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of the freehold estate were to all
the sons successively in tail, the
settlement to be made of the lease-
holds ought to be analogous to
that of the freeholds, so that no
child born and not attaining
twenty-one should b}' his birth
attain a vested interest to transmit
to his representatives, and thereby
defeat the ulterior object of the
articles, Avhich were not in favour
of one son, but equally extended
to every son ; and his Lordship
(admitting the law as laid down in
Vaughan v. Burslem, 3 Bro. C. C.
101, to be applicable to wills)
observed that " it is not true that
3'ou are to do for the testator all
that can be done by law. You
are to do for the testator no more
than what he has intended to be
done, and according to the com-
mon acceptation of the words.
But," said his Lordship, "I wish
to put it to you, whether in the



LORD GLENORCHY V. BOSVILLE.



27



nature of things there is not a
radical and essential difference
between marriage settlements and
wills ? The parties contract upon
a settlement for all the remain-
ders. They are not voluntary,
but within the consideration. The
issue, then, are all purchasers.
Suppose, then, a settlement to be
made of freehold estate, and as to
the leasehold there is only this
article, that the settlement shall
be analogous to that of the free-
hold ; do I execute it and make a
like settlement by giving an inte-
rest which cuts off all the issue ?
Suppose the whole subject was
leasehold estate, and stood upon
an article that it should be con-
ve3^ed according to the limitations
of an honom*, and a bill was
brought to carry that settlement
into effect after a child had lived
a dsxy, should I permit the father
to say it was his property ? It is
utterly impossible to make the
identical settlement of the lease-
hold estate as of the freehold; but
if I am to make it in analogy to
the settlement of the freehold,
shall I not carry it on to all the
near events ? and shall they fail
because I cannot embrace all the
remote events ?" And his Lord-
ship thought there was no objec-
tion to a proviso that no person
should be entitled to the absolute
property unless he should attain
the age of twenty-one years, or die
under that age leaving issue male.
Upon an appeal to the House of
Lords (reported 12 Vcs. 218), a



son of B.'s having in the mean-
time attained his majority, it was
decreed that the leasehold estate
vested absolute^ in him ; Lord
Ellcnhorowjh and Lord Erskine,
then Lord Chancellor, to this
extent approving of the decree of
Lord Loughhoroufili, that the abso-
lute interest did not vest in the
first tenant in tail, A.'s son, on his
bu'th ; but it was unnecessary to
decide what was the proper limita-
tion to have been inserted in the
settlement, whether a limitation
over on "dying under twenty-
one," or on " dying under twenty-
one without issue male." Lord
Eldon, however, denjdng the dis-
tinction between wills and mar-
riage articles, expressed some dis-
satisfaction with the decree, and
stated that he could not reconcile
the decision with Vaughan v.
Burslcm (3 Bro. C. C. 101) and
Foley V. Biirncll (1 Bro. C. C.
274), decided by Lord Thurlow,
although he did not move an
amendment. The cases, however,
of Vatiglian v. Burslem and Foley
V. Burnell are cases of wills ; and
Lord Eldon himself afterwards, in
Jervoise v. Duke of NortJiiunhei'-
hnid, fully admitted the distinc-
tion between executory trusts in
marriage articles and wills : see
1 J. & W. 574.

It may be here mentioned, that
although, properly speaking, a
marriage settlement ought to be
executed, in order to carry the
executory provisions of marriage
articles into effect, the Court has,



28



LORD GLEXORCHY V. EOSVILLE.



Avliere the property was personal,
at the request of tlie parties, in
order to save expense, made a de-
claration as to the true meaning
of the articles, upon which the
parties vrere able to act, without
causing a formal instrument to be
prepared and executed : Byam v.
By am, 19 Beav. 58, 63.

