HIS was a special case, the effect of which and of Where a be THIS the will itself was as follows: :- The testator William Barton, by his will dated in wife quest is made to persons in esse for life, with remainder to their un born children, of with a general direction that 1842, bequeathed 8007. and a leasehold to trustees, upon trust for his daughter Charlotte, the George Holloway, for her life, and after her decease, the female upon trust for her children as tenants in common, as and when they should attain twenty-one, and to pay, "separate and assign and transfer the same to them accordingly. There were gifts over if there should be no issue of Charlotte. children shall take for their inalienable use," such restriction against alienation is too After several other gifts, the will contained the fol- remote and void. Semble. lowing Under seve ral bequests to living persons for life, with remainder to their children born and unborn, with a general proviso that the shares of females shall be for their separate inalienable use:- -Held, that the restriction against anticipation applied only to the tenants for life, in consequence of a direction for payment to the children and a proviso that their receipts should be good discharges. 1865. ARMITAGE v. COATES. lowing proviso, on which the question turned: "Provided also and I do hereby declare, that the several devises and bequests, hereinbefore by me made and given to or in favor of any female or females, shall be for their respective separate and inalienable use, and free from the debts, control or engagements of any present or future husband or husbands with whom she or they shall have intermarried or may hereafter intermarry ; and that the receipt or receipts in writing of any or every such female or females shall, notwithstanding coverture, be a good and sufficient discharge or good and sufficient discharges for all and every sums or sum of money payable to her or them, respectively, under or by virtue of this my will, to the person or persons to whom such receipt or receipts shall or may be given for the money therein expressed or acknowledged to be received." He There were other portions of the will, preceding the proviso, affecting the decision in this case, and which were substantially as follows: The testator gave a leasehold to his wife for life, and afterwards to be sold and the produce to fall into the residue. The legacy to Charlotte in default of issue was given to another daughter (by name) for life, with remainder over. gave a freehold to his daughter Mary for life, with remainder over. He gave 600l. to George and Charlotte Beard on attaining twenty-one, with gifts over; and he made other gifts to males which it is unnecessary to mention, and gave the residue to his wife for life, with remainder to a daughter for life, and afterwards to her children. The testator died in 1842. Charlotte Holloway died in 1854. In 1861, Charlotte Barton Holloway, one of the three children of Charlotte Holloway, married Mr. Coates, but no settlement was made on her marriage. She attained twenty-one in 1863, and shortly afterwards she requested the trustee to transfer to her one-third part of the 8007. legacy, and to assign to her one-third part of the leasehold premises. The trustee was ready and willing to comply with her request if he lawfully could, but he was advised that, by reason of the above proviso, he was unable to do so with safety. The trustee submitted, that Charlotte B. Coates was a female within the meaning of the proviso, and that a valid fetter had been imposed by the proviso on her vested interest. Charlotte B. Coates, on the other hand, contended that the proviso was applicable only to females named in the will, and not to females unborn at the death of the testator and taking merely as members of a class; secondly, that as to the latter the proviso was void, as infringing the rule against perpetuities. The questions submitted for the opinion of the Court were, first, whether the proviso in the will was valid as regarded the vested share of Charlotte B. Coates in the 8001. legacy and in the leasehold; and, secondly, whether the proviso, upon its true construction, created a restriction against anticipation. Mr. C. Hall for Charlotte B. Coates. The restriction against alienation is altogether invalid, being too remote. The rule of law is this, that you cannot tie up property so as to make it inalienable beyond a life or lives in 1865. ARMITAGE บ. COATES. 1865. ARMITAGE บ. COATES. esse and twenty-one years afterwards; but if, after an estate to A. for life you give the corpus to A.'s daughters, and make their interest inalienable, even during coverture, it may restrict the alienation beyond two generations. This the law will not allow; it withdraws the property from the market beyond the permitted period, and such a limitation is void. The point arose in Fry v. Capper (a), where a fund was settled on a husband and wife successively for life, with remainder to the children as they should appoint. An appointment was made to their daughters for life, but not by way of anticipation. It was contended that the restraint upon anticipation of the daughters' life interests would infringe the rule against perpetuities. Vice-Chancellor Wood says, "The argument on this point in Thornton v. Bright (b) suggests the decision to which the Court would probably come-that, if necessary, the Court would reject the limitation and treat the appointment as being a settlement for the benefit of the daughter without the restraint upon anticipation. The point is ingenious, and would deserve, perhaps, more consideration if it were open to me. However, if Thornton v. Bright had not decided the question, I think that I should have come to the same conclusion, independently of that authority." In Thornton v. Bright (c) and Carver v. Bowles (d) the objection as to a perpetuity was never raised, and in Baggett v. Meux (e) the point did not arise, as the gift was to a person in esse. Here the case arises, not as to a life estate, but as to the corpus, which makes the case stronger. This inalienable gift to a class not in (a) 1 Kay, 163. esse (d) 2 Russ. & Myl. 304. 138. esse is contrary to the policy of the law and void, to support such a gift in favor of a married woman is beyond the power that a court of equity ought to assume, and the fetter ought to be rejected altogether. Mr. Wickens for Mr. Coates. According to the true construction of the will the clause against alienation is applicable only to the tenants for life, and not to persons taking as an unascertained class after the life estates. The will provides, that the receipts of females for the monies payable to them shall be good discharges to the trustees, and that the trustees shall "pay, assign and transfer the same to him or her accordingly." It is inconsistent with an inalienable gift that payment should be made at once of the fund, and that a transfer or assignment should be executed to them of their shares of the leaseholds. Mr. Robson for the other Defendants. The proviso only applies to the persons specifically designated by name and not to a class. He cited Dickenson v. Mort (a). The MASTER of the ROLLS. I am of opinion that this proviso against alienation does not apply to the several classes of persons thereafter to be born. The direction to pay the money to them, him or her shews that the proviso as to separate use and against anticipation is inapplicable to persons who have already received the money and who are enabled to give good and sufficient receipts and discharges to the trustees for 1865. ARMITAGE v. COATES. Dec. 15. (a) 8 Hare, 178. |