V.

at such age or time as the said William Keppel should by deed or BARRINGTON will &c. appoint, and for want of such appointment to be an LIDDELL. interest vested in such only younger child being a son at his age of twenty-one years, or being a daughter at her age of twenty-one years or marriage with consent &c., and the money to be paid to him or her on or at the same age or day if it should happen after the decease of the survivor of them the said George Keppel and William Keppel, but if such day should happen in the lifetime of the said George Keppel or William Keppel or the survivor of them, then to be paid within six calendar months after the decease of the survivor of them, and if there should be two such children and no more, then the sum of 30,000l. for the portions of such two children, and if there should be three or more such children then the sum of 40,000l. for their portions to be divided between or among the children for whom the portions were provided in such shares and to vest in and after the decease of the said George Keppel to be paid to them respectively on or at such ages or days and to be subject to such limitations over for the benefit of some one or more of such children as the said William Keppel should by deed or will &c. appoint, and for want of such appointment, the sums of 30,000l. or 40,000l. were to be divided between such younger or other children to be vested as to sons at twenty-one, and as to daughters at twenty-one or marriage with consent &c. in equal shares, and to be paid at such ages or days if the same should happen after the decease of the survivor of them the said George Keppel and William Keppel but if not then within six months after the *decease of each survivor. That there were ten children of the marriage, several of whom attained twenty-one years of age, the consequence of which was that the sum raisable under the term was 40,000. That Shute, Bishop of Durham, the great-uncle of the said plaintiff, by his will, dated the 10th December, 1825, recited that upon the marriage of his great-nephew, the said plaintiff, the said hereditaments in the county of Berks were limited to uses in strict settlement under some of which the daughters and younger sons of his said great-nephew by his wife Jane Elizabeth, Viscountess Barrington, might eventually become entitled to a portion or portions amounting to 20,000l., 30,000l., or 40,000l. as the case should happen; and the testator bequeathed unto his executors therein named the sum of 15,000l., upon trust that they and the survivors and survivor of them and the executors administrators and assigns of such survivor should within three calendar months

[483]

v.

LIDDELL.

[ *484 ]

BARRINGTON next after his decease invest the same in the public stocks or funds of Great Britain or at interest upon Government or real securities in England or Wales in their or his names or name, to be from time to time altered or varied into or for other stocks funds and securities of the like nature when they or he should think proper, and should accumulate all the interest dividends and annual income of the said trust-monies stocks funds and securities during the life of his said great-nephew, or if his said great-nephew should depart this life within the term of twenty years to be computed from his the said testator's decease, then the accumulation to be continued for so long a period as with the time that should elapse in the lifetime of his said great-nephew would make up the full term of twenty years to be computed from his the said testator's decease, and upon the completion of the accumulation aforesaid, the trustees or trustee for the time being should stand possessed of *and interested in all the same trust-monies stocks funds securities and accumulations upon trust to apply the same or a competent part thereof in satisfaction and discharge of the portions so intended for the daughters and younger sons of the testator's great nephew by the said Viscountess Barrington when and as the same respectively should become payable and in exoneration of the hereditaments charged therewith, and subject thereto upon and for the several trusts intents and purposes and with under and subject to the several powers provisoes and declarations in the will contained of the said testator's residuary personal estates then subsisting or capable of taking effect; provided always, that if before the expiration of the said period of accumulation, the accumulated fund should be of sufficient amount or value for answering the purposes aforesaid, the accumulation should thereupon immediately cease; and as to all the residue of the testator's personal estate, the testator directed that it should be divided into two equal parts; and the testator bequeathed one half of the said residue to his nephew the said George late Viscount Barrington his executors administrators and assigns, and the other half of the said residue to Henry, Bishop of Exeter, James Baker, and John Burley, their executors administrators and assigns, upon trust from and after the decease of the survivor of the said George late Viscount Barrington and Elizabeth, Viscountess Barrington, then his wife, for all the children of the said George, Viscount Barrington, then born or thereafter to be born who being a son or sons (but not an eldest or only son) had attained or thereafter should attain twenty-one, or who being a

That by deeds dated

v.

LIDDELL.

[ *485]

daughter or daughters had attained or thereafter should attain that BARRINGTON age or marry, their respective executors administrators and assigns, to be divided between or among the said children if more than one in *equal shares, and if there should be but one such child, then the whole should be in trust for that one child his or her executors administrators or assigns; and the testator thereby appointed the said George late Viscount Barrington, William Keppel, Viscount Barrington, and Augustus Barrington, executors of his said will. That the testator died on the 25th March, 1826, and the late Viscount Barrington on the 3rd March, 1829. the 17th June, 1842, and the 7th August, 1844, an undivided onetenth part of the premises comprised in the term of two thousand years was with the consent of the plaintiff assigned to Augustus Barrington by way of mortgage to secure the sums of 5331. 2s. and 7217. 14s., the sums thus raised being for the advancement of one of the younger children of the plaintiff. That George William Barrington, the eldest son of the plaintiff, having attained twentyone years of age, the estate tail created by the settlement of 1823 was barred, and the estates were resettled upon other uses and trusts. That the 15,000l. given by the testator upon trust for accumulation was duly invested to accumulate, and the accumulations on the 24th March, 1847, being twenty-one years after the death of the testator, amounted to 35,6221., and at the institution of the suit to 43,6431. That the two sums of 5331. 2s. and 7217. 14s. still remained a charge on the premises included in the term of two thousand years. That the said plaintiff Viscount Barrington, and the other persons interested under the resettlement, (these parties being made co-plaintiffs,) were desirous that by means of the accumulated trust fund the hereditaments comprised in the term of two thousand years should be exonerated from the portions or sums of money charged upon the said hereditaments under the trusts of the term.

