WILL WITH TRUST FOR ACCUMULATION FOR TWENTY-ONE YEARS. PRECEDENT XVII. mulation clause as at p. 44, supra]. PROVIDED ALWAYS and I direct that the accumulation of such surplus income as aforesaid shall not extend beyond the period of twentyone years to be computed from my death, and that any such surplus income accruing after that time shall be paid to the persons or person who shall for the time being have attained vested interests in the said trust 13. Direction restricting accumulation of surplus income the testator's death. 14. Ultimate trust for the testator's two shares for their lives; to 21 years from premises under the trusts herein before contained, their his or her executors, administrators, or assigns, if more than one in equal shares (d). AND I HEREBY DECLARE, that if there shall be no child of my said son D. B. brothers in equal who shall attain a vested interest in the said trust premises under the trusts herein before contained, then the said trustees and trustee shall, subject to the trusts, powers, and provisions herein before contained, and subject to the payment of the said annuities, pay the income of the said trust premises (including any such accumulations as aforesaid) to my brothers L. B. and W. B., and their assigns, during their joint lives, in equal As to the accumulation of surplus income during minorities where there is a prior trust for accumulation. (d) The above proviso is added on account of the decision that only one of the periods of accumulation mentioned in the first section of the Thellusson Act is allowable (see Wilson v. Wilson, 1 Sim. N. S. 288, ante, Vol. iii., Settlements, p. 470, note), so that as this will contains a trust for accumulation for twenty-one years, a further accumulation even during the minorities of the expectant owners of the fund would not be valid beyond twenty7-one years from the testator's death, though it would be unquestionably good within that time. If the infant has an absolute vested interest, the direction to accumulate the surplus income not required for maintenance, &c., could not be invalidated by the act, as it is no more than the law would do without any direction; and even where the bequest is contingent, if the infant would on attaining twenty-one be entitled to the intermediate income (as would be the case if the bequest were residuary, see supra, p. 310, note (h)), it is conceived that the trust for accumulation must be equally free from objection, as it would in that case also be no more than would take place by law if the maintenance and accumulation clauses were omitted, the case being within the Act 23 & 24 Vict. c. 145, s. 26, (see Re Cotton, 1 Ch. D. 232, supra, p.183, note (d)). In the case in the text, the bequest not being residuary, the proviso appears to be required. WILL WITH TRUST FOR ACCUMULATION YEARS. 15. and after the death of one for the survivor for life; shares; AND FROM AND AFTER the death of such one of PRECEDENT XVII. them, my said brothers, as shall first die, to the survivor of them and his assigns during his life; AND FROM AND AFTER the death of the survivor of my said brothers, shall FOR TWENTY-ONE hold the said trust premises (including accumulations as aforesaid), and the income thereof in trust for all or any the children or child who at the death of such survivor shall be living, of my said brothers L. B. and W. B. and of my brother R. B., and of my sisters E. C. and F. D., and if more than one in equal shares per capita (e). BEQUEATH my leasehold house called and interest which I shall have therein at the time of my death, with the tenant's fixtures therein, and all my plate, linen, glass, china, books, pictures, prints, wines, liquors, and household furniture, and all the dividends due to at my death, to my said wife for her own benefit (f). I I for all the term me (e) Though the words "per capita" were not inserted, a trust for equal division among the children of specified persons, would of course import equality among the objects of the trust, and not among the families (see 2 Jarm. Wills, 3rd ed., 181, and the cases cited in note (i) thereto). As to whether a trust for the children of A. and B. (not repeating the word " of ") is to be read as a gift to B. or to his children, see Hawkins, Constr. Wills, pp. 113-114. (ƒ) The specific legatee of leaseholds is entitled to have arrears of rent owing at the testator's death