No. 309.

PRICE 18.

LONDON, DECEMBER 10, 1842.

Ir has been suggested by a learned writer of great eminence, that, under the Thellusson Act, and the decisions that have been made upon it, some doubt may be entertained of the validity of the ordinary trusts for partial accumulation, introduced into provisions for the maintenance, during minority, of persons unborn at the testator's decease. The portion of the Act on which these doubts are said to rest, is that which excepts from the prohibition to accumulate "the minority or minorities only of any person or persons, who, under the uses or trusts of the deed, surrender, will, or other assurances, directing such accumulations, would for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated." In a case before Sir J. Leach, V. C., (Haley v. Bannister, 4 Mad. 275), the testator had directed a trust for accumulation, to commence from the death of A. and B. his wife, in favour of the children of B. born or to be born, "so as to accumulate until one of the said children should attain the age of twenty-one years," and then and then only the principal to be transferred; and on this his Honor said, that "the statute prevents an accumulation of interest during the minority of an unborn child; but as to the principal, the law remains as before the statute. The excess of accumulation prohibited by the statute will form part of the residue."

Mr. Jarman, in his excellent work on Wills, says, that this decision makes the portion of the Act to which we have referred amount only to a mere saving or reservation of the rule of law, which disposes by way of accumulation of the surplus income of minors, after providing for maintenance. "It limits (he says*) the term of accumulation authorized by the Act to twenty* Jarman on Wills, Vol. 1, p. 268. † See Vol. 1, p. 268.

VOL. VI.

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one years from the testator's decease, or the minority of a person then in esse, which in fact is included in the former, since every person born in the lifetime of the testator must attain majority before the expiration of twenty-one years from his decease." "The decision, therefore, (he continues), seems to place in some peril the accumulating trusts ordinarily introduced into provisions for the maintenance during minority of persons unborn at the testator's decease, which direct the unapplied surplus income from time to time to be added to the principal."

It is to be observed, that in Haley v. Bannister, the point to which his Honor's opinion directs itself, did not call for a decision, as, under the circumstances that appeared, there was not, when the case was before the Court, any child of the testator's born after his decease. However, whatever may be the effect of the dictum of Sir John Leach, its authority has been recognised and acted upon by Lord Langdale in deciding a very late case, Ellis v. Maxwell, (3 Beav. 587). In that case, the trusts were for the benefit of a class of children whose parents were living at the testator's decease, to be paid and become vested as and when they should attain twenty-one, with a direction for maintenance, and for accumulation of the surplus, the accumulation to be payable and paid with the original shares. At the death of the testator, there were no such children, but after his death children were born; and the question was, whether the accumulation directed till the majority of such children, was void. Lord Langdale held that it was, partly on the language of the Statute, and partly it would seem on the authority of Haley v. Bannister, and an earlier case, Longdon v. Simpson, (12 Ves. 295).

With regard to the effect of the two cases, (Haley v. Banister, and Ellis v. Maxwell), a recent writer*

* Hargrave on the Thellusson Act.

doubts, whether they go the length attributed to them by Mr. Jarman. (See Mr. Hargrave's Treatise, p. 131). He appears however to agree with Mr. Jarman as to the effect of Sir J. Leach's dictum on the ordinary trusts for partial accumulation referred to, when those trusts are framed, as is frequently done, so as to give only contingent interests to the children. But if they are framed in another very usual way, to give vested interests, subject to be divested, then he seems to consider that the dictum of the Vice-Chancellor has no application, and that such trusts are good.

In Mr. Hargrave's doubts as to the extent to which the cases of Haley v. Bannister and Ellis v. Maxwell cut down the operation of the Statute, we confess we participate; for in neither of those cases is there any thing, as it appears to us, to warrant the assumption, that the Court meant to lay down so general a rule as that attributed to Sir John Leach by Mr. Jarman. In the case before his Honor, the period when accumulation was to commence for the benefit of the party or parties ultimately entitled to its produce, was absolute; it was to commence at the death of the testator, and was not to terminate till the majority of one of the children of his daughter; and clearly, if, at the death of the testator, there had been no child of the daughter, but one had been born afterwards, the trust for accumulation till the majority of that child would have been void. For, under the trusts of the will, the accumulation would be going on for more than the minority of the person who, if of full age, would be entitled. And in Ellis v. Maxwell, this was the precise state of circumstances on which the Court had to adjudicate.

