Lombe v. Stoughton. testator gives, to his wife, all his provisions, wines, carriages, horses and musical instruments; but when he mentions his books, he changes the form of expression; for he does not give to her, all his books, but, the use of all his books. Therefore, the true construction of the two codicils, is that the son takes the books absolutely, subject only to the wife's right to the use of them during her life. LOMBE V. STOUGHTON.-LOMBE v. JODRELL. Accumulation.-Thellusson Act (39 & 40 Geo. 3, c. 98.) 1841 30th and 31st July. Testator, after devising his estates in strict settlement, directed that, in case he should not erect a mansion-house on his estates in his lifetime, his trustees should, forthwith after his death, erect the same according to such plan as he should approve of in his lifetime; or, if he should die before such plan should be prepared and completed, then according to such plan as his trustees, with the consent of the person, for the time being beneficially entitled to the immediate freehold of his estates, should think proper to adopt; and he gave 20,000l. to the trustees, to be applied in erecting the house, and, in the meantime, to be laid out in the funds and the dividends to be accumulated, and the accumulations, as well as the original fund, to be applied in erecting the house, and the surplus (if any) to be laid out in the purchase of lands to be settled to the same uses as the devised estates. Owing to opposition on the part of the tenant for life, the trustees did not build the house until more than twenty-one years after the testator's death; and they invested the 20,000, and accumulated the income of it during the whole of the interval. Held, that the direction for accumulation was not within the Thellusson Act, but that the whole of the accumulated fund was applicable to purposes directed by the will. SIR JOHN LOMBE, bart., by his will dated the 18th day of November, 1814, devised all his manors, lands, &c., situ[*305] ate in Norfolk or elsewhere, whether freehold, *copy. hold, or leasehold, unto and to the use of the defendants Stoughton and Mitchell, their heirs, executors, &c., upon trust to raise out of the rents, during the term of ten years from his decease, an annual sum of 1,000l., and to apply the same up Lombe v. Stoughton. on the trusts thereinafter declared; and he directed that, subject to the raising of that sum, the trustees should stand seised and possessed of the manors, &c., in trust for the defendant, Edward Lombe the elder, for life, and, after his death, in trust for his eldest son, the plaintiff Edward Lombe, the younger, for his life, and, after his death, in trust for his first and other sons successively in tail male, with remainder in trust for the second and other sons of Edward Lombe the elder, who should be born in the testator's lifetime, successively for their lives, with remainder in trust for their first and other sons successively in tail male, with remainder in trust for the sons of Edward Lombe the elder, who should be born after the testator's death, successively in tail male, with remainders in trust for several other persons for their lives successively, and their first and other sons in tail male, with the ultimate remainder in trust for the testator's great niece, Lucy Marsham, in fee. In a subsequent part of the will, the following clause was contained: "And whereas it is my wish and intention that a mansion-house and suitable offices, fit for the residence of the owner of my estate, shall be erected on some convenient spot in the parish of Bylaugh, in the county of Norfolk, either in my lifetime or after my death, and that, if I shall not erect the same in my lifetime, then that my said trustees shall, forthwith after my death, erect the same according to such plan as I shall, in my lifetime, approve of, or, if I shall die before such plan shall be prepared and completed, then according to such plan as the trustees or trustee for the time being under this *my will, with the consent of the person for the time [*306] being beneficially entitled to the immediate freehold of my said manors, &c., under this my will, shall think proper to adopt, adhering as closely as possible (situation and other incidental circumstances being considered) to the plan of the house now the residence of Robert Marsham, esquire, at Stratton Strawless in the said county of Norfolk: Now, therefore, in order to provide a fund for the erection of the said mansion-house and offices after my death, in case I shall not erect the same in my lifetime, I give and bequeath, unto the said James Stoughton and John Mitchell, their executors, &c., in the event of my not Lombe v. Stoughton. erecting or completing the erection of the said mansion-house in my lifetime, the sum of 20,000l. sterling money, to the intent to be applied for the purposes aforesaid, and, in the meantime, to be laid out by them, in their names, in the purchase of stock in some or one of the public stocks or funds of Great Britain, or at interest on real security; and also that my said trustees shall, from time to time, receive the interest, &c., of the said stocks, funds and securities, and lay out such interest, &c., in the purchase of other stocks or funds as aforesaid, so as for the annual income and produce of the said stocks or funds to accumulate, in the nature of compound interest, until the said money shall be wanted for the purpose herein before and also hereinafter mentioned: and I also further declare and direct that my said trustees or trustee for the time being, shall and do stand pos sessed of the said annual sum of 1,000l. herein before directed to be received and retained by