the authority of Harton v. Harton has been frequently recognized and followed, and must be considered established.] (n)

Power to limit

jointure.

The case of Wykham v. Wykham (o) presents a remarkable instance of contrariety of judicial opinion as to the estate authorized to be created by a power to jointure. A devised lands to his an estate as a eldest son for life, remainder to that son's first and other sons in tail male, with remainder to the testator's other sons and their sons in like manner. The will contained a power to the devisor's sons, as they should become entitled in possession, "from time to time to grant, convey, limit and appoint all or any parts, &c., to trustees, upon trust by the rents and profits thereof to raise and pay any yearly rent-charge, not exceeding £1000, as a jointure for any wife or wives that he or they should thereafter marry, for and during the term of such wife's natural life only." The devisor's eldest son B in exercise of his power conveyed and appointed the lands so devised to him to trustees and their heirs, upon trust to raise and pay certain yearly rent-charges (amounting to £1000), to his intended wife as a jointure. After the death of B, but during the life of the jointress his widow, the next tenant in tail, who was let into possession, suffered a recovery, the validity of which depended upon this, whether the appointment did or did not vest in trustees an estate of freehold for the life of the jointress. If it did, the recovery was void for want of the immediate freehold, which was, in that case, outstanding; but in every other event, i. e., if the appointment passed no estate, or a chattel interest only, or the fee, it was good, in the former case as a legal, and in the latter as an equitable recovery. Lord Remarkable Eldon sent a case to the Court of K. B., who certified diversity of that the trustees took a fee. The same question was then opinion. sent to the C. P., and that court was of opinion that the trustees took no estate. On the conflicting certificates Lord Eldon held that the recovery was good, and that the estate which the trustees should have taken was a term of years, with a proviso for cesser of it on payment of the rent charge during the life of the jointress and all arrears thereon at the time of her death, as that would not have gone to disturb any of the subsequent uses. (p)

judicial

It is observable that, greatly as the several opinions varied in the

(a) See Toller v. Attwood, 15 Q. B. 929.] (0) 11 East 458, 3 Taunt. 316, 18 Ves. 395; [Blagrave v. Blagrave, 4 Ex. 550.]

As to a direction to settle, see Knocker v. Bunbury, 8 Scott 414, 6 Bing. N. C. 306. (p) See Sugd. Pow. 399, 924 (8th ed.)

construction of the devise, they all conducted to the same conclusion as to the recovery, which, quacunque via, was good.

As to devises

to trustees for preserving

contingent

With regard to estates limited to trustees for preserving contingent remainders, it may be observed that although they may not be (as such estates usually are) in terms confined to the life of the person taking the immediately preceding estate of freehold, yet they will be so restricted in construction, if the will disclose no other purpose which requires that the trustees should take a larger estate. 11

remainders.

Thus, in Doe d. Compere v. Hicks, (q) where a testator devised *lands, after the decease of his wife, to his father A for life, with remainder to B for life, and after the determination of that estate, unto trustees and their heirs, in trust to preserve contingent remainders from being defeated, and to make entries, and nevertheless to permit B to receive the rents and profits during his life, and after his decease, unto the first and other sons of the body of B in tail male successively, and in default of such issue, unto his (testator's) brother C for life, and after that estate determined, unto the trustees and their heirs to preserve the contingent remainders in manner aforesaid (with various remainders limited in a similar manner.) On an ejectment brought by one of the beneficial devisees it was contended that the fee was in the trustees under the unrestricted limitation to them and their heirs. But the court was of opinion that, taking the whole instrument together, it appeared that the testator intended the trustees to take only an estate for the lives of the several tenants for life, in order to protect the contingent remainders. If the trustees had taken the whole interest in the estate, it was not necessary for the testator again to give them the same estate after all the subsequent estates for life.

This decision has been noticed with approbation by Sir W. Grant, (r)

11. In Webster v. Cooper, 14 How. (U. S.) 488, 499, it was said by Curtis, J.: "The duties to be performed by them, (the sole trustees), in reference to these lands, are to take the life estates, in case of forfeiture, and hold them so that the future remainder-men may not be deprived of the legal estates limited to them by way of contingent remainders. It was

* * *

not intended the trustees should hold the fee, because there are express limitations of life estates to them to preserve contingent remainders, which would be wholly inoperative if they took the fee."

(q) 7 T. R. 433, [and see Haddelsey v. Adams, 22 Beav. 266.] (r) See 12 Ves. 100.

Remarks on

pere v. Hicks.

and seems to be abundantly sustained by the principles of analogous cases. Lord Kenyon, in the course of his judg- Doe d. Comment, however, in allusion to Venables v. Morris, (s) (which had been urged as an authority for holding the trustees to take the fee,) suggested that the result would be different where, under the limitations in question, any person had a power of appointment, which, his lordship considered, would render it necessary that the fee should be in the trustees, with a view to the possibility of the donee creating under the power contingent remainders which might require. protection. In Venables v. Morris the limitations (in a deed) were to the use of A for life, with remainder to the use of trustees and their heirs for the life of A, to preserve contingent remainders, remainder to the use of B (wife of A) for life, remainder to the use of the same trustees and their heirs, in trust to support the contingent uses, and permit B and her assigns to receive the rents; and after the decease of A and B, to the use of the first and other sons of the marriage successively in tail, with remainder to the use of the first and other daughters successively in tail, remainder to the use of such persons as B should by deed or will appoint, and, in default of *appointment, to the use of the right heirs of B. B, by a deed-poll, appointed the estate to the right heirs of A. The contest was between the heirs of A and the heirs of B, the former claiming under the limitation in the appointment, and the latter under the settlement. One of the points contended for by the heir of B was that, the remainder in fee of power of being in the trustees, an equitable interest only passed the heirs of A under the appointment, and which could not unite with the estate for life of A under the settlement; but the court was of opinion that the heir of A was entitled quacunque via; for if the limitation to the heir of A under the appointment was a legal limitation, it united with A's estate for life under the settlement, and conferred the fee; but if it did not, then it was a contingent remainder in equity to the heir, and he took by purchase. Lord Kenyon subsequently expressed a more decided opinion that the legal estate in fee was in the trustees, and the certificate of the court (it being a case from chancery) was in conformity to this opinion. The ground on which Lord Kenyon rested the cer- Remarks on tificate of the court, involves a very extensive and no less novel doctrine, and one which, in the absence of any

