doctrine of the civil law applied and
the gift was absolute, for which Harvey v. Aston, 1 Atk. 361, and
Reynish v. Martin, 3 Atk. 330, were referred to, where Lord Hard-
wicke states the fule of the civil law and the extent to which our courts
have adopted it. There is a great distinction in our law between condi-
tions precedent and subsequent. Lord Hardwicke, in Reynish v. Mar-
tin, says (3 Atk. 332) : "The civil law considering the condition, wheth-
er precedent or subsequent, as unlawful, and absolutely void, the leg-
acy stands pure and simple. But in our law, where the condition is
precedent, the legatary takes nothing till the condition is performed,
and consequently has no right to come and demand the legacy; but
it is otherwise where the condition is subsequent, for in that case the
legatary has a right, and the court will decree him the legacy ; but
this difference only holds where the legacy is a charge on the real
assets, and therefore, if this had been merely a personal legacy, should
have been of opinion that as the marriage without consent would not
have precluded Mary of her right to this legacy in the ecclesiastical
court, no more would it have done so here: and to this purpose sev-
eral cases were cited, which are taken notice of in the case of Harvey
v. Aston, and which I shall not repeat, but refer to that case for
them." Accepting that as law with respect to legacies of personal
estate on a condition, the question remains whether this is a legacy
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 715
on a condition. If not, then, upless it can be shown that the rule of the
civil law extends to limitations as well as to conditions, and that our
law has adopted it to that extent, the rule cannot apply. Is there here
a condition? In one sense the gift does contain a condition, but it
contains something more than either a condition precedent or a con-
dition subsequent, and must be held to create a limitation. If the sub-
ject of gift here had been real estate, this would have been a limita-
tion, not a mere condition, just as a gift to a woman dum sola vixerit
is a conditional limitation, not a mere condition. But why should that
be held to be a mere condition in the case of personalty which is not
so in the case of realty? Here the sister's living apart from her hus-
band is the measure of the gift to her, and if that be taken away, the
quantum of the gift is altered. This was the ground taken by Mr.
Justice Kay. No authority has been cited to show that limitations are
treated by the civil law in the same way as conditions, but if they were
it would not follow that they should be so treated in our courts. This
is a gift which begins when the sister begins to live apart from her
husband, continues while she lives apart from him, and comes to an
end when she ceases to live apart from him.
As regards the cases cited, Tennant v. Braie, Toth., ed. 1820, p. 78,
is a case of a gift upon condition, though it is so meagrely reported
that I should hesitate before acting upon it. Brown v. Peck, 1 Eden,
140, appears to have been compromised after an expression of opinion
by the court. Wren v. Bradley, 2 De G. & Sm. 49, is a peculiar case.
There were two gifts, the first of which was clearly a gift on condi-
tion ; the second gift is more difficult. I think that the Vice-Chancel-
lor considered the context of the will to throw light on the second gift,
and to lead to the conclusion that it was a gift to a woman who was
at the time living separate from her husband, with a condition defeat-
ing it if she returned to cohabitation. The cases therefore do not
support the view that the doctrine of the civil law is to be extended
to limitations, and in my opinion the judge below came to a right con-
clusion. One regrets taking away a dead man's bounty from the ob-
ject of it under the very circumstances in which he intended her to
have it, but we must not depart from the law.
Fry, L. J. I am of the same opinion.
716 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
CARTER'S HEIRS v. CARTER'S ADM'RS.
(Supreme Court of Alabama, 1SG5. 39 Ala. 579.) s
Appeal from the Probate Court of Clarke.
On the 30th July, 1863, a petition was iiled in said court by Benjamin
W. Carter, on behalf of himself and several other persons, as heirs at
law and next of kin of Claiborne Carter, deceased, alleging that certain
provisions of the latter's will were void, and praying that on the final
settlement, all the property of the estate might be divided among them.
The provisions of the will of Claiborne Carter which were alleged
to contain the invalid gift were as follows :
"After paying all my debts and funeral expenses, I give, bequeath,
and devise, unto Francis B. James, Maria C, James, and Robert D.
