TWOPENY v. ΡΕΥΤΟΝ, [488] [489] I give only the interest to my said nephew for his life, and, at his death, the principal I will to be equally divided between his surviving children." And she appointed several persons, of whom the plaintiffs Edward Twopeny and William Twopeny were the survivors, executors of her will. The testatrix made a codicil, dated the 26th of October, 1822, which was partly as follows: "Whereas my nephew William Grenfell Peyton has become a bankrupt, and is also, from the present state of his health, incapable of the management of his own affairs: And *whereas it is my wish and intention that the provision made for my said nephew by my said will, shall be applied, solely, for or towards his maintenance and support during his life: Now therefore I do hereby revoke the bequest for life to my said nephew in my said will made: and I do hereby bequeath to the executors in my said will named, as trustees thereof, the interest or annual produce of that portion of my personal estate bequeathed, by my said will, to my said nephew William Grenfell Peyton, upon trust, during the life of my said nephew, to apply the whole or such part of such interest or annual produce, at such time or times, in such proportions and in such manner for the maintenance and support of my said nephew (and for no other purpose whatsoever) as they, my said executors, or the survivor of them, or the executors or administrators of such survivor, shall, in their or his discretion, think most expedient: and, subject to such trust, I do hereby confirm the bequest, in my said will contained, of the capital of the said trust fund to and in favour of the children of my nephew William Grenfell Peyton." William Grenfell Peyton became bankrupt in July, 1822, and was still uncertificated. Between July and October of the same year, he became lunatic. In 1823 the testatrix died. In March, 1837, Edward Peyton, the tenant for life of the residue, died. The bill was filed by Edward Twopeny and William Twopeny, against William Grenfell Peyton, and James Arbouin, the surviving assignee under his bankruptcy. The question was whether the assignee had any right to the provision made for William Grenfell Peyton by the codicil. Mr. Pole for the plaintiffs. Mr. Jacob and Mr. Lefroy, for William Grenfell Peyton. V. Mr. Dickenson, for the assignee, relied on Snowdon Dales (1), Piercy v. Roberts (2), and Green v. Spicer (3), and said that the last case was almost the same as the present. THE VICE-CHANCELLOR: This case is distinguishable from those that have been cited: for, in the first place, there is a gift, in the will, to the nephew for his life and then the testatrix, in her codicil, after taking notice that her nephew had become a bankrupt and a lunatic, revokes the bequest for life to her nephew, and directs her executors, during his life, to apply for his maintenance and support, and for no other purpose, the whole or such part of the interest of that portion of the residue, which, by her will, she had bequeathed in trust for him, at such time or times, in such proportions and in such manner as they should, in their discretion, think most expedient. In my opinion, therefore, it would be impossible for the executors to apply the income of the trust fund for the benefit of the nephew generally, or for any purpose beneficial to him, which is not comprehended under the terms, "maintenance and support." Besides the executors are not directed to apply the whole of the income for the maintenance and support of the nephew, but only such a proportion of it as they, in their discretion, should think expedient. I am, therefore, of opinion that, in this case, a trust is created for the mere special purpose of supporting and maintaining the nephew; and, under such a trust, the assignee cannot take any interest. TWOPENY t. PEYTON. [*490] BLEWITT v. ROBERTS. (10 Simons, 491-494; S. C. 9 L. J. (N. S.) Ch. 209; 4 Jur. 501.) SEE the report of this case on appeal in Craig & Phillips, 274, where Lord COTTENHAM, L. C., varied the decree made by the VICE-CHANCELLOR.] (1) 38 R. R. 173 (6 Sim. 524). (3) 32 R. R. 232 (1 Russ. & My. 395). 1840. Feb. 17. SHADWELL, 1840. Feb. 5, 7. April 16. SHADWELL, On Appeal. Lord COTTENHAM, [ 495 ] [ *496] IBBETSON v. IBBETSON (1). (10 Simons, 495—517; S. C. 4 Jur. 408; affirmed 5 My. & Cr. 26—29; S. C. 10 L. J. Ch. 49.) A testator bequeathed chattels to trustees, upon trust to permit them to be used by the person and persons who, for the time being, should be entitled to the possession of his mansion-house under his marriage settlement or his will, until a tenant in tail of the age of twenty-one years should be in possession of his mansion-house; and then the chattels were to belong to such tenant in tail. The testator was, under his marriage settlement, tenant in fee, subject to some prior limitations, which all failed at his death; and, under his will, his brother became tenant for life, with remainder to his (the brother's) eldest son in tail, and died, leaving such eldest son then of the age of twenty-one years. Held, that the gift of the chattels to the first tenant in tail who should attain twenty-one was too remote, and that the will gave the brother's eldest son no title to them. SIR HENRY CARR IBBETSON, being seised of the reversion in fee simple expectant on his decease without issue male, of and in estates situate at Denton, Askwith, Otley and Weston in Yorkshire, and being seised in fee simple in possession of other real estates, made his will dated the 11th of October, 1814, and thereby charged all his estates, real as well as personal, with the payment of his funeral and testamentary expenses, debts and legacies, and gave to his wife, Alicia Mary, for her life, a yearly rentcharge of 400l. *in addition to the jointure