C. A. 1909 NASH, In re. COOK an unborn child of an unborn child. With this rule I have never meant to interfere, for it is too well settled to be broken in upon; and the result therefore is, taking the limitation as it stands, that there is a good life estate to Phillips Mony penny and to his first unborn son if he had one, and that the remainder to the other sons and their issue is absolutely void, as being upon FREDERICK. too remote a contingency." We do not see any ambiguity in this; but if there be, it is rendered clear by the report in the Law Journal (1), which says: "If the issue of Phillips had been born in the lifetime of the testator, these would have been valid devises; but Phillips never had any issue born; and the persons provided for are his first unborn son and the first unborn son of that unborn son, and the heirs male of his body; the limitations in default of such issue being to all the other sons of Phillips in like manner. The rule of law prohibits you from raising successive estates by purchase to unborn children, that is to a child of an unborn child; therefore the remainder to the other sons of Phillips is absolutely void, as too remote." Further, at this time it had never been decided, and, as I have shewn, was not even suggested by Lord Chancellor or counsel, that the modern rule against perpetuities extended to contingent remainders in equitable estates; this was so decided for the first time in Abbiss v. Burney. (2) If Monypenny v. Dering (3) was decided on that ground, it is strange that it was not cited in that case, as the judge who decided it in the Court below and was reversed on appeal was Malins V.-C., who had been counsel in Monypenny v. Dering. (3) It is said against this that Whitby v. Mitchell (4) might have been easily decided without all the argument expended on it on the authority of Monypenny v. Dering (3); but Whitby v. Mitchell (4) was a case of legal limitations, and it was probably thought desirable to take the line of least resistance, namely, the clear decisions on legal estates at law, without entering upon cases in equity at all. We are of opinion that the rule against limiting land to an unborn child for life with remainder to his unborn child applies to equitable as well as to legal estates. (1) 22 L. J. (Ch.) 313, 316. (2) (1881) 17 Ch. D. 211. We think that the rule (3) 2 D. M. & G. 145. (4) 44 Ch. D. 85. C. A. 1909 NASH, In re. COOK should be so expressed, and that the phrase " possibility upon a possibility" should not be used. It was due to Lord Coke's love of scholastic logic; it never was a general rule-see Blamford v. Blamford (1) and Lampet's Case (2)—although it was, no doubt, given by Lord Coke as a reason for the real and intelligible rule FREDERICK. that estates cannot be limited to an unborn child for life with remainder to his unborn child. But the rule is well established, whatever its reason may have been, and the fact that Lord Coke gave a reason for it three centuries ago that now seems fantastic or unintelligible to us cannot affect the validity of the rule itself. We think that Eve J. was quite right and that this appeal should be dismissed with costs. Nov. 11. The question of election was now argued. E. Beaumont (P. O. Lawrence, K.C., with him), for the appellants. The persons entitled in default of appointment cannot at the same time claim against the appointment under the testator's will and take advantage of the testator's bounty in respect of his free property. They cannot approbate and reprobate: In re Bradshaw. (3) In re Oliver's Settlement (4), no doubt, is a decision to the contrary, and that case has since been followed in In re Beales' Settlement (5) and In re Wright. (6) I adopt as part of my argument the observations in the preface of Theobald on Wills, 7th ed. p. vii., where the learned author defends the view taken by Kekewich J. in In re Bradshaw. (3) Jessel, K.C., and Wurtzburg, for the respondents, were not called upon. COZENS-HARDY M.R. This appeal raises a point of law upon which perhaps twenty or thirty years ago there might have been some discussion, but in recent times one view of the question has been taken by James V.-C. in Wollaston v. King (7), by Pearson J. in In re Warren's Trusts (8), by Farwell J. in In re Oliver's Settlement (4), by Warrington J. in In re Beales' Settlement (5), by Buckley J. in In re Wright (6), and by the Court (1) (1615) 3 Bulst. 