James, Jr., children of Robert D. James, all my estate, real and personal ;
to have and to hold the same, after my death, forever ; on this condi-
tion nevertheless, that the said Robert D. James do, immediately after
my death, manumit and set free seven certain negro children owned by
him, and now in his possession in Clarke county, to-wit : John, Wesley,
and Albert, yellow boys, and also Milly, Mary, and Alabama (all
brothers and sisters, and children of Ellen, now dead,) and Ellen, a
child of said Milly, and also all the children that any of the said negroes
may hereafter have. And if said Robert D. James shall fail to give
the said negroes their freedom, as far as the laws of the State will
permit, or so that they may enjoy their liberty, and the profits and re-
sults of their own work and labor; or should said slaves be kept at
work, against their own will, after my death ; or should they ever be
sold, carried away, or in any way disposed of, either by said James, his
children, heirs, creditors, or any one claiming under or through him,
so tliat they are deprived of liberty of working for themselves, and of
disposing as they please of their own time, under the laws of the State ;
or should they hereafter ever be taken for the debts of any of the
children of said James, or their heirs, and put into a state of slavery,
— then this devise and bequest to be, and in that event is hereby declar-
ed to be, utterly void, and all my estate is to revert to my next of kin
and legal heirs. The true intent of this will is, to give all my property
for the liberty and freedom of the said negroes, so that they may enjoy
the same as far as the law of the land will allow, and good conscience,
honesty and right will protect. And I do make and constitute the said
donees, Frank, Maria, and Robert, agents and guardians of said ne-
groes, to see to and protect them in their liberty and rights ; and if ei-
ther the said Frank, Maria, or Robert die, this power is to go to the
survivor thereof. If either of the donees, Frank, Robert or Maria,
5 statement of the case is abridged. Only so much of the opinion is
given as relates to the validity of the will.
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITION'S 717
die before me, then the survivors thefeof who may be living at my
death shall take under this w^ill."
The administrators filed an answer to the petition, denying among
other things the invalidity of the provisions of the will, and setting up
the division and distribution of the property under the order of the Pro-
bate Court. The court dismissed the petition of the distributees and
heirs at law ; to which they reserved a bill of exceptions, and which
they now assign as error.
Stone:, J. The rule in regard to void conditions is too well settled
to require elaboration. If the void condition be precedent, it defeats the
whole instrument or conveyance. If it be subsequent, the conveyance
stands, and the condition alone is defeated. See 2 Story's Equity, §
1306; Weathersby v. Weathersby, 13 Smedes & M. (Miss.) 685 ; 1 Jar-
man on Wills, 806 et seq.
The clause of Claiborne Carter's will, which raises the issue in this
cause, presents the case of a conditional testamentary disposition.
Some of the conditions we regard as precedent, and some as subse-
quent; that is, the will requires certain things to be done before its
dispositions take effect, and provides that certain other things, done or
suffered after the will by its terms takes effect, shall divest the title
out of the beneficiaries therein named. To prove the correctness of
this view, let us suppose, that after Claiborne Carter made his will,
no responsive or corresponding provision had been made by Robert D.
James, or those claiming under him ; that he and they had remained
entirely silent as to any and all disposition of the seven negro children,
John, Wesley, &c. All will admit that, in such case, the children of
Robert D. James never would have taken under the will of Claiborne
Carter. The primary condition was to precede the vesting of the devise
and bequest; and it was to take effect immediately after the death of
Claiborne Carter. The language of the will is : 'T give, bequeath, and
devise, unto Francis B. James," &c., "all my estate, real and personal;
to have and to hold the same, after my death, forever; on this condi-
tion nevertheless, that the said Robert D. James do, immediately after
my death, manumit and set free seven certain negro children," &c.
These words have all the properties of a condition precedent.
There is some obscurity in the language of Claiborne Carter's will,
caused by the words, "as far as the laws of the State will permit," and
"as far as the laws of the land will allow." We have carefully consid-
ered the clause under discussion, and come to the conclusion, that these
words were inserted to meet the obstacles which the law interposed to
the absolute emancipation of the seven negro children. There are
other conditions, which we think these words do not qualify or limit.
