IN RE KNAPP. (other than as aforesaid) who being a son should attain twenty-one, or being a daughter should attain twenty-one or marry, such one child should, under that indenture, take 2,000l. only, and if there should be two such children and no more, who being sons should attain twenty-one, or being daughters should attain twentyone or marry, such two should, under that indenture, take between them 6,000l. only, and if there should be three such children and no more, who being sons should attain twenty-one, or being daughters should attain twenty-one or marry, such three children should, under that indenture, take among them 10,000l. only, and the excess of the said sum of 14,000l. over the sum of 2,000l., 6,000l., or 10,000l. should be in trust for the said Arthur John Knapp, his executors or administrators. And it was declared that during the suspense of absolute vesting of any part of the said sum of 14,0007. the same might be invested and the income of the presumptive share of each infant child should be applicable for his or her maintenance and education under the statutory powers in that behalf.

Arthur John Knapp died in 1883 without having exercised the power reserved to him by the voluntary deed.

The

M. G. S. Knapp was still living, and had five younger children, Robert Bruce Knapp, Catherine A. Knapp, Arthur D. Knapp, Alured F. P. Knapp, and Keturah Knapp, who were all in existence in July, 1892, when Robert Bruce Knapp attained twenty-one. Catherine A. Knapp attained twenty-one in May, 1894. fund was now considerably over 15,000l., and by an order of Court 2,000l. out of the fund had been paid to Robert Bruce Knapp. Robert Bruce Knapp now claimed to have 1,000l. further paid to him. Catherine A. Knapp also claimed to have 3,000l. paid to her. An originating summons was taken out by Robert Bruce Knapp and Catherine A. Knapp against the trustees of the fund and the three infant children to determine whether the five children took the whole fund equally in case all attained twenty-one, or whether any future-born children would be in-1 cluded in the class.

VOL. 64. CHANC

Swinfen Eady, Q.C., and A. P. Whateley, for the plaintiffs.-The rule of Andrews v. Partington (1) applies, and after Robert Bruce Knapp attained twenty-one no increase in the class could take place.

H. Fellows, for the infant children. F.W.E. Everitt, Q.C., and T. R. Warrington, for the trustees.-There is no authority for applying the rule in Andrews v. Partington (1) to a voluntary deed. The intention is clear that all the children of M. G. S. Knapp whenever born should take. The fund is expressly stated to be in addition to the portions provided by the previous settlement, under which all the children except an eldest son would take, whenever born.

[The following authorities also were referred to: In re Emmet's Estate; Emmet v. Emmet (2), Gillman v. Daunt (3), In re Mervin; Mervin v. Crossman (4), and In re Smith (5).]

NORTH, J.-I think that the order made in chambers is the order I must follow now. It seems to me to have been right. If Knapp, the settlor, had done what he has done by will instead of by voluntary settlement, it is not disputed for a moment what the position of the parties would be. The children who had attained twenty-one would be entitled to have their shares actually paid over to them. The result would be that the shares must be ascertained, and, that being so, no person who is not alive could have a share set apart for him. That is the rule in Andrews v. Partington (1) and a great many other cases, and it is too clearly settled for there to be any doubt about it now.

There are only two cases I want to refer to one is In re Emmet's Estate (2). There the property stood thus: it was limited by will on trust to convert, and after payment of debts to invest and to permit H. E. during his life to receive

