« PreviousContinue »
No. 2. — In re Strang ways; 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 * 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 - a 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 Strang ways; Hickley v. Strang ways, 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, sup
ported 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 ro Jones ; In re Strangways, Hickley v. Strang ways. — 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.
Sir JAMES HANNEN:
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.
COTTON, L. J. :
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 No. 1. — Hove v. Earl of Dartmonth; Howe v. Countess of Aylesbury. — Rule.
legacies, and subject to these trusts for J. for life, remainder to J.'s sons in tail male, remainder to C. for life, etc. J. died unmarried, C. went into possession. The debts still remaining unpaid, application was made for an order authorising C. to raise money under sect. 11 of the Settled Land Act, 1890 (53 & 54 Vict. c. 69), for the purpose of discharging encumbrances. It was held that, notwithstanding the trust for accumulation, C. was “beneficially entitled to possession," and entitled to exercise the powers of a tenant for life under the Settled Land Act, 1882, sect. 58.
And where land was limited to trustees of a marriage settlement to the use of the trustees for twenty-one years, and subject thereto to the use of the husband for life, and the trusts of the term were to manage the property, pay annuities, and accumulate the residue, such accumulations to be capital moneys under the Settled Land Act, it was held by KEKEWICH, J., that the husband was a person having the powers of a tenant for life under the Settled Land Act, 1882, sect. 58. In re Martyn, Coode v. Martyn (1900), 69 L. J. Ch. 733.
On the definition of “tenant for life,” and persons having the powers of a tenant for life under the Settled Land Acts, see also the topic “ Settled Land Acts,” No. 1, and notes 24 R. C. 42 et seq.
TENANT FOR LIFE AND REMAINDERMAN.
[And see No. 9 of “ DILAPIDATION," and notes 9 R. C. 488/et seq.]
No. 1. – HOWE v. EARL OF DARTMOUTH.
No. 2. — PICKERING v. PICKERING.
RULE. WHERE personal property is given by a testator en masse, by a general description, to be enjoyed by persons in succession, it must, as a general rule, be converted into a fund producing a permanent income which can be so enjoyed. No. 1. — Howe v. Earl of Dartmouth; Howe v. Countess of Aylesbury, 7 Ves. 137, 138.
But if an intention appears that the property, or what is left of it, is to be enjoyed in specie, that intention will receive effect.
Howe v. Earl of Dartmouth.
7 Vesey, 137–152 (6 R. R. 96). Tenant for Life and Remainderman. — Investment of Personalty. General rule, that where personal property is bequeathed for life with  remainders over, and not specifically, it is to be converted into the 3-per cents, subject in the case of a real security to an inquiry, whether it will be for the benefit of all parties; and the tenant for life is entitled only upon that principle.
William, Earl of Strafford, by his will, dated the 25th of October, 1774, gave to his wife Anne, Countess of Strafford, all his personal estate whatsoever (except the furniture of Wentworth Castle) for her life, subject to the following out-payments and legacies. He also left to her all his houses, gardens, parks, and woods, and all his landed estates for her life; and afterwards all his personal and landed estates to his eldest sister Lady Anne Conolly, for her life; and then to the eldest son of George Byng, Esquire; and afterwards to his second, third, or any later sons he may have by the testator's niece Mrs. Byng; and then to the eldest son and other sons successively of the Earl of Buckingham by his niece Caroline: but all of them to be subject to the following out-payments and legacies. He left his wife the sum of £15,000, to dispose of forever as she pleases, and the value of £500 in furniture in Wentworth Castle, of whatever sort she chooses ; else the whole furniture to be hers, if she meets with any difficulty in * this disposition. He gave several legacies and [* 138] annuities; and declared, he would have all his debts paid; and gave all his servants a year's wages.
The testator died on the 10th of March, 1791. Anne, Countess of Strafford, died in his life, on the 9th of February, 1785. Lady Anne Conolly filed a bill for an account of the personal estate, &c. By a decree, made at the Rolls on the 17th of May, 1793, the usual accounts were directed; and it was declared, that the plaintiff would be entitled to the interest of the clear residue of the testator's personal estate during her life; and an inquiry was