2. As to Executory Trusts in
Wills.'] — The intention of the tes-
tator must appear from the will
itself, that he meant " heirs of the
bod}'," or words of similar legal
import, to be words of purchase ;
otherwise Courts of equity will
direct a settlement to be made ac-
cordingto the strict legal construc-
tion of those words. Suppose, for
instance, a devise to trustees in
trust to convey to A. for life, and
after his decease to the heirs of
his body, or words tantamount to
heirs of the body; as no indication
of intention appears that the issue
of A. should take as purchasers,
the rule of law will prevail, and A.
will take an estate tail, although,
as we have already seen in the ^
case of marriage articles similarly
worded, he would take only as te-
nant for life. Thus, in SivcctapiAe
V. Bindon, 2 Vern. 536, B. by will
gave SOOL to her daughter Mary,
to be laid out by her executrix in
lands and settled to the only use
of her daughter Marj^ and her chil-
dren, and if she died without issue
the land to be equally divided be-
tween her brothers and sisters
then living ; Lord Cowjicr said,



that, had it been an immediate
devise of land, Mary, the daughter,
would have been, by the words of
the will, tenant in tail : and in the
case of a voluntary devise the
Court must take it as they found
it, and not lessen the estate or
benefit of the legatee : although
upon the like words in marriage
articles it might be otherwise. See
also Lcgattx. Scwell, 2 Vern. 551;
Seale v. Scale, 1 P. Wms. 290 ;
Harrison v. Xaylor, 2 Cox, 217 ;
Marsliallx. BousJicld,'21\l-Add. 166 ;
Blackburn v. Stables, 2 V. & B.
370 ; Mcurc v. Mcurc, 2 Atk.
266.

In the following cases, however,
it has been held that there has
been a sufficient indication of the
testator's intention, that the words
" heirs of the body," or words of
similar import, should be con-
sidered as words of purchase and
not of limitation, viz., where trus-
tees were directed to settle an
estate upon A, and the heirs of
his body, takmg special care in
sucJi settlement that it should not
be in the power of A. to dock the
entail of the estate given to him
during his Vfe: Leonard v. Earl of
Sussex, 2 Vern. 526.

So in Thompson v. Eisher, 10 L.
E. Eq. 207, a testator subject to
the life interest of his widow, de-
vised freehold property to trustees
" upon trust to convej', assign and
assure" the same "unto and to
the use of his son, T. Fisher, and
the heirs of his body lawfully
issuing, but in such niiinner and



LORD GLEXORCIIY V. BOSYILLE.



2a



form nevertheless, and subject to
such limitations and restrictions,
as that if T. Fisher shall happen
to die without leaving lawful issue,
then that the property men/ after
his death descend unincnmhered
unto and belong to his daughter,
lluth Fisher, her heirs, executors,
administrators, and assigns." Sir
W. M. James, V.-C, held that
the devise was an executory trust
to be executed b}' a conveyance
to the use of T. Fisher during
his life, with remainder to his
first and ether sons and daughters
as purchasers in tail, with re-
mainder to the testator's daughter
Ruth in fee.

So, directions in a will that heirs
of the body or issue shall take, "in
succession and ijrioritij of birth,"
or that the settlement shall be
made " as counsel shall advise,'^ or
"as executors shall think fit," have
been held strongly to indicate an
intention that an estate should be
settled strictly : see White v. Car-
ter, 2 Eden, 368; Bastard v.
Prohy, 2 Cox, G; llochford v. Fltz-
maurice, 2 D. & W. 1 ; Read v.
Snell, 2 Atk. 642 ; Iladddsey v.
Adams, 22 Beav. 276.

So, where a testator directed
trustees to convey an estate to his
daughter for her life, and so as
she alone, or such person as she
should appoint, should take or
receive the rents and jjvofits
thereof, and so that her husband
should not intermeddle thcrc-
witli, and from and after lier
decease in trust for the heirs of