IN RE KNAPP. the rents and income for his own benefit, and after his death as to one undivided third part for all the children of H. E. equally, the shares to be conveyed and paid to them as they should attain twentyone as to sons, and twenty-one or marriage as to daughters. There were clauses of maintenance and accruer. The testator gave another third part of the estates after the death of H. E. in favour of the children of his sister, and the remaining third part in trust for all and every the children of G., the shares to be conveyed and paid at the ages and times above mentioned; and in case H. E., the tenant for life, should die without children, the share given for them was to be divided between his sister's and G.'s children as the two-thirds given to them. H. E. died a bachelor. At his death G., a widower, had two children. He married again, and when his eldest child attained twenty-one he had six children, all of whom attained twenty-one. Another child was born afterwards. It was held, by Vice-Chancellor Hall, and the Court of Appeal, that the six children or their legal personal representatives were entitled to a moiety of the estates. That looks very much like a decision on this exact point, but in point of fact it was not anything of the kind. The question really raised and argued was, whether the six children took, or whether two of them took to the exclusion of the other four; and the case of the seventh child seems to have been thought so clear that there was no person to represent that child before the Court. It was decided in the absence of that child, and treated as a perfectly clear settled point, about which there could be no dispute. There were reasons on the cases for suggesting that it was two instead of six, and that was negatived by both Courts; but the law laid down by Sir G. Jessel is perfectly clear in accordance with the earlier cases, and a portion of that I must read. He says: "The will appears to me as clearly and well drawn as any will need be. Under that will any layman would understand that all the children of George Nelson Emmet, at whatever time they were born, would become entitled, and, in the absence of authority, so should I"-that is to say,

the words most clearly pointed to all the children. "There has, however, been established a rule of convenience, not founded on any view of the testator's intention, that, since when a child wants its share it is convenient that the payment of the share should not be deferred, it shall be made payable by preventing any child born after that time from participating in the fund. The rule is, that so soon as any child would, if the class were not susceptible of increase, be entitled to call for payment, the class shall become incapable of being increased. That rule of convenience, being opposed to the intention, is not to be applied where it is not necessary, there being also a rule that you let in all who are born up to the time when a share becomes payable." I do not think I need read it further, because that is a very clear statement of the law. The result is that you may have to take the testator's death as the time when the class is ascertained, but if there is a life estate which prevents the distribution of the fund till the life estate is over, then you look to the period of distribution, which is, in that case, the termination of the life estate, and then you find, not the persons who will take, but the maximum number of which the class can consist, and then divide the shares, as far as they are divisible, on that footing. If there are six children living, one of whom has attained twenty-one, he will get his one-sixth; if another attains twenty-one, he will get his one-sixth ; afterwards, if a third dies under twentyone, he does not take a share, and the fund will be divisible in fifths, and the first two who will have had their sixth shares, which were what they would presumptively be entitled to-what they were clearly entitled to, rather-would be found entitled each to onee-fifth of another sixth, and so on. In the case of a life estate, the period of distribution is the death of the tenant for life, but it is not necessarily the determination of a life estate. Anything that fixes the period at which the fund has to be distributed marks the time that actually has to be taken; and in Watson v. Young (6) the period of distri

(6) 54 Law J. Rep. Chanc. 502; Law Rep. 28 Ch. D. 436.

IN RE KNAPP.

bution was got at in another way. There was a devise there in trust for J. for life, and after his death on trust for his children who should attain twenty-one, and the issue of any child who should die under twenty-one leaving issue who should attain that age; but in case there should be no child, nor the issue of any child of J. who should attain twenty-one-that is the event that happened-the property was to be held on trust for the child or children of R. who should respectively attain twenty-one, if more than one, in equal shares. So that J. was tenant for life, and on his death without children, according to the usual rule the class would be fixed. So it would be if it stopped there, but there was this further provision. "Provided always that the rents of the trust premises should during the term of twentyone years from the day next before the day of the testator's death be accumulated by way of compound interest, and the accumulated fund should be held in trust for the child, if only one, or all the children equally, if more than one, of R. who should attain twenty-one. J. died without ever having had a child. R. had six children who attained twenty-one; the youngest of them was born after the eldest had attained twenty-one, but before the end of the period of accumulation. Therefore, although the tenancy for life had expired, a further term had to elapse during which the rents had to be accumulated, and till that period came to an end, there could be no distribution; therefore, in that case the period for distribution and fixing the class was not the death of the tenant for life but the expiration of the further period that had to run to make up the twenty-one years. The learned Judge seemed to think it was a new case. I think it was a case of new circumstances to which the rule had to be applied, though he had no difficulty in applying the rule to that new state of things. In the present case the settlor has given to all the children of M. G. S. Knapp, who being sons shall attain twentyone, or being daughters shall attain that age or marry. There is no life estate, and if this had been a will the thing would be perfectly clear, that as soon as any child had attained twenty-one that child

would be entitled to have his or her share paid, and there are various indications in the settlement pointing that way. The income is given for maintenance during minority only, and the shares vest at twenty-one. This is all the more reason for saying that as soon as the child attained twenty-one the time had come when he was entitled to his share, when he came and asked for it. There are two reasons suggested why the general rule should not apply to this case. The first is that this is not a will but a voluntary settlement. Now what difference does that make?

