Tench v Cheese
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1855 |
| Date | 27 June 1855 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1309
BEFORE THE LORD CHANCELLOR LORD CRANWORTH AND THE LORDS JUSTICES.
S. C. 24 L. J. Ch. 716; 1 Jur. N. S. 689; 3 W. R. 500, 582. See Matthews v. Keble, 1868, L. R. 3 Ch. 696; Allan v. Gott, 1872, L. R. 7 Ch. 439; Bellairs v. Bellairs, 1874, L. R. 18 Eq. 517; Howard v. Dryland, 1877, 38 L. T. 27; In re Dumble, 1883, 23 Ch. D. 368.
[453] tench v. cheese. Before the Lord Chancellor Lord Cranworth and the Lords Justices. May 29, June 1, 27, 1855. [S. C. 24 L. J. Ch. 716 ; 1 Jur. N. S. 689 ; 3 W. R. 500, 582. See Matthews v. Keble, 1868, L. R. 3 Ch. 696; Allan v. Gott, 1872, L. R. 7 Ch. 439; Bellairsv. Bellairs, 1874, L. R. 18 Eq. 517; Howard v. Dryland, 1877, 38 L. T. 27; In re Bumble, 1883, 23 Ch. D. 368.] A testator gave his real and personal estate to trustees, in trust to pay an annuity to M. P. S. and if she should have children to raise 4000 for the younger children, and he gave the residue " with the accumulation thereof which I hereby direct my said trustee or trustees to place out on mortgages or in Government securities in the public funds " upon trust for the eldest son of M. P. S. on his attaining twenty -one and taking the testator's name : and if there should be no child of M. P. S. then on trust for E. B. T. upon attaining twenty-five and taking the testator's name : at the expiration of twenty-one years from the testator's death 1310 TENCH V. CHEESE 6 DE 0. M. & 0. 454. M. P. S. had no child. Held, that the will contained an express direction to accumulate, and that the case fell within the Thellusson Act Although the will contains no express direction to accumulate, yet if an accumulation necessarily takes place by reason of the form in which the property is given, the case falls within the Act. Semble, by the Lord Chancellor and the Lord Justice Turner. Held, also, following the decision of 'Boughton v. Boughton, 1 H. L.' Ca. 406, that the annuity to M. P. S. was primarily payable out of the personal estate. By the Lord Chancellor and the Lord Justice Turner, dubitante the Lord, Justice Knight Bruce. This was an appeal from a decision of the Master of the Rolls on a petition presented in the suit, the main question raised on the petition being whether the trusts for accumulation contained in the will of John Sherburne, the testator in the cause, were void within the Thellusson Act, 39 & 40 Geo. 3, c. 98 : His Honour having decided that the trusts were not void, the heir at law, who was also one of the next of kin, appealed. The following are the circumstances under which the appeal was brought. The testator John Sherburne, by his will, dated the 25th April 1831, devised and bequeathed to two trustees and their heirs executors &c., all his real and personal estate upon trust to permit his wife to enjoy his dwelling-house and furniture durante mduitate, and " out of the rents issues and profits dividends interest and income of all other his real and personal estate " to raise and pay his widow 1000 a year durante wdui-\45\-tate, and " out of the same rents and profits dividends interests and income "to pay Ann Parry an annuity of 100 a year: and subject thereto he directed the trustees to stand possessed of his real and personal estates upon trust to raise 4000 for his younger children, "and the rest residue and remainder of his real and personal estate " he gave to his eldest son and his heirs, and if no son to his eldest daughter and her heirs : and in case there should be no such child living at his death, then as to the whole of his said real and personal estates and the accumulations and saving (if any) upon trust to pay Maria Parry Sherburne 200 a year, which upon the termination of the wife's interest was to bo increased to 500 a year. The testator then proceeded as follows :-" And if the said Maria Parry Sherburim should have any child or children lawfully begotten I direct my said trustee or trustees for the time being to raise the sum of 4000 on my real and personal estate to l e equally divided between all the younger children of Maria P. Sherburne if more than one share and share alike on their attaining the age of twenty-one years and the share or shares of such younger child or children respectively as shall depart this life before the said age of twenty-one years to be equally divided with the accumulation (if any) between them share and share alike. And all the rest residue and remainder of my real and personal estate with the accumulation thereof which I hereby direct my said trustee or trustees to place out on mortgages or in Government securities in the public funds upon trust for the eldest son of the said Maria P. Sherburne and his heirs and assigns on his attaining the age of twenty-one years he taking the name of Sherburne and if there should be no son of the said Maria P. Sherburue then upon trust for the eldest [455] daughter of the said Maria P. Sherburne her heirs and assigns on her attaining