Will, Construction of - Power Perpetuity - Apportionment - Mines - Tenant for Life.

The testator devised certain lands in strict settlement, with liberty to each tenant for life, in succession, to cut down timber and to get stone upon the premises, for buildings and repairs, but for no other use or purpose whatsoever; and in the latter part of his will he recited that he had already restrained, and did thereby intend to restrain, each and every such tenant for life from cutting any timber or getting any stone upon the premises, save for the purposes aforesaid :-Held, upon the whole will, that the clause was restrictive, and, consequently, a tenant for life was not entitled to get stone from quarries open at the testator's death, save for the purposes in the will mentioned.

The will, after restraining each tenant for life from cutting timber and underwood, declared that it should be lawful for the executors of the testator at their discretion, at any time afterwards, “until some person entitled in possession to an estate tail, under the limitations of the will, should attain twenty-one years," to enter and cut timber and underwood, and to invest the proceeds thereof in the purchase of lands, to be settled to the uses of the testator's will:Held, that the power was void as a tohole, as tending to a perpetuity, and that, whether it was to be construed as imperative, or permissive only, being in derogation of the rights of the infant tenant in tail; also, that the power could not be apportioned.

But, semble, there appears no sound reason why a power should not be apportioned, where each act to be done from time NEW SERIES, XV.-CHANC.

to time is complete and lawful in itself, and which act, when done, completely fulfils the intention of the testator.

With respect to the law as to perpetuities, there is no distinction between a trust to accumulate the proceeds of timber cut from time to time, and a trust to accumulate the annual rents and profits of an estate.

Tenant for life may work open mines, but cannot open new mines. Quære-whether he can work a new mine through or by means of an old shaft.

This was a bill filed by a tenant in tail in remainder of estates limited in strict settlement by the will of the testator in the cause, against the representatives of a deceased tenant for life, the present tenant for life, the trustees of the will and other parties, praying an account of timber cut on the estate, and relief in respect of exchanges alleged to have been fraudulently made, and an account of coal mines opened since the death of the testator, and of stone obtained from quarries open at the testator's death. The principal question on the hearing was, on the validity of a power given to the trustees of the will to enter upon the estates and cut timber for the purposes of settlement, until some person entitled in possession to an estate tail in the premises should attain twenty-one years. The material clauses of the will, and the facts of the case, the arguments of counsel, and the principal authorities relied upon, will be found sufficiently set out in the judgment.

Mr. Rolt and Mr. Roundell Palmer, for the plaintiff.

Mr. Turner, Mr. Romilly, Mr. Tinney, Mr. K. Parker, Mr. Lee, Mr. Serj. Clarke, Mr. Bacon, Mr. T. Turner and Mr. Bichner, for the different defendants.

shall owe at the time of my death, and the several legacies, annuities and sums of money, which I may give or bequeath or direct to be paid by this my will, or by any codicil or codicils thereto, as far as such personal estate will extend. I give and devise unto C. S. B. Sharp and J. Field, and their heirs, all that my manor of Cottingley, in the parish of Bingley, and also all other my manors, and all and every my messuages, woods, hereditaments and real estate, whatsoever and wheresoever, with their and every of their appurtenances (except such tenements as are vested in me by way of mortgage, or upon trusts for other persons), to hold to them, the said C. S. B. Sharp and J. Field, and their heirs, to, upon and for the several uses, trusts, intents and purposes, and subject to the powers, provisoes and limitations hereinafter expressed and declared of and concerning the same, that is to say, to the use of Daniel Wilson, Miles Staveley and W. Holden (whom I hereafter appoint executors of this my will), their executors, administrators and assigns, for, during, and unto the full end and term of twenty-one years, to commence and be computed from the day next before the day of my death, and thenceforth next ensuing, and fully to be complete and ended, without impeachment of waste, but, nevertheless, upon the several trusts, for the ends, intents and purposes, and under and subject to the several provisoes, limitations and declarations hereinafter contained concerning the same term; and from and immediately after the end or other sooner determination of the said term of twenty-one years, and in the meantime subject thereto and to the trusts thereof, to the use of my cousin, John Ferrand, during the term of his life, with liberty to cut down timber and wood, and to get stone for buildings and repairs upon the premises, but for no other use or purpose whatsoever; and from and immediately after his decease, in case his wife shall happen to survive him, then subject to the annuity of 3001. hereinafter mentioned, and the remedies for the recovering thereof, but if she dies in his lifetime, then freed and discharged of and from the same annuity, and all powers for the recovery thereof, to the use of his eldest son, Edward Ferrand, during his life, with liberty to cut down timber and wood, and to get stone for buildings and

