No. 2. — In re Strangways; Hickley v. Strangways, 34 Ch. D. 423, 424.

In re Strangways.

Hickley v. Strangways.

34 Ch. D. 423-433 (s. c. 56 L. J. Ch. 195; 55 L. T. 714; 35 W. R. 83).

[423] Settled Land Act, 1882 (45 & 46 Vict. c. 38), s. 2, sub-s. 7, s. 58, sub-s. 1, division 6. Person having the Powers of Tenant for Life.

A testator, who died in 1884, by his will, made in 1874, devised his residuary real estate to trustees upon trust, during the period of twenty years after his death, out of the rents to manage and superintend his real estate, and improve the same, and to accumulate or invest in the purchase of land the unapplied part of the rents, and after the determination of the said term of twenty years to settle and assure the devised and purchased real estate to the uses and upon the trusts of an existing settlement under which the testator's son took certain estates as tenant for life :

Held (affirming the decision of CHITTY, J.), that the testator's son, not having any estate or interest in possession until the determination of the term, had not during its continuance, the powers of a tenant for life under the Settled Land Act with respect to the hereditaments devised by the will.

By an indenture of settlement dated the 20th of March, 1874, certain hereditaments at Shapwick, in the county of Somerset, were conveyed by Henry Bull Strangways (the testator in this action) and his son, the defendant Henry Bull Templer Strangways, to trustees to uses under which, after the death of Henry Bull Strangways, the said defendant became tenant for life. And the trustees were empowered to sell or exchange the settled lands, and directed (subject to a discretionary power to pay off encumbrances thereout) to invest the moneys payable on such sale or exchange in the purchase of other hereditaments, and to settle and assure the hereditaments so purchased or received in exchange to the same uses and trusts as were declared in the settlement concerning the hereditaments thereby settled, and until such investment the moneys arising from sale or exchange were directed to be invested in Government or real securities, and the dividends paid. to the persons and for the purposes to whom and for which the rents and profits of the hereditaments when purchased would from time to time be payable and applicable.

Henry Bull Strangways, by his will, dated the 27th of April, 1874, after making certain specific devises and bequests, [* 424] devised * and bequeathed all the residue of his real and personal estate to trustees, their heirs, executors, admin

No. 2. In re Strangways; Hickley v. Strangways, 34 Ch. D. 424, 425.

istrators, and assigns, upon trust to convert the residuary personal estate, and out of the proceeds thereof, and also out of the rents and profits of his residuary real estate (if the proceeds of his personal estate were not sufficient) to pay his debts and legacies, and after payment thereof upon trust out of the income of the residue, if any, of his residuary personal estate, and out of the rents and profits of his residuary real estate, to pay to each of his two sisters an annuity of £20 during the period of twenty years from his death if they should respectively so long live. And the testator then declared: "That, subject as aforesaid, my said trustees and trustee for the time being shall stand possessed of and interested in my said residuary real and personal estate during the period of twenty years from and after my decease, upon trust out of the rents and income thereof respectively to manage or superintend the management of my said residuary real estate, and to cut timber and underwood from time to time in the usual course for sale or repair or otherwise, and erect, pull down, or repair houses or other buildings, and drain or otherwise improve all or any of the said premises, and insure houses, buildings, and other property against loss or damage by fire, and make allowances to and arrangements with tenants and others, and accept surrenders of tenancies and leases, and generally deal with the premises as they or he might do if they or he were beneficial owners or owner thereof, without being responsible for any loss or damage which may happen thereby. And after empowering his trustees, out of the said rents and profits, to assist his son in restoring the mansion-house at Shapwick, and in the drainage of the estates comprised in the settlement of March, 1874; and declaring that his trustees should after the expiration of the said term of twenty years from his death, and in the mean time subject to the trusts. of his will, stand possessed of the surplus, if any, of his residuary personal estate and the income thereof upon the trusts and with the powers contained in the settlement of the 20th of March, 1874, concerning the moneys produced by sale under the power of sale and exchange therein contained; and also declaring that the income of his residuary personal estate until laid out in

*

the purchase of land, and also the rents and profits of [* 425] his said real estates, or so much thereof respectively as

should not from time to time be applied as thereinbefore provided, should be, during the said period of twenty years, from time to

No. 2. In re Strangways; Hickley v. Strangways, 34 Ch. D. 425, 426.

time invested, so that the same might accumulate by way of compound interest, or in the purchase of real estate in England convenient to be held with his residuary real estate thereby devised, the testator proceeded as follows: "And I hereby declare that in the event of the purchase of real estate as aforesaid my said trustees or trustee for the time being shall during the said term of twenty years have all the same powers as to letting, leasing, selling, and exchanging the said hereditaments as are in the said settlement of the 20th of March, 1874, contained with reference to the estates hereby settled: And I declare that from and after the determination of the said term of twenty years my trustees or trustee for the time being shall settle and assure my said residuary real estate and all hereditaments which shall have been purchased or received in exchange, or cause the same to be settled and assured, and shall stand possessed of all moneys or stocks, funds or securities which shall not have been and shall then be liable to be laid out in the purchase of land, To such and the same uses, upon such and the same trusts, and for such and the same intents and purposes, and with, under, and subject to the same powers, provisions, conditions, restrictions, and agreements as are in and by the last mentioned indenture of settlement limited, declared, and contained, and shall then be subsisting or capable of taking effect of and concerning the hereditaments and premises thereby settled, and the moneys to be produced by sale thereof, or as near thereto as the deaths of parties and other intervening matters and circumstances will admit, but so as not to increase or multiply charges or powers of jointuring or charging."

