No. 2. — In re Strangways; Hickley v. Strangways, 34 Ch. D. 428, 429.

rents and profits, but must be read together with the other provisions of this Act.

[They referred to Egerton v. Earl Brownlow, 4 H. L. C. 1, 210, and In re Jones, 26 Ch. D. 736, 744 (p. 10, ante).]

Ince, Q. C., and Hull, for three of the remaindermen :

The question is not one of possession only. The appellant takes under the will no interest whatever of any kind until the termination of the term of twenty years. His interest is purely reversionary. In equity the possession of land may be postponed, whatever is the case at law. The last clause of sect. 58, sub-sect. 1, division 6, of the Settled Land Act, on which the appellant relies, must be read together with the qualification in the first clause of sub-sect. 1, that each of the persons thereinafter mentioned is only to have the powers of a tenant for life" when the estate or interest of each of them is in possession. Again, the appellant is not tenant for life subject to the term, for his interest does not commence until after the determination of the term, and the term can only determine by expiration of time. Moreover, some of the property comprised in the devise will not be in existence until the end of the twenty years, i. e., that which must* be purchased with the accumulation of the income, [* 429] so that if the appellant does not survive the term he never will have an estate in possession in this property.

Cookson, in reply:

The policy of the Act requires that there must always be some one having the powers of a tenant for life: sect. 51; In re Clitheroe Estate, 31 Ch. D. 135.

George Henderson, for the trustees and executors.

H. J. Hood, appeared for other remaindermen, but not having appealed the Court declined to hear him.

COTTON, L. J. :—

This is an appeal from an order of Mr. Justice CHITTY declaring that the present appellant is not, during the period of twenty years next after the testator's decease, entitled to exercise the powers given to a tenant for life by the Settled Land Act, 1882, with respect to the land settled by the will of the testator. It is not contended that he is tenant for life under the definition given by sect. 2, sub-sect. 5 of the Act, but it is said he is a person who has the powers of a tenant for life within the meaning of sect. 58.

No. 2. In re Strangways; Hickley v. Strangways, 34 Ch. D. 429, 430.

The first sub-section of that section enacts as follows: 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, as if each of them were a tenant for life as defined in this Act." Now, these persons are persons to be ascertained from the following divisions, but all of them must be able to say, if they are to have the powers of the Act, that their estate or interest is in possession. Of course, if there is anything in the subsequent divisions which not only defines the persons, but alters the ordinary sense of the words "an estate in possession," it must have effect given to it.

*

Division 6 of sub-sect. 1 is, passing over the words which do not apply to the present case, as follows: "A tenant for [* 430] his own or any other life . . . whose estate . . . is subject to a trust for accumulation of income for payment of debts or other purpose;" and it is said on behalf of the appellant that these last words prevent the difficulty arising in the present case which Mr. Justice CHITTY has held to be fatal to the application. Is that so? One must first look to see what has already been decided as regards tenants for life under this Act. To my mind sub-sect. 7 of sect. 2 very much shows what the line is on which the Courts have gone. That sub-section provides that "a person being tenant for life within the foregoing definitions shall be deemed to be such notwithstanding that, under the settlement or otherwise, the settled land, or his estate or interest therein, is encumbered or charged in any manner or to any extent.' Mere charges existing "under the settlement or otherwise" may not prevent a man who is tenant for life under the settlement from being tenant for life in possession. Why? Because a tenant for life whose estate is in immediate possession always has an interest where there are only charges either on his life estate, or on the property in which he has a life interest. He has the equity of redemption, a present immediate right to pay off those charges and then claim the possession of the estate the rents and profits of the estate. The Court does not go into the question whether in fact the income of the estate is sufficient to provide for charges upon it. He has an interest for life and a present interest which enables him, if he pays off those charges, to have possession of the estate, and without doing that, he has a right to have such income, if any, as may arise from the estate

In re Strangways; Hickley v. Strangways, 34 Ch. D. 430, 431.

after providing for the charges; and he has an estate and interest, and that he has in possession.

But is that the case here?

Now in the first place what is charged here must necessarily appropriate for twenty years the entire rents and profits of this estate. So that here the person claiming to be tenant for life in possession, or to exercise the powers of a tenant for life in possession, can have no right during that period to put himself in possession of the estate, or to claim any part of the rents and profits of the estate, however large they may be. But then is that covered by these words "whose estate . . . is subject to a

