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then remainder of her natural life; and in the event of and from and after the decease of the plaintiff in the lifetime of the said defendant R. H. Swaffield, upon trust by and out of the interest, dividends, and proceeds of the said trustmonies, to raise and pay unto the said defendant R. H. Swaffield and his assigns thenceforth after death of the plaintiff, for the term of his natural life, one annuity or clear yearly sum of £800, and, subject thereto, to hold the same in trust for the children of the marriage, as the plaintiff should appoint; and, subject to such appointment, to stand seised and possessed of the trust-estates, monies, and premises, subject to the payment of the annuity of £800, or such other sum, to the said defendant R. H. Swaffield as aforesaid, upon trust for the child, if but one, or, if more than one, all and every other children of the plaintiff, either by the defendant R. H. Swaffield, or by any other husband or husbands, lawfully to be begotten, equally to be divided between them, if more than one, share and share alike, as tenants in common, and not as joint-tenants, and for his and their heirs, executors, administrators, and assigns respectively; and the settlement contained a proviso that, in case the plaintiff should die without leaving any child or children in the lifetime of her husband, and before the trust-monies thereby settled or agreed to be settled should become sufficient to produce an income fully equal to satisfy the said annuity of £800, after providing for the payment of a sum of £10,000 to J. S. Orton, in pursuance of a trust or limitation thereinafter contained (and which said sum of £10,000 was to be a prior charge and have preference to the annuity), then the annuity was to be reduced and abated from time to time, according to the amount for the time being of the interest, dividends, and proceeds, after payment of the said sum of £10,000 to J. S. Orton, whatever the same might be, and such amount was to be the proper sum to be paid to the said R. H. Swaffield, in lieu of the annuity of £800, until the trust-funds should

1847.

SWAFFIELD

v.

ORTON.

1847.

v.

become adequate to pay and satisfy the whole of the same SWAFFIELD annuity, without any claim thereafter, in case the said interest, dividends, and proceeds should be increased, to recover or receive the amount of any former abatement of the annuity.

ORTON.

On the occasion of the settlement of 1826 being prepared, an opinion was taken as to the validity of the trust to accumulate the income of the residuary estate. The opinion was that the trust for the accumulation was good at least for the term of twenty-one years from the testator's death, if not wholly, as would be the case if Mrs. Orton came within the meaning of the words in the exception of the Thellusson Act (39 & 40 Geo. 3, c. 98, s. 2), "of any person taking an interest under the devise."

In 1831, on the occasion of Mr. J. S. Orton attaining his majority, a case was submitted on his behalf, as to the validity of the accumulation clause, to Mr. Pepys, (the present Lord Chancellor), whose opinion was to the effect, that, if the benefit of survivorship between the grandchildren referred to the possible event of one of them not living to attain twenty-one, so that it would cease to have any operation upon the sons attaining twenty-one, the executors would be justified in paying to the son at twenty-one, and to the trustees of the granddaughter, their respective shares of the residue of the testator's property, there being, as it appeared, no other person interested in such shares; that it was, therefore, a case in which a testator had attempted to postpone the period of the legatee's enjoyment of the legacy without any gift over, in which case the legatee is entitled to possession before the time arrives; but that, if the survivorship applied to either grandchild dying before the mother, the executors could not do as they were requested, because the granddaughter was not competent to give up the chance of surviving to any portion of her brother's share.

In 1832, another opinion was taken, on the part of the ex

ecutors, as to the validity of the trust for accumulation, and as to the course which the executors should pursue, pressed as they were then by the residuary legatees to transfer the fund. The opinion was, that the direction to accumulate was valid during the joint continuance of Mrs. Orton's life, and of the period of twenty-one years from the testator's death; but that if Mrs. Orton should survive the period of twenty-one years, the direction to accumulate would be void during the remainder of her life; that a court of equity would not at that time direct a transfer of the trust-funds to be made to the grandchildren; that it was the duty of the executors, so far as the trusts of the will were consistent with law, to carry them into execution, according to the intention of the testator, and that the executors could not properly and safely consent to an immediate division of the trust-funds; that, besides the objection of such a division being contrary to the express directions of the will, the children of Mrs. Swaffield (then Orton) would have a direct interest to insist on the accumulation of her share being continued as long as the law would permit.