discharged out of the general estate (Barry v. Harding, 1 Jo. & Lat. 490); but it appears that if the property is out of repair at the testator's death, contrary to the covenants of the lease, the expense of repairing will fall on the legatee; and where leaseholds were specifically bequeathed "subject to the payment of the rents and performance of the covenants," the Court refused to let the specific legatee into possession, without indemnifying the executors against the liability for dilapidations, (Hickling v. Boyer, 3 Mac. & Gord. 643). On the other hand, the specific legatee of leaseholds on which the testator had covenanted to build, has been held entitled to have the covenant performed at the expense of the general personal estate (Marshall v. Holloway, 5 Sim. 196); but this decision has been referred to the particular terms of the will (see 10 Hare, 278; 2 Johns. and Hem. 202). Questions of like character arise upon the bequest of shares, involving the liability to calls. See Armstrong v. Burnet, 20 Beav. 16. -and after the death of the the children survivor, for then living of sisters equally a leasehold ture and divi dends. Rights and liabilities of spec:fic legatee of leaseholds. PRECEDENT XVII. BEQUEATH all other the monies, securities for money, goods, chattels, rights, credits, and personal estate of or to WILL WITH TRUST FOR ACCUMULATION YEARS. 18. Bequest to testator's brother of the residue of his personal estate, subject to payment of funeral and testamen FOR TWENTY-ONE 424, 437, in which the prior cases are reviewed, and the test suggested for determining whether future calls are to be borne by the legatee or by the general estate, is, whether the subject-matter of the testator's bequest was complete in itself when the bequest took effect; Day v. Day, 1 Drew. & Sm. 261; Addams v. Ferick, 26 Beav. 384, in which it was held that the legatee of shares must pay calls made after the testatrix's death, but that calls made before her death were payable out of the general personal estate; Re Box, 1 Hem. & M. 552, where calls on shares made during the life of the tenant for life of the general estate were, as between specific legatees in remainder of the shares, and the legatees in remainder of the residue of the estate, held to be payable out of the latter; and see as to the right to exoneration in respect of specific bequests, 2 Jarm. Wills. 3rd ed. pp. 595-597. tary expenses, debts, and legacies. As to apportionment of current payments at testator's death, With respect to the apportionment of rents and other periodical payments in the nature of income, it is enacted by the Apportionment Act, 1870, (33 & 34 Vict. c. 35), s. 2, that from and after the passing of the Act all rents, annuities, dividends, and other peri. odical payments in the nature of income shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly (and see the interpretation of the words "rents," "annuities," and "dividends," in section 5); but the Act is not to apply where there is an express stipulation against apportionment (s. 7). This comprehensive enactment is much more general in its application than the old Apportionment Act of 4 & 5 Wm. 4, c. 22, and avoids many of the questions which have arisen under that Act (as to which see Shelford's Real Property Statutes, 8th ed., by Carson, pp. 543, et seq.). By the effect of the Act an apportionment of the rents or income of the testator's real or leasehold estate, or any other property to which the Act applies, will in general have to be made at the testator's death as between the specific or residuary devisee or legatee and the general estate (Capron v. Capron, L. R. 17 Eq. 288; Pollock v. Pollock, L. R. 18 Eq. 329; Hasluck v. Pedley, L. R. 19 Eq. 271; Constable v. Constable, Weekly N. 1879, p. 80); but in Jones v. Ogle, L. R. 14 Eq. 419, 8 Ch. Ap. 192, a bequest of "the dividends and income" of the testator's share in a company to A. for life, was held to show an intention to give the whole of the accruing dividend, so as to exclude apportionment. As between a legatee of shares or stock and the general estate, a dividend declared before, though not payable till after, the testator's death, belongs to the general estate (Lock v. Venables, 27 Beav. 598; De which I shall at my death be possessed or entitled or PRECEDENT XVII. over which I shall have a general power of appointment WILL WITH TRUST FOR