FOORD AND OTHERS v. BAKER. (27 Beav. 193-196.) A clause in a charity scheme, made in 1855, provided, that no person should act as trustee of the charity, who should hold or occupy any part of the charity property. At that time, one of the trustees, who had been appointed a trustee many years previously, held a small piece of charity land, under a twenty-one years' lease granted in 1817 by public tender: Held, that he must either give up the lease or the trusteeship. THE MASTER OF THE ROLLS, [referring to the clause above mentioned, said]: I am of opinion that a clause of this description must be construed strictly, and that no person who exercises the duties of trustee or acts as such ought to be allowed to have anything. whatever to do with, or have any beneficial interest in, any part of the charity property. The defendant, who is the lessee of a portion of the charity estate, cannot act as trustee; he must either give up the lease or the trusteeship. He must not have anything to do with this piece of land so long as he remains a trustee. DREWETT v. POLLARD (1). A testator gave a sum of stock, producing 180l. per annum, in trust to pay life annuities of 201. each to seven persons, and at the decease of any, to accumulate his annuity, and after the death of the last annuitant, to divide the stock and accumulations amongst the surviving children of the annuitants: Held, that this was not within the exceptions of the Thellusson Act of "portions" for "children" of persons taking an interest under the will, and that the trust for accumulation beyond twenty-one years after the testator's death was void. THE testator William Holt died in 1823. By his will, he bequeathed as follows: "I will that my executors do purchase the sum of 3,500l. New 41. per cent. Annuities, to be transferred into their own names, the interest of which I direct to be paid half-yearly to the following of my kindred (being an annuity for each of them 201. during their natural lives respectively), and at the decease of any or each of them, the annuity before paid to such deceased to be added to the principal sum of stock to accumulate; first to William Lowcock," of &c. second to Mary Pearson, third to Ellen Marsden, fourth to Martha Chester, fifth to John Pollard, sixth to Lowcock Pollard, and seventh to Mary Starkey, "and after the decease of the latest survivor of the above-named annuitants, then I direct my executors to sell the said principal sum of 3,500l. New 41. per cent. Annuities, with the accumulation, and to divide the proceeds in money amongst the surviving children, of the above-named seven annuitants, share and share alike." (1) Mathews v. Keble (1868) L. R. 3 Ch. 691. R.R. VOL. CXXII. 24 1859. July 4. Rolls Court. [193] [195] [*196 1859. June 29. Rolls Court. [ 196 ] DREWETT v. POLLARD. [197] [198] After the testator's death, his executors purchased the *sum of 3,500l. New 41. per cent. per annum Annuities in their names. Lowcock Pollard survived all the other six annuitants, and he died in 1858. Eleven children of the annuitants survived him. The trust fund and the accumulations now amounted to 7,5591. New 31. per Cents., and this bill was filed by the surviving executor, to obtain a declaration of who were the persons entitled to the fund. Mr. R. Palmer and Mr. Currey, for the plaintiff, argued that the trust for accumulation, so far as it extended beyond twenty-one years from the death of the testator, was void under the Thellusson Act (39 & 40 Geo. III. c. 98), and that the case did not come within the exception contained in the second clause of that Act in favour of a provision for "raising portions," of "children" of the persons taking "any interest "of under the will;" for such exception applied only to children taking immediately on the death of their parent, and not to those taking by survivorship after a series of life estates. They cited Barrington v. Liddell (1), Edwards v. Tuck (2), Bourne v. Buckton (3), Eyre v. Marsden (4), Burt v. Sturt (5), Viner's Abridg. "Portions," Wildes v. Davis (6). Mr. Selwyn and Mr. Lindley, for the surviving children, argued that the case came within the exception of the Act, and that the whole accumulations were valid, for here there were strictly portions provided for the children of the annuitants alone. They *cited Middleton v. Losh (7), Beech v. St. Vincent (8), Barrington v. Liddell (9). THE MASTER OF THE ROLLS: I think that this case is governed by the authorities, and that it is not within the exception of the 2nd section of the Thellusson Act. It is governed by Burt v. Sturt, and Edwards v. Tuck. The trust for accumulation after twenty-one years from the testator's death is void, and the accumulation beyond that period falls into the residue. (1) 95 R. R. 179 (2 D. M. & G. (2) 98 R. R. 26 (3 D. M. & G. 40). 90 R. R. 414 (10 Hare, 415). (6) 96 R. R. 445 (1 Sm. & G. 475). (7) 96 R. R. 318 (1 Sm. & G. 61). (8) 84 R. R. 398 (3 De G. & Sm. 678). (9) 95 R. R. 179 (2 D. M. & G. 98). GRIMES. HARRISON (No. 2). (27 Beav. 198-200; S. C. 28 L. J. Ch. 828; 5 Jur. N. S. 972.) [Obsolete practice in Chancery as to scale of costs where the matter in dispute was above 1,000l. See now Order LXV. r. 9.] IN RE STANHOPE'S TRUSTS (1). (27 Beav. 201-204.) A testator, having five daughters, gave a legacy to one and the residue to the remaining four (by name) "and their issue," but he afterwards directed, that any subsequent born daughters and their issue should be entitled to equal shares with the four daughters. One of the four died without issue in the life of the testator: Held, that there was no intestacy, that the daughters took as a class, and that those who survived took absolutely. Bequest of personalty to four daughters "and their issue": Held, that they took absolutely, but if a daugther had died her issue would have taken by substitution (2). THE testator, having five daughters, by his will dated in 1821, bequeathed 20l. to his daughter Susanna, and he gave his real and personal estate to his wife for her life, and after her decease as follows: "In trust to and for the use and benefit of my daughters Harriet, Maria, Charlotte and Amelia, and their issue. And it is my wish and intention, that if my said dear wife shall have a daughter or daughters by me either born in my lifetime or within due time after my decease, that she or they shall be equally entitled with my said daughters Harriet, Maria, Charlotte