Bequests of chattels, &c. accumulation. residue, until the contingency upon which the residue was given, either to a male child of P., or to the residuary legatees, should Upon trust for be determined. The ground of his Lordship's judgment seems to have been, that the gift over to the residuary legatees was contingent, and that there was an implied trust for accumulation; and that the income of the residue, and its lawful accumulations, were not given by the will at all, if not given by the residuary clause; and if given by the residuary clause, the bequest of the income was void by the statute; and so, being a part of the residue undisposed of, belonged to the next of kin. The last case is clearly distinguishable from Eyre v. Marsden and Elborne v. Goode, in each of which there was an express direction to accumulate; but in Macdonald v. Bryce there was none; the testator merely directed maintenance, and the statute as observed by Lord Eldon in Griffiths v. Vere (i), and, as it would seem, admitted by Lord Langdale himself in Eyre v. Marsden, would not interfere with any accumulation which would take place by operation of law: and it is submitted, that upon the death of the infant R., in Macdonald v. Bryce, the residue vested in the residuary legatees under the residuary bequest, subject to be devested on the birth of another son of P.; and that, consequently, the intermediate income of the residue and of the lawful accumulations devolved, with the corpus of the residue, upon the residuary legatees, to the exclusion of the next of kin (j). The case of The Corporation of Bridgnorth v. Collins (k) would seem to fall within the class of authorities under review. There the testator bequeathed the sum of 3,300l. to the Corporation and their successors, upon trust to invest, and pay the income of 2,000l. part thereof to A. for life; and after her death, upon the trusts after mentioned, and to pay the income of other parts of the 3,300l. to several annuitants: and after the death of the survivor of the annuitants, to sell the securities upon which the fund was invested, and pay the money arising therefrom, with the proceeds which should have accumulated in respect thereof, among such of the testator's second cousins as should be living at the death of the surviving annuitant. The residue was given to B. The testator died in 1812, and the surviving annuitant in 1835. B. contended that he was entitled to the overplus accu (i) 9 Ves. 127. (j) See Stephens v. Stephens, Ca. Tem. Tal. 228, and Rogers v. Gibson, (k) 11 Jur. 213. accumulation. mulations beyond the lawful period, under the Thellusson Act, but Bequests of Sir L. Shadwell, V. C., held, that as there was no specific direc- chattels, &c. tion in the will for accumulation, that statute did not apply; and Upon trust for that any accumulation which might happen was a mere contingency, and not a devise of the testator's, though there was a direction by the testator to dispose of what might be accumulated. The result of his Honor's decision, it is presumed (but not stated in the report), that the accumulations passed with the corpus of the fund to the second cousins. 2. Where the trust for accumulation is void in toto. in toto. The latter part of the distinction adverted to at the com- 2. Where void mencement of the present section (k), is exemplified in the case of Lord Southampton v. Marquis of Hertford (1), in which the trusts of a term of one thousand years created by settlement were, that during the minority or respective minorities of any tenant for life or tenant in tail in possession, the trustees should, after applying a competent part of the rents, &c., in discharge of existing incumbrances, apply the residue, during such minority, in the purchase of public stock, from time to time to accumulate; and stand possessed thereof with the accumulations, in trust for such person or persons as should, after such minority or respective minorities, or the death or respective deaths of such minors, be tenant or tenants in possession, and of the age of twenty-one years. Sir William Grant observed, that an estate could not be limited, so as to vest only in the first descendant of a person in being, who might attain twenty-one; as that descendant might be a child of an unborn child, or a person more remote, and the period therefore much beyond the limits. That it was an attempt wholly to sever the surplus rents and profits from the legal ownership of the estate for a time, that might extend much beyond the period allowed for executory devise or trusts for accumulation, and to give them to a person who might not come into existence until after that period. His Honor decided, that the trust was altogether void, except so far as it is a trust for the payment of debts (m). We shall conclude the present section, with noticing the case of Marshall v. Holloway (n), which, so far as respects the trusts (k) Supra, p. 1557. (1) 2 Ves. & Bea. 54; see also Marshall v. Holloway, 2 Swan. 432. (m) And see Leake v. Robinson, 2 Mer. 363; and Ware v. Polhill, 11 (n) 2 Swans. 