The trustees continued to accumulate the surplus income of the personal estate, except that, on the imposition of the income-tax in 1842, they deducted, in equal moieties, from the income of the shares of the grandchildren, the sum necessary to discharge the tax on the annuity.

On the 17th May, 1846, the period of twenty-one years from the death of the testator expired. Mr. Orton immediately made application for a transfer of his share of the residuary estate; and Mr. and Mrs. Swaffield expressed their desire that her share should be transferred to the trustees of their marriage settlement; and on their desiring the indemnity of the Court, the present suit was instituted by Mrs. Swaffield by a next friend.

Mr. J. V. Prior, for the plaintiffs, contended that the

1847.

SWAFFIELD

ข.

ORTON.

1847.

SWAFFIELD

V.

ORTON.

trust for accumulation was bad, independently of the Thellusson Act, which he submitted had no application, and that this was established by Saunders v. Vautier (a) and Josselyn v. Josselyn (b).

Mr. Wigram, Mr. Teed, and Mr. Rendall, for the trustees of the settlement, cited Curtis v. Lukin (c), Griffiths v. Vere (d). They also contended that whatever might be the operation of the will alone, the settlement turned the accumulations into capital, and cited Lewis v. Maddocks (e).

Sir F. Simpkinson, Mr. Sandys, and Mr. John Baily, appeared for the other defendants.

The VICE-CHANCELLOR :

The property in question in this cause is one moiety of the residue of the personal estate of the late Mr. John Swaffield, which is given by his will in such a manner as to vest absolutely in his two grandchildren as tenants in common in the event of their attaining twenty-one, or, as regards the granddaughter, marrying during her minority. But there is in the will a direction, precarious in its nature and wholly ineffectual, that during the life of the mother of the grandchildren, who is yet living, the income of their shares should accumulate in the hands of the executors. The granddaughter married, and articles were executed previously to her marriage, whereby it was agreed that all sums of money and personal estate to which the granddaughter was entitled under the will, and all accumulations thereof, should be settled in a given manner. It has been contended, that there is to be gathered from this settlement a manifestation of an intention that the precarious and ineffectual direction in the will to which I

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have alluded should be treated as binding and effectual. I look in vain through the settlement to find any such manifestation. I think it would be dangerous to impute to the parties, from such language as this settlement contains, any such intention. My opinion is, that the settlement should not be so construed; and if it be not so construed, I must treat the clause in the will as precarious and ineffectual, and hold that all accumulations as to the granddaughter's share ceased from the moment of the marriage. There must be a declaration that all the income arising after the marriage from the plaintiff's moiety, as it stood at the time of the marriage, belongs to her for her separate use.

1847.

SWAFFIELD

v.

ORTON.

HEWETT v. SNARE.

ROBERT SNARE, the testator in the cause, by his will,

June 3.

A testator bechattels charged

queaths specific

ment of a pecu

and of all the

debts and fune

penses, and he

specific and

no residuary

after bequeathing a legacy of £50, if and when the legatee attained the age of 21 years, bequeathed as follows:-"I with the paybequeath unto my dear wife, Jane Snare, all my household niary legacy furniture, plate, clothes, linen, china, jewels, trinkets, printed testator's just books, paintings, and prints in my dwelling-house in Castle- ral and testastreet, Reading, and all my shares and property in the Read- mentary exing Gas Light and Reading Insurance Company, and also bequeaths other all book and other debts owing to me at the time of my pecuniary legadecease, for her own absolute use and benefit, subject to and cies, but makes charged with the payment of the said legacy of £50 (if it bequest:should become payable), and also of all my just debts and withstanding funeral and testamentary expenses." The will then pro- general undisceeded to devise and bequeath to the testator's nephew, his posed of resi heirs, executors, and administrators, several specified free- applicable. hold and leasehold tenements, and "all other" the testator's "real and chattel-real estate whatsoever and wheresoever," upon trust to pay the rents and profits to the testator's widow for her life, and after her decease on trust to sell and

Held, that, not

the charge, the

due, was first

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