and Amelia in and to the residue of my estate and effects and the dividends and interest thereof. Now I do will and direct, that all and every daughter and daughters that my said wife Sarah Slott Stanhope shall have by me, and which shall be born either before my decease or in due time after, and the issue of their body and bodies respectively, shall and may be entitled to equal parts and shares, or an equal part and share, with my said daughters Harriet, Maria, Charlotte and Amelia of, in and to all the residue and remainder of my estate and effects, whatsoever and wheresoever the same may be, and the dividends, interest and produce thereof, in such and the same manner as if the said daughter or daughters hereafter to be born as aforesaid were now living and named in my said will with my said daughters Harriet, Maria, Charlotte and Amelia, to be applied share and share alike." His The testator died in 1844, his daughter Maria had *predeceased him, having died in 1842, without having been married. next of kin consisted of his four surviving daughters. (1) Followed by CHITTY, J. in In re Jackson (1883) 25 Ch. D. 162, 53 L. J. Ch. 180, 50 L. T. 18. The constitution of classes generally is considered in Kingsbury v. Walter [1901] A. C. 187. (2) In re Coulden, Coulden v. Coulden 1859. June 16. 1859. July 4. Rolls Court, [201] [ *202 ] In re STANHOPE'S TRUSTS. [ *203 ] The testator's wife died in 1859, and the fund (7,8601. 31. per cent. Reduced) now became divisible. The testator's daughters, Harriet, Charlotte and Amelia, were living and had married, but Charlotte alone had issue. This was a petition by the three daughters for payment. Mr. Selwyn and Mr. Pemberton, in support of the petition: Under the gift to the daughters "and their issue" the daughters take absolutely: Butter v. Ommaney (1). Issue" is used as a word of limitation. Secondly. The gift is to the daughters as a class; it is a gift to all the daughters except Susanna, and those who survived the testator and constitute the class alone take. It is not the less a class because some of the persons composing it are mentioned by name: Porter v. Fox (2). There is, therefore, no lapse or intestacy as to the share of Maria. Mr. Surrage, for the children of Charlotte: Some Some effect must be given to the word "issue." interest is clearly given to the issue, and the children, therefore, take either in remainder or concurrently with *their parents. (Ward v. Grey (3), Crockett v. Crockett (4) were referred to.) Mr. Pearson, for Susanna, contended that the gift was to the four daughters individually, as tenants in common; their shares being subject to a diminution by the birth of others. That the daughters, being named, could not take as a class, and that therefore there was an intestacy as regarded the share of Maria. THE MASTER OF THE ROLLS: I think this is a gift to a class, though in my opinion it is not a very clear case. If it had been a gift in trust for these four daughters "Harriet, Maria, Charlotte and Amelia, by name, and their issue," and it had stopped there, I should have been clearly of opinion that it was not given to a class. Stopping there it is a gift to four persons, and if any had died in the life of the testator without issue, there would have been a lapse of her share, which would have gone to the testator's next of kin. But here the testator directs that every other daughter his wife might have should be entitled to an equal share with the four daughters. There can be no question that all the daughters to be born are to participate, and, therefore, it is a gift to a class. He gives to four persons and all other daughters there (1) 28 R. R. 6 (4 Russ. 70). (3) Ante, p. 202 (26 Beav. 485). (4) 78 R. R. 183 (2 Ph. 553). a fter to be born, share and share alike; this, I think, is a gift te a class which consists of the four persons named and of all other daughters thereafter to be born. A person may make a bequest to a class, as to the daughters of A. and the daughters of B., and he may add any other person to them making together one class, and that is what is done here, and only those daughters who survived the testator take vested interests. It is not a question of taking as tenants in common or joint tenants, but whether they take as tenants in common or as joint tenants, they take nothing unless they survive the testator. I think, therefore, that Maria only took as one of a class. The remaining question is, as to the effect of the word "issue," and I think that is concluded by Butter v. Ommaney (1). The issue here were meant to take by substitution for their parents, and if a parent had died her issue would have taken by substitution. So if subsequent daughters had been born and died in the life of the testator, their issue would have taken by substitution. I am of opinion that there is no intestacy, that the fund is divisible into thirds, and that each daughter takes a third. HARTLAND v. MURRELL (2). (27 Beav. 204-206.) When a testator devises his real estate to his executors and directs them to pay all his debts, that constitutes a charge on the real estate, although they take no beneficial interest in it. JAMES COOKE, by his will, dated in 1839, first directed all his just debts and funeral and testamentary charges and expenses to be fully paid and satisfied by his executors, thereinafter named, and after bequeathing legacies to his children, he devised to three trustees (whom he also appointed his executors) all his estate, real or personal, upon trust to permit his wife to receive the rents of the real estate during her life, and immediately after her decease upon trust to sell his real estate; and with all convenient speed after his decease to collect, call in and convert the whole of his personal estate into money, and from and out of the moneys to arise therefrom to pay all his just debts and funeral and *testamentary charges, and also the said several legacies, and invest the residue and pay the income unto his said wife during her life, and after her decease the testator gave the produce of the real and the residue of his personal estate to his children. He appointed the three trustees to be executors of his will. (1) 28 R. R. 6 (4 Russ. 70). (2) In re Bailey (1879) 12 Ch. D. 268, 48 L. J. Ch. 628, 41 L. T. 157; In re Tanqueray-Willaume and Landau In re STANHOPE'S TRUSTS. [ *204 ] 1859. July 6. Rolls Court ROMILLY, [204] [ *205 ] |