repairs upon the premises, but for no other use or purpose whatsoever; and from and immediately after the determination of that estate, to the use of the said C. S. B. Sharp and J. Field, and their heirs, during the life of the said Edward Ferrand, in trust, to preserve the contingent uses and estates hereinafter limited, &c.; and from and immediately after his decease, to the use of the first, second and third, and every other son of his body, severally, successively, and in remainder, from the elder to the younger, in tail male; with remainder to the use of Walker Ferrand (another son of the said John Ferrand) during his life, with the like liberty to cut timber and wood, and get stone for the purposes aforesaid, but not otherwise, with remainder (after the determination of that estate) to the use of the said C. S. B. Sharp and J. Field, and their heirs, during the life of the said Walker Ferrand, in trust, by the ways and means aforesaid, to support and preserve the contingent uses and estates hereinafter limited; with remainder (after his decease) to the use of the first, second and third, and every other son of his body, severally, successively, and in remainder from the elder to the younger, in tail male; with remainder to the use of Jane Ferrand, (daughter of the said John Ferrand) during her life, with the like liberty to cut timber and wood, and get stone for the purposes aforesaid, but not otherwise; with remainder (after the determination of that estate) to the use of the said C. S. B. Sharp and J. Field and their heirs, during the life of the said Jane Ferrand, in trust, by the ways and means aforesaid, to support and preserve the contingent uses and estates hereinafter limited; with remainder (after her decease) to the use of the first, second, third, and every other son of her body, severally, successively, and in remainder from the elder to the younger, in tail male; with remainder to the use of Sarah Ferrand, (another daughter of the said John Ferrand,) during her life, with the like liberty to cut timber and wood, and get stone for the purposes aforesaid, but not otherwise; with remainder, after the determination of that estate, to the use of the said C. S. B. Sharp and J. Field, and their heirs during the life of the said Sarah Ferrand, in trust, by the ways and means aforesaid, to support and preserve

the contingent uses and estates hereinafter limited; with remainder (after her decease) to the use of the first, second, third, and every other son of her body, severally, successively, and in remainder, from the elder to the younger, in tail male." And the said will, after limiting certain other estates in remainder for life, to Catherine Ann Ferrand, otherwise Ann Catherine Ferrand, George Ferrand, Richardson Ferrand, Benjamin Ferrand and Henry Woolhouse Dinney Roebuck, and estates tail to their issue as in the said will mentioned, with the ultimate remainder to the use of the testator's own right heirs, proceeded in the following terms:-"I hereby give and bequeath all my leasehold estates to the said D. Wilson, M. Staveley and W. Holden, their executors, &c. during the continuance of the respective leases and terms thereof, and also all my household furniture, pictures, plate and linen, in and about my messuage at St. Ives, aforesaid, in trust for such person and persons, and for such estates and interests, and under and subject to such powers, provisoes, restrictions and limitations as are hereinbefore expressed and declared of or concerning my manors and premises before devised, or as near thereto as may be, and as the nature of the respective leasehold estates and personal property will admit of, to the end that the same may be held and enjoyed, and go along with the aforesaid manors and premises, so long as the laws of this realm will permit; and as for and concerning the said term of twenty-one years herein before limited to the said D. Wilson, M. Staveley and W. Holden, their executors, administrators, and assigns as aforesaid, I do hereby declare that the said term is so limited to them upon trust, that they or the survivors or survivor of them, and the executors or administrators of such survivor, do and shall from time to time during the same term, receive and take all the rents, issues, and profits of the said manors and premises when and as the same shall become due and payable, and also fell and cut down timber, in its perfection of growth, and other wood at the usual growth, taking the falls in succession as heretofore used and accustomed, and do and shall yearly and every year until all the debts which I shall owe at the time of my death, and all the pecuniary legacies