Of this class we consider the following: "So that they" [the negroes]
"may enjoy their liberty, and the profits and results of their own work
and labor." We think the testator clearly intended that the privilege
718 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
here provided for — namely, that of enjoying their own Hberty, and the
profits of their labor — was to be the least condition on which the chil-
dren of Robert D. James were to take under his (Carter's) will.
The argument, then, leads to this : The devise and bequest were to
take effect only on the alternate conditions precedent — namely, that the
seven negro children were to be emancipated ; or, failing in that, they
were to enjoy their liberty and the profits of their labor. Each of these
conditions is violative of the positive law of the land. At the time this
will took effect by the death of the testator, both the constitution and
statute of the State inhibited the emancipation of slaves. See Acts
1859-60, p. 28 ; Constitution of Alabama, art. 6, title Slavery, § 1. And
our statute and the policy of the law also forbade that slaves should en-
joy their liberty and the profits of their labor. It is the policy of our
law that slaves shall remain under the direction and control of their
owner, and not go at large. They cannot enjoy their liberty and the
profits of their labor, without violating section 1005 of the Code, except
in the mode for which that section provides ; and there is no pretense
that the clause of this will contemplates the license which that section
tolerates.
It results from what we have said, that the dispositions of Claiborne
Carter's will, in favor of the children of Robert D. James, are inop-
erative, because they depend on a condition precedent which is illegal
and void.
Having construed Claiborne Carter's will, we feel bound to declare,
that the probate court rightly dismissed the petition in this case. The
property had been divided under the will, on the basis that its disposi-
tions are valid. The property, under that division, has passed into other
hands, and is beyond the reach or control of the administrators, and of
any process the probate court can issue. The administrators, being
the actors, and parties to the division, cannot re-possess themselves of
the property. Pistole v. Street, 5 Port. 64 ; Wier v. Davis, 4 Ala. 442 ;
Dearman v. Dearman, 4 Ala. 521; Fambro v. Gantt, 12 Ala. 298;
Ventress v. Smith, 10 Pet. 161, 9 L. Ed. 382; 1 Story's Equity, §§ 90^
92. The remedy of the heirs-at-law and next of kin of Claiborne Car-
ter is in chancery. Hunley v. Hunley, 15 Ala. 91.
The decree of the probate court is affirmed.®
6 See, also, Ransrlell v. Boston, 172 111. 439, 50 N. E. Ill, 43 L. R. A. 526
(1898) — real estate involved.
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 719
In re HAIGHT.
(Supreme Court of New York, Appellate Division, Second Department, 1900.
51 App. Div. 310, M N. Y. Supp. 1029.)
Appeal by Benjamin Haight, a legatee under the last will and
testament of Augustus Holly Haight, deceased, from an order of
the Surrogate's Court of the county of Orange, entered in said Sur-
rogate's Court on the 23d day of January, 1899, denying his motion
to amend a decree of said Surrogate's Court, entered in said court
on the 10th day of November, 1880, and to require Edward Haight,
as trustee, etc., of Augustus Holly Haight, deceased, to pay over to
him all the income of the residuary estate held in trust for said Benja-
min Haight, and also from a decree bearing date the 26th day of June,
1899, and entered in said Surrogate's Court, overruling his objections
to the intermediate accounting of Edward Haight, as trustee, and set-
tling the accounts of said trustee.
HiRSCHBKRG, J. Augustus Holly Haight died on the 10th day of
April, 1879, leaving a will and codicil which were admitted to probate
in Orange county on the eighth day of May following. He named
Louis Haight, Edward Haight and James G. Roe executors and
trustees, and letters testamentary were duly issued to them. They
thereafter filed an account in the Surrogate's Court, and a decree was
rendered on such accounting on the 10th day of November, 1880.
Louis Haight died in 1894 and James G. Roe in 1896, and Edward
Haight has since acted as sole trustee. He has presented an inter-
mediate account of his proceedings, and the same has been settled
by the surrogate of Orange county in a decree dated January 23,
1899. The testator left no widow and but one child, Benjamin
Haight, and these appeals are taken by Benjamin from the last decree,
and from an order denying his motion to amend and modify the first
decree in so far as it limited his right to the income of the estate to the
sum of $2,000 per annum, and to require the payment to him of all of
said income.