432. chattels, &c. Upon trust for accumulation. Bequests of for accumulation, is not to be distinguished from the preceding case of Lord Southampton v. Marquis of Hertford. In the former case, the testator devised and bequeathed his real and personal estate, upon trust to convert his personal estate into money, and after payment of his debts and legacies, to lay out and invest the clear surplus in the public funds or securities, and to lay out the produce thereof, and also the rents and produce of his real estate, from time to time when and so often as any person or persons beneficially interested in or entitled to any real and personal estates under the trusts of the will, should be under the age of twenty-one years, adding such investments to the personal estate in order to accumulate the same. Lord Eldon, C., decided, that the trust for accumulation was void in toto; and observed, that it was very difficult to distinguish this case from Lord Southampton v. Marquis of Hertford; and then his Lordship stated, in effect, the distinction before given, and concluded with observing, "The case of Lord Southampton v. Marquis of Hertford seems to have decided that if property is given, subject to a trust which is bad, the gift of the property takes effect exempt from the The trust for accumulation in this case I think bad, because it may last for ages." trust. For other instances in which the accumulations directed by the testator have been held void in toto, the reader is referred to the authorities cited below (o). It may be here observed that a trust to accumulate, which before the statute was totally void, still remains so since the statute (p). In the cases cited in the note (p), will be found instances in which the accumulations directed were held good, the statute not applying to them. (0) Palmer v. Holford, 4 Russ. 403; Vawdry v. Geddes, 1 Russ. & M. 203; Porter v. Fox, 6 Sim. 485; Blease v. Burgh, 2 Beav. 221; Griffith v. Blunt, 4 Ib. 248; Curtis v. Lukin, 5 Ib. 147; Boughton v. James, 1 Coll. (C.), 26: Browne v. (p) Boughton v. James, ubi supra. (q) Lombe v. Stoughton, 12 Sim. 304; Routh v. Hutchinson, 8 Beav. 581. CHAPTER XXIII. Of Election. SECT. I. The general doctrine stated and illustrated. SECT. II. Its requisites. To impose the obligation to elect. 1.—Intention of the testator to dispose of the To the performance of that obligation; 3.-That the property be ascertained. To the validity of the election when made; 4.-A knowledge of right in the party electing. SECT. III. Its application. First. To the heir at common law; and, 2. 3. execution. for want of ability to devise, either by reason of infancy or by reason of coverture. for want of due execution, but an express condition is imposed on the legatee to comply with the will. 4. Where the will was duly executed, but was void as a devise to the heir of a testator dying before the 1st of January, 1834. Secondly. To the heir by custom. 1.- Where no previous surrender having been Secondly. Where he has both freehold and copyhold. 1.—Where the question of election is between the customary heir and volunteers, such as the wife and children of the testator. 2.-Where between the customary heir and the creditors of the testator. Thirdly. To the heir of heritable property in Fourthly. To the widow of the testator; and herein 1.- Where, irrespectively of the above act, the intention to exclude her is not sufficiently apparent on the will; and that, notwithstanding the land subject to dower, or an annuity charged upon the land, is devised to the wife. 2.-Where the intention to exclude her has been considered apparent. 3.-Where the testamentary benefit is expressly given in lieu of dower, or the widow claims as next of kin of the testator. Fifthly. To married women. Sixthly. To infants. Ninthly. As between residuary and particular legatees. Tenthly. To widow and children taking by the custom of London. SECT. IV. Of mistake or misconception of right in the person electing. SECT. V. Of acquiescence. SECT. VI. Of the effect or consequences of election. SECT. I. The general doctrine stated and illustrated. (a) As to the origin of election, see 19 Ves. 663; 1 Swan. 396, note. |