them by and out of the rents and profits of my said manors, &c., for the said term of ten years next after my decease, upon trust that they or he do and shall add the said annual sum of 1,000l., from time to time [*307] to be raised as aforesaid, to the said sum *of 20,000l. herein before bequeathed for the purpose aforesaid, to the intent to be holden upon the same trusts and to accumulate therewith, and to become, in all respects, as part thereof: And I do hereby expressly direct that my said trustees shall, forthwith after my death, in case I shall not erect or complete the said mansion-house and offices in my lifetime, commence and proceed with the erection thereof in the manner herein before expressed, and apply the said sum of 20,000l., so bequeathed as aforesaid, and the accumulations thereof, and also the said annual sum of 1,000l. to be from time to time raised as aforesaid and the accumulations thereof respectively, in defraying the expenses of erecting the said mansion-house and offices in the manner aforesaid: And I do hereby declare and direct that if, after the erection and completion of the said mansion-house and offices, any part of the said sum of 20,000l. or the accumulations thereof, or of the said annual sum of 1,000l. to be raised and received as aforesaid, or of the accumulations thereof, shall remain unapplied, Lombe v. Stoughton. my said trustees and not be wanted for such purpose, then that shall stand possessed thereof upon the like trusts as are herein declared concerning the residue of my personal estate hereinafter bequeathed." The testator then empowered his trustees to take from his estates, timber, brick-earth and any other materials which might be wanted for erecting the mansion-house and offices, or for repairing any of the buildings on his estates: and he gave his residuary personal estate to the trustees, in trust to invest it in the purchase of lands to be settled to the same uses as the devised estates; and, until such purchase should be made, to invest it in the funds, pay the dividends to such person or persons as should, by virtue of his will, be entitled to the [*308] rents of the lands directed to be purchased; and he appointed Edward Lombe the elder, and Mitchell, executors of his will. The testator died on the 27th of May, 1817, without having built or approved of any plan for building the mansion-house and offices at Bylaugh; and, after his death, his executors laid out 20,000%., part of his personal estate, upon securities, in the names of Stoughton and Mitchell, to be applied for the purpose of erecting such mansion-house and offices; and Stoughton and Mitchell from time to time laid out the income of that sum, and the annual sum of 1,000l. out of the rents of the devised estates, to accumulate for the last-mentioned purpose. They also caused a plan of the mansion-house and offices to be prepared by an architect: but Edward Lombe, the elder, objected to their being erected at Bylaugh, and declared his intention not to inhabit them if they should be erected, but to remain in the mansionhouse then on the estates: and, consequently, he did not give his consent to the plan which had been prepared. The plaintiff, however, was desirous that a mansion-house and offices should forthwith be erected at Bylaugh: and accordingly (on the 21st of April, 1828,) he filed his bill, praying that Stoughton and Mitchell might be ordered to transfer the building fund, then standing in their names, into court, and that, by means thereof, a mansion-house and offices might be forthwith, or at some other Lombe v. Stoughton. convenient time, erected at Bylaugh, pursuant to the directions of the will, and under the decree of the court; and that so much of the building fund as should not be wanted for the purpose aforesaid, might be laid out according to the directions of the will in that behalf. [*309] *By an order in the cause, dated in July, 1828, Stoughton and Mitchell were ordered to transfer, into court, the sum of 43,548l. 18s. 1d., which was admitted by them to be invested in their names on account of the building fund; and it was ordered that the dividends to accrue due on that sum and on all accumulations thereon, should be laid out in consols. Stoughton and Mitchell accordingly transferred the 43,5487. 18s. 1d. into court. In February, 1829, the suit was heard, and the court then ordered that Stoughton and Mitchell should not commence or proceed with the erection of the mansion-house and offices at Bylaugh, until the further order of the court. In September, 1839, the plaintiff filed a bill of supplement, to which the testator's co-heirs at law, customary heirs and next of kin, as well as Stoughton and Mitchell, and Edward Lombe the elder, were made defendants, stating (amongst other things) that the period of 21 years from the testator's death, expired on the 27th of May, 1838; and that Edward Lombe the elder insisted that no accumulation of the building fund could take place beyond that period, and claimed the accumulations from that time. The supplemental bill prayed that the trusts of the will might be performed under the direction of the court; that the rights and interests of all parties who, in the opinion of the court, were interested in the building fund (which then amounted to 63,5077. 14s. 11d. consols) and the dividends thereof, or in any part thereof, might be ascertained and declared; that a mansion-house and offices might be forthwith erected at Bylaugh under the direction of the court; and that a competent part of the fund might be applied for that purpose, and that [*310] the *remainder of it might be laid out pursuant to the directions of the will in that behalf. |