her body for ever; Lord Hard-
R-lche, considering that it was
plainly the intention of the testa-
tor that the husband should have
no manner of benefit from the
estate, either in the lifetime of his
wife or after her decease, held, that
the words " heirs of her body "
were words of j)urcliase, and that
the wife was entitled to a life
estate only ; for had they been
construed as words of limitation,
and the wife had taken as tenant
in tail, the husband, contrary to
the intention of the testator, would
have had considerable benefit from
the estate as tenant by the curtesy :
Roberts v. Bixwell, 1 Atk. 607 ;
S. C. West's Eep. temp. Lord
Hardwicke, 536 ; see also Stonor
v. Curwen, 5 Sim. 264 ; Parker x.
Bolton, 5 L. J. N. S. (Ch.) 98 ;
SJtelton V. Watson, 16 Sim. 542 ;
sed vide Samuel v. Samuel, 14 L.
J. N. S. (Ch.) 222 ; Younr/ v.
Macintosh, 13 Sim. 445; Ileadx.
Randall, 2 Y. & C. C. C. 231.
Where a settlement is directed
to be made upon a woman to her
separate use, at the present day,
a clause against anticipation will
be added. See Turner v. Sar-
gent, 17 Beav. 515, in which case
a testator having directed that
property should be settled upon
his daughter, to the exclusion of
her present or any future husband,
tluit the same might belong to her
during lier life, " a settlement was
directed in trust for the daughter
for her life, to lier separate use,
without power of anticipation."



30



LORD GLENORCIIY V. BOSVILLE.



Stanley v. Jackman, 23 Bear. 450.
Ill re DitnnilVs Trusts, 6 I. 1\.
Eq. 322.

Where a testator directed that
his daughters' shares under his will
should be " settled upon themselves
strictly," it was held by Lord Ro-
milly, M.K., that the income of
each daughter's share should,
during the joint lives of herself
and her husband, be paid to her
for life, to her separate use, with-
out power of anticipation ; and if
she died in the life of her hus-
band, then her share should go
as she should by will appoint,
and in default of appointment, to
her next of kin, exclusively of her
husband ; and if she survived her
husband, then to her absolutely :
Loch V. Ba(jley, 4 L. E. Eq. 122.
And where a father on his daugh-
ter's marriage simpl}'- agrees to
give, or covenants to pa}^ a sum of
money as her fortune, in making
a settlement thereof the husband's
marital right to the sum named
would not be affected, save to the
extent that it might be cut down
by express contract in the agree-
ment directing the settlement to
be made : Dennehy v. Delany, 10
I. E. Eq. 377 ; Ward v. Dyas, LI.
& G. t. Sug. 177.

"Where, however, a testator by
his will directed his property to
be divided into nine shares, and
gave one and a half share to each
of his two daughters, " to be set-
tled on themselves at their mar-
riage," and the two daughters,
who were infants at the testator's



death, having attained twenty-one,
and being unmarried, it was held
by Bacon, V.-C, that they were
entitled to their shares absolutel}',
and that there was no trust for a
settlement which the Court could
execute : Magrath v. Morehead,
12 L. E. Eq. 491.

Where a testator, as in Lord
Glcnorsliy v. Bosvillc, directs an
estate to be conveyed to a person
for life " icithoiit inipeadimcnt of
ivaste,'' or to a person for life with
a limitation to trustees ' ' to pre-
serve contingent remainders," he
will be held sufficiently to have
indicated his intention, that in a
subsequent limitation to the issue
or heirs of the body of the person
to whom the life interest is given,
such issue or heirs should take as
purchasers, and a strict settle-
ment Avill accordingly be directed :
see Papillon v. Voice, 2 P. Wms.
471, in which case the distinction
between executed and executory
trusts in wills is most strikingly
illustrated. There A. bequeathed
a sum of money to trustees, in
trust, to be laid out in a purchase
of lands and to he settled on B.
for life, without impeachment of
waste, remamder to trustees and
their heirs duiing the life of B.
to preserve contingent remainders,
remainder to the heirs of the
body of B., remainder over, with
power to B. to make a jointure ;
and by the same will A. devised
lands to B. for his life, without
impeacliment of waste, remamder
to trustees and their heirs during



LOllU GLENORCIIY l\ BOSVILLE.



