Curtis v Lukin
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1842 |
| Date | 13 July 1842 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 533
ROLLS COURT
S. C. 11 L. J. Ch. 380; 6 Jur. 721.
[147] curtis v. lukin, July 13, 1842. [S. C. 11 L. J. Ch. 380; 6 Jur. 721.] A gift is too remote, unless, according to the intention of the testator, some person must necessarily be in existence, with legal power to dispose of the property, within the period limited by the rules of law. A gift must not only vest within the time limited by the rule against perpetuities, but the interests of the respective parties in the property, must be capable of ascertainment within that period, otherwise the gift will be void. A testator bequeathed leaseholds in Church Street, having sixty years unexpired, and as to which there was no obligation on the part of the lessor to renew, to A. for life, with remainder to the children she should leave, and in default to B. He bequeathed to trustees other leaseholds, upon trust to accumulate the rents, until the lease of the Church Street property " should become nearly expired," and then to apply such part thereof as should be necessary in the renewal of the Church Street property, " for the benefit of the respective persons to whom he had before, by his will, given the same ;" and the residue, after answering the purpose aforesaid, he gave to his residuary legatees. The testator died before the Thellusson Act came into operation. Held, that the trust for accumulation and renewal was void for remoteness and uncertainty. The questions in this cause were, first, whether the trustees and executors of the will of the testator, Mr. Shadrach Venden, had committed a breach of trust, by [148] nob investing the rents of three leasehold houses in Oxford Street and Audley Street, so as to accumulate and form a fund for the renewal of the leases of two houses in Church Street, which had been bequeathed for the benefit of his niece the Defendant Mra. Curtis and her children ; and secondly, whether the Plaintiff, who was one of the children, was now entitled to call for the performance of this trust, or to charge the representatives of the executors of Shadrach Venden with the breach of trust. The tetator was possessed of two leasehold houses in Church Street for a term, of which between sixty and seventy years were unexpired, and he possessed three other leasehold premises in Oxford Street and Audley Street. By his will, dated in 1794, he bequeathed the two houses in Church Street to four 534 CURTIS V. LUKIK 5 BEAV. 149. trustees, upon trust for the Defendant Elizabeth Curtis (then Elizabeth Cheverell) for life, for her separate use, and from and after her decease, upon trusts which were expressed as follows:-"To the use and benefit of any child or children my said niece Elizabeth Cheverell may leave by any husband or husbands she may happen to marry, equally to be divided amongst them, if more than one, share and share alike, and if but one child, the whole to such one child ; but in case my said niece Elizabeth Cheverell shall not, at her decease, leave any child or children, then to the use of my nephew Shadrach Venden Cheverell." The testator then bequeathed to his trustees the three leasehold houses in Oxford Street and Audley Street, upon trusts which he declared as follows :-" Upon trust, tbat they my said trustees shall and do, from time to time, receive the rents, issues, and profits of the above [149] three leasehold messuages or dwelling-houses situate in Oxford Street and Audley Street aforesaid, and lay out the same at interest till my several leasehold messuages or tenements hereinbefore mentioned, situate...
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...afterwards; Lord Dungannon v. Smith (12 Cl. & Fin. 546); Boughton v. James (1 Coll. 26); Martin v. Maughan (14 Sim. 230); Curtis v. Lukin (5 Beav. 147). If, however, the whole gift is neither too uncertain, or too remote, then the interest arising from the residue, after the expiration of t......
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