Among other bequests the testator gives to his executors the sum of
$8,000 in trust for his sister, Sarah J. Smith, during life, and the
sum of $8,000 in trust for Maria Crassous during life, the principal
in each instance to revert to the residue of the estate on the death
of the beneficiary. The will contains this provision for the testa-
tor's son: "All the rest, residue and remainder of my estate, both
real and personal, I give, devise and bequeath to my executors, herein-
after named, in trust however, and to and for the following uses and
purposes, namely : to invest the same and to keep the same invested,
and to pay the income therefrom to my son, Benjamin Haight, for and
during the term of his natural life; but it is my will that so long
as the present wife of my said son shall be living and he shall be law-
720 ILLEGAL CONDITIONS AND RESTRAINTS (Part 5
fully bound to her as a husband, the income to be paid to my said
son shall not exceed the sum of two thousand dollars in any one year ;
and that in case of the death of said wife, or in case of his ceasing to
be bound to her as a lawful husband, then the whole of said income is
to be paid over to my said son during his natural life."
No disposition is made by the will of the annual income which shall
be in excess of $2,000 during the life of Benjamin Haight's wife and
the continuance of their marriage relations ; but on the death of the
son leaving a child or children surviving, the executors are directed
to apply the income to the maintenance, support and education of
such child or children during minority, and to pay over the princi-
pal equally to each child on the attainment of its majority; and
should the son die without leaving a child surviving and attaining
the age of twenty-one years, then the estate is to be paid in equal
shares to the children of the testator's brother and sister.
Benjamin Haight married on the 21st day of August, 1877, and
the will was made two days afterward. At the time of the first set-
tlement and for several years afterward the income of the residue did
not amount to $2,000 a year; but during a few years past it has
been slightly in excess of that sum, and the excess is expected to
increase in consequence of the termination of the trusts for the bene-
fit of the testator's sister and of Maria Crassous. The former died
July 2, 1891, and the latter Januai'y 16, 1899, having each received
the income of the respective trusts in full, without any deduction
for commissions. By the decree of November 10, 1880, the execu-
tors and trustees were directed to pay the income arising from the
residue of the estate, less commissions, to Benjamin Haight to the
amount of $2,000 per year, in the words of the decree "as long as
the present wife of the said Benjamin Haight shall live, or as long
as the said Benjamin Haight shall be law'fully bound to her as a hus-
band; and in case of the death of the said wife, or in case said Benja-
min Haight shall cease to be bound to her as a husband, then said
executors are hereby ordered and directed to pay over to said Benja-
min Haight the whole of the interest and income arising from said rest
and residue for and during the term of his natural life." Benjamin
Haight was a party to the proceedings on the first accounting, was
then of full age, and no appeal was ever taken from the decree.
The appellant insists that the provision of his father's will which
makes his enjoyment of the whole of the income dependent on the
termination of his marriage relations is void as in contravention of
good morals and public policy, and that he may now raise the question
notwithstanding the decree of November 10, 1880. I have concluded
that he is correct on both points.''
7 The part of the opiuion which deals with the second point Is oaiiitted.
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 721
As to the first point, the condition must be held void if its manifest
object was to induce Benjamin Haight to take such steps as might be
necessary in order that he should cease to be lawfully bound to his
wife as a husband ; in other words, to obtain, or provoke and so
occasion, a legal divorce or separation, either in this State or in some
other jurisdiction. If any other and innocent construction can be
placed upon the condition, it is of course to be adopted. But the
will was made directly after the marriage of testator's son, and the
condition must be regarded as made in hostility to that union, and in
the hope of destroying it in so far as that object could be accomplished
by offering money by way of a premium or reward. It is true that the
condition is not in so many words that the son shall procure or suffer
a divorce in order to entitle him to the entire income, but the precise
effect of such an express condition is produced by a provision which
gives him the entire income when such a divorce is procured or suffered.
