V.C. W.] LORD SCARSDALE v. CURZON. [Vol. 3, N. S.: 37, O. S.—31 [V.C. W. The grandson for life, remainder to such uses as the son have the effect which Lord Hardwicke there seems to and grandson, after the father's death, should appoint, have supposed; but that the trusts will nevertheless with limitations over in strict settlement. This last-be regarded as executed and not executory. The obmentioned power was exercised by the son and grand-servation of Lord Hardwicke, in Bagshaw v. Spencer, son after the first lord's death. This was done by the once threw some further doubt on this point; but what deed of 1816, which is the material instrument in the is meant by calling a trust executory, has since been case; the parties to it were the second lord, his eldest more clearly expressed by other judges, by distinguishson Nathaniel, afterwards the third lord, certain trus- ing the cases where the settlor, as the phrase is, has been tees, and other formal parties. It recites the power his own conveyancer, from those where he has directed created by the settlement of 1804, and in execution a conveyance afterwards to be framed. The third class thereof settles the estates, subject to an annuity for of cases is, where the trusts are executory, in the sense Nathaniel the son, upon the second lord for in which the word is now understood; and here there life, remainder to Nathaniel the son for life, re- has been considerable difference of opinion, and I do mainder to his first and other sons in tail, with not consider the law as finally settled by authority; limitations over, the ultimate limitation being to the but, if it is so, it is in favour of the introduction of daughters as tenants in common in tail. Then follow particular conditions, such as the attainment of twentylimitations of the leaseholds and of the chattels in dis-one, into the limitations. Such a restraint was cerpute, the form of which I shall have to consider tainly upheld in Lady Lincoln v. Duke of Newcastle; minutely; but before doing so, I will consider gene- that case, however, may be open to observation, Lord rally the state of the law with respect to assignments Eldon having always protested against it. The fourth of leaseholds and chattels of this description, for which rule is that which was established by Foley v. Burnell, purpose it will be necessary to go into a close analysis and is favourable to the contention of those who insist of the authorities up to and succeeding Foley v. Burnell. that the chattels vest in the first tenant in tail. Now, undoubtedly observations are to be found in text- the full extent of that authority is no more than this, books, and even some dicta by learned judges, which are that doubtful words tending to restrict the interest in But not exactly in accordance with previous authorities, and the chattels to those who come into possession of the some misapprehension seems to exist as to the precise real estate, will not overrule the operation of the points which were determined by the cases up to Foley general canons of construction, or have the effect of v. Burnell, and which were designated in Potts v. Potts suspending the interest until the time when possession a code of law. In that case Lord St. Leonards points of the realty is obtained. No case before Foley v. out, with an accuracy to be expected, in what that Burnell turned upon this point as to possession. code of law really consists. The great contest in every struggle in all the earlier cases was, whether, assuming case, except Foley v. Burnell (where the question as the first tenant in tail to be entitled absolutely at to possession did come under discussion), down to the twenty-one, you could introduce a provision postponing very latest, Rowland v. Morgan, has been, not on the his interest until that period. Stanley v. Leigh, 2 P. point as to possession, but upon the more general ques- Wms. 686, was the first case where a suggestion was tion as to the construction and effect of an instrument thrown out upon the subject. There was a settlement which contains a series of limitations of realty in strict on A. for life, remainder to his son in tail, remainder to settlement, and by which chattels are annexed to the his daughter in tail; and in default of such issue estate by making them heirlooms, or by directing that chattels were limited to go over to others. they are to follow the limitations of the realty, or by ment was, that a limitation of heirlooms on these uses The arguusing any other equivalent form of words. Upon this was a perpetuity, and that the limitation over was the authorities have settled that, where the trusts are therefore void. Sir J. Jekyll adopted the view, which executed (for there still seems to be a doubt remaining was afterwards to some extent followed in Gower v. with reference to the executory trusts), where no re- Grosvenor, that there was no perpetuity, because it striction as to the attainment of the age of twenty-one happened that the first tenant died without issue. the fulfilment