98, 108. (3) [1902] 1 Ch. 436. (4) [1905] 1 Ch. 191. (5) [1905] 1 Ch. 256. (6) [1906] 2 Ch. 288. C. A. 1909 NASH, In re. Cook v. of Appeal in Ireland in In re Handcock's Trusts. (1) The contrary view has been taken by Kekewich J. in In re Bradshaw (2), a case which no less than three judges have declined to follow. I feel myself no doubt that the view taken by the majority of the judges is the sound one, and I do not think that I can usefully add anything more than to say that I desire for myself FREDERICK. to adopt not merely the decision but the careful and elaborate reasoning of Farwell J. in the case of In re Oliver's Settlement. (3) The result is that the decision of Eve J. on both branches of the appeal is affirmed, and that the appeal must be dismissed with costs. FLETCHER MOULTON L.J. I agree. FARWELL L.J. I also agree. Solicitors: Tylee & Co.; Sharpe, Pritchard & Co.; Budd, Brodie & Hart. CozensHardy M.R. (1) (1889) 23 L. R. Ir. 34. (2) [1902] 1 Ch. 436. (3) [1905] 1 Ch. 191. H. B. H. C. A. 1909 SWINFEN EADY J. July 9, 10 12, 27, 31. C. A. Nov. 5. SOUTH EASTERN RAILWAY COMPANY v. ASSOCIATED [1909 S. 235.] Railway-Accommodation Works-Agreement-Severed Lands-Grant of Right By an accommodation works agreement of May 31, 1847, a railway company, who were purchasing a strip of land for their line, agreed that the landowner, his heirs, appointees, or assigns, might at any time thereafter at his or their own expense make a tunnel thereunder to join the lands severed thereby. The company also agreed to make a certain defined level crossing. On December 31, 1847, the landowner conveyed the strip to the railway company, reserving to himself, his heirs, appointees, and assigns, the defined level crossing and the right to make a tunnel at his or their own expense, the level crossing and the privilege of making a tunnel being accepted in lieu of all other accommodation works. The site of the tunnel was in no way defined :— Held, affirming Swinfen Eady J.-(1.) that as against the original covenantors, the railway company, the provision in the agreement as to the tunnel was a personal contract and was not obnoxious to the rule against perpetuities. London and South Western Ry. Co. v. Gomm, (1882) 20 Ch. D. 562, explained and distinguished. (2.) That the benefit of that contract could be specially assigned to a lessee of part of the severed lands during the continuance of the lease. Held, further, by Swinfen Eady J.-(a) that as the agreement and reservation amounted to a regrant of an easement by the railway company to the landowner, and not to an exception out of the land granted by him to the company, the right to select the site of the tunnel was vested in the landowner, his heirs, appointees, and assigns, and the agreement and reservation were not void for uncertainty. Sanderson v. Cockermouth and Workington Ry. Co., (1849) 11 Beav. 497; (1850) 2 H. & T. 327, 331, applied. Pearce v. Watts, (1875) L. R. 20 Eq. 492, and Savill Brothers, Ld. v. Bethell, [1902] 2 Ch. 523, explained and distinguished. (b) That the grant of the easement was not ultra vires. In re Gonty and Manchester, Sheffield, and Lincolnshire Ry. Co., [1896] 2 Q. B. 439, applied. (c) That the agreement was also valid as an agreement for a further accommodation work under s. 71 of the Railways Clauses Consolidation Act, 1845. WITNESS ACTION. This was an action to restrain the defendants from making a tunnel under the plaintiffs' line without their consent. By an agreement under hand dated May 31, 1847, and made between the plaintiffs' agent of the one part and the agent of John Hales Calcraft of the other part, after reciting that the plaintiffs required to purchase certain land at Northfleet belonging to John Hales Calcraft for the purposes of a proposed branch railway, and, the parties being unable to agree the amount of compensation, the question had been referred to an arbitrator, but inasmuch as the arbitrator had no power to determine to what accommodation works John Hales Calcraft would be entitled for the more convenient use of the land severed by the proposed branch railway the parties had consented to enter into this agreement for the purpose of securing to John Hales Calcraft, his heirs, appointees, and assigns, the rights and privileges thereinafter provided, it was agreed that the plaintiffs should make and maintain a certain defined level crossing over the railway for the use of John Hales Calcraft, his heirs, appointees, or assigns, and the occupiers for the time being of the land adjoining thereto or occupied therewith. It was further agreed that "if the said John Hales Calcraft his heirs appointees or assigns shall at any time hereafter be desirous that a tunnel or archway under the said proposed railway (where it passes or is intended to pass through the said land required to be purchased by the said company) shall be constructed for the purpose of carrying chalk or other materials to or from the south side of the line of the said proposed railway for shipment on the river Thames or for any other purpose he or they shall be at liberty at his or their own costs and expenses to construct such a tunnel or archway provided that in the construction thereof he or they does not or do not in any way interfere with the said branch railway or impede the traffic on the line thereof and provided that the said tunnel or arch is constructed to the satisfaction and under the direction of the C. A. 1909 SOUTH EASTERN RAILWAY v. ASSOCIATED FACTURERS |