If the former offends public morals and contravenes public policy, it is
difficult to see why the latter does not also. "It is a general principle,
well settled," said Mr. Justice Ingraham in Wright v. J\Iayer (47 App.
Div. 604, 606, 62 N. Y. Supp. 610), "that conditions annexed to a gift,
the tendency of which is to induce the husband and wife to live sepa-
rate, or to be divorced, are, upon grounds of public policy and public
morals, void." In Wilkinson v. Wilkinson (L. R. [12 Eq.] 604) the
testatrix gave the residue of her property to her niece, with a direction
that all interest should pass under the will as upon the death of the
niece, should she not cease to reside in Skipton within eighteen months
of testatrix's death. The husband of the niece resided at Skipton, and
the court considered the provision to be a manifest attempt to induce
the legatee to leave her husband, the vice-chancellor saying (p. 608) :
"The condition is a vicious one, and that being so, I have no difficulty
in declaring that it is void." In Brown v. Peck (1 Eden Ch. 140) the
testator provided that if his niece lived with her husband she should
receive two pounds per month from the estate, but if she lived from
him and with her mother the executors should allow her five pounds
per month. The legacy at five pounds per month was held to be good,
divested of the condition, the latter being void as contra bonos mores.
In Tenant v. Braie (Toth. 76) the same disposition was made of a
bequest to a daughter, conditioned "if she will be divorced from her
husband." In Conrad v. Long (33 Mich. 78) a condition annexed to
a devise was held void which was to take effect when the devisee
"should conclude not to live with her present husband." In Whiton
v. Harmon (54 Hun, 552, 8 N. Y. Supp. 119) a like provision was held
to be void, the devise being to a son "for and during the term of his
natural life, or while he shall live separately from his present wife."
(See, also. Potter v. McAlpine, 3 Dem. Sur. 108, cited in Whiton v.
Harmon, supra, 555.) In O'Brien v. Barkley (78 Hun, 609; s. c,
4 Kales Prop. — 46
722 ILLEGAL CONDITIONS AND RESTRAINTS (Part 6
fully reported in 28 N. Y. Supp. 1049) the authorities on the subject
are collated in a very elaborate and able opinion by Mr. Justice Kellogg.
In that case a trust created for testator's daughter for life "provided,
however, and on the express condition that she do not, at any time
after my decease, associate, cohabit or live" with her husband, was de-
clared to be wholly void, as having no other object than to effectuate
testator's design to separate the husband and wife, and the daughter,
therefore, took the life estate discharged of the void condition.
In the light of these decisions and the many cases of similar import
cited in the opinions, and in view of the mischief apprehended, I can
but conclude that there is no difference in spirit and principle between
a gift made expressly dependent upon the procurement of a divorce,
and one which is made payable only in the event of a divorce. The
one invites the divorce directly and in terms, while the other incites
it by the offer of a premium. The end desired by the donor is the
same, viz., to induce the separation or divorce, and the means em-
ployed must be regarded as objectionable whatever form or language
may be employed, so long as it is apparent that the sole object of
the donor is to encourage that result, and the means employed are
calculated to promote it.
I have found no cases to the contrary of the principle stated, but in
Born V. Horstmann (80 Cal. 452, 22 Pac. 169, 338, 5 L. R. A. 577) and
in Thayer v. Spear (58 Vt. 327, 2 Atl. 161) provisions similar to the one
under consideration were held valid, where made for the benefit of a
wife to meet the deprivation of support incident to widowhood or to
the legal termination of her marital relations. In each case increased
financial provision was made by will for a daughter in the event of her
becoming- a widow or otherwise becoming lawfully separated from her
husband. The courts found the intention to be in each case only to pro-
vide for the daughter in case she were deprived of her husband's sup-
port and made dependent upon her own resources, whether by his death
or as the result of a lawful divorce or separation. The manifest object
of the provision was not to induce or invite a divorce or separation,
but to provide for the widow or the divorced wife, as the case might
be, in the event of the happening of either calamity. In the California
case the court said (p. 459) : "Not only may there be a good and suffi-
cient reason * * * for providing that the legatee shall not have the
bulk of the property until she is deprived of the support of a husband,
but there may be the best of reasons for placing the same in such con-
dition that she cannot be improperly induced by a worthless or profli-
gate husband to squander it, while she continues to be his wife, and, it
may be, under his influence and control. We think such a condition in
a will is not only valid, but that, under certain circumstances, it may be
just and commendable." In the Vermont case the court said (p. 329) :
"The first object is to ascertain, if possible, what the intention of the
Ch. 6) ILLEGAL AND IMPOSSIBLE CONDITIONS 723
testatrix was ; and we find no difficulty in reaching the conclusion that
it was to have her estate disposed of just as it has been by the Probate
Court. It was a wise and prudent provision to make for her daughter.