I confess I cannot see that it makes any logical difference, and I do not see any legal difference. If this gentleman had chosen to do it by his will, the matter would have been perfectly clear; and that he did it by a deed instead seems to me to come to precisely the same thing. In point of fact, the deed is as nearly like a will as it could possibly be, because, although he made the settlement, he reserved to himself the general power of appointment over the whole, so that the power remained in his entire control down to the time of his decease. But neither on legal nor on logical grounds do I see any distinction between a voluntary settlement and a will. Counsel have told me they cannot find, and I certainly do not know of, any case in which the doctrine has been applied to the case of a settlement; but, on the other hand, no one can refer me to any statement in any case whatever indicating grounds for a deeision which would prevent it applying to a settlement by a voluntary deed instead of a settlement by will-and I do not see any distinction between the two. It was suggested there might have been a distinction if, instead of being a voluntary settlement, it had been a settlement for value. not quite see what that distinction is; but that is not the case I have to deal with, and therefore about that I say nothing. Then the only other reason suggested why the ruling in Andrews v. Partington (1) should not apply was this: this was a settlement by the settlor upon the children of M. G. S. Knapp, who already were entitled under a previous settlement, and they were entitled to certain portions of fixed amounts. Then in this settle

I do

IN RE KNAPP.

ment which I have to deal with, the trust as to the 14,000l. is in trust to divide the same equally among all the children of the said M. G. S. Knapp who being a son or sons shall attain the age of twenty-one years, or being a daughter or daughters shall attain that age or marry, other than and except the said John Matthew Knapp, his eldest son. It is said that that clearly points to all the children, and no doubt it does. It is as clear here as the Master of the Rolls said it was in In re Emmet (2); but then the rule of law comes in here, and, although the intention might be to provide for all, this rule of convenience prevents that intention from having effect given to it. But then it is said that there are these further words: "To the intent that the said sum of 14,000l. may be in addition to the portions provided for the said younger children;" and it is said that that makes a difference, because under the original settlement all the children, other than a first, whenever born, who attain twenty-one would take, because there was a life estate that must last until the children had all been ascertained by birth; and as all the children, therefore, were to take under the original settlement, if the 14,000l. is to be added to their shares, it must be the intention that all the children should take the 14,000.

That does not make it any clearer, and the reason why they cannot take is not because it was not the intention that they should take, but because, in spite of the intention, the property has to be divided, inasmuch as the persons who are entitled to absolute shares ask for them, and cannot be gainsaid. Then, further, I do not see that this clause throws any light upon the question, because the statement that those who take the 14,000. are to have it in addition to the shares they take under the settlement only says that those who take under both are to have what they take under the second in addition to what they take under the first, and not by way of substitution for or satisfaction of the amounts which they take under the first. And even if it was the intention to carry the gift to a larger number of persons, it is inconsistent with what those who have attained

twenty-one are entitled to now-namely, to have their shares ascertained and paid to them.

Solicitors-Rooper & Whateley; Torr & Co., agents for Osborne, Ward, Vassall & Co., Bristol. [Reported by F. Gould, Esq., Barrister-at-Law.

Ex parte THE VICAR OF

CASTLE BYTHAM.

STIRLING, J. 1894. May 24. Oct. 25. Settlement-Lands Awarded to the Vicar and his Successors - Glebe - Corporation Sole-Loan-Improvements-Incumbrance

-Capital-Terminable Rentcharge-Redemption-Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), s. 69-Settled Land Act, 1882 (45 & 46 Vict. c. 38), ss. 2 (sub-s. 1), 21, 25, and 32-Settled Land Act Amendment Act, 1887 (50 & 51 Vict. c. 30), 8. 1.

Land awarded to a 66 vicar and his successors is not settled land within section 2, sub-section 1 of the Settled Land Act, 1882.