which may be given by this my will or any codicil or codicils thereto, shall be paid and satisfied, pay thereout, unto my said cousin, John Ferrand, if he shall so long live, and in case of his death, leaving his widow surviving him, the said annuity of 3001. as hereinafter mentioned, and also to such other person or persons as for the time being, by virtue of this my will, shall be entitled to my said manors and premises in remainder or reversion expectant on the determination of the said term of twentyone years, one full annual sum or yearly rent-charge of 1,000l. of lawful money of Great Britain, without any deduction whatsoever, by four equal quarterly payments, the first payment thereof to be made at the end of three calendar months from the time of my death, and also do and shall thereout pay and retain all costs, charges, and expenses which shall from time to time attend the execution of the trusts of this my will, and all incidental and other charges relating thereto; and do and shall, from time to time, by and out of the rents and profits of the premises, maintain and keep all my said manors and premises, and the houses, buildings, yards, gardens, walls, pales and fences thereto belonging, in good and proper repair, order and condition, and do and shall pay and apply the residue of the rents, issues and profits of the said manors and premises, in or towards payment or discharge of my funeral expenses, the debts which I shall owe at the time of my death, and the interest of such of them as bear interest; and the other pecuniary legacies and annuities, which I may give by this my will, or any codicils or codicil thereto, or so much thereof as my personal estate, not specifically disposed of, shall not extend to pay, at such times, and in such manner, order and course, and according to such priority as they, the said trustees of the said term, or the survivors or survivor of them, &c., shall think proper; and from and after payment and discharge of all my funeral expenses and debts, and of all the pecuniary legacies and annuities which may be given by this my will, or any codicil thereto, or a fund being raised by the ways and means hereby directed, sufficient for the purpose and the payment of all costs and expenses, touching or concerning the said term of twenty-one years, and the

trusts thereof, then upon trust, to permit the said John Ferrand, or the person who, for the time being, by virtue of this my will, shall be entitled to the reversion or remainder expectant or to take effect upon the determination of the said term of twenty-one years, during the residue thereof, to enter upon, hold and enjoy all my said manors and premises, and to have, receive, take and enjoy the rents, issues and profits thereof, to and for his own use and benefit, subject to such annuities, if any, as shall then remain charged upon the said premises; but from thenceforth the said yearly rent-charge or sum of 1,000l., and the payment thereof, shall cease and determine. Provided nevertheless, and I hereby declare that from and after payment of all arrears of the said yearly sum of 1,000l., and after payment of all my funeral and testamentary expenses, debts and pecuniary legacies, or a fund being raised by the ways and means aforesaid, sufficient for the purpose, and after payment of all costs and expenses touching or concerning the said term of twenty-one years, or the trusts thereof, and after all the trusts of the same term shall have been fully satisfied and performed, then and from thenceforth the said term of twentyone years shall cease, determine, and be utterly void." The will then contained a power to the tenants for life to charge the estate with jointure, not exceeding the sum of 300l. per annum, followed by a power to the trustees of the term of twenty-one years to grant leases, and a clause requiring the devisees to take the name of Ferrand, and to bear the family arms and crest. There then followed a power for the tenants for life to exchange the lands. There was then a gift of an annuity to the widow of John Ferrand, and also a bequest of certain legacies. Then comes this clause, which it is also proper that I should read:-" Provided also, and I hereby declare it to be my will, that all my said manors and premises shall be subject and liable to the payment of all my just debts, and of all such annuities and legacies as I have given, or shall give hereby, or by any codicil or codicils to this my will, and that in case my personal estate (exclusive of my household furniture, plate and linen, in and about my messuage at St. Ives, and directed to be enjoyed therewith,) shall not be sufficient for that purpose, that

the trustees of the said twenty-one years' term shall thereby, and by the ways and means herein before prescribed, raise and make good the deficiency (that is, the debts, annuities and legacies). And whereas I have already restrained, and do hereby declare that I mean and intend to restrain each and every person to whom I have limited an estate for life by this my will, from cutting down any timber or wood, or getting any stone upon or within my said manors and premises, or any part thereof, save for buildings and repairs: and whereas there are great quantities of timber trees and spring woods growing within and upon my said manors and premises, I therefore request and authorize my executors to take care that the spring woods be carefully preserved, so as most effectually to continue a regular succession in the falls thereof, and that the lands whereon they grow be sufficiently fenced, and not depastured by any kind of cattle, and that it shall be lawful for my executors, or the survivors or survivor of them, or the executors or administrators of such survivor, at any time or times, not only during the continuance of the said term of twenty-one years, hereinbefore limited to them as aforesaid, but at any time afterwards, until some person, entitled in possession to an estate tail or some greater estate of and in the said manors and premises under and by virtue of this my will, shall attain the age of twenty-one years, to enter into and upon the several woods, lands, grounds and premises before demised, whereon any timber or other trees are or shall be growing, and from time to time, when and so often as my said executors, or the survivors or survivor of them, or the executors or administrators of such survivor, shall think it necessary and proper, to fell and cut down, or cause to be felled and cut down, all and every such timber and other trees as shall be at their full growth or height of improvement, and such spring woods as shall from time to time be at their proper growth for felling, according to the usual course of felling such spring woods, and to sell and dispose thereof, or of any part thereof, and of the bark, branches, lops, tops, cordwood and rammel thereof, to any purchaser or purchasers thereof, for the best price or prices that can reasonably be got for the same. And I do hereby