While she should remain a wife, her husband would be under obliga-
tion to support her, and hence the income, only, was absolutely left
her during the continuance of that relation ; but when she should cease
to be a wife, and so become dependent upon her own resources, it
was just and wise to provide that she should have the entire estate."
Neither the reasoning nor the legal attitude of the parties concerned
toward each other renders these cases controlling or influential in this
instance. The increased provision is made in the case at bar to take
effect at a time when the pecuniary obligations of the beneficiary are
lessened, and the duty of support which the husband owes the wife has
no reciprocal existence. The cases cited are analogous to Cooper v.
Remsen (3 Johns. Ch. 382), where a legacy was upheld which was
designed to provide for the testator's daughter during the continuance
of a separation from her husband actually existing at the time of the
execution of the will.
If the condition is void, it follows that Benjamin Haight is entitled
to the entire income. This is so whether the condition be regarded as
precedent or subsequent. The whole estate appears to be invested in
personal securities. A subsequent void condition could not, of course,
destroy an estate already vested. Assuming, however, that the con-
dition is precedent in its character, and would, therefore, work a
forfeiture of the gift in excess of $2,000 annually, at the common law,
yet in equity and under the civil law, though the condition is void the
gift is good. "With respect to legacies out of personal estate, the
civil law, which in this respect has been adopted by courts of equity,
differs in some respects from the common law in its treatment of
conditions precedent ; the rule of the civil law being that where a con-
dition precedent is originally impossible * * * or is illegal as in-
volving malum prohibitum, the bequest is absolute, just as if the condi-
tion had been subsequent." (2 Jarm. Wills [6th Am. Ed.] 15. See,
also, 2 Williams, Exrs. [7th Am. Ed.] 1264.) "When, however, the
illegality of the condition does not concern any thing malum in se, but
is merely against a rule or the policy of law, the condition only is
void, and the bequest single and good." (1 Roper, Leg. 757.)^
8 See also Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep.
391 (1890)— real estate involved.
With regard to conditions in restraint of marriage, and conditions not
to dispute a will, see elaborate notes in 6 Gray's Cases on Property (1st
Ed.) pp. 23-25 ; Id. (2d Ed.) pp. 31-33.
INDEX
[the figures refer to pages]
ACCELERATION, 298.
ACCUMUr^VTIONS,
Rule against perpetuities applied to, 596.
CHARITIES,
Rule against perpetuities applied to, 578.
CHATTELS, REAL,
Future interests in, 145.
CLASSES,
Determination of, 257.
Validity of limitations to, 96.
CONDITIONAL ESTATES,
Application of rule against perpetuities to, 475.
Forfeiture of estate of inheritance on failure to alienate, 607.
Forfeiture of estate of inheritance on alienation, 597.
Illegal and impossible conditions, 703.
Illegal conditions, 497.
Mode of perfecting a forfeiture of, 10.
Relief against forfeiture of,
By license, 12.
By waiver, 15.
In equity, 24.
Validity and construction, 1.
Who may take advantage of the breach of condition, 5.
CONT)ITIONAL LIMITATIONS, 37.
CONDITIONS,
Continuing breach, 23.
Implied in case of leaseholds that tenant shall not repudiate tenancy, 2.
Implied in law, 2.
Limitation upon suit for breach of, 24.