of 8001. a year provided for her on her marriage with the testator, to be issuing out of the testator's reversion in fee simple expectant on the failure of issue male of his body of and in his estates at Denton, Askwith, Otley and Weston, and, subject thereto, he gave his reversion of and in the same estates, and all other his real estates, to Wm. Charlton and Matthew Wilson and their heirs, to the use of Viscount Lascelles and Sir Wm. Fowle Middleton, their executors, &c. for the term of 1,000 years, to be computed from the day of his death, in trust for securing the yearly rentcharge of 400l., and upon further trust (in case there should be no son or sons of his body living at his decease or born afterwards, or, being such son or sons, all of them should die under 21 without leaving issue male), to raise portions and provide maintenance for any daughter or daughters of the testator; and, after the determination of the term, and, in the meantime, subject thereto and to the trusts thereof, to the use of the testator's (1) Harrington v. Harrington (1871) L. R. 3 H. L. 87, 40 L. J. Ch. 706, and see post, p. 313. IBBETSON v. brother Charles Ibbetson (who afterwards became Sir C. Ibbetson, Bart.) for his life, with remainder to trustees and their heirs during IBBETSON. the life of Sir C. Ibbetson, in trust to preserve the contingent remainders thereinafter limited, with remainder to the use of the first son of Sir C. Ibbetson in tail male, with divers remainders over and the testator bequeathed to Wm. Charlton and Matthew Wilson, their executors &c., all his plate, pictures, books and household furniture in and about his mansion-house at Denton Park, upon trust to permit the same to be used and enjoyed by the person and persons who, for the time being, should be entitled to the possession of his mansion-house under or by virtue of the settlement made upon his marriage or of the limitations contained in his will, until a tenant in tail of the age of 21 years should be in possession of his mansion-house, and then the plate, pictures, books and household furniture were to go and belong to such tenant in tail: and the testator gave all the residue of his personal estate, after payment of his funeral and testamentary expenses, debts and legacies, to the person who, at his decease, would be beneficially entitled, in possession, to his mansion-house. The testator died in June, 1825, without leaving any issue, but leaving Alicia Mary, his widow, and Sir Charles Ibbetson, his brother, him surviving. Upon the testator's death Sir C. Ibbetson entered into the possession of his real estates, and possessed himself of the plate, pictures, books and household furniture in and about the mansionhouse at Denton Park. In the year 1837 Sir Charles Ibbetson and Charles Henry Ibbetson, his eldest son, (who attained 21 in July, 1835) suffered a recovery of the testator's estates, and settled them, by deeds dated in March of that year, on Sir Charles, for life, with remainders to Charles Henry Ibbetson and his first and other sons, in strict settlement, with remainder to the plaintiff, who was Sir Charles's second son, and his issue male in like manner. Sir Charles Ibbetson died on the 9th of April, 1839, leaving his two sons and a daughter him surviving. The bill was filed by the second son against Sir Charles Henry Ibbetson the eldest son, and against the testator's personal representatives and other persons, charging that the trusts declared, by the will, of the plate, *pictures, books and household furniture in and about the mansion-house at Denton Park, was void for remoteness, and, therefore, those articles constituted part of the testator's R.R.-VOL. LI. 20 [ *497 ] [ *498 ] general residuary personal estate and ought to be applied in payment of his debts remaining unpaid. Mr. Knight Bruce and Mr. R. Atkinson, for the plaintiff, [cited Mr. Jacob, Mr. Koe, and Mr. Hodgson, for the defendant Sir There is, first of all, a distinct gift of the chattels for the use and enjoyment of the owners of the mansion-house; and the mention of a tenant in tail in possession, is not a part of that gift; but is only the measure of the period during which the testator intended that first gift to endure. Suppose that the existence of the tenant in tail and his attaining 21, are events too remote for the law to contemplate, then a gift of property until those remote events happen, is equivalent to a gift for ever. [They cited Phipps v. Kelynge (6) and Trafford v. Trafford (7).] Some stress was laid, in the argument on the other side, on the omission, in this will, of the words: "so far as the rules of law and equity will permit." Those words may be important in determining the character of the bequest, that is, whether it is executory or not; but they are of no importance in determining on the validity or effect of it for, in The Duke of Bridgewater v. Egerton (8), and Foley v. Burnell (9), and in other cases on heir-looms, those words were omitted. In this case Sir Charles Henry Ibbetson was born at the time when the will was made, and, consequently, long before the testator's death he, therefore, is clearly within the line of perpetuity: and, as he answers the description of tenant in tail in possession of the mansion-house of the age of 21, the chattels in question, to the use of which the late Sir Charles was entitled during his life, are now absolutely vested in him. But suppose that it were possible to say that the time has not yet arrived when there is a tenant in tail in possession of the age of 21, still the chattels are to be used and enjoyed by the person for the time being in possession (1) 13 R. R. 18 (2 V. & B. 54). (6) 13 R. R. 16 (2 V. & B. 57, n.). (7) 3 Atk. 347. (8) 2 Ves. Sen. 121; and 1 Br. C. C. 280, n. (9) 1 Br. C. C. 274. |