Eyre v Marsden
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 744
ROLLS COURT
S. C. 7 L. J. Ch. (N. S.), 220; 2 Jur. 583; (affirmed on appeal, except as to costs 4 My. & Cr. 231; 41 E. R. 91; 3 Jur. 450. See Elborne v. Goode, 1844, 14 Sim. 178; Goodman v. Goodman, 1847, 1 De G. & S. 699; Tench v. Cheese, 1854, 19 Beav. 25; In re Arnold's Trusts, 1870, L. R. 10 Eq. 257. Distinguished, Scott v. Cumberland, 1874, L. R. 18 Eq. 581. See Gowan v. Broughton, 1874, L. R. 19 Eq. 80; Ralph v. Carrick, 1877, 5 Ch. D. 998; Weatherall v. Thornburgh, 1878, 8 Ch. D. 271; Luckcraft v. Pridham, 1878-79, 6 Ch. D. 205; 48 L. J. Ch. 639; Hurst v. Hurst 1884, 28 Ch. D. 170; In re Giles, 1886, 55 L. J. Ch. 696; In re Walker, 1886, 54 L. T. 794; In re Bowman, 1889, 41 Ch. D. 531; In re Parry, 1889, 60 L. T. 491.
START . marsden. June 6, July 9, 10, 1838. I j33 [S. C. 7 L. J. Ch. (N. S.), 220 ; 2 Jur. 583 ; (affirmed on appeal, except as to costs) 4 My. & Cr. 231 ; 41 E. E. 91 ; 3 Jur. 450. Sec Ettorne v. Goode, 1844, 14 Sim. 178; Goodman v. Goodman, 1847, 1 De G. & S. 699 ; Tench v. Cheese, 1854, 19 Beav. 25 ; In re Arnold's Trusts, 1870, L. E. 10 Eq. 257. Distinguished, Scott v. Cumberland, 1874, L. E. 18 Eq. 581. See Gmoan v. Brmghton, 1874, L. E. 19 Eq. 80; -, rl ò ,-i p"alPh v- Carrick, 1877, 5 Ch. D. 998; Weatherall v. Thornburgh, 1878, 8 Ch. D. 1- fcfl ' J " 271 ; iMckcraft v. Pridham, 1878-79, 6 Ch. D. 205 ; 48 L. J. Ch. 639 ; Hurst v. Hurst, 1884, 28 Ch. D. 170; In re Giles, 1886, 55 L. J. Ch. 696; In re Walker, 1886, 54 L. T. 794; In re Bowman, 1889, 41 Ch. D. 531 ; In re Parry, 1889, 60 L. T. 491.] A testator gave certain annuities out of his residuary estate to his three children, SKEEJTMJ. EYRE V. MARSDEN 745 " and requested the surplus of the annual income to be applied in accumulation of the capital of his property for the benefit of his grandchildren," and which was to be divided between them after the death of the survivor of the testator's three children. Thirty yeara elapsed between the death of the testator and of the survivor of his children. Held, that the direction for accumulation, beyond twenty-one years from the testator's death, was void under the first section of the Thellusson Act, and that the case did not come within the exception of the second section. Held also, that the void accumulations did not belong to the residuary legatees, but that they were undisposed of. Held, upon the construction of the terms of the will, that such part of the void accumulations as arose from the real estate belonged to the heir at law, and not to the next of kin. The Thellusson Act, which restricts the accumulation of property does not operate to alter any disposition in a will, except only the direction to accumulate. Striking that direction out, everything else is left as before; and all the other directions in the will as to the time of payment, the substitution of interest, or any contingencies, take effect unaltered by the statute. A gift between grandchildren living at the testator's death, to be divided between them on the death of the survivor of three persons, with a gift over to the survivors, in case of the death of any before he should be entitled to receive his share, and to be paid at the same time, and in the same manner, as before mentioned touching the original share. The gift over held to apply to the accruing as well as to the original share. A suit to administer an estate, having been rendered necessary by the form of the will of a testator, who had blended his real and personal estate into one common fund, the costs of the suit were directed to be paid pro raid by the heir, and personal representatives, out of accumulations devolving on them, in consequence of the directions of the testator to accumulate, having partially exceeded the limits pre-ò scribed by the statute. The questions in this case arose on the will of Joseph Wildsmith, dated the llth of January 1804, whereby, after giving a life interest in a part of his estates to his servant Mary Nicholson, he gave to his trustees all his freehold and leasehold land, and all other his real and personal estates whatsoever, " upon trust that they, his said trustees, or the survivors or survivor of them, or the heirs, executors, or administrators of such survivor, should, at any time or times after his decease, when they should think proper, sell, dispose of, and convert into money, all or any part of his real and personal estate ; and invest and place out upon security, the money arising therefrom, after payment of his debts, funeral, and testamentary expenses, and the costs and charges attending the execution of his said will; and [565] should receive the rents, interest, and annual produce of his said real and personal estate until the sale thereof, for the purpose of raising the annuity and weekly payments therein by him bequeathed ; and after giving a power to his trustees, if they thought fit, of carrying on his trade or business of a carpet manufacturer, in the manner therein mentioned, he gave some directions for carrying it on, and gave a weekly sum of one guinea to each of his sons, Joseph and Benjamin, for their lives, and an annual sum of .£54, 12s. to his daughter Elizabeth Eyre : which annual and weekly payments he directed to be made by his trustees, out of the rents, issues, and annual profits of his estates and effects, and he then proceeded as follows: "and the surplus of such annual income (if any) I request may be applied in accumulation of the capital of my property, for the benefit of my grandchildren; and from and after the death of my said children, the said Joseph Wildsmith, Benjamin Wildsmith the elder, and Elizabeth Eyre, and the longest liver of them, upon trust, that they my said trustees, or the survivors or survivor of them, or the executors or administrators of such survivor, do and shall sell, and convert into money, all such part of my estate and effects as shall not consist of specie, and from time to time call in and receive the money, which shall be placed out upon security as aforesaid, and pay, distribute, and divide the same, after deducting the expenses of performing this my will, and the legacies hereinafter mentioned, unto and amongst all and every my grandchildren, R. r.-24* 746 EYRE V. MARSDEN 2 KEEN MS. who shall be living at the time of my decease, equally share and share alike, save and òexcept the share of Francis Maceroni, one of the children of my late daughter, Mary Ann Maceroni, deceased, one moiety or half part of whose share of my estate and òeffects, I give and bequeath to his brother George Maceroni, in consideration of the benefit, derived by the said Francis Maceroni, from the will of my late brother Benjamin Wildsmith, [566] deceased; and I do will and direct, that the shares of such of my said grandchildren, as shall be under the age of twenty-one years, at the time of the decease of the survivor or longest liver of my said children, shall be placed out or continue upon security, and the interest thereof, shall be applied in the maintenance of my infant grandchildren, during their respective minorities; and in case any of...
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