I'recedent to the taking effect of executory devises and bequests, 279.
Relief in equity for breach of, 24.
Tending to produce separation of husband and wite, 706.
CONSTRUCTION,
Acceleration, 298.
Divesting contingencies and conditions precedent to the taking effect of
executory devises and bequests, 279.
Effect of failure of preceding interests for remoteness, 297.
Gifts implied in default of appointment, 344.
Implication of cross-limitations, 256.
Limitations to classes, 257.
Meaning of "heirs" in a limitation to testator's "heirs" or the "heirs"
of a living person, 190.
Principles of, 184.
Remainders whether vested or contingent, 66.
"Survivor" construed "other," 197.
Vesting of legacies, 204.
4 Kales Prop. (72.5)
726 INDEX
[The figures refer to pages] '^
CONSTRITTIOX— Continued,
What words exercise a power, 879.
Words of limitation distinguished from words of condition, 10.
CONTINGENT REMAINDERS,
Alienability of. 81.
By execution sale, SS.
Application of rule against perpetuities to, 4S5.
Distinction between, and vested. 66.
Conveyance of, set aside in equity, 88.
Descent of, 82.
Destructibility of, 41.
Extinguishment of. by release. 87.
Forfeiture on alienation of, 606.
Partition of, 95.
Validity of, 41.
CROSS-LIMITATIONS,
Implication of, 256.
DESCENT.
Of contingent remainders, 86.
DESTRI'CTIBILITY, RULE OF,
Applied to contingent remainders, see Contingent Remainders.
Whether applicable to interests after a freehold which may take effect as
a remainder or as a shifting future interest, 55, 536.
DEVICE,
Of right of entry for condition broken, 10.
EQUITY,
Relief against forfeiture, 24.
Setting aside conveyance of future interest in, 88.
ESCHEAT, 26.
ESTATES,
On condition, see Conditional Estates.
Of inheritance.
Forfeiture on alienation of, 597.
Forfeiture on failure to alienate, 607.
Indestructible trusts of. 695.
Restraints on alienation of, 648.
Spendthrift trusts of, 657.
Fee simple,
Power to dispose of by life tenant, 401.
Fee tail.
Interests subject to, and the rule against perpetuities, 562.
For life.
Forfeiture on alienation of, 636.
Power of life tenant to dispose of fee, 401.
Restraint on alienation of, 662.
For years.
Forfeiture on alienation of, 636.
Future interests in, 145.
Implied condition that tenant will not repudiate tenancy, 2.
Restraint on alienation of, 662.
EXECUTION SALE,
Inalienability of contingent remainder by, 88.
EXECUTORY DEVISE, 38, 58, 97, 107, 145.
Construction of divesting contingencies and conditions precedent to the
taking effwt of, 279.
Effect on, of failure of preceding interest, 292.
INDEX 727
[Tbe figures refer to pages]
EXECUTORY DEYISE-Continued,
Effect of failure of, on preceding interest, 279.
Extinguishment of, by release, 87.
Gift over on intestacy and failure to alienate, 607.
EXECUTORY INTERESTS, 30.
Not vested or contingent, but certain to take effect, 204.
FEE SEVIPI.E, see Estates.
FORFEITURE,
Mode of perfecting, where estate conditional, 10.
Of estates of inheritance on failure to alienate, GOT.
Of estates of inheritance on alienation, 597.
On alienation of estates for life or years, 6.36.
Relief from, by license, waiver, and in equity, 12, 24.
FREEHOLD INTERESTS SUBJECT TO A TERM,
Distinction between and reversions and remainders, 104.
Validity of, 103.
FUTURE INTERESTS, see Table of Contents.
Conveyance of. when set aside in equity, 88.
Extinguishment of, by release, 87.
GIFTS OVER,
Upon the death of a previous taker, 235.
On failure^ of issue, 245.
On intestacy or failure to alienate, 607.
HEIRS,
Meaning of, in limitation to testator's "heirs" or "heirs" of a living per-
son, 190.
ILLEGAL CONDITIONS AND RESTRAINTS,
Forfeiture of estates of inheritance.