31



the life of B. to support contnujent
remaiitders, remainder to the heirs
of the body of B., remainder over :
though it was decreed at the Rolls
that an estate for life only passed
to B., with remainder to the heirs
of his bod}^ by purchase, as well
in the lands devised as in those
directed to be purchased, j-et upon
an appeal from this decree Lord
Chancellor King declared as to
that part of the case where lands
were devised to B. for life, though
said to be without impeachment
of waste, with remamder to trus-
tees to support contingent re-
mainders, remainder to the heirs
of the body of B., this last re-
mainder was within the general
rule, and must operate as words
of limitation, and consequently
create a vested estate tail in B.,
and that the breaking into this
rule would occasion the utmost
uncertainty ; but, as to the other
point, he declared the Court had
a power over the money du*ected
by the will to be invested in land,
and that the diversity was where
the will passed a legal estate and
where it was only executory, and
the party must come to the Court
in order to have the benefit 'of
the will ; that in the latter case
the intention should take place
and not the rules of law, so that as
to the lands to be purchased thej^
should be limited to B. for life,
with power to B. to make a join-
ture, remainder to trustees during
his life to preserve contingent re-
mainders, remainder to his first



and every other son in tail male
successively, remainder over.

So, where a testator directed
his estates and house property to
be settled on his son, T. F. D.,
and his heirs male ; and if he
should have no heirs male, on his
grandson, J. B., on his taking the
name of D. in addition to his
own, within twelve months after
his succession ; and in the event
of his having no heirs male, then
the estate to go to his brother,
G. A. B., and his heirs male, he
taking the name of D. It was
held by the Master of the BoUs of
Ireland that an executory trust
was created which the Court di-
rected to be carried out by a set-
tlement with limitations to the
several devisees for life, and with
remainders to their sons in tail
male successively : Duncan v.
Bluett, 4 L. E. Eq. 469, see also
Parker v. Bolton, 5 L. J. (N. S.)
Ch, 98.

Where, however, the trusts and
limitations of land to be purchased
by trustees are expressly declared
by the testator, it has been decided
that the Court has no authority
to make them different from what
they would bo at law. Thus, in
Austen v. Taijlor, 1 Eden, 361,
land was devised to trustees in
trust to pay an annuity ; and sub-
ject thereto in trust for A. for life, •
without impeachment of waste,
remainder to trustees to preserve
contingent remainders, remainder
to the heirs of the body of A.,
remainder to the testator's rialit



32



LOr.D GLENORCIIY T. EOSYILLE.



lieii's : and tlie residue of tlie tes-
tator's personal estate was to be
laid out in the purcliase of lands
wliich should thereafter remain,
continue, and be, to, for, and upon
such and the like estate or estates,
uses, trusts, intents, and purposes,
and under and subject to the like
charges, restrictions, and limita-
tions, as were by him before de-
vised, limited, and declared of and
concerning his lands and premises
last before devised, or as near
thereto as might be and the deaths
of persons would admit. Lord
Northington distinguished the case
from Pajnlloji v. Voice, on the
ground that the testator refers no
settlement to his trustees to com-
plete, but dechires his own uses
and trusts, which being declared,
he knew no instance where the
Court had proceeded so far as to
alter or change them ; and he
therefore held, that A. was entitled
to an estate tail in the lands to
be purchased: and see East v.
T icy ford, 9 Hare, 713, 733, 4 Ho.
Lo. 517 ; Franks v. Price, 3 Beav.
182; Eocltford v. Fitzmaurice,J.
C. & L. 172, 2 Dru. & Warr. 21 ;
Doncaster v. Doncaster, 3 K. Sc J.
26. See, however, Meure v. Meure,
2 Atk. 265 ; Harrison v. Xaijlor,
2 Cox, 247; Green v. Stej^hens,
17 Yes. 76 ; Jervoise v. Duke of
Northiunherland, IJ. & W. 572.

