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No. 1. — In re Jones, 26 Ch. D. 741, 742.

land, or until forfeiture of his interest therein on bankruptcy or other event.” It appears to me that Colonel Grey is entitled to the income of the land under the trust to pay the surplus rents to him. I entirely agree with the suggestion of Lord Justice COTTON in the course of the argument, that you must look at the terms of the settlement to see what the person is entitled to, and not to the accidental circumstance that the intention of the testator has been to some extent defeated by reason of the income which he intended the party to take not being actually realised in consequence of the state of the property. In that view of the case it appears to me impossible to say that Colonel Grey is not entitled to the income of the land under the trust or direction for payment of it to him during his own life, exactly following the very terms of the Act of Parliament.

I think, therefore, assuming even that Colonel Grey would not be entitled under the 2nd section (and I am disposed to think that he would) to exercise the power of sale, he is clearly entitled to exercise it under sect. 58 (1) (ix.), and that the conclusion at which the VICE-CHANCELLOR arrived is correct.

* COTTON, L. J.:

[* 742] This case has been very ingeniously argued by Mr. Saunders, but I think that the decision of the VICE-CHANCELLOR is right.

In my opinion, Colonel Grey comes within sect. 58 (1) (ix.). If that sub-section had not been there it would have been a serious question whether he would not have come within sect. 2, sub-sect. 5. I think that sect. 58 (1) (ix.) was introduced to meet the very case which exists here of trustees who are not simply trustees in whom the legal estate is vested (in which case the equitable tenant for life would be entitled to possession or to receipt of the rents from the tenants), but have powers of management which necessitate their remaining in possession, that is to say, managing the estates and receiving the rents from the tenants. The person entitled to income is not in the ordinary position of an equitable tenant for life, but is entitled to receive from the trustees who are in possession and are managing the estate, that which is called in the Act the “income” of the land. The interest of Colonel Grey is an interest in possession, the encumbrances created by the settlement not preventing its being

No. 1. — In re Jones, 26 Ch. D. 742, 743.

so, but only subjecting that interest, which is in possession and not in remainder, to certain prior charges.

The argument which was urged upon us may shortly be put thus : in order to say that he is a person entitled to the income there must be income to which he is entitled. But in my opinion, looking at the whole purview of this Act, you must look to the settlement to see what the limitations are, and then, without regard to the greater or less productiveness of the estate, you are to see who, under the limitations of the settlement, answers the requisitions of the different clauses of the Act bearing on the question, Who is tenant for life ? Considering that, I do not think it necessary (as at first I thought it was) that we should bring the case within sect. 2, sub-sect. 7, in order to say that Colonel Grey is entitled to exercise the powers of a tenant for life. But we can look at that sub-section, and also at other sections, for the purpose of seeing what the intention of the Act is. An encumbrance does not prevent a person being tenant for life within the meaning of the Act, and therefore the question is

not what the person has actually received or enjoyed, but [*743] what * under the settlement, he is entitled to, if there is

any income to come to him. “Beneficially entitled,” in sect. 2 does not mean “entitled and deriving a benefit from it,” but entitled for his own benefit if there is anything to be derived from the estate, and not simply as trustee for others. Having regard to what I think is the intention expressed in the Act, in my opinion we must hold that, as the limitations of the settlement put Colonel Grey in the position of having an immediate right to receive the income of the land, if there is any, from the trustees, he comes within sect. 58 (1) (ix.). Sub-sect. (viii.) of the same section is a strong enactment. Mr. Saunders said it showed that the limitations of the settlement are not the only things to be looked at. It is true that the person who gets the power under it is a person not contemplated by the limitations of the settlement, but he gets the possession by marrying somebody who is entitled under the limitations of the settlement.

My opinion here is that, as the limitations of the settlement put Colonel Grey, subject to encumbrances, in the position of being entitled to receive the income, if any, we are not to go into an account to see whether he gets anything, but must say that he is entitled under the Act to exercise the powers given to a tenant for life.

No. 1. — In re Jones, 26 Ch. D. 743, 744.

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LINDLEY, L. J.:

I also think that the decision of the VICE-CHANCELLOR is correct. The paradox of Mr. Saunders is startling. He says, “How can a man be held to be entitled to the income of land when there is no income to be entitled to ? Of course, if there is no income he cannot get it. But I think the answer to that paradox is this : You must see what is the meaning of the expression “entitled to income of land” in this Act. I am not at all sure that Colonel Grey could not be brought within sect. 2, but that is doubtful, and I prefer to rest the case, as the VICE-CHANCELLOR rested it, on sect. 58. In order to bring Colonel Grey within that section we must first bring him within the first part of sub-sect. (1): “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 under this Act." The interest of Colonel Grey is this: he is entitled * to the income should there be any, subject to [* 744] the trusts of a prior term of 2000 years. It at first struck me as doubtful whether a person in that position could be said to have any estate or interest in possession, the words “in possession,” in sect. 58 being obviously used by way of distinction from “ in remainder or reversion.” But when we look further into the Act it seems obvious that a terın of years, whatever its length be, when it is merely a security for charges, is not such an interest as prevents the person entitled to the income subject to that charge from being in possession within the meaning of sect. 58. It seems to me, therefore, that Colonel Grey comes within that part of the section.

Then does he come within the 9th sub-division of sub-sect. (1). Is he “a person entitled to the income of land under a trust or direction for payment thereof to him during his own or any other life, &c." I agree with my learned Brothers that, in order to answer that question you must not look at the rent-roll or the charges, to do which would, I think, be entirely contrary to the whole scope of the Act of Parliament, but you must look at the settlement which gives him his title.

Looking at that, I think he comes strictly within the words of the Act, and it appears to me, therefore, that he has the power given by the Act to a tenant for life.

The costs of all parties were given out of the corpus of the estate, the Court saying that it was a case proper to be settled by the Appeal Court.

VOL. XXV.- 2

No. 2. — In re Strang ways; Hickley v. Strangways, 84 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 g 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

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