Page images
PDF
EPUB

1833.

CADELL

v.

PALMER.

For the Appellants,

The trusts declared of the testator's personal estate and effects, by his will, are not confined within those boundaries which the law allows for trusts of this description.

The whole machinery of the will is a fraud on the rule of law. The accumulation is taken for the whole term of twenty-one years allowed by the Thellusson Act, and without reference to any minority, or any legitimate object of settlement, and it is not until the expiration of that term that the limitations are made to commence. Accumulation and executory limitations were by the law, as it stood before the Thellusson Act, co-extensive; but a testator could not first accumulate for lives in being and twenty-one years, and then postpone the vesting for the like further period. This is the first step. Then the estates are devised to trustees for 120 years, if twenty-eight persons or any or either of them shall so long live. These persons are many of them unconnected with the trusts, and the testator was ignorant of their names. This limitation, however, is framed in order to create an estate determinable with exist ing lives, which therefore has no tendency to a perpetuity; but in the first place, it has never been decided, that estates in point of perpetuity can be carved out of such an estate which cannot be raised out of the inheritance, and there are powerful reasons against such a decision; and, in the next place, it has never been decided, that such an estate can be carved out of an inheritance the whole interest in which is intended to be dedicated to the same uses for the direct and declared purpose of creating a perpetuity; for the equitable estates created out of this portion of the inherit

ance, do not unite with the estates created in the reversion of the inheritance, although the same persons are to take in every event. This is the second step. There is then added a term in gross of twenty years upon the same trusts; but the twenty-one years allowed by the rule after lives in being were admitted for the purposes of gestation and infancy, and were never allowed as an absolute term. Here the twenty years are taken as an independent term, merely because that term falls within the words of the rule, altogether disregarding the principles upon which it was founded. This is the third step. After every rule has been separately resorted to, and the time allowed by it exhausted, then comes the fourth and last step, a trust for the very persons who would be entitled to the freehold and inheritance under the previous trusts, if regular trusts had been declared for life and in tail, according to the usual form of settlements. Why is all this machinery used? The answer is obvious, It is a vain attempt at a perpetuity. Look at the whole as a result from the combination of the several parts, and it will be found that the entire equitable fee-simple is dedicated to the particular uses expressed in the will, but those uses so framed as to postpone for probably a vast number of years that right of disposition resulting from ownership, which no regular limitations known to the law can effect. It seems a sufficient objection to the will in question, that it is the first attempt of the kind, and that the consequences are obviously mischievous. When Lord Nottingham was asked where he would stop, he answered, "I will stop every where when any "inconvenience appears, no where before: for

VOL. VII.

Q

1833.

CADELL

บ.

PALMER.

1833.

CADELL

v.

PALMER.

"whensoever the bounds of reason or convenience "are exceeded, the law will quickly be known." In this case the bounds of reason are exceeded, and the inconvenience is manifest.

The trusts declared of the personal estate and effects of the testator should, for the same reasons, be declared void; and, therefore, such personal estate and effects, after payment of the testator's debts, funeral and testamentary expenses and legacies, should be divided amongst the parties entitled to distributive shares of the personal estate of the testator, living at his decease, or their representatives, as if he had died intestate.

For the Respondents.

No estate or interest given by the will is open to the objection of transgressing the rules of law against perpetuities.

The period of accumulation is restricted to a term of twenty-one years from the testator's death, and an accumulation during that period is warranted by the rules of law, and is consistent with the provisions of the statute passed in the thirtyninth and fortieth years of the reign of George the Third, intituled "An Act to restrain all Trusts "and Directions in Deeds or Wills, whereby the

[ocr errors]

profits or produce of real or personal estate "shall be accumulated, and the beneficial enjoy"ment thereof postponed beyond the time therein "limited."

Every contingent or future interest given by the will is so limited, that it must vest or fail of effect within twenty years from the death of the survivor of the lives in being at the date of the will; and the rule of law against perpetuities allows of a suspense of the time of vesting for a life or

lives in being, and a further period of twenty-one years, and in some cases for a period and even two periods of gestation.

As the rule of law is not transgressed, but its limits are observed by the testator, and he has in all dispositions kept within the limits prescribed by the rule, no argument of fraud on the rule, or of inconvenience from the application of the rule, is entitled to any weight in a court of justice. It is the province of the legislature, and not of a court of justice, to reform the law if it admits of an inconvenience.