The word "issue," as observed
by Lord Talbot in Lord Glenorelnj
Y. Bosrllle, is both a word of pur-
chase and of limitation : but the
word " heirs " is naturally a word



of limitation. In executory trusts
in wills, therefore, it will be seen,
upon examining the cases, that
where the word " issue " is made
use of. Courts of equity will more
readily decree a strict settlement,
than v.'here the words " heii's of
the bod}^ " have been used. See
Meure v. Meure, 2 Atk. 265 ; Ash-
ton v. Ashton (cited in Bagshaiv v.
Spencer), 1 Coll. Jur. 402 ; Home
V. Barton, Coop. 257 ; Dodson v.
Hay, 3 Bro. C. C. 405 ; Stonor v.
Cuncen, 5 Sim. 264; C rosier \.
Croncr, 2 C. & L. 311; Had-
delscy v. Adams, 22 Beav. 266.

Wherever in executory trusts,
in wills, the words "heirs of the
body," or "issue," are construed
as words of purchase, they will be
held to include daughters as well
as sons, and the settlement, as in
Lord Glenorchy v. Bosville, will
be decreed to be made in default
of sons and their issue upon
daughters, as tenants in common
in tail general, with cross remain-
ders between them : Bastard v.
I^rohy, 2 Cox, 6. In Trevor v.
Trevor, 13 Sim. 108, where a
testator devised his estates to
trustees, in trust, to settle and
conve}^ the same to the use of or
in trust for G. E., who had then
no issue, for life, without impeach-
ment of waste, with remainder to
his issue in tail male in strict set-
tlement, Sir L. SJiadu'ell, Y.-C,
held, that the estates ought to be
settled upon G. B. for life, with-
out impeachment of waste, with
remainder to his sons succes-



LOED GLENOECIIY V. BOSVILLE.



33



sivel}' in tail male, with remainder
to his daughters as tenants in
common in tail male with cross
remainders in tail male. This
decision was affirmed in the House
of Lords : 1 H. L. Cas. 239. See
also Skelton v. Watson, 16 Sim.
543 ; Coajje v. Arnold, 2 Sm. &
Giff. 311, 4 De G. Mac. & G.
574.

In Turner v. Sargent, 17 Beav.
515, the testator, after dii'ecting
a settlement to be made of real
and personal property upon his
daughter for life, added, that it
was " to be secured for the benefit
of her children, if more than one,
equaU}"", after her death, so that
the issue of any such child dying
in his daughter's lifetime might
take his or her parent's share,
and in default of such children or
other issue, then to his son W.
absolutely." Sir J. Eomilhj, M.E.,
directed a settlement to be made
according to which, after the de-
cease of the daughter, the pro-
perty w^as to be in trust for her
children ; but if any child died
in her lifetime, leaving children
or remoter issue who should be
living at her death, such children
or remoter issue should take the
share of the child of the testator's
daughter so ([y'mff, jicr stirj^es, but
inter se, as tenants in conunon,
with limitations in the nature of
cross remainders in favour of the
children and issue who should
survive the testator's daughter, as
respected the share of any child
dying in her lifetime without

VOL. I.



leaving issue, and as respected
the share of any issue dying in
her lifetime. And if no child of
the testator's daughter or issue
of any deceased child should be
living at her decease, there was
to be an ultimate trust for W., so
that the dea+h of the testator's
daughter was the period or event
at which the vesting of the pro-
perty in the children's issue, or in
the legatee and devisee over, was
to be ascertained.

Although in the ordinary con-
struction of a gift by will to a wife
and children, they would take as
joint tenants {Nevill v. Nevill,
7 L. R. Ch. App. 256, 257), where
there has been a direction to
" secure " the fund for the benefit
of the wife and children, the Court
has laid hold of the word "secure,"
as indicating an intention that
the fund should be settled in the
usual mode upon the wife for life,
with remainder to her children,
Conibe v. Hughes,14: L. R. Eq. 415,
see also Bustard v. Saunders,
7 Beav. 92.