a

* trust for accumulation of income for payment of debts or [* 431] other purpose?" It is said that that meets the difficulty, and that without that he could not exercise the powers of a tenant for life. Now we must look at the words " is subject to a trust for accumulation." In my opinion in order to bring himself within that, he must show that he has an immediate estate present estate for life, but that present estate is only subject to a trust for accumulation. That is a very different thing from there being a disposition of the entire rent for a given period, and a postponement until the expiration of that period of any interest whatever in the tenant for life. Here, treating him in popular language as future tenant for life, what could he do during twenty years. He could not say, "Hand over the rents to me, and I will provide for the direction to accumulate." No; there is a direction to take all the rents, and apply them for a particular purpose during twenty years. His interest, therefore, is not to arise till after the twenty years, and he has no right whatever to interfere with the present income or rent of the land. It is said by Mr. Cookson that there must be an equitable tenant for life of the freeholds. He produced no authority in support of that proposition; and here the legal estate is vested in trustees with a trust which exhausts the whole of the beneficial interest during twenty years. Those trustees have the legal estate in them, subject to certain duties as to the rents which shall arise from the property, and the tenant for life has, during that period, no interest whatever no estate whatever. He can, it is true, come to a Court of equity, if the trustees are misapplying the estate, or dealing with it in such a way as to prevent its coming to him, and say, "I have an interest in this, though it is a future interest, and as

No. 2.

– In re Strangways; Hickley v. Strangways, 34 Ch. D. 431, 432.

interested in the accumulations I have a right to come to the Court to compel the trustees to do their duty." But that does not make his estate or interest in the land an estate or interest in possession; although it may give him a right to come to the Court and ask the Court to see that the trustees, who have the entirety of the estate during twenty years, do their duty. In my opinion this case, where the trusts must exhaust all the beneficial income of the land during the next twenty years, is not within the 6th division of sub-section 1 of the 58th section.

[* 432]

*Then the authorities cited have not, in any way, supported the contention of Mr. Cookson. In re Jones, 26 Ch. D. 736, 744, was a case where the income of the tenant for life was, in fact, entirely exhausted by the previous charges under the settlement. There it was held that you must not look to see what the actual amount of the income is, but you must look at the settlement; and in that case, the settlement, although it imposed charges on the estate previous to the tenancy for life, did give an immediate estate for life to Colonel Grey, whose interest was then in possession, and who was entitled, subject to the trusts of the term to secure the charges, to the income should there be any. In re Clitheroe Estate, 31 Ch. D. 135, was really the same thing, and the principle of Sir JAMES HANNEN's judgment is to be found at page 140. He quotes first of all from Lord Justice LINDLEY'S judgment, In re Jones: "When we look further into the Act it seems obvious that a term 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." Then Sir JAMES HANNEN says: "That is precisely the position of Lord Henry Scott, he is tenant for life, subject to the charges, and subject to the term the term being merely security for the charges. Nothing stands in the way of his receipt of the rents and profits but the charges, which he might at any time redeem, and therefore, on the authority of that case, his interest, though subject to those charges, is in possession within the meaning of sect. 58." That, I think, is the principle of the decision of In re Clitheroe Estate, and it was the principle of the decision in In re Jones. In my opinion it cannot be said here that this is an estate or interest in possession, subject only to certain trusts for

Nos. 1, 2. — In re Jones; In re Strangways, Hickley v. Strangways. — Notes.

accumulation.

It is an estate or interest, not in possession, but in futuro, in remainder, only to arise and to exist in possession when the term of twenty years has expired.

I am of the same opinion, and I concur in all the LORD JUSTICE has said.

* FRY, L. J. :—

[* 433] I entirely agree in the judgment which has been delivered, and I will only make this one observation. It has been pressed on us that the conclusion to which we have arrived violates the policy of the Act. That argument is not tenable. The 58th section defines the persons who are to have the powers of tenants for life. The policy of those words is obvious. It is not intended to clothe persons whose estates are not in possession with the ample powers vested in persons whose estates are in possession.

The remaindermen who appeared to support the appellant's case cannot be allowed their costs, they have had one decision already at the expense of the estate; but the appellant must pay the costs of the respondents, and also of the trustees.

ENGLISH NOTES.

In the case of In re Morgan's Settled Estate (NORTH, J., 1883), 24 Ch. D. 114, 53 L. J. Ch. 85, 48 L. T. 964, 31 W. R. 948, a testator had, by his will, devised real estate to trustees, upon trust to pay the rents to his wife (who was one of the trustees) for the maintenance and education of his son J. until he should attain twenty-one, and upon his attaining that age, upon trust for the son J. absolutely; but if he should die under twenty-one, without leaving issue, then upon trust to permit his (testator's) wife to receive the rents and income for her own benefit during widowhood, and from and after her death or second marriage, upon trust for grandchildren. It was held that the infant was a person having the powers of a tenant for life under sect. 58, sub-sect. 1 (ii.), of the Settled Land Act, 1882.

In the case of In re Woodhouse, 1898, 1 Ir. R. 69, the testator had devised portions of his estate to trustees upon trust to pay out of the rents, a proportion of certain annuities and interest on legacies, and to accumulate the residue for the payment of certain debts and the