Rules of law are framed as a guide to judges for their decision, and to professional men for their advice and conduct in practice, and individuals in their testamentary and other dispositions; and no gift, or grant, or devise, kept within the terms of the rule, can be obnoxious to the objection of being a violation of the rule; since the rule is the only criterion by which the validity of the gift, &c. can be ascertained.

The authorities cited in argument were as follows:-Taylor v. Biddall, 2 Mod. 289. The Duke of Norfolk's Case, 3 Ch. Rep. Somerville v. Lethbridge, 6 T. R. 213. Lloyd v. Carew, Show. P. C. 137. Marks v. Marks, 10 Mod. 420. Stephens v. Stephens, C. T. Talb. 228. Rep. Linc. Inn. Lib. Long v. Blackall, 7 T. R. 100. Jee v. Audley, 1 Cox, 324. Routledge v. Dorrell, 2 Ves. jun. 357. Leake v. Robinson, 2 Meriv. 391. Crooke v. De Vandez, 9 Ves. 197. Woodford v. Thellusson, 4 Ves. jun. 317. 821., and 11 Ves. 135. 143. 146., and the stat. 39 & 40 G. 3. c. 98. Keeley v. Fowler, in D. P. 1768., Fearne Ex. Dev. 482. (6th ed.) 2 vol., Cas.

[blocks in formation]
[merged small][merged small][ocr errors][merged small]

1833.

CADELL

216 PALMER.

and Opin. 440. Goodtitle v. Wood, Willes Rep.
213. Doe v. Fonnerean, Doug. 508., Eden's Rep.
418. Goodman v. Goodright, 2 Burr. 873. Beard
v. Westcott, 5 Tau. 392. 406., 5 B. & A. 801., and
1 Turn. & Russ. 25. Fearne Ex. Dev. 7th ed. 431.
Heath v. Heath, 1 B. C. C. 147. Massenburgh ỹ.
Ash, 1 Vern. 234. Loddington v. Kime, 1 L. Raym.
207. Scatterwood v. Edge, 1 Salk. 229. Madox
v. Staines, 2 P. W. 421. Stanley v. Leigh, 2 P. W.
686. Sheffield v. Lord Orrery, 3 Atk. 283. 287.
Gulliver y. Wickett, 1 Wils. 105. Bullock v. Stones,
2 Ves. 521. Duke of Marlborough v. Lord Godol-
phin, 1 Eden, 404., 3 B. P. C. 245. Griffith v. Vere,
9 Ves. 127.; see p. 131. Lade v. Holford, 3 Burṛ.
1416., Amb. 479. Proctor v. Bishop of Bath and
Wells, 2 H. Blac. 358. Ware v. Polhill, 11 Ves. 257.
King y. Cotton, 2 P. W. 358. Gore v. Gore, 2 P. W.
28. 63. Marshall v. Marshall, 2 Swan. 432. Lord
Southampton v. Marquess of Hertford, 2 Ves. & B.
54. Spencer v. Duke of Marlborough, 5 B. P. C.
592. Manning's Case, 8 Rep. 94. Lampet's Case,
10 Rep. 46. Child v. Bailey, Cro. Jac. 459. Pells
v. Brown, Cro. Jac. 592. Sanders v. Cornish, Cro.
Car. 230. Pearse v. Reeve, Pollexfen, 29. Goring
v. Bickerstaffe, Pollexfen, 31. Snow v. Cutler,
1 Levinz. 135. Love v. Windham, 2 Keble, 637,,
1 Mod. 50. Wood v. Saunders, Pollex. 35.; see
2 Swan. 467. Phillips v. Deakin, 1 M. & S. 744.
Mogg v. Mogg, 1 Meriv. 654. Swaine v. Burton,
15 Ves. 365. Heath v. Heath, 1 B. C. C. 147.
Robinson v. Hardcastle, 2 T. R. 241. 380. and 781.,
2 B. C. C. 22. 344. Humberstone v. Humberstoné,
1 P. W. 332. Blandford v. Hackerall, 2 V. jun. 241.
Duke of St. Albans v. Lord Deerhurst; see 5 Madd.
232. Countess of Lincoln v. Duke of Newcastle,

"

« PreviousContinue »