of any condition is introduced, the considered that it was not enough to see that the tescourt will deal with such limitations in this way; it tator was aiming at a perpetuity, and said that the gift will simply look to the limitations of the realty, and would not be void unless a perpetuity were in fact will vest the personalty according to those limitations, created. the consequence of which is, that when you arrive at a person who is tenant in tail of the realty, you must give the personalty absolutely to him. law spoken of amounts to this and nothing more: The code of First, that an assignment or bequest of personalty esther immediate or by way of trust, executed, to go according to the same limitations as real estate, vests it absolutely in the first tenant in tail of the realty immediately upon his birth, and this, whether the limitations of the personalty be expressed in extenso, or them-if none, then over; and therefore held that, on a contingency if A. had issue to treated by reference to the limitations of the realty; as there were no issue, it was a good devise. But and that such reference may be effectually made either he expressly noticed the practice of conveyancers, by expressly saying that the chattels are to go on the which, as Lord Elion afterwards said, was much older ane uses as the realty, or by declaring that they are than the case of Stanley v. Leigh, to suspend the vesting to be treated as heirlooms, this last expression being of chattels till twenty-one, which, he said, went further suficient in itself to carry the property in the way towards a perpetuity than the case before him. I have stated. Secondly, this point was established, that believe that he stated correctly what then was the the addition of the words so far as the rules of law practice of conveyancers, who seem only to have learned or equity permit," and the circumstance that the legal by degrees the true method of coupling real and perinterest is left in executors, will not prevail to alter the sonal estate as far as was consistent with law, the general rule or make the trust executory. settled in Vaugham v. Burslem, and it is with reference been simply to introduce a limitation suspending the This was practice, up to the date of Stanley v. Leigh having to this point that the pertinence of Lord Hardwicke's dicta vesting in a tenant in tail until twenty-one. The next in Gower v. Grosvenor arises. It is now settled that case is Gower v. Grosvenor, reported both in Barthe circumstances of the limitations being in the form nardiston and in 5 Maddock, each report containing mentioned, and the legal estate being in executors, will some particulars not found in the other. I He tation to issue, if there should be any, and if not, then He construed it in fact as an alternative limi Sir The case LORD SCARSDALE v. CURZON. V.C. W.] [V.C. W. to Lord Lincoln for life, and to his first and other sons in tail, then to Lord Thomas and his family in the same way, with limitations over; and the covenant was to assign the leaseholds upon the same trusts as far as the law would permit. Lord Lincoln died, leaving a son and daughter; the son became tenant in tail, and died an infant, and unless the fact of the trust being executory made a difference, the son was the person in whom, according to the doctrine of Vaughan v. Burslem, the leaseholds would have absolutely vested. Lord Loughborough, himself one of the commissioners who decided Foley v. Burnell, held that this being an executory trust, the leaseholds ought to be carried over in the event of the first tenant in tail dying under twenty-one and without issue, and directed a settlement accordingly, in trust for the eldest son Thomas, but to go over in the event of his dying under twenty-one without issue male. Upon the appeal of the H. of L., there was considerable difference of opinion. Lord Eldon expressed his opinion which was confirmed by Lord Thurlow, that the dicta (for they were only dicta) of Lord Hardwicke in Gower v. Grosvenor, did not go so far as to lay it down that the limitations to be introduced in pursuance of an executory trust were to tie up the personalty to the utmost extent which the ingenuity of conveyancers could compass; but that the conveyance should be framed according to the usual limitations of such settlements, and Lord Eldon agreed was really the same as Stanley v. Leigh, and was decided in the same way; but Lord Hardwicke there threw out the suggestion which has since been overruled in Vaughan v. Burslem, and decided in conformity with the idea which he had acted on in Bagshaw v. Spencer, that by leaving the legal estate in the executors, and by using the words "as long as the rules of law and equity will permit," the testator had made the trusts executory. Those dicta are now entirely overruled. In his judgment Lord Hardwicke, referred, as Sir J. Jekyll had done, to the practice of conveyancers, and in Maddock is made to state it in precisely the same terms. Lord Eldon, with perfect accuracy, observed