Ferrand v Wilson
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 1845 |
| Date | 28 April 1845 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 680
HIGH COURT OF CHANCERY
S. C. 15 L. J. Ch. 41; 9 Jur. 860. See Dashwood v. Magniac (1891), 3 Ch. 328.
ferrand v. wilson. Feb. 22, 24, 25, 26, 27, 28, March 4, 5, April 8, 1845. [S. C. 15 L. J. Ch. 41 ; 9 Jur. 860. See Dashwood v. Magniac [1891], 3 Ch. 328.] Devise of real estates to trustees, for a term of twenty-one years, and, subject thereto, and to the trusts thereof, to A. for life, with liberty to cut timber, &c., for buildings and repairs only ; remainder to B. for life, with like liberty, &c. ; remainder to the sons of B. successively in tail ; and, after like remainders, to C. and D. and their sons respectively, remainder to E. for life, with like liberty, &c. ; remainder to the sons of E. successively in tail, with divers remainders over; remainder to the testator's own right heirs, with the declaration that the trustees of the term should receive the rents and profits of the estates, cut, fell and sell the timber at mature growth, in due succession, and yearly (until the testator's debts and pecuniary legacies should be paid) thereout pay - 1. A certain annuity, and also a yearly rent-charge of 1000, to the person entitled to the estates expectant on the determination of the term. 2. The expenses of the trust. 3. His funeral expenses ; and 4. The pecuniary legacies and annuities given by his will, or so much as his personal estate should not pay. And after such payment, or the raising of a fund sufficient for the same, to permit the person entitled to the estates expectant on the term to enter into possession thereof, subject to such annuities as should then remain charged, and the term then to cease. The testator empowered the tenants for life, and the respective devisees in possession, to exchange part of the devised lands for others of greater or equal value, and authorised his executors to preserve the wood, 4 HAKE, 344. FERRAND V. WILSON 681 so as to continue a succession in the falls thereof, and he empowered them during and after the term, until some person was entitled to the estates in tail, or for some greater estate, to enter and cut timber at mature growth for sale, and to apply the proceeds in payment of his funeral expenses, debts and legacies, until the trusts of the term should be satisfied; and then, with the consent of the devisees in possession, to invest the surplus in the purchase of other lands in fee, to be settled to the same uses as the devised estates. The testator died in 1803. The personal estate sufficed to pay his debts and pecuniary legacies, but not to provide for the annuities. B., then the first tenant for life on the death of the testator, entered into possession of the estates, and so continued during his life. B. died in 1837 without issue, whereupon E., the next surviving tenant for life, entered into posses-tion. In a suit instituted in 1842, by the first son of E., as tenant in tail expectant on the decease of E., against the representatives of the trustees, and the executors of B. the deceased tenant for life : Held, that the tenant in tail expectant on the decease of E. was not entitled to an account of the timber felled during the life of B., the power attempted to be given to the trustees being void under the rule against perpetuities; Nor to an account of the produce of the timber during the period to which the power might have lawfully extended, as such powers had not been apportioned; Nor to an account in this Court, as against the estate of B. or of the trustees, of any timber cut during the lifetime of B., the right of the Plaintiff (if any) being a legal right, and the Defendants being entitled to the protection of the Statutes of Limitation. And that the Plaintiff, as such tenant in tail expectant, was not entitled to relief in equity, on the ground that the exchange effected by B. of certain of the devised estates for other estates was not a due exercise of the power of exchange ; for, if the exchange was not warranted by the power, the legal estate in the devised premises did not pass by the conveyance. On the settled estates being cleared of all charges except the annuities, the party entitled to the possession subject to the term would be entitled to the beneficial enjoyment during the residue of the term, keeping down the annuities; and the term would still be available for the annuitants in enforcing payment of the annuities. Treating the authority to cut timber as imperative, and the timber cut as annual rents and profits of the estate, the power amounts to what might be a trust for the-investment of the rents and profits in perpetuity. Timber, on an estate in strict settlement, if regarded as part of the inheritance, is yet not preserved from alienation during the infancy of the tenant in tail; and the settlor cannot superadd to the tenancy in tail a provision which would render the timber inalienable during such infancy. If the power of the trustees to