and and No. 20. clare and direct, that the said Accumula of property might be legally suspended,) was determined in the much agitated, and solemnly decided case of Thelluson v. Wood- tion Act. ford, see 4 Vez. Jun. 227. and 11 Vez. Jun. 112. In which case there was a devise of real estates of the annual value of near 5000l., and other estates directed to be purchased with the residue of the personal estate, amounting to above 600,000l. to trustees, and their heirs, &c., upon trust, during the lives of the testator's sons, A., B., and C., and of his grandson D., and of such other sons as A. then had, or might have, and of such issue as D. might have, and of such issue as any other sons of A. might have, and of such song as B. and C. might have, and of such issue as such sons might have as should be living at his decease, or born in due time afterwards, and during the life of the survivor, to receive the rents and profits, and from time to time to invest the same, and the produce of timber, &c. in other purchases of real estates; and after the death of the survivor of the said several persons, that the said estates should be divided into three lots, and that one lot should be conveyed to the eldest male lineal descendant then living of A., in tail male; remainder to the second, &c., and all and every other male lineal descendant or descendants then living of A., who should be incapable of taking as heir in tail male of any of the persons to whom a prior estate was limited, successively in tail male; remainder in equal moieties to the eldest, and every other male lineal descendant or descendants, then living, of B. and C., as tenants in common in tail male, in the same manner with cross remainders; or, if but one male lineal descendant, to him in tail male; remainder to trustees, their heirs, &c. The other two lots were directed to be conveyed to the male descendants of B. and C. respectively in the same manner, and with similar limitations to the male descendants of their brothers, and to the trustees in fee; and it was directed that the trustees should stand seised, upon the failure of male lineal descendants of A., B., and C., as aforesaid, upon trust, to sell and pay the produce to his Majesty, his heirs, and successors, to the use of the sinking fund: the accumulation, till the purchases or sales No. 20. vested, or call in a competent part of such trust monies, and lay out and invest the same from time to time in the purchase of freehold manors, messuages, farms, lands, tenements or hereditaments, of a clear and indefeasible estate of inheritance in fee-simple, in possession, situate, arising, or being in some convenient place or places in that part of could take place, to go to the same purpose; with a direction that all the persons becoming entitled, should use the surname of the testator only. The validity of this will was opposed on several grounds, viz.as morally vicious, being a contrivance of a parent to exclude every one of his issue from the enjoyment of even the produce of his property for nearly a century, and therefore an abuse of the allow ance of the law for enabling persons to provide for the reasonable occasions of their families.-As politically injurious, being calculated to keep an immense property during the time aforesaid unproductive, and at the end of that period to create a fund, the revenue of which would be greater than the civil list; the probable amount of the accumulated fund of one third being 19,000,000Z., and in case of a minority at the end of the period lasting 10 years, 10,802,373. And should the whole property centre in one person, with a mino. rity of 10 years, the whole accumulated fund would be 32,407,120L --As going beyond the legal boundary, since in all the other cases, the lives during which the suspence was to be continued, were of those immediately connected with, or immediately leading to, the person in whom the property was first to vest.-As a fraud upon the rule, since by assigning for the period of suspence, a number of lives, whose average duration was equal to a given number of years, and thus indirectly making years, not lives, to constitute the period of suspence, property might be suspended for a century.-As attempt ing to protract the accumulation during the lives of persons unborn at the time of the testator's decease, the testator having included the lives of persons to be born within due time after his decease; and though a child in ventre sa mere might be considered as in existence, where the limitation was for his own benefit, and he was to take, when born, in the character of heir, or where the subject of the trusts was personal estate, yet no cases could be mentioned, the subject being real property, in which a child in ventre sa mere has been held to be in existence, for any purpose except to limit the estate of the first devisee, or for the actual benefit of the child Great Britain called England, free from incumbrances, ex- No. 20. cept chief or quit rents, or other inconsiderable outgoings, together with such copyhold hereditaments, as may be intermixed, or be necessary or convenient to be held and enjoyed therewith, if any such there shall be, and the person or persons, who for the time being shall, by virtue of, or under the himself, being the substituted devisee.