that Lord Hardwicke went beyond this, and stated the customary limitation to be, to suspend the vesting in case of death under twenty-one and without issue, and not under twenty-one simply. That addition is mentioned in Barnardiston, though not in Maddock. Conveyancers had, perhaps, by that time advanced a step further towards the true principle, and had consequently introduced the additional clause, though even that, as Lord Eldon remarked, did not meet all the difficulties. After Gower v. Grosvenor you come next to Trafford v. Trafford. That case I pass over, reserving it for separate examination, because it is very like the present case, and, as is admitted in all subsequent cases, did not turn on the point decided in Vaughan v. Burslem. In some degree it approached the point of Foley v. Burnell; but it did not touch the main ques-that that was very reasonable. But he considered it tion discussed in that case, for it went upon the special settled by Foley v. Burnell and Vaughan v. Burslem, direction of the will, that the chattels were not to vest that you could not introduce such a restriction until twenty-one, and were to vest only in persons in as Lord Loughborough had directed under words possession. Trafford v. Trafford, therefore, does not like those used in the Duke of Newcastle's covenant. form any part of the stream of authority flowing down Nevertheless the House of Lords made a decree vesting to Vaughan v. Burslem, and since continued in Carr v. the property in such a manner as to avoid deciding one Lord Errol, Burrell v. Crutchley, 15 Ves. 544, and part of the question. This has misled some text other cases in which Vaughan v. Burslem has been writers, and amongst others, Mr. Jarman, who was in followed-the authorities, that is, which have esta- general so accurate, has observed, that it became imblished the rule that the words " as long as the rules material at last to decide this point, because the son of of law and equity will permit " will not make a trust Thomas had attained twenty one, and would take of this kind executory, but will leave the gift to be quacunque viâ. But that is not so; he did not take construed as in the simple case of a settlement of quacunque viâ, for the infant son of Lord Lincoln was realty, with a declaration that the same limitations are the first tenant in tail, and would have taken, accordto be applied to the personal property. Foley v. Burnell ing to the principle of Vaughan v. Burslem, if that turned upon both points; partly upon the point as to pos- had been deemed applicable to the case. In effect the session, but in a great degree also upon the question, whe- House of Lords struck out from Lord Loughborough's ther the vesting could be suspended until twenty-one. Lord decree the words "and without issue," which in the Thurlow decided it, without any argument on the point. event had become immaterial, and that was all that The case was reargued before the Lords Commissioners, Lord Eldon succeeded in obtaining. Therefore, accordwho came to the conclusion that you could not effec-ing to this decision, limitations are to be implied in tually introduce that limitation in the way convey-cases of executory trusts suspending the vesting till ancers were in the habit of doing. And then in twenty-one. It is true that Lord Eldon always disapVaughan v. Burslem the single point was, whether the proved of this authority very much, and in Burrell v. words "as far as the rules of law and equity will per- Crutchley said, he did not take it to have decided anymit" would enable the court to treat the trust as thing with regard to any possible case, except that executory; and Lord Thurlow said that it would be precise case; but it must be observed that Lord Ersmere pedantry to adopt such a construction; and by kine, who was Chancellor, said, that Lord Thurlow that and other cases it is now well settled that these assented to the judgment, and Lord Thurlow himself words merely mean that, inasmuch as there is a diffe- explained, in another reported case, that in his judgrence between realty and personalty, you are to apply ment in Vaughan v. Burslem he never meant to deny the limitations according to the quality of the property; the difference between executed and executory trusts. and since the law will not permit personalty to go as Such is the state of the law with regard to an estate tail, when you get to such a limitation you that portion of the case, which I have kept disare to stop and give an absolute interest. That is the tinct from the questions which arise where there are settled construction of the phrase, and it is not to be special limitations of a different character. I may regarded as giving an executory character to the observe, whatever the custom of conveyancers was before trusts. Then came the case of Carr v. Lord Errol, Foley v. Burnell, it afterwards became the practice to and various decisions to the like effect, by Lord Eldon frame limitations in such a way as to vest the personand other judges. Those authorities