the age of twenty-one years she taking the name of Sherburne. And in case there shall be no child or children of the said Maria P. Sherburne or in case the child if but one or all the children if more than one of the said Maria P. Sherburne should depart this life being a son or sons under the age of twenty-one years without leaving any issue of his or their body or respective bodies lawfully begotten living at his or their death or respective deaths or being a daughter or daughters under the age of twenty-one years without having been married with the consent of my said trustee or trustees for the time being then as to the whole of my said real and personal estate and the accumulation and savings (if any) of the rents dividends and income thereof subject and without prejudice as aforesaid upon trust for Edward B. Tench he the said Edward B. Tench taking the name of Sherburne his heirs executors administrators and assigns respectively absolutely for his and their own use and benefit and to be conveyed assigned transferred and disposed of as he or they shall direct or appoint." The testator also DEG. Iff.ftO.tM. TENCH V. CHEESE 1311 by his will gave a pecuniary legacy of 500, which he directed should be raised out of his persona] estate. By a codicil, dated the 28th March 1832, the testator revoked the gift to Edward B. Tench, and gave to .his trustees in the following terms-" the whole of my real an(J personal estate with the accumulation and savings (if any) subject to the provisions and conditions mentioned in my said will in trust for John Sherburne Tench his heirs executors administrators and assigns respectively absolutely on his attaining the age of twenty-five years he the said John Sherburne Tench taking the name and bearing the arms of Sherburne. And if the said John Sherburne Tench should not attain the age of [456] twenty-five yeara and should die without leaving lawful issue then I give the whole of my real and personal estate and the savings (if any) to my trustees above named their heirs executors administrators and assigns in trust for the use and benefit of Edward B. Tench upon his attaining the age of twenty-five years he the said Edward B. Tench taking the name and bearing the arms of Sherburne." The testator died on the 13th December 1832 without ever having had any issue, and his widow died in 1835 : Maria Parry Sherburne married Mr. Archbold, bub never had any children, arid she was still living. The period of twenty-one years from the testator's death having expired on the 13th December 1853, and there being considerable accumulation and a large surplus of income beyond the annuity of 500 a year, the testator's heir at law presented a petition, praying a declaration that the trust for accumulation in the will beyond twenty-one years from the testator's death was void, and that it might be also declared that, subject to the annuity to Mrs. Archbold, the Petitioner was, as heir at law, entitled to the rents of the testator's real estate, and, as one of the next of kin, to a share of the income of the personal estate "from the said 14th day of December 1853 "until there should be issue of Maria Parry Archbold entitled in possession under the said will to the testator's real and personal estate, or until the Plaintiffs, John S. Tench and Edward B. Tench, or one of them, should become entitled in possession of the same estates, and the petition prayed payment and consequential directions. This petition was heard by the Master of the Rolls in July 1854; and in November following His Honour de-[457]-livered judgment, holding that the will contained no express direction to accumulate; that the accumulation took effect by reason of the law and practice of the Court and not by reason of any direction given by the testator, and that, this being so, the case did not therefore come within the meaning of the Thellusson Act. On another point which was raised by the petition, namely, whether the annuity to Mrs. Archbold ought to be paid pari passu out of the real and personal estate or exclusively out of the personal estate, His Honour gave no opinion. A full report of the hearing before the Master of the Rolls will be found in the 19th Volume of Mr. Beavan's Reports, p. 3, from which the foregoing statement of the will and codicil and other facts has been taken. The Petitioner, the heir at law and also one of the next of kin of the testator as above stated, appealed from the decision of the Master of the Rolls, raising also the question of the mode in which the annuity ought to be paid; and the appeal now came on to be heard before the full Court. Mr. Follett and Mr. G-. L. Russell, for the Appellant. The decision of the Master of the Rolls proceeded on the ground that the will in this case contained no express direction to accumulate, and that the Thellusson Act only applies to an express direction to accumulate, and does not affect what may be termed a necessary accumulation. The Appellant, however, submits, first...
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