authorize and empower my executors, or the survivors or survivor of them, &c., from time to time to receive all and every the monies arising therefrom, and to pay, apply and dispose of the same, or so much thereof as shall be necessary, in payment of my funeral expenses, and debts, and legacies hereby given, or which may be given by any codicil hereto, until all and every the trusts and purposes of the said term of twenty-one years shall thereby, and by the ways and means aforesaid, be fully and in every respect performed, satisfied and discharged, and from and after such perform ance, satisfaction and discharge thereof, then I direct that my said executors, or the survivors or survivor of them, &c., shall from time to time (with the consent and approbation of the person or persons who shall be then in the possession of my said manors and premises, or entitled to the rents and profits thereof, by virtue of this my will,) lay out and invest the residue and overplus thereof, and also all other monies arising therefrom, and which may be from time to time received by them as aforesaid, in the purchase or purchases of freehold manors, messuages, lands, tenements and hereditaments of a clear and indefeasible estate of inheritance in fee simple in possession, and shall and do settle, convey and assure the same to such uses, and for such estates and interest, and under and subject to such powers, provisoes and limitations as the said manors and premises, devised by this my will, are hereby limited, settled, expressed or declared, or such and so many of them as shall be then subsisting undetermined or capable of taking effect. And I hereby declare and direct, that after the receipt of any sum or sums of money arising from the sale of woods as aforesaid or otherwise (the trusts and purposes of the said term of twenty-one years being first fully performed, satisfied and discharged), and until such purchase or purchases shall be made," &c. There was then power to the trustees to invest. Then followed a devise of mortgages, a declaration that the trustees are not to be accountable for involuntary losses, and an appointment of the same persons to be executors of his will. Now, for the purpose of explaining the judgment which I am about to give, it will be sufficient that I should notice those facts which

were relied on in argument, and treated, in fact, as if those were the only points as to the limitations which arose in the will.

The will was dated in 1790. J. Ferrand, who was the first tenant for life, died in the lifetime of the testator. The testator died in the year 1803, and E. Ferrand, who was the party to whom the property was secondly limited for life in the will, entered into possession of the estates. In February 1809 Mr. Holden died. In the summer of 1814 Mr. Staveley died. In 1815, an exchange of part of the property was effected in a manner which I shall presently refer to, by E. Ferrand, the tenant for life, the trustees acting or concurring in the arrangement. In 1817 Charlewood, the son of Jane Ferrand, to whom the estate was next limited in tail (Walker Ferrand having died in the meantime without issue), died without issue. In 1824 Mr. Wilson, the surviving trustee, died. In 1837 Mr. Edward Ferrand died, without issue, and, on the death of Edward, Sarah Ferrand, the plaintiff's mother, became entitled to the possession of the estate for her life; she entered accordingly, and has ever since been in the possession of the estate, the plaintiff being entitled as tenant in tail, expectant on the death of his mother. On the 26th of July 1842, the present bill was filed, and the relief prayed by that bill, stating the heads of the relief in the order in which I propose to consider them, is this -An account of the timber cut in the lifetime of Mr. Edward Ferrand and its application, with a declaration that the timber so cut ought to be laid out in the manner directed by the trusts of the will; that is, in fact, the proceeds to be laid out in the purchase of lands, to be settled to the use of Benjamin Ferrand's will. The second head of relief is in respect of the exchange which is alleged to have been effected at an undervalue, and therefore to be void according to the terms of the will; and that Mr. E. Ferrand's estate may be charged with the loss sustained by that exchange, provided the estates which were given in exchange cannot be got back again. The third head of relief is an account against the present tenant for life of working coal mines, which mines are said not to have been open at the time of the death of the testator, and also an injunction to restrain the further getting of coal, except from mines opened