have established alty only in those who should come in possession of the what is termed the code. But the question still re-real estate. The difficulty to be dealt with was, that if mained open, what could be done where the trusts were executory? In the case of Lady Lincoln v. Duke of Newcastle the trust was clearly executory, because it arose upon a covenant to settle and nothing more. There were no directions in the covenant to suspend the vesting till twenty-one, the limitations of the realty being the chattels went to the first tenant in tail, even at twenty-one, and he happened not to come into possession, there was an immediate separation of the personalty and realty. The difficulty was met by conveyancers by clauses like those which are now under consideration, and whether they are effectual or not is the point to be V.C. W.] dealt with in this case. The direct authorities are [Vol. 3, N. S.: 37, O. S-33 [V.C. W. occurs in LORD SCARSDALE v. CURZON. consequently, a question whether the limitation was the decision was right on the question of construction, not too remote. Lord Eldon's view evidently was, that but that when that construction was arrived at, there whom would get a vested interest in the chattels, that might be a series of infant tenants in tail, none of the gift might therefore be postponed for a longer time than a life in being and twenty-one years, and was consequently void as perpetuity-a difficulty which conveyancers have subsequently met by provisions strued as vesting the interest at twenty-one in the That the will was rightly contenant in possession has never indeed been doubted, unless such a doubt is to be inferred from Wigram, V. C.'s observations in Rowland v. Morgan, that Trafford v. Trafford had been overruled by Vaughan treated, in every argument and every declaration which v. Burslem. But that has elsewhere been constantly I can find, as a decision on a different ground; and I will refer to observations to that effect. The first two or three instances only of Lord Redesdale's argument in Vaugham v. Burslem, where he says be qualified by condition, as a gift of this description may shall not take till entitled to possession of a freehold that the donee estate, or till he shall attain twenty-one, as in Trafford v. Trafford, and then, if the donee does not become entitled does not attain twenty-one, he cannot take the to the possession of the freehold, or chattels; he takes the point, therefore, for granted. So again Lord Eldon, in delivering his opinion in the H. of L., said distinctly that Lord Hardwicke had to deal with an express direction that the property should not vest until twenty-one, or until possession; and then he goes on to add the remarks I have already cited, that in deciding the case Lord Hardwicke overlooked the fact that a perpetuity was created. And in every case where Trafford v. Trafford tainment of twenty-one and possession of the freehold has been discussed, the fact of these words as to atbeing in the will, has been noticed. The next case was Foley v. Burnell, and there was this peculiarity about it. The limitations of the chattels was, that they were to be held and enjoyed by the several persons who from time to time should respectively and successively be entitled to the use and possession of the said houses respectively, as and in the nature of heirlooms, to be annexed and go along with such houses respectively for a case in 5 Bro. P. C. referred to in a very good note by Mr. Powell, in the second volume of Fearne's Executory Devises, edition of 1795, p. 472: that is, Spencer v. Duke of Marlborough, where the limitations were in some sense restricted, because they were to persons being Dukes of Marlborough; but a decision became unneces-framed to avoid it. sary, as the same person took quacunque viâ. Trafford 1. Trafford, before Lord Hardwicke is a very important case. It raised precisely the same question now under consideration. There was a trust of realty for Sigismund Boehm for life, remainder in trust for his first and other sons in tail male. tures and household goods were given to such "male Then the plate, picperson (when he should attain twenty-one) who should then be entitled to the trust in possession of the real estate;" with a direction that until such male person should attain twenty-one, the chattels should be kept at the mansion-house, and be used in the mean time by sach male person residing there; and the testator expressly declared his desire that the chattels might, in the nature of heirlooms, go with the said estate, and be used therewith as long as the laws of this realm would permit. There was also a bequest of residue to the person who should be in possession, but without the words attaching trusts to the limitations of the land. The contention was by the tenant for life, who claimed to take the chattels absolutely. Lord Hardwicke's reasoning upon it was this: He said it was a question of construction, the plaintiff contending that the chattels were to go as heirlooms as far