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
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1848 |
| Date | 28 February 1848 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 815
House of Lords
Mews' Dig. i. 147, 234, 235; x. 998; xiv. 1610; xv. 909, 1650. S.C. sub nom. Boughton v. James, 1 Coll. 26; 8 Jur. 329. Followed in Tench v. Cheese, 1855, 6 De G. M. and G. 453: In re Roberts, 1881, 19 Ch. D. 525, and Wainright v. Miller (1897), 2 Ch. 255. Commented on in Allan v. Gott, 1872, L.R. 7 Ch. 444; Bellairs v. Bellairs, 1874, L.R. 18 Eq. 517; In re Finch, 1881, 17 Ch. D. 222; In re Dumble, 1883, 23 Ch. D. 368. Distinguished in Disney v. Crosse, 1866, L.R. 2 Eq. 595; Howard v. Dryland, 1877, 38 L.T. 24.
Will - Construction - Remoteness - Personal estate the primary fund for legacies.
'/J.-rf !X. 3-90 [406] 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 [Feb. 15, 17, 21, 28, 1848]. [Mews' Dig. i. 147, 234, 235; x. 998; xiv. 1610; xv. 909, 1650. S.C. sub noin. Bouyhton v. James, 1 Coll. 26; 8 Jur. 329. Followed in Tench v. Cheese, 1855, 6 De G, M. and G. 453 : In re Roberts, 1881, 19 Ch. D. 525, snd Wainrighi v. Miller (1897), 2 Ch. 255. Commented on inAllan v. Gott, 1872, L.R. 7 Ch. 444; Bellirs v. Bellairs, 1874, L.R. 18 Eq. 517; In re Finch, 1881, 17 Ch. D. 222; In re Ditmble, 1883, 23 Ch. D. 368. Distinguished in Disney v. Crosse, 1866, L.R. -2 Eq. 595; Howard v. Dryland, 1877, 38 L.T. 24.] Will-Construction-Remoteness-Personal estate the primary fund for legacies. A testator, after devising and bequeathing all his real and personal estates to trustees, on trust, from time to time to receive the rents and profits, and therewith to pay various legacies and annuities, directed that they should invest the surplus rents and profits at interest, and suffer the same to accumulate : and he declared that they should stand seised of his said trust estate and the accumulations, upon trust, that when and as soon as any sou of either of his nephews, A. and B., should have attained the age of twenty-five years, a valuation of his said trust estate should be made, and that the same should then be divided into as many equal lots as there should be sons, of his said nephews then living, and thenceforth separate accounts should be kept of the respective portions ; and that each of his said nephews' sons, when and as they should re-[407-spectively 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 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, executors, etc.; and as to the other moiety for the rest of his children, and their heirs, executors, etc., in equal proportions, and if but one child, both moieties for such child absolutely ; 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 issue, the share or shares intended for the person or persons so dying should go to the others and other of the said nephews' sons ; and if all but one should die without leaving issue, the trustees should stand seised and possessed of the 815 I H.L.C., 408 BOUGHTON V. BOUGHTON-BOUGHTON V. JAMES [1848] whole 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 the testator's said nephews' sons should depart this life without leaving issue, 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 another son born afterwards: - Held, upon the construction of the will, that the trusts for accumulation and division of the property comprised all the sons of the nephews, who should be living when the first of them should attain twenty-five; and as the son who should first attain that age might not be born until after the testator's death, the gifts were too remote, and therefore void: And the testator's real estates upon his death became vested in his heir. Held secondly, that under a bequest of real and personal estates, upon trust to receive the rents and profits, and to pay legacies and annuities, and vest the surplus rents, etc., for other purposes, the personal estate is the primary fund liable to the payments, there being no direction to discharge it, or to sell the real estate, so as to constitute a mixed fund. The suit, which gave rise to these appeals, was instituted by the respondent, William Boughton, as the heir-at-law [408] and customary heir of the Rev. William Boughton, claiming his real estates, on the ground that the trusts declared thereof by his will were void for remoteness. The testator, by his will, dated the 1st of July, 1831, devised and bequeathed unto John James the elder, and John James the younger, their heirs, executors, etc., all his messuages, lands, tenements, and hereditaments real, and all other his personal estate and effects, upon the trusts and subject to the annuities and charges after in his will or any codicil thereto, bequeathed, " that is to say, upon trust from time to time to receive the rents, issues, interests, dividends, and profits thereof, and to retain thereout every year the sum of 10 as some remuneration for their trouble." The testator, after declaring trusts for the investment and payment of the legacies in the will mentioned, and, in particular, a legacy of 1500 for the benefit of his niece, Elizabeth Prosser, and her husband, the Rev. John Prosser, and their children; and a legacy of 1500 for his niece, Susannah, wife of Henry K. Whithorn, for her separate use, proceeded to declare further trusts as follows: - " And also upon further trust to pay to and for the use, education, and maintenance of each of the daughters of my two nephews, John Boughton and Joseph Boughton, whether born in my lifetime or afterwards, the yearly sum of 40 a-piece, until they shall 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." The testator then, after declaring trusts for the payment of six life annuities, amounting together to 1180, and for payment out of his personal estate of a legacy of 100 to [409] the Society for Promoting Christian Knowledge, 100 to the Society for Propagating the Gospel in Foreign Parts, and 100 to the treasurer of the Gloucester Infirmary, proceeded thus :-" And I do direct that my said trustees or the survivor, etc., 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; that is, the sum of 30 a-piece per annum, till they respectively attain the age of ten years; the sum of 50 a-piece per annum from that age, till they respectively attain the age of fifteen years; the sum of 80 a-piece per annum from that age, till they respectively attain the age of eighteen years; and from that age the sum of 150 a-piece per annum, till they respectively attain the age of twenty-five years; but in the event of the death of any or either of them under such respective ages, the provision intended for such one, etc., shall no longer be paid or payable." " And I direct my said trustees to invest all and singular the surplus of the rente, issues, and profits, of my said trust estate and premises (if any), after payment of the several annuities, legacies and charges hereinbefore expressed, at interest, in the name or names of my said trustees or trustee for the time being, in or upon Government 816 BOUGHTON V. BOUGHTON-BOUGHTON V. JAMES [1848] I H.L.C., 410 security, and to suffer the same to accumulate : And I declare my will and mind to be, that they do and shall stand seised of my said trust estate, and the accumulations thereof, subject as aforesaid, upon the further following trusts (that is to say) : upon trust, when cmd so soon as that any son of either of my said nephews, John Boughton and Joseph Boughton, shall have attained the age of twenty-five years, a valuation of my said trust estate, subject as aforesaid, shall be made " (by the trustees, or such persons as they should appoint) " and that the same shall be then divided into as many equal lots or shares as [410] there shall be sons of my said two nephews then living, and that thenceforth distinct and separate accounts shall be kept of the respective portions; and that each of my two nephews' sons, subject to the proviso hereinafter contained, when and as they shall respectively arrive at the age...
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