ACCUMULATION YEARS. Gendre v. Kent, L. R. 4 Eq. 283), unless the rights of the parties FOR TWENTY-ONE are altered by the company's regulations (see Clive v. Clive, Kay, 600, and 1 J. & H. 267); and a dividend declared after the testator's death in respect of profits wholly earned in his lifetime, will likewise belong to the general estate (Browne v. Collins, L. R. 12 Eq. 586). It is conceived that a bequest, such as that in the text, of the dividends due to the testator at his death, would in general carry all dividends which have been declared in his lifetime, although not actually payable till after his death, but not dividends declared after his death, even though arising from profits wholly earned in his lifetime. In the case of a legatee of leaseholds, the effect of the recent Act would appear to be that an apportionment must be made in his favour at the testator's death in respect of the superior rent, as well as against him, in respect of the profit rent. The question of apportionment at the testator's death is of course wholly different from the corresponding question as between legatees for life or other limited interests, and those in remainder; but in cases of the latter kind also, the late Act, as regards those species of property which come within it, is of the most general application. The principle of the cases above referred to as to the right to a dividend declared in the lifetime of an absolute owner of shares, but not payable till after his death, is of course equally applicable as between tenant for life and remainderman (Wright v. Tuckett, 1 J. & H. 266). The Apportionment Acts do not apply to shares in private partnerships or trading concerns (Jones v. Ogle, L. R. 8 Ch. Ap. 192; Browne v. Collins, ubi sup.); but where by the articles of partnership interest at a fixed rate is payable on the testator's capital, the interest, which in its nature accrues from day to day, will be apportionable, although the profits are not (Ibbotson v. Elam, L. R. 1 Eq. 188). In Straker v. Wilson, L. R. 6 Ch. Ap. 503, profits of a partnership business made during the lifetime of the tenant for life under the will, but carried yearly to a profit and loss account instead of being divided, were after his death held to belong to the remainderman, having regard to the terms of the articles of partnership. As to the application of the late Act to instruments executed before its passing, see Jones v. Ogle, ubi sup.; In re Cline's estate, L. R. 18 Eq. 213; Hasluck v. Pedley, ubi sup. That the Court will not in general apportion the proceeds of stocks and shares sold between dividend days as between tenant for life and remainderman, see Scholefield v. Redfern, 2 Dr. & Sm. 173; Freeman v. Whitbread, L. R. 1 Eq. 266. As to apportionment as between tenant for life, and remainderman. WILL WITH TRUST FOR ACCUMULATION FOR TWENTY-ONE YEARS. PRECEDENT XVII. or disposition by will (except chattels real, and except what else I otherwise dispose of by this my will or any codicil hereto), unto my said brother L. B., subject to the payment out of the said residuary personal estate (as the proper and primary fund for the payment thereof) of my funeral and testamentary expenses and debts (including mortgage debts (g)), and of any legacies not otherwise charged which I may bequeath by any codicil to this my will. [Trustee clause, supra, p. 55, and other usual clauses, as in Precedent I., so far as applicable]. IN WITNESS, &c. PRECEDENT WILL WITH TRUST FOR ACCUMULATION TO DISCHARGE INCUMBRANCES. XVIII. WILL of REAL and PERSONAL estate. Specific bequest of BUSINESS, stock in trade, and business PREMISES, &c. to eldest son, subject to payment of TRADE DEBTS. DIRECTION to RAISE sum to be held in TRUST for a BROTHER and his CHILDREN. Directions that fund if NOT VESTING under prior trusts shall SINK into RESIDUE, and shall carry INTEREST till raised. Trusts of RESIDUARY estate for payment of debts, &c., and LEGACY DUTIES on RESIDUARY estate, and for ACCUMULATION of surplus INCOME above a certain YEARLY SUM to DISCHARGE INCUMBRANCES. Trusts of YEARLY SUM for WIFE for life, and afterwards for the CHILDREN entitled in expectancy. Trusts after expiration of period of accumulation for WIFE for LIFE, and after her death for the CHILDREN, EXCEPT the ELDEST son, some of them being ILLEGITIMATE. POWER to trustees to DEAL with MORTGAGES. Ap (g) See supra, p. 249, note (m). |