Boughton v James
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1844 |
| Date | 08 February 1844 |
| Court | High Court of Chancery |
English Reports Citation: 63 E.R. 306
HIGH COURT OF CHANCERY
S. C. varied, sub nom. Boughton v. Boughton, 1 H. L. C. 406; 9 E. R. 815 (with note, to which add In re Gage [1898], 1 Ch. 506.
[26] boughton v. james. Jan. 30, 31, Feb. 8, 1844. [S. C. varied, sub nom. Boughton v. Boughton, 1 H. L. C. 406; 9 E. E. 815 (with note, to which add In re Gage [1898], 1 Ch. 506).] Testator devised and bequeathed to trustees a mixed fund of realty and personalty, upon trust from time to time to receive the rents, issues and profits thereof, and therewith to pay certain legacies; and upon further trust to pay, to and for the use, education and maintenance of each of the daughters of his nephws A. and B., whether born in his lifetime or afterwards, the yearly sum of £40 apiece, until they should respectively attain twenty-five, or be married with consent of their respective parents or surviving parent, and on their respectively attaining that age, or being respectively married with such consent as aforesaid, in trust to pay each of them the sum of £1500 for their respective uses and benefit. A. and B. had daughters living at the death of the testator, and also after-born daughters. Held, that the bequests of £1500, so far as they related to after-born daughters, were void for remoteness. But quixre, whether these bequests were not valid with respect to the other daughters, and whether the annuities of £40 were not valid for all the daughters. Testator, after devising a mixed fund of realty and personalty to trustees, upon trust to pay various legacies and annuities, directed that they should invest all and singular the surplus of the rents, issues and profits at interest, in their names, upon Government security, and suffer the same to accumulate. And he declared that the trustees should stand seised of his said trust estate and the accumulations, upon trust, when and as soon as that any son of either of his nephews A. and B. should have attained the age of twenty-five, a valuation of his said trust estate should be made, and that the same should be then divided into as many equal lots as there should lie sons of his said nephews then living ; and that each of his said nephews' sons, when and as they should respectively arrive at the age of twenty-five years, should choose one of such portions as the share to be allotted to him and his children ; and that, thenceforth, the said portion or share should be held by the trustees, upon trust for the person so selecting the same for his life, and after his decease upon trust, as to one equal moiety, for his eldest son, and his heirs, &c., and as to the other moiety, for the rest of his children, and their heirs, &c. ; and if but one child, both moieties for such child ; but if any or either of his said nephews' sons should die under their respective ages of twenty-five years, or having attained that age should afterwards die without leaving lawful issue them or him surviving, the share of the party so 1 COLL. 27. BOUGHTON V. JAMES 307 dying was to go to the others and other of them; and if all but one should die without leaving lawful issue, the trustees should stand seised and possessed of the trust estate, in trust for such one surviving nephew's son for his life, and for his children and child as aforesaid; but if all his, the testator's, said nephews should depart this life without leaving lawful issue them surviving, then upon trust for such person as should at that time be the testator's heir. At the time of the testator's death A. and B. had several sons living, and B. had a son born after that period. Held, upon the construction of the will, that the trust for accumulation was so created that it might by possibility endure beyond the legal period, and that it therefore failed. Held, also, that such failure did not accelerate the postponed life interests in the residue given to the grand-nephews, inasmuch as the life interests so given, as well as the subsequent limitations, were void for remoteness. A devise of real estate for life is invalid unless it vest within the compass of lives in being at the testator's death, and twenty-one years after the death of the survivor of them. Before the Accumulation Act a testamentary trust or direction to accumulate, so worded as to be capable of lasting beyond the compass of lives in being at the testator's death, and twenty-one years after the death of the survivor of those lives, would have been illegal and void for the whole, and such a trust or direction is not less illegal or void since the Accumulation Act. A testator gave all his messuages, lands, tenements and hereditaments, and all his personal estate, to trustees, to hold to them, their heirs, executors, administrators and assigns, according to the nature and quality thereof respectively, upon