-An objection was also taken upon the grammatical construction. But all these arguments were over-ruled, and it was considered, that as the law stood at the time of Mr. Thelluson's decease, it was perfectly settled that the absolute vesting of property might be postponed, and the accumulation of it continued, during the lives of any number of persons in being, and for 21 years after the survivor's decease, and a further number of months, equal to the duration of pregnancy. And that as the term of suspence and accumulation, directed by Mr. Thellusou, was confined to the lives of persons in being at the time of his decease, or born in due time afterwards, or in ventre sa mere at his decease, and the life of the longest liver of them, without any reference to any further number of years, it not only did not exceed, but fell short of the boundary to which, according to the rules of law, it might have been extended. This was a plain executory devise, and every executory devise was good, which did not tend to make an estate unalienable beyond the time at which the remainderman, who was not in existence at the time of the limitation of the estate, would arrive at the age of 21. And the Court had no other criterion to judge of the inconvenience, except by analogy to the restraint, which the common law imposes upon the alienation of real property; and as to the point respecting the legal existence of a child in ventre sa mere, it was considered as decided by the case of Long v. Blackall, 7 T. R. 100. The Judges were unanimous. But it has been considered by the legislature as expedient in future to restrain the power of accumulation, and therefore the statute of the 39 and 40 Geo. 3. c. 98. was passed, by which, as will be seen by referring to it in the appendix of statutes in this volume, the power of settling and devising property for the purpose of accumulation, is restrained to 21 years after the death of the grantor or testator. And no person can now by any deed or will, or by any other mode, settle or dispose of any real or personal property, so as that the rents, and profits or prodnce thereof shall be wholly or partially accumulated for a longer term than the life of the grantor or testator, or the No. 20, limitations in this my will contained, be entitled in posses◄ sion to my said mansion house, called place, shall approve thereof, such approbation to be testified in writing; and shall and do convey, settle and assure, or cause to be conveyed, settled and assured, all and singular the hereditaments so to be purchased with their respective appurtenances, to and for such uses, intents and purposes, upon such trusts, and with, under, and subject to such powers, provisos, limitations, declarations and agreements, as are herein declared or expressed, of or concerning the hereditaments hereinbe fore by me devised, and which shall from time to time be subsisting undetermined, and capable of taking effect. And I do hereby further declare my will to be, that the dividends, interest, and annual proceeds of the several funds and securities in or upon which the said several and respective trustmonies, and the trust-monies accruing thereupon, shall at term of 21 years after the death of the grantor, or testator, or the minority of any person who shall be living, or in ventre sa mere, at the death of the grantor or testator; and where any accumulation directed otherwise, such direction shall be void; and the rents, issues, profits and produce during the time that the same are directed to be accumulated, contrary to the said act, shall go to such person as would have been entitled thereto, if no such accumulation had been di. rected. But the act is restrained from applying to any provision for payment of debts, or for raising portions for children, or to any direction touching the produce of woods and timber. Upon this statute, however, the Court of Chancery has held, that a trust by will for accumulation beyond the period thereby allowed, is void only for the excess; and therefore, where the accumulation was directed until the age of 21, of the legatee, not born at the testator's decease, it was determined to be good for 21 years; and it was said by the present Master of the Rolls, that if an accumulation was directed to continue for 24 years, it would be good for 21, within the determination in Griffiths v. Vere, decided by Lord Eldon. See Griffiths v. Vere, 9 Vez. Jun. 127. and Longdon v. Simpson, 12 Vez. Jun. 295. Where a devise is made of the residue of the personal estate if the party shall attain 21, the profits in the mean time are construed to be given to the legatee, and are to accumulate. Trevanion v. Vivian, 2 Vez. 430. the expiration of the said term of 21 years be invested, shall No. 20. from the expiration of the said term of 21 years, go and be paid and payable to such person and persons, and in such course, order and manner, as the rents and profits of the several hereditaments hereinbefore by me devised, shall, by virtue of the limitations aforesaid, go, be made payable and applicable. No. 21. Power given in a Will to a person to whom a life estate is limited, to charge the estate with portions for younger children, varying in amount with the number of children to be provided for. PROVIDED always, and I do will and direct, that it shall and may be lawful to and for my said daughter Margaret, by any deed or deeds, instrument or instruments in writing, with or without power of revocation, 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, or any codicil or codicils thereunto, to be signed and published by her in the presence of, and attested by, three or more credible witnesses, (but subject and without prejudice to the said annual sums or yearly rent charges hereinbefore limited by this my will, and the powers and remedies for recovering the same) to subject and charge all or any part of the said hereditaments and premises, hereinbefore limited in use to her for life, to and with the payment of any sum or sums of money for the portion or portions of all and every the child or children of the body of my said daughter, lawfully to be begotten, (other than and except, and not being an eldest or only son (1), entitled for the time being to (1) Every child, except the heir, is considered in equity as coming Who in within the description of younger children; thus the eldest daugh- equity are ter, where there is a son, or where the estate by a settlement goes children. younger |