Whenever a strict settlement is
decreed, limitations to trustees
to preserve contingent remainders
will if necessary be inserted :
Stamford v. Hohart, 3 Bro. P. C.
31, Toml.ed., 1 Atk. 593; Basker-
ville V. Baskerville, 2 Atk. 279 ;
Harrison v. Naylor, 2 Cox, 247 ;
but since tlic passing of the Law^
of Property Amendment Act (8 &
Viet. c. 136), such limitations
are in some cases unnecessar}'
(see s. 8) ; but they may be use-



34



LOUD GLEXOKCIIY V. liOHMLLE.



fully inserted, with the object of
the trustees interposing to pre-
vent wilful waste and destruction
on the part of the tenant for life
before anj^ remainderman comes
in esse. See Garth v. Cotton, and
note post. Sometunes, moreover,
when such settlement is decreed,
the freehold will be vested in
trustees, during the life of the
tenant for life {Woolmore v. Bur-
rows, 1 Sim. 512) : but the Court
has refused to appoint a protector
to the settlement; Bankes \. Lc
Despenccr, 11 Sim. 508, 527.

For the manner in which a di-
rection to entail real and personal
estate will be carried into effect,
see Tennent v. Tennent, 1 Dru.
161 ; Jervoise v. Duke of North-
umherland, 1 J. & AV. 559 ; Ran-
dall v. Daniel, 24 Beav. 193 ; and
see Sealey v. Staivell, 2 I. R.
E. 326; 9 I.E. E. 499. As to an
entail directed to be made of land
in Scotland, see Grahamx. Stewart,
2 Macq., H. L. Cas. 295 ; and as
to the settlement to be made when
estates are directed, as far as the
law will permit, to be strictly
settled so as to go with an ancient
barony, see Bankes v. LeDesioencer,
10 Sim. 577, 11 Sim. 508 ; or to
go in a course of entail to corres-
pond as nearly as may be with the
limitations of a modern barony,
the patent conferring which con-
tained a sliiftmg clause upon the
holder of the barony becoming
entitled to an earldom : Sackville-
West V. Viscount Hohnesdale, 4 L.
B. Ho, Lo. 543, reversing Vis-



count Holmesdale v. West, 3 L. E.
Eq.474; and see Viscount Holmes-
dale V. West, 12 L. R. Eq. 280 ;
Cojje V. Earl de la Warr, 8 L. R.
Ch. App. 982.

Wliere real and personal pro-
perty were by will directed to be
settled upon the same trusts, the
Court did not think itself autho-
rised, through the medium of a
trust for sale, to settle the real
estate as personalty : Turner v.
Sargent, 17 Beav. 515, 520.

Where in a will there are du'ec-
tions for a settlement, in terms
which are ordinarilj- construed to
create a joint tenancy, the Court
has no authority, as in the case of
marriage articles, with the same di-
rections, to c arry them out by giving
a tenancy in common in the settle-
ment, unless there is something
to indicate that a tenancy in com-
mon was intended : Marryat v.
Toicnhj, 1 Ves. 102 ; Synge v.
Hales, 2 BaU & B. 499.

As to the construction which
will be put upon the word
"family," in case of executory
trusts in a will, see White v.
Briggs, 2 Ph. 583. There a tes-
tator dii'ected that after the death
of his wife (to whom he gave a
life interest in all his property
both real and personal), his
nephew, C. W., should "be con-
sidered heii' to all his property
not otherwise disposed of," and
added, that " having had little
intercourse with liim, and being
apprehensive that his habits re-
quii'ed some control, he directed



LOKD GLEXORCIIY V. BOSYILLE.



35



that whatever portion of his pro-
perty might thereafter be pos-
sessed by him, should be secured
by his executors for the benefit
of his family;^' and he "ui'ged
upon his executors to consider it
an indispensable obligation to
secure his estate in the nature of
a trusteeship for the parties who
might be interested thereafter."
It was held, by Lord Cottenham,
C, that the real estate should be
settled on the nephew for life,
with remainder to his sons suc-
cessively in tail male, with re-
mainder to his daughters as ten-
ants in common in fee : and that
the personal estate should be
settled upon the nephew for life,
with remainder to all his children
as joint tenants, with a proviso
that, in the event of all the chil-
dren d3ing under twenty-one, and



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