trust to receive the rents, issues and profits thereof, and to retain thereout yearly £10 for their trouble in the execution of the will, and then to pay legacies and annuities, with a direction that certain charitable legacies should be paid out of his personal estate. Held, that the whole of the property, both real and personal, was to be considered as one mass for the purpose of paying rateably the annuities and legacies, except the legacies expressly made payable out of the personal estate. William Boughton, clerk, by his will, dated the 1st July 1831, after giving his household furniture and various specific chattels to his sister, Ann Boughton, for her own use, gave, devised and bequeathed to John James and his son, John James, their heirs, executors, administrators and assigns, all and singular his messuages, lands, tenements and hereditaments real, and all other his [27] personal estate and effects of what nature or kind soever and wheresoever situate, to hold to them, the said John James and his son, John James, their heirs, executors, administrators and assigns, according to the nature and quality thereof respectively, upon the trusts, and subject to the several annuities and charges thereinafter, or by any codicil to the will, bequeathed (that is to say), upon trust from time to time to receive the rents, issues, interest, dividends and profits thereof, and of every part thereof, when and as the same respectively should become due and payable, and to retain thereout, yearly and every year, the sum of £10, as some remuneration for their trouble in the execution of that his will; and upon further trust, within twelve months after his, the testator's, decease, to invest the sum of £300 in or upon Government security, in the names of trustees to be nominated by the vicar and churchwardens of the parish of Blockley, for the purpose of applying the dividends of such investment in the repair of a tablet in Blockley Church, and for the benefit of the poor of Bloekley; and upon further trust, to pay certain specified sums to the testator's servants; and upon further trust, to invest the sum of £1500, in the names of the said trustees, upon Government or real security, and to pay the interest or dividends thereof to the testator's niece Elizabeth, the wife of the Rev. John Prosser, for her life, for her separate use, and after her decease to her husband, for his life; and after the decease of the survivor of them, to pay or transfer the said sum of £1500 unto and amongst the child or children of the said niece who should be living at [28] her decease, in equal shares; and also upon trust, to pay to his niece Susan, the wife of Henry Whitehorne, the sum of £1500 for her own sole and separate use; and also upon further trust, to pay to and for the use, education and maintenance of each of the daughters of his two nephews, John Boughton and Joseph Boughton, whether born in his lifetime or afterwards, the yearly sum of £40 apiece, until they should 308 BOUGHTON V. JAMES 1 COLL. 29. respectively attain the age of twenty-five years, or be married with the consent of their respective parents or surviving parent; and, on- their respectively attaining that age or being previously married with such consent as aforesaid, in trust, to pay each of them the sum of £1500 for their respective uses and benefit; and upon further trust, to pay the several annuities next thereinafter mentioned. [Then followed several bequests of life annuities.] And upon further trust that they, his said trustees or trustee for the time being, should pay the following legacies out of h'is personal estate (that is to say), to the Society for Promoting Christian Knowledge, &e. [Here followed several charitable bequests.] All which legacies, as well as the* legacies to his servants, the testator directed to be paid free from legacy duty. The testator then proceeded as follows :-"And I do direct that my said trustees, or the survivor of them, or the heirs, executors or administrators of such survivor, do and shall, out of the rents and profits of my said trust estate and premises, pay the following sums for the education, maintenance or benefit of each of the sons of my said nephews John Boughton and Joseph Boughton...
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William Boughton, John Henry Boughton, and Frederick Wintle Boughton, - Appellants; William Boughton, John James, and John James the Younger, The Rev. John Prosser and his Children, Henry k. Whithorn and Wife, John Boughton, Alicia Joyce Boughton, Jane Boughton, Edward Vaughan Boughton, George Hough and Lucy his Wife, Mary Jane Boughton, Elizabeth Jones Boughton, and Ellen Young Boughton (First Appeal), - Respondents; and William Boughton (the first above-named Respondent), - Appellant; John James, and all the other above-named Respondents and Appellants (Second Appeal), - Respondents
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