(8) 7 T. R. 342, 437.

to

Reservation

appointment held a ground for giving trus

tees the fee.

doctrine of

Venables v. Morris.

confirmatory decision, cannot be relied on. To hold that the mere circumstance of there being included in the limitations a power of appointment, by virtue of which contingent remainders might be

Whether the creation of

contingent remainders is a ground for

thereafter created, constitutes of itself a ground for vesting the fee simple in the trustees, is evidently going much further than making trustees take the fee because contingiving trustees gent remainders are actually created by the instrument containing the limitation to them; though even the latter more moderate doctrine has not been invariably countenanced by the authorities.

the fee.

Thus, in Heardson v. Williamson (t) Lord Langdale, M. R., does not appear to have regarded the fact that the will contained a contingent remainder of the devised estate as a sufficient ground for holding the fee to be in the trustees.

On the other hand, in Cursham v. Newland (u) trustees were held to take the fee under a will which appeared to supply no other ground for such a construction; and in Doe v. Willan (v) and Houston v. Hughes (~) Bayley, J., considered that the circumstance of contingent remainders being created by the will *favored the conclusion that the trustees took the legal inheritance. In Barker v. Greenwood, (y) too, it seems to have been regarded by Parke, B., in the same point of view, though this able judge disclaimed any reliance on the point; because the question in that case was not whether the trustees took the fee, but whether they took an estate pur autre vie, and he considered it to be doubtful whether the trustees of such an estate would be bound, in the absence of an express trust, to preserve contingent remainders, a point which [has since been decided in the negative,] (z) their estate being created diverso intuitu.

At all events, [the mere existence of contingent remainders will not give the legal fee to the trustees where the will contains express limitations to them of particular estates (including estates pur autre vie in trust to preserve) which would be nugatory if they already had the fee. (a) It is also] clear that an express direction to trustees to preserve contingent remainders will not have any influence on the construction, if the will contains no such remainder; (b) nor where the

(t) 1 Kee. 33, ante p. *312.

(u) 2 Scott, 113, 2 Bing. N. C. 64. But Bee Cunliffe v. Brancker, post p. *319. (v) 2 B. & Ald. 84, ante p. *299.

(x) 6 B. & Cr. 420.

(y) 4 M. & Wels. 431.

[(2) Collier v. Walters, L. R., 17 Eq. 265, 266.

(a) Cunliffe v. Brancker, 3 Ch. D. 401.] (b) Nash v. Coates, 3 B. & Ad. 839.

subject of devise is a copyhold estate, as contingent remainders created of such property are not destructible, and therefore do not require any limitation of this nature for their preservation; (c) [nor, it is presumed, where the contingent remainder is protected by stat. 40 and 41 Vict., c. 33.] (d)

It seems that where a will is so expressed as to leave it doubtful whether the testator intended the trustees to take the fee or not the circumstance that there is included in the same includes other

Where devise

property as to which trustees take the legal estate.

devise other property which necessarily vests in the trustees for the whole of the testator's interest, affords a ground for giving to the will the same construction as to the estate in question. (e)

[If all the active trusts, together with all the ulterior limitations fail ab initio, as, by lapse, the devise to the trustees, Where trust sufficient to carry the fee, will operate to the full extent, fails ab initio. and they will hold in trust for the heir, if there be one; or if not, for their own benefit.](ƒ)

the cases.

Here closes the long catalogue of decisions respecting the *quality and extent of the estate conferred by devises in trust, General from which the reader will have collected the principles remark upon that govern cases of this description, and the considerations which have been admitted to influence the construction, though, as the question is constantly presenting itself under new aspects and combinations of circumstances, difficulty will sometimes occur in the application of the established doctrine.

Of all the adjudged points connected with the subject, that which has been deemed the least satisfactory is the doctrine of those decisions (g) which, in certain cases, gave to trustees whose estate was undefined a term of years (either with or without a prior estate for life), determinable when the purposes of the trust should be satisfied. To exclude the application of this inconvenient and very refined rule of construction, two enactments have been introduced into the statute 1 Vict., c. 26. Section 30 provides, when any real estate (other than or not being a presenta

Stat. 1 Vict.,

"That c. 26,2 30,

31.

(c) See Doe d. Woodcock v. Barthrop, the argument was ridiculed by Jessel, M.

5 Taunt. 382.

[(d) Vol. I., p. *874.]

(e) Houston v. Hughes, 6 B. & Cr. 403; [Baker v. Parsons, 42 L. J., Ch. 228. But

R., Baker v. White, L. R., 20 Eq. 173.

(f) Cox v. Parker, 22 Beav. 168, 25 L. J., Ch. 873.]

(g) Ante p. *310.