Under section 32 of that Act and section 69 of the Lands Clauses Consolidation Act, 1845, read together, the Court has jurisdiction to apply in redemption of terminable charges on the glebe created under the Land Improvement Act, 1864, money paid into Court under section 69 in respect of land formerly awarded to the vicar and his successors, and recently taken by a railway company :— -But held, that, inasmuch as the patrons of the living had only consented to the loans on condition that they should be repayable within twenty five years, and they now opposed the vicar's application for redemption, the Court, in its discretion, ought not to diminish the value of the advowson by allowing the payment.

Summons.

The summons was issued by the Rev. C. C. Crackanthorp, vicar of Castle Bytham, and asked for an order that out of 1,7867. 78. 6d., money on deposit in

EX PARTE VICAR OF CASTLE BYTHAM.

Court, the sum of 7091. Os. 5d. might be paid to the Land Loan and Enfranchisement Company in discharge of their claim over the glebe lands of the said benefice, in respect of money advanced for improvements; that the residue might be invested and the interest and dividends paid to the vicar.

The money in Court represented part of the glebe lands of the benefice which had been taken by the Midland Railway Company under their compulsory powers. The land in question originally formed part of certain common lands in the parish. By a private Act of Parliament of 1803 (43 Geo. 3. c. lxxxiii.), commissioners were appointed to divide, allot, and enclose these lands, and (inter alia) to set out, allot, and award to the dean and chapter of Lincoln and their lessee, and to "Thomas Fanshaw Middleton as vicar of Castle Bytham aforesaid, and his successors," such part of the lands as should be full compensation for the present unenclosed and glebe lands and rights of common; and further to allot to the said dean and chapter and their lessee, and the said "Thomas Fanshaw Middleton and his successors, vicars of Castle Bytham aforesaid," land in respect of tithes.

In 1807 the commissioners made their award as follows: "We have set out and allotted and do hereby award unto and for the said Thomas Fanshaw Middleton and his successors, vicars of Castle Bytham," certain lands therein described.

In 1878 the present vicar, in order to make certain improvements and erect farm buildings on the glebe, borrowed from the Land Loan and Enfranchisement Company, with the consent of the Enclosure Commissioners for England and Wales, the sum of 6501., secured by a terminable charge on the whole of the glebe lands, to be repaid by half-yearly payments of 221. 198. 7d. during a period of twenty-five years. In 1879 a sum of 3127. 178. 4d., and in 1884 a further sum of 1317. 188. 10d., were borrowed in the same way and for similar purposes. These sums were all laid out in permanent improvements upon the glebe; they were borrowed with the consent of the patrons of the living (the bishop and the dean

The net income of the benefice did not now exceed 1901. per annum, out of which the vicar had to pay 75l. 5s. 6d. in respect of the loans. This payment he had punctually made.

The Midland Railway Company had taken some of that part of the glebe which had formed the subject of the award, and had paid the money into Court under their Act and the Lands Clauses Consolidation Act. The vicar now applied for an order that part of the funds should be applied in repayment of the loans, on the ground that the glebe was settled land, and that the money had been laid out in improvements.

The matter stood over in order that the consent of the patrons might be obtained. This could not be done, and the summons was then amended by adding them as respondents.

L. Yate Lee, for the summons.-The applicant wishes that part of the money in Court may be applied in paying off the terminable rentcharges. It is not a purpose to which money in Court could be applied under section 69 of the Lands Clauses Consolidation Act, 1845; but it could be so applied under section 1 of the Settled Land Act, 1887.

[STIRLING, J.-Are not the rentcharges "debts or incumbrances affecting the land" within the meaning of section 69 of the Lands Clauses Act?]

I submit not; such charges seem not to have been considered "incumbrances affecting the inheritance" of settled land within the meaning of section 21 of the Settled Land Act, 1882, as the Act of 1887 was passed to meet such cases.

The land in question is settled land within the meaning of section 2 of the Settled Land Act, 1882; it was, by the Act of George 3, allotted to the vicar and his successors, so that a settlement was created for the purposes of the Act of 1882. money in respect of which these rentcharges were created was spent in putting up substantial farm-buildings on the land.

The