cut timber for the purposes of settlement be permissive-only, and not imperative, it is at least concurrent with the right of the infant tenant in tail to the timber, and, to the extent in which it derogates from that right, it is liable to the objection of creating a perpetuity. Whether a power not to effect a single act at a period too remote, but to do successive acts from time to time, each being pro tanto an exact fulfilment of the intention of the testator, may not be apportioned and sustained, so far as its operation in each case does not invade the rule against perpetuities, and held void only from the time-that it would begin to infringe that rule, qucere. Executors cutting timber upon a supposed trust, afterwards held to be void, might be personally chargeable in equity as trustees for the owner of the timber, if they acted fraudulently or if they retained the proceeds of the timber, or gained any benefit by it; but not if they acted by mere mistake, and held no part of the proceeds in their hands. In the latter case the executors might be regarded in equity as strangers who, under a mistaken supposition of right, had done a legal wrong, for which there was a legal, remedy. The fact that the legal remedy which existed is obstructed or lost by lapse of time is no ground for the interposition of a Court of Equity. The exercise of a power of exchange for lands of equal value by a tenant for life in V.-C. xii.-22* 682 FERBAND ' V. WILSON 4 HAKE, 345. possession, and having the legal estate, cannot in equity be questioned on the ground of inadequacy of value by the tenant in tail in remainder expectant on an existing tenancy for life; the question of the due exercise of the power is legal, for, if the value of the lands taken was inadequate, no estate passed at law by the conveyance. The Court will neither allow the form of a transaction to protect a fraud, nor set aside a transaction otherwise valid, merely on the ground of form. Tenant for life not entitled to get stone from quarries on the settled estates (except for repairs, &c.), nor to open or work any mines of coal or minerals not opened or in work at the death of the testator. Tenant in tail entitled to the monies realized, by the tenant for life from stone not used for repairs, and minerals from newly-opened mines. Inquiries and accounts as to mines and minerals. Benjamin Ferrand, by his will, dated in 1790, after directing that all his personal estate not specifically disposed of should be applied by his executors towards paying his funeral expenses and debts, .and the legacies and annuities given by his will or codicil, so far as such personal estate would extend, gave and devised unto S. [345] Sharp and J. Field, and their heirs, all that his manor of Cottingley, in Yorkshire, and also all other his manors, and all and every his messuages, mills, lands, tenements, rents, commons, woods, woodlands, tithes, hereditaments and real estate whatsoever and wheresoever, with their rights, privileges and appurtenances, to hold to the same trustees and their heirs, to the use of Daniel Wilson, Miles Staveley and William Holden, their executors, &c., for, during and unto the full end and term of twenty-one years, to commence from the day next before the day of his death, and thenceforth next ensuing, and fully to be complete and ended, without impeachment of or for any manner of waste. But, nevertheless, upon the trusts for the ends, intents and purposes, and under and subject to the several provisoes, limitations and declarations thereinafter contained concerning the same term; and from and immediately after the end or other sooner determination of the said term of twenty-one years, and in the meantime, subject thereto, and to the trusts thereof, to the use of his cousin, John Ferrand, for his life, with liberty to cut down timber and wood, and to get stone for buildings and repairs upon the premises, but for no other use or purpose whatsoever; and from and immediately after his decease (in case his wife should happen to survive him), then subject to the annuity of ,300, thereinafter mentioned, and the ways, means and remedies for the recovery thereof; but if she should die in his lifetime, then (freed and discharged of the same annuity, and all powers for recovery thereof) to the use of his eldest son, Edward Ferrand, the testator's cousin, during his life, with liberty to cut down timber (&e.. as before); and from and immediately after the determination of that estate, to the use of the said Sharp and Field and their heirs, during the life of the said Edward Ferrand, in trust to preserve contingent remainders. But, nevertheless, to permit the [346] said Edward Ferrand and his assigns, to take the rents, issues and profits thereof, to his and their own use during his life, remainder to the use of the first, second, third and every other son of his body, severally and successively, from the elder to the younger in tail male; with remainder to the use of Walker Ferrand...
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