as by law they might, and the defendant insisting that they must vest in the first taker, whether tenant for life or tenant in tail, and that he would take the absolute property at twentyone. "Then," he goes on, 66 looms; but I am of opinion that the exposition of comes the word 'heirthat ought to be, that it should go in such kind of succession as I directed in the case of LewSORT. Grosvenor. The first clause, I allow, would give the absolute property if it stopped there;" bat the whole must, he says, be construed together, and the last clanse directing that they were to go as beirlooms as far as the law would permit, would be defeated by such a construction; and he observes further on that, 66 to say that they shall only go as heir-ever. boms till a tenant for life attain twenty-one is a forced constraction; for what is there then of the nature of inheritance in these heirlooms if they should stop there? Accordingly, he declared that the chattels were to go as heirlooms along with the real estate, and that the tenant in tail would be entitled to the property in case he should attain twenty-one, and in the mean time to the use and enjoyment. But the residue, the gift of which had not the word heirlooms or the equivalent words, he gave absolutely to the tenant for life. The important observation is, that if the limitations had stopped with the first clause, the first taker who attained twenty-one would have taken the whole; but that, by reason of the subsequent addition of that clause as to heirlooms, the persons entitled to the inheritance took it as part of the inheritance. That case had been constantly referred to as depending on the circumstance that the restriction as to attaining twentyne, and the condition that the person to take must be in possession, were expressly inserted in the will. There is nothing to be found to the contrary, except the remark of Lord Eldon in Lady Lincoln v. Duke of Newcastle, that Trafford v. Trafford was open, as an authority, to considerable objection, because Lord Hardwicke had failed to advert to the fact that the limitation was not to sach son, but to such male person as should attain twenty-one and be in possession, and that there was, Vol. III, No. 46, N.S.-VOL. XXXVII., No. 912, O. S. (the decision of Lord Thurlow having been without In the argument before the Lord Commissioners argument) both points as to introducing a restriction to persons attaining twenty-one, and as to the condition of coming into possession, were strongly pressed, and in the H. of L. Lord Eldon put it thus (4 Bro. P. C. 327): selves whether the testator meant to express an inten"The appellants were not able to determine for themtion to restrain the vesting of an absolute interest in the property till a years of age, or a purpose to postpone it till a son son should attain twenty-one should become entitled to the possession of the estate. Whether the former or the latter intention should be imputed to the testator, the respondent contended that both were implied intentions, and that neither was manifest or clear of doubt. argue that the limitations must fail either way; but it could not be the intention of the testator to preserve And then he goes on to the plate longer than it was in his power to restrain the alienation of the houses to which he annexed it. If the title to the plate was to depend on possession at all, it must, according to the language of the will, go with the possession for ever, for that, if anything, was the intention; and to adopt that construction would be to impute to the testator a design to create what was manifestly a perpetuity on the face of it, and not merely such a mere possibility of a perpetuity in the event of successive minorities as occurred and was overlooked V.C. W.] one." He a LORD SCARSDALE v. CURZON. [V.C. W. in Trafford v. Trafford. So in the reply to Lord saying (1 Bro. C. C. 283), "The intention ascribed to Eldon's argument before the commissioners, 1 Bro. C. C. the will is not against any rule of law." Lord Foley 282, it is said Trafford v. Trafford was a very differ- might have given the personal property in such a way ent case from this. It was to the person being twenty- as to carry that intention into execution. The only one, who should be in possession of the real estate, so question is, whether this intention appears clearly long as the law would permit. The suit was brought upon the face of the will. Lord Cottenham, in by a tenant in tail not in possession, and Lord Hard- Potts v. Potts, took the same view of Foley v. Burnell, wicke determined it on the words of the will, consider- and said that all that Foley v. Burnell had decided ing them as executory, and therefore declared the was, that the words "as far as the rules of law and chattels to be heirlooms as long as they might be, and equity will permit " would not cut down the interest to that the plaintiff would be entitled to them at twenty- those who attain twenty-one, leaving it open to That is exactly what I have been observing. settlor