The testator died on the 9th of April, 1884, and in May, 1885, an originating summons was taken out by the executors and trustees of his will for the purpose (inter alia) of having it decided whether the defendant, H. B. T. Strangways, was tenant for life or had the powers of a tenant for life under the Settled Land Act, 1882, of or with respect to the land settled by the testator's will.

[* 426]

The summons was heard by CHITTY, J., on the 4th of November, 1885.

Romer, Q. C., and G. Henderson, for the trustees and executors. Macnaghten, Q. C., and Ingle Joyce, for H. B. T. Strangways. Ince, Q. C., and Hull, for certain remaindermen.

H. J. Hood, for other remaindermen.

No. 2. In re Strangways; Hickley v. Strangways, 34 Ch. D. 426, 427.

CHITTY, J. :

The question in this case is whether Mr. H. B. T. Strangways has the powers of a tenant for life under the Settled Land Act with reference to the testator's property, and with reference to any property which may be purchased under the trusts of his will. The trust is a valid trust for twenty years, and includes the whole of the income of the testator's property, and turns it into a capital sum to be laid out in land at the end of that period. Under the trusts referentially declared by the will Mr. H. B. T. Strangways is at the expiration of the twenty years tenant for life in possession; that is to say, he will be at the end of twenty years tenant for life in possession of the estates which belonged originally to the testator, and were devised by his will. Now he has no estate or interest in possession, and the commencement of the 58th section of the Settled Land Act shows that the powers of the tenant for life under the Act are conferred only on a person who is a tenant for life whose interest is in possession, and that is the qualification which runs through the whole of the 58th section.

The question would not, I think, be susceptible of any argument whatever were it not for certain words which are inserted at the end of division 6 of sub-sect. 1 of sect. 58. That division (6) is as follows: "A tenant for his own or any other life, or for years determinable on life, whose estate is liable to cease in any event during that life . . . or is subject to a trust for accumulation of income for payment of debts or other purpose." Is Mr. Strangways a person who is tenant for life, his state being in possession subject to trusts for accumulation? I am of

opinion that he is not. There are cases in which a man [* 427] is made tenant for life, and there is some trust inserted for accumulation which, in substance, when looked at, is a mere encumbrance; and it may be that the testator's will and settlement are so framed that he has made the person tenant for life or one who is to be taken to be tenant for life under the provisions of the Act. This section shows that a trust as against him for accumulation will not deprive him of the powers. But it is quite

a different thing with a person who is not a tenant for life at all, and who is not tenant for life in possession. He is only a person who is made tenant for life by the settlement; and to my mind, whatever may be the force of the words, "trusts for accumulation of income for payment of debts or other purpose," those words

No. 2. — In re Strangways; Hickley v. Strangways, 34 Cz. D. 427, 428.

have no application to the case now before me. This trust during the twenty years is not an encumbrance, and is not within the 7th sub-section of sect. 2, because it cannot be redeemed in any way. It cannot be got rid of It is a valid trust according to the law as it now stands, and the section which says that an encumbrance on the property in settlement, or an encumbrance created by the tenant for life himself on his estate and interest in the land, is not to deprive him of the rights conferred upon the tenant for life generally under the Act, has no application to the case before me.

Something has been said about this being a narrow construction to put upon the Act. I can only say that I never attempt to put upon an Act of Parliament a narrow construction, and certainly I have never attempted to put a narrow construction on this Act.

From this decision Mr. H. B. T. Strangways appealed. The appeal was heard on the 19th of November, 1886.

Cookson, Q. C., and Ingle Joyce, for the appellant:— The appellant is tenant for life of the real estate devised by the will of the testator subject only to the term of twenty years vested in the trustees for the purposes of management, improvement, and accumulation. The case, therefore, falls within the last clause of sect. 58, sub-sect. 1, division 6, of the Settled Land

Act, 1882, by which it is enacted that amongst the per[* 428] sons who are to have the powers of a tenant for life under the Act shall be included a tenant for life whose estate is subject to a trust for accumulation of income for payment of debts or other purpose." It must be observed that the words are not any "like purpose," but any other purpose," which is an expression of the widest possible character. This contention is strengthened by sect. 2, sub-sect. 7, which, read with sub-sect. 5, enacts that a person beneficially entitled to possession of settled estates for his life is to be deemed to be tenant for life, notwithstanding that his estate" is encumbered or charged in any manner or to any extent;" so that he may be tenant for life although he is not in actual receipt of any rents whatever. And thus the expression at the commencement of sub-sect. 1 of sect. 58: " Each person as follows shall, when the estate or interest of each of them is in possession," have the powers of a tenant for life, cannot be construed as meaning actual beneficial possession or receipt of the