Under these circumstances the plaintiffs and defendants, these latter being the trustees of the term and the parties interested in the residuary estate of the testator, sought the opinion of the Court on the following points: First. Whether the trust for accumulation, so as aforesaid directed by the will of the said testator Shute, Bishop of Durham, deceased, is valid for the whole of the life of the said plaintiff William Keppel, Lord Barrington, or for the period only of twenty-one years from the death of the said testator, or for any and what other limited period, and to what extent is such trust for

[486]

v.

LIDDELL.

BARRINGTON accumulation valid. Second. Whether, according to the true construction of the said will and the said indentures of settlement of the 20th and 21st April, 1823, the said accumulated trust fund or any and what part thereof and to what amount is now applicable in exoneration of the estates comprised in the said term of two thousand years created by the said last-mentioned indentures of settlement from the said portions or sum of 40,000l., or in exoneration of the said estates from the said mortgage debts or sums of 5331. 28. and 7217. 14s. and the interest thereof, and any other and what part or parts of the said portions or sum of 40,000. Third. Whether any and what appropriation, and in whose names as trustees, ought to be now made of any and what part of the said accumulated trust fund to answer and pay at any and what future time or times any and what part or parts of the said portions or sum of 40,000l., so as to exonerate and discharge the residuary estate of the said testator Shute, Bishop of Durham, deceased, from all further or other liability in respect of the trusts for accumulation of the said fund. Fourth. In what manner is the income of the said accumulated trust fund, whether there be any appropriation or not, to be dealt with until the estates are by means of the fund exonerated from the portions or sum of 40,000l., *or who is entitled to such income from the period when if at all the trust for accumulation ought to have ceased.

[ *487 ]

The case was heard before the Vice-Chancellor Sir George Turner, in June, 1852; and on the 12th July, 1852, his Honour made an order declaring that the trust for accumulation directed by the will of the Bishop of Durham was not valid for the whole of the life of the plaintiff William Keppel, Viscount Barrington, but was valid for the period only of twenty-one years from the death of the testator; and also declaring that the accumulated trust fund was not nor was any part thereof then applicable in exoneration of the estates comprised in the term of two thousand years created by the indentures of settlement of the 20th and 21st April, 1823, from the mortgage debts or sums of 5331. 2s. and 7217. 14s. and the interest thereof or any part thereof, or from any other part or parts of the portions or sum of 40,000l.; and also declaring that no appropriation ought to be then made of any part of the accumulated trust fund to answer and pay at any future time or times any part of the portions or sum of 40,000l. so as to exonerate and discharge the residuary estate of the testator from all further or other liability in respect of the trust for accumulation of the said fund; and also declaring that

v. LIDDELL.

the income which since the 24th March, 1847 (the expiration of BARRINGTON twenty-one years from the death of the testator), had accrued or should thereafter accrue due in respect of the funds or sums which on the said 24th March, 1847, constituted the accumulated trust fund and of the stocks funds and securities into which the same or any part thereof might have been converted or transposed ought to be held and applied by the plaintiff William Keppel, Viscount Barrington, and Augustus Barrington, as the trustees and executors of the testator's will, as income arising from the testator's *residuary estate and be divided between and paid to the residuary legatees accordingly until the accumulated trust fund should after the death of the plaintiff William Keppel, Viscount Barrington, be actually applied in part discharge of the portions or sum of 40,0007. in exoneration of the settled estates, and that such residuary legatees of the testator were entitled to such income from the period when the trust for accumulation ceased to be valid as thereinbefore declared.

From this order the plaintiff, Lord Barrington, appealed to the Lord Chancellor as before mentioned, praying that it might be declared that the trust for accumulation was valid for the whole of the life of the plaintiff William Keppel, Viscount Barrington; or if the Court should be of opinion that the trust for accumulation was valid for the period only of twenty-one years from the death of the testator, then that it might be declared that the funds or sums which on the 24th day of March, 1847, (the expiration of twenty one years from the death of the said testator), constituted the accumulated trust fund, or a sufficient part thereof, were applicable in exoneration of the estates comprised in the said term of two thousand years from the mortgage debts or sums of 5331. 2s. and 7211. 148. and the interest thereof, and that the residue of the said last mentioned funds or sums, after satisfying the said mortgage debts and interest, ought to be appropriated to answer and pay at any future times when the same should be required any other part of the said portions or sum of 40,000l., so as to exonerate and discharge the residuary estate of the testator from all further or other liability in respect of the said trust for accumulation of the said fund.

Sir W. Page Wood and Mr. G. L. Russell, for the appellant. They supported the contention raised by the prayer of the petition of appeal, arguing that the testator's intention was merely

[ *488]

[489]