or testator to limit chattels, if he pleased, to Then the argument proceeds upon the alleged intent of those persons only who might come into possession of the testator; and it is insisted that the testator had the realty. It is curious to observe the course expressed too ardent an intention, and that, although of conveyancing practice. The first phrase was the the court would aid the intention while within the rule custom of suspending the vesting until twentyof law, it would not do so where a testator endeavoured to one. The next was the use of limitations, defeating do what the law would not permit; and that Lord Foley the interest, in the event of death under twenty-one had attempted to give a more durable estate in the chat- and without issue. Then Lord Eldon suggested a tels than in the real estate for the tenant for life, and consequence which would not follow in the present state remainder might bar the estate by recovery; but, on the of the law, namely, that a person between fourteen construction contended for, they could not dispose of and twenty-one might dispose of the chattels by will, the chattels, and even if they were to endeavour to sell and that the object aimed at might thus be defeated. jointly, yet if the remainderman should die in the life- Then there was the other difficulty (which was so much time of the tenant for life, the estate would go one way pressed in argument in Foley v. Burnell), unprovided and the chattels another, which Lord Foley himself for, namely, that the tenant for life and the remainderman could not possibly have intended. That was one great having attained twenty-one, might cut off the entail branch of the argument in the case. Then again, in and dispose of the estate, and what then would become the first discussion of Lady Lincoln v. Duke of New- of the chattels? But if the words are clear, the fact castle, 3 Ves. 394, before Lord Loughborough, we find that a certain event is not provided for will not operate Lord Eldon-being familiar with Foley v. Burnell, and upon a question of construction. The opposite conarguing against the suspension of vesting-saying this: struction would equally fail to carry out the design of "As to Foley v. Burnell, this court is in the habit of keeping the real and personal estate together; and the permitting personal things to be enjoyed as heirlooms. decision in Foley v. Burnell did, in truth, defeat the I do not state that case as deciding what the court intention entirely and immediately. It is vain to specuwould have done if, instead of perpetuity intended, the late on the possible view of the testator himself. words as far as the law will allow' had stood a part of might probably have said that he wished the land and the case." Again, in the H. of L. 12 Ves. 234, he the plate to be kept together, which would be an answer observed that in Foley v. Burnell there was a great as much against the one construction as the other. Mr. discussion on the words "for ever," and insisted that Jessel suggested that these limitations, if effect were the testator there came very near a perpetuity. That given to them, would prevent a resettlement of the' objection, he adds, fell to the ground in the view taken chattels and the land together. So they would, and by the court, for the decision was, not that the court Mr. Powell long since suggested, in the note before rewould carry the limitation as far as the rules of law ferred to, a mode by which, within the period allowed would permit, and stop there, that being excluded by by the rule against perpetuity, this objection could, if the direction that the chattels were to go in that way desired, be removed-namely, by a shifting clause to for ever; but it was simply that the court would lay carry over the chattels whenever a recovery was sufhold of the word "heirlooms," and not suffer its fered; and possibly in some such way, when conveyeffect to be countervailed by the indefinite words as to ancers have arranged all these difficulties, you may possession. This clearly appears to have been the arrive at a satisfactory method of keeping the two kinds ground of the judgment of the commissioners. Lord of estates together as far as practicable. After a time, Loughborough says (1 Bro. C. C. 284), that he did not however, conveyancers did adopt the plan of settling see that Lord Foley could have an idea of a case chattels, so as to let them go only to persons in which the estate might be sold and yet the possession of the realty. I do not find in Jarman's Conplate remain, as might happen if the son at-veyancing any precedent of settlement of heirlooms, but tained twenty-one in his father's lifetime and sold in Davidson's Conveyancing, at p. 392, there is a form of the estate, and that if that case had been stated this kind: "Heirlooms are given to be enjoyed, so far to Lord Foley, he would have said, "Let them as the rules of law and equity will permit, by the person take the plate with the estate." Then he uses these who shall be in actual possession or in