We apprehend therefore, that Sir John Leach's expression must be taken with reference to the state of circumstances he was contemplating, and is not to have attached to it a meaning much more extensive than those circumstances require. It may be inferred that his opinion was not intended to imply generally, that, with reference to minorities, there can be no accumulation except during the minority of a person in esse at the decease of the testator, but only that, with reference to the sort of case before him,-accumulation from the decease of a testator till the attainment of majority by an unborn child, would not be permitted by the Statute. That this is the light in which Lord Langdale viewed Sir J. Leach's opinion, and that his Lordship did not himself mean to carry the doctrine further, we may gather, not only from the circumstances in Ellis v. Maxwell being precisely such as to limit the meaning of the Court in the way we contend it is to be taken, but also from Lord Langdale's expressions in referring to Longdon v. Simpson. "Taking the words of the Statute (he says) as they stand, they do not appear to permit accumulation during the minority, and also a time to elapse between the death of the testator and the commencement of the minority, or in favour of any person who would not for the time being, if of full age, be entitled to the annual produce of the fund; and accordingly, in the case of Longdon v. Simpson, where an accumulation was intended to be made until unborn children attained twenty-one, Sir W. Grant decreed an accumulation for twenty-one years only." These observations of the Master of the Rolls seem to shew that his Lordship was considering exclusively a case where a trust is limited to

commence at the death of the testator, and not to terminate until children who may come into esse afterwards shall have attained majority. We submit, therefore, to the learned reader, that these cases do not determine that there cannot be under the fourth division of the first clause of the statute any accumulation, except during the minority of persons in esse at the death of the testator.

Viewing these cases in this light, it is difficult to see how either of them can have any application to the trusts referred to by Mr. Jarman and Mr. Hargrave; because, in those trusts, in whichever way they are constructed, the accumulation is not originally and specifically limited to commence from the period of the death of the testator in favour of any person unborn at such period; at the death of the testator the accumulation begins for those children who are then in esse. The accumulation for an unborn child does not begin till such child comes into esse; for it is not of course till then that any share of the income becomes applicable to his use, or that any interest in the principal arises in him. It is true, that if all or any of the children in esse at the death of the testator die before being actually entitled to the dominion over their shares, the after-born child may take in fact an interest in capital formed partly of accumulations commencing before his birth; and therefore in a sense there is an accumulation for more than his minority: but the accumulation which arises on the share of the principal in which the unborn child acquires an interest in coming into esse, does not, and cannot, of course, begin till his birth, and docs not therefore extend over more than his minority.

The trusts under discussion appear to us in fact to have relation to two branches of the clause of the Statute, viz. the third and fourth; they are trusts of the capital in certain shares destined or marked out, first, for the children in esse at the time of the testator's death; and as to them, it is clear, that, under the third branch of the clause, the accumulation of the whole or a part of the income for their minorities would be good; but the trusts at the same time comprise limitations over of some share or shares of the capital to those children who shall come in esse after the death of the testator; and on those children taking interests or possibilities in the principal, and not till then, the accumulation in respect to them is to begin, and that accumulation seems to fall within the fourth branch of the

clause.

Expressing the same view in another form, the trusts under discussion seem to be in the alternative, either for accumulation during the minorities of persons in esse at the death of the testator; or, if the contingency of another child coming into esse shall determine those accumulations, then for the minorities of such persons as would be entitled if of full age.