On alienation, .597.
On failure to alienate, 607.
Forfeiture on alienation of estates for life or for years, 636.
Illegal and impossible conditions, 703.
Indestructible trusts of absolute and indefeasible equitable interests, 695.
Rule making void, distinguished from rule against perpetuities, 497.
Restraint on alienation of estates of inheritance, 648.
Restraint on alienation of estates for life and years, 662.
IMPLICATIONS.
Gifts by, 256, 344.
ISSUE,
Gift on failure of, 245.
LAPSE,
Of powers, 356.
LEGACIES,
Vesting of, 204.
LIFE ESTATE, see Estates.
LIMITATIONS TO CLASSES,
Determination of the class, 257.
Rule against perpetuities applied to, 519.
Validity of, 96.
MARRIED WOMEN,
Clauses against anticipation and the rule against perpetuities, 497.
Restraints on alienation of separate estate of, 650.
Spendthrift trusts for, 690.
728 INDEX
[The figures refer to pages]
MODIFYING CLAUSES,
Effect of, in applying the rule against perpetuities, 557.
PARTITION.
Of contingent remainders, 95.
PERSONAL PROPERTY.
Future intei'ests in, 145.
POSSIBILITIES OF REVERTER, 26.
POSSIBILITY ON A POSSIBILITY, RULE AGAINST, 456.
POWERS,
Appointed property as assets, 357.
Appointments in fraud of power, 315.
Contracts to appoint, 315.
Defective execution of, 365.
Gift in default of appointment, 344.
Illusory appointments, 332.
In trust, 344.
In life tenants to dispose of the fee, 401.
Lapse of, 356.
Nonexclusive, 332.
Operation, classification, release and discharge of, 301.
Operation of, 357.
Rule against perpetuities applied to, 563.
Survival of, .333. /
What words exercise, 379.
RELEASE,
Extinguishment of future interests in, 87.
Of powers, 301.
REMAINDERS, see Freehold Interests Subject to a Term.
Conveyance of. set aside in equity, 88.
Contingent, see Contingent Remainders.
Extinguishment of, by release. 87.
Forfeiture on alienation of, 606.
Implication of cross, 256.
Miscellaneous legal consequences which depend upon the character of the
remainder, 95.
Vested, definition of, 32.
RESTRAINTS ON ALIENATION, see Illegal Conditions and Restraints.
Rule making void, distinguished from rule against perpetuities, 497.
REVERSIONS, 30.
Conveyance of, set aside in eijuity, 88.
REVERTER,
Possibilities of, 26.
RIGHTS OF ENTRY FOR CONDITION BROKEN, see Conditional Estates.
How far assignable, 7.
How far devisable, 10.
RULE AGAINST PERPETUITIES, 95.
Accumulations, Si^K).
Applied to interests after estates tail, 562.
Charities, 578.
Corollaries to, 408.
Distinguished from rule which makes void, restraints on alienation and
provisions requiring a trusteeship (otherwise valid) to be effective at too
remote a time. 497.
Independent gifts, 533.
Interests subject to the rule, 40L
INDEX 729
[The figures refer to pages]
RULE AGAINST PERPETUITIES -Continued,
Limitations to classes. 519.
Modifying clauses, 557.
Powers, 56.3.
Separable limitations, 533.
SHELLEY'S CASE,
Rule in, 110.
SHIFTING FUTURE INTERESTS, 32.
Gift over on intestacy and failure to alienate, GOT.
SPECIFIC PERFORMANCE IN EQUITY,
Right to, how far subject to rule against perpetuities, 461, 490.
SPENTDTHRIFT TRUSTS.
Of estates for life. 678.
Of estates of inheritance, 657.
SPRINGING FUTURE INTERESTS, 32.
"SURVIVOR" CONSTRUED "OTHER,' 197.
TRUSTS,
Indestructible,
Of absolute and indefeasible equitable interests, 695.
Rule making void, distinguished from rule against perpetuities, 497.
Spendthrift, 657, 678.
VESTING, see Legacies; Remainders.
WILD'S CASE, RULE IN, 96.
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