receipt of the words: "It is sufficient for the present purpose that rents and profits, but so as not to vest absolutely in the intent is not clear. I cannot give it effect as an any person thereby made tenant in tail by purchase, implied intent, for every implied intent must be free unless such person shall attain the age of twenty-one from doubt." What the commissioners held, there-years; but on the death of such tenant in tail by purfore, whether rightly or wrongly, undoubtedly was, chase, the same shall go in the same manner as if they not that the phrase "heirlooms," when accompanied by had been freeholds of inheritance, and had been thereby the restriction as to possession, must nevertheless have devised and settled accordingly." That is framed in its ordinary effect as if the restriction were not there; order to tie up the chattles to the person in possession. but that, where a testator had not given explicit direc- I have also some old precedents which were used in tions how far the restriction was to go, the court could 1825, in Mr. Tyrrell's chambers, the tradition about not act upon a vague direction, which, if it meant any-which is, that they were drawn by Mr. Butler, and that thing, would create a perpetuity, and would act upon that part of the clause which was clear, and not upon an implied intention obscurely intimated. So far was Lord Loughborough from holding that restriction as to possession would necessarily be inoperative to control the word “heirlooms," that he began his judgment by Mr. Tyrrell obtained them from Lord St. Leonards, and I find there that in dealing with heirlooms, he declares they are to be held and enjoyed as long as the rules of law and equity will permit by the person for the time being entitled beneficially to the rents of the estate so as to be in the nature of heirlooms; but so, V.C. W.] LORD SCARSDALE v. CURZON. [V.C. W. nevertheless, that the same shall not be for the pur- | mansion-house." That I read by the light of all the pose of transmission vested in the child of any person other parts of the instrument as signifying the person by these presents made tenant for life-a provision by who shall be in possession. There are no such words which a perpetuity is avoided—unless such child shall as "for ever" which occurred in Foley v. Burnell, and attain twenty-one, but in the mean time that such created so much difficulty; but the words which follow child shall have the use and benefit thereof. If the are those of Trafford v. Trafford: "So that the said word heirlooms were not used the tenant for life would plate, pictures and furniture may, as far as the rules take absolutely, according to Trafford v. Trafford; of law and the circumstances of the case will admit, but by using that phrase, the effect is to give the abso- accompany the said capital messuage or mansion-house late title to the first person who takes an estate of as heirlooms for the benefit of the person or persons inheritance in possession. Now, these limitations are who, for the time being, shall, under the limitations open to all the difficulty that no resettlement would be herein before expressed, be seised of or entitled to the possible. Again in the same volume of precedents I have said capital messuage or mansion-house." I apprealso a form of a will, which I obtained from Mr. hend that the true construction of those words, withTyrrell, the authorship of which I cannot vouch out the latter part of the clause, would be, as in Traf for, but identical with that which is given by ford v. Trafford, to give the chattels to the first taker, Mr. Davidson. It is clear, therefore, that notwith- though only tenant for life; but the author of the settlestanding the difficulty suggested by Mr. Jessel, this did ment qualifies that by the direction that the first taker long since become a common mode of limiting heir-shall not take absolutely, but so that the persons succeslooms. I come now to the clauses of the settlement sively interested shall have the benefit of the chattels. before me. I find, rather singularly, a very marked dif- Then the words are perfectly consistent; and I can give no ference between the limitations of the leaseholds and other construction to them than that they carry the chattels those of the heirlooms. In order to determine the con- to those only who come into possession, because the struction of these clauses, I must first settle the mean- object was not that a tenant for life should take ing of the phrase "the person seised of or entitled to the absolutely, but that all were to have an interest in the actual freehold." In my opinion, this can have no other heirlooms; but so that those only should enjoy them meaning than the person in possession. Possibly, the who come into possession. So far it might be said expression used may have been preferred to the phrase that the addition of the heirlooms clause ought to have "the person entitled to the receipts of the rents," because the same effect as the words "for ever the trustees might, in