It may perhaps be said, that, if we adopt this construction, we fall into the assertion of the doctrine, that a trust may be created to accumulate from the death of the testator until there shall be a child of a certain marriage, and then, from the birth of that child, upon trust to accumulate for him till his majority; in other words, that we assert the very doctrine repudiated by Haley v. Bannister and Ellis v. Maxwell. Undoubtedly, we must admit, that, if the trusts under discussion can

be supported, there may be in effect an accumulation, which, by a combination of circumstances, may extend from the decease of a testator to the period of majority of a person not in esse at the death of the testator; but the mere circumstance, that the result of a combination is de facto an accumulation exceeding twenty-one years, is no necessary objection to the validity of the trusts creating in part such accumulation. (See Lord Eldon's observations in 9 Ves. 136). The true point is, whether the particular accumulation directed by the trust itself commences at such a period, that it may extend over more than the minority of the person, who, if of full age at the time of its commencement, would be entitled to the income. And we contend, that, under the trusts in question, firstly, no accumulation is directed for the person born after the testator's decease, to commence until that person comes into esse; secondly, that such person on coming into esse is the person who would be entitled under the trusts to the income directed to be accumulated; and thirdly, therefore, that such trusts fall within the protection of the fourth branch of the clause of the statute.

With respect to the distinction taken by the author of the Treatise on the Thellusson Act, between the two modes of framing the trusts carrying maintenance and accumulation, we confess we doubt whether it can be supported. It is admitted by that learned writer, that if the trusts are framed on the principle of giving vested interests subject to be divested, the accumulation of the surplus income, whether for the infant or for other persons, is protected by the fourth branch of the clause. Now, whether there is any difference on technical grounds of reasoning or not, it is plain that in the effects of the two modes of framing the trusts there is none. In the case where they are so framed as to give vested interests, the effect of there being children born after the decease of the testator is, that de facto the capital out of the income of which accumulation is to take place for those children, is partly composed of accumulations antecedent to the birth of such children; and therefore there will be in that case as much accumulation exceeding the period of the minority of the unborn children, as in the case where the trusts are so framed as to give to all the children only contingent estates originally. If the Statute acts on these trusts at all, it does so on the principle of prohibiting de facto accumulations, which in any manner and by any combination, directly or indirectly, endure for more than the minority of the unborn children. Therefore, either the Statute has no application at all to the trusts under discussion, or else it applies to them, as suggested by Mr. Jarman, in whatever way they are constructed. The point is, however, it must be confessed, full of difficulty; and while we have on the one hand the practice of conveyancers unattacked by direct decision, and on the other the deliberately pronounced opinion of so eminent a writer as the author of the Treatise on Wills, and the circumstance that his opinion is supported at least by the apparent general intention of the Statute, it may be well to say, adopting the words of the learned author of the Treatise on the Thellusson Act, that the solution of all the difficulties surrounding the adoption of these clauses, as a measure for bonâ fide accumulations under the Statute, we confess to be beyond our

power.

The first, Butler v. Moore, at the Rolls, 24th February, 1802, is directly in point, and is found reported from MS. in MacNally's Rules of Evidence on Pleas of the Crown, Vol. 1, p. 253. Lond. 1802. In that case the plaintiff filed a bill as heir-at-law, praying to be decreed to the estates of the late Lord Dunboyne, and alleging that the will under which the defendant claimed was a nullity, Lord Dunboyne having been a popish priest, and having conformed and relapsed to popery, which deprived him of power to make a will. Issue was joined; and the plaintiff produced the Rev. Mr. Gahan, a clergyman of the Church of Rome, to be examined, and interrogatories to the following effect were, amongst others, exhibited to him-" What religion did the late Lord Dunboyne profess from the year 1783 to the year 1792? What religion did he profess at the time of his death, and a short time before his death?" The witness answered to the first part, viz. "That Lord Dunboyne professed the Protestant religion during the time," &c., his knowledge of the matter inquired of (if any he had) but demurred to the latter part, in this way-"That arose from a confidential communication made to him in the exercise of his clerical functions, and which the principles of his religion forbid him to disclose, nor was he bound by the law of the land to answer."

Duquery, Ponsonby, Plunket, J. Ball, and Bellew, supported the demurrer.-They argued, that the law, from principles of policy, allowed a confidence, which was not to be betrayed; and instanced the cases of barrister and client, attorney and client, husband and wife, magistrate and informer, grand juror, &c. These, they said, were analogous cases; and courts of justice would not restrain the exercise of religious duties by compelling a disclosure of what was confidentially communicated by a repentant sinner to the minister of God. The Roman Catholic_religion was not only tolerated, but sanctioned by the Legislature; and it was unreasonable to say that contradictory duties were imposed: first, that a Roman Catholic clergyman should exercise his religion, and then be called upon to violate the tenets of that religion by betraying the confidence reposed in him.

Burston, Saurin, Curran, O'Grady, and J. Lloyd, contra.-The claim of exemption from giving evidence is scrutinized with a jealous eye; and the person relying upon it must establish his right by shewing a positive law or express authority. The cases alluded to in them; and there is no instance in the history of the establish nothing beyond the particular character stated law of such a claim as the present. It should therefore be suppressed as unprecedented, impolitic, and dangerous.

Sir Michael Smith, Bart., M. R., thought there was no difficulty in the case, though it had run into a great length of discussion, which he indulged, as being most likely to give satisfaction upon a question which seemed to involve something of a public feeling. But he was bound to overrule the demurrer. It was the undoubted legal constitutional right of every subject of the realm, who has a cause depending, to call upon a fellow-subject to testify what he may know of the matters in issue; and every man is bound to make the discovery,

unless specially exempted and protected by law. It was candidly admitted, that no special exemption could be shewn in the present instance, and analogous cases and principles alone were relied upon; and there was no doubt, that analogous cases and principles were sufficient for judicial determination. But the principle must be clear as light, and the analogy irresistibly strong. That clearness of principle and strength of analogy did not appear in this case; and demurrers of this nature being held strictly, (Vaillant v. Dodermead, 2 Atk. 524), he was bound to overrule it.

The next case to be noticed (R. v. Gibney, Jebb, C. C. 15) is like that of R. v. Gilham, (1 Moody, C. C. 186), as correctly exhibited in your article. It was an indictment against the prisoner for the murder of his infant child, tried before Johnson, J., at the summer assizes at Cavan, 1822; and the case rested upon separate confessions made by the prisoner to two constables after he had been brought, on his way to gaol, to the place where the dead body lay, under extraordinary circumstances. The question there was, whether the confession did not result from the circumstance of the prisoner's mind being excited to terror by the acts and speeches of the persons through whom and by whom he was conducted to gaol; and therefore whether it was such a voluntary confession as ought to be given in evidence against the prisoner. The learned judge received the confession, reserving the question as to its admissibility for the opinion of the judges; who held that it was properly received, on the ground that there had been no threat or intimidation, nor any fear of a temporal nature produced; but that any terror which might have been excited, was as to what might happen in the next world.

It is certain that the ground of excluding a confession made to the attorney, is not the privilege of the attorney, but the consideration that a full and free communication between the attorney and his client is essential to the proper conduct and termination of judicial investigations. "Without such a communication, no person can safely come into a court, either to obtain redress or to defend himself." (See the Observations of Lord Brougham, C., in Bolton v. The Corporation of Liverpool, 1 My. & K. 88, 94, 95, and in Greenough v. Gaskell, Id. 98, 103).

It is equally certain, that the impropriety of violating private confidence reposed in a party, is not recognised as a sufficient bar to the disclosure of facts confidentially communicated. In R. v. The Duchess of Kingston, (11 St. Tr. 246; 20 How. St. Tr. 586), Lord Barrington declined to answer a question put to him on the part of the prosecution, saying, "If anything has been confided to my honour, or confidentially told me, I hold, that, as a man of honour, as a man regardful of the laws of society, I cannot reveal it;" upon which Lord Camden addressed the following observations to the House:-"The laws of the land are, to receive another answer from those who are called to depose at your bar, than to be told, that in point of honour and of conscience, they do not think that they acquit themselves like persons of that description, when they declare what they know. There is no power or torture in this kingdom to wrest evidence from a man's breast who withholds it every witness may undoubtedly venture on the punishment that will ensue on his refusing to give testimony. As to casuistical points, how far he should conceal or suppress that which the justice of his country calls upon him to reveal, that I must leave to the witness's own conscience." (See also the Observations of Lord Kenyon and Buller, J., on this point, in Wilson v. Rastall, 4 T. R. 753, 758, 759). The rule on both points is the same in the law of Scotland. "However much the law respects the confidence and secrecy of friendship, it looks to a higher obligation and paramount duty, that of giving information and disclosing