certain cases, become so entitled Burnell, according to Lord Eldon's criticism, there under the jointuring and other clauses. The distinction, it being here no restriction as to lives in being, and the in Foley v. is true, is not borne in mind throughout the instrument, same possibility of a succession of minorities. But for in some instances we meet with the phrase "the then come these words, "provided that the plate, picperson entitled to the receipt of the rents;" but I think tures and furniture shall not, for the effect or purpose it impossible to give to the words "the persons seised of of transmission, vest absolutely in any child of any or entitled to the actual freehold " than the person in possession. I am far from saying capital messuage or mansion-house and other hereditaany other meaning person hereby made tenant for life of the said that the words "actual freehold" have any such techni- ments, who shall not attain the age of twenty-one cal sense, nor do I rest my opinion on the phraseology years.' pointed out in some passages of Coke upon Littleton; possession of the inheritance, but so that, if he is a The chattels go therefore to the first tenant in bat, on the whole of this settlement, I have no doubt child of one of the tenants for life-all persons in esse about the meaning of these words. It is not necessary at the time-they shall not vest absolutely until he to go through all the clauses which have led me to this attains twenty-one. Then there are these very strong cclusion, but I may mention, by way of example, the words: "But nevertheless that the child for the time powers of jointuring given to children, whether they shall being seised of or entitled to the actual freehold of the or shall not be in possession or entitled to the "actual free- said capital messuage or mansion-house shall, during hold. There you cannot deprive the word "actual" of all special significance without making nonsense of tuary, or entitled, for his, her, or their benefit, to the his or her minority or respective minorities, be usufructhe clause, because there would be no children who said plate and furniture." The settlor therefore has uld not be entitled to the freehold simpliciter, either inserted a clause that no son of a tenant for life shall in possession or remainder. an in possession, or the clause would have no mean- clause which assumes that the person spoken of is a "Actual," therefore, must take for purposes of transmission till twenty-one; a That is the strongest instance, but there are nu- person in possession, because he says the "child for rots examples of the same kind. Taking this, then, the time being in possession." The true construction the sense of the phrase "actual freehold," I therefore, I take to be, that the chattels were to vest one to the particular clauses which I have to in the person in possession, not absolutely, but so as construe. The limitations of the leaseholds are thus to go with the inheritance, to which is added pressed: "For the person or persons who, for the the restriction confined within the limits of pertae, being, shall, by virtue of the limitations herein-petuity, that no person who succeeds to the inheritance before expressed and contained, be seised of or entitled shall take before twenty-one. This appears to me to to the said freehold manors and other hereditaments be consistent with all the authorities. With respect to ereinbefore appointed and granted, released and con- Potts v. Potts it is only necessary to say, that neither inned, or intended so to be." Whole doctrine of Vaughan v. Burslem applies. Why were to go according to the limitations of the realty so To these words the the word "heirlooms," nor the clause that the chattels a different form should have been used for the heir- long as the rules of law and equity would permit, was ms, and whether the difference was intentional or used. And Lord St. Leonards comments on this as accidental, it is impossible to say; but, so far as the purposely done to avoid confusion, though he refers to elanse I have read is concerned, I think it impossible the evident intention of annexing the two things toto draw any safe inference from the use of the word gether. He concludes that the express limitation seased, and I am therefore of opinion that the ordinary would have the opposite effect, and it is obvious, that rale applies, and that the leaseholds vest absolutely in whatever may be the construction of a peculiar class of the first tenant in tail. The chattel clause is in these limitations, express words will override it. The result, words: "In trust for the person or persons who, for therefore, comes to this. Whereas in Foley v. Burnell the time being, shall, by virtue of the limitations herein- the words were not clear enough to overrule the force before expressed and contained, be seised of or entitled of the term heirlooms, here the intention is perfectly to the actual freehold of the said capital messuage or clear and express, and will prevail. The answer to the |