the truth in a court of justice." (Burnett on the Criminal Law of Scotland, pp. 435-439. Edinb. 1811). The Code Pénal of France, in its enactment against the disclosure of confidential and professional communications, excepts cases in which it takes place in due course of law. By Art. 378, "Les médicins, chiurgiens et autres officiers de santé, ainsi que les pharmaciens, les sages-femmes, et toutes autres personnes dépositaires, par état ou profession, des secrets qu'on leur confie, qui hors le cas où la loi les oblige à se porter dénonciateurs, auront révélé ces secrets, seront punis d'un emprisonment" &c., "et d'une amende' &c. The inadmissibility therefore of a confession made to a clergyman in the discharge of his spiritual duties pro salute animæ must be rested on the privilege of the clergyman. If such a privilege should, notwithstanding the first-cited case, be determined to exist, there seems good reason for limiting it to a confession after the commission of the crime; and therefore a disclosure, even in confession to a Roman Catholic priest, of an intended crime before the commission of it, would not, it is submitted, be privileged. In the case of R. v. Haydn, (Fox & Smith, 379), which was a trial at bar, on the 25th of January, 1825, for a libel on the Lord-Lieutenant of Ireland, Bushe, C. J., who delivered the judgment of the court, in adverting to the argument, that if the communication (which in that case was to an attorney) had been for the purpose of consulting how a crime of a treasonable and felonious nature might be committed with impunity, it could not be privileged, observed, that "If any man should confide to a professional adviser that he had a treasonable or felonious intention, and wished to know how he might execute it so as to escape punishment, it would be too much to say that such communication, which might make the man consulted guilty of misprision, was privileged." And in Burnett's Crim. Law, p. 437, we read, "An agent also might be compelled to swear to his client's having declared his purpose to commit the crime, or to his (the agent's) having undertaken a criminal employment by desire of his client, as in the case of forgery, by falsi fying a deed, the copy of which was sent to him by his employer."

I will conclude this long communication by remarking that the military law, as regulated by statute, acknowledges the prerogative of the courts to require from its officers the discovery of matters, which, except in the character of witness, they are bound to keep secret. The oaths taken by members of courts martial and by the Judge Advocate, contain a clause not to "disclose or discover the vote or opinion of any particular member of the court martial, unless required to give evidence thereof as a witness by a court of justice or a court martial in a due course of law." G.J.P.S.

London Gazettes.

TUESDAY, DECEMBER 6.

BANKRUPTS.

THOMAS SPENCE, Maryland-point, Stratford, Essex, market gardener, Dec. 13 and Jan. 17 at 11, Court of Bank. ruptcy, London: Off. Ass. Pennell; Sol. Bodman, Queenst.-chambers, Cheapside.-Fiat dated Dec. 1. JAMES HILLIAR, Lymington, Southampton, innkeeper, Dec. 20 at half-past 11, and Jan. 16 at half-past 1, Court of Bankruptcy, London: Off. Ass. Graham; Sols. Fosters & Co., 28, John-st., Bedford-row.-Fiat dated Nov. 30. CHARLES WILLIAM WALTHEW, Poultry, chemist, Dec. 15 and Jan. 16 at 1, Court of Bankruptcy, London: Off. Ass. Graham; Sol. Henderson, 28, Mansell-st., Goodman'sISIDORE BLOOMENTHAL, Thornton-street, Dockhead, Surrey, wholesale stationer, Dec. 9 at 2, and Jan. 11 at 11, Court of Bankruptcy, London: Off. Ass. Lackington; Sol. Jones, Sise-lane.-Fiat dated Nov. 26.

fields.-Fiat dated Dec. 2.