Oldalképek
PDF
ePub

66

Richard, and Robert Tebbutt, their heirs, executors, administrators, and assigns, according to the nature thereof, to, for, and upon the several uses, trusts, ends, intents, and purposes in his will after mentioned and declared. And then he proceeds to particularise the trusts, directing a part of the trusts which was to be performed by application of the personal estate, to be performed by the trustees, and the survivors and survivor of them, his or her executors or administrators, and directing other parts of the trusts which were to be performed by application of rents or by conveyance or sale of real estates, to be performed by the trustees, and the survivors or survivor of them, his or her heirs and assigns. There are, in the will, a few directions given, in respect of which neither the word "executors" nor the word "assigns" is distinctly used; as where he says "my said trustees, or any of them," "my said trustees,' my trustees and executors," I my trustees and executors, and the survivors and survivor of them," "or my trustees for the time being;" but this case is very distinguishable from the case of Down v. Worrall (a), where, although the gift was to the trustees, their executors, administrators, and assigns, there was a mere personal direction given to the trustees: and, having regard to the whole will, I consider it to be clear, that on all occasions to which I have referred, the expressions used had reference to the class of persons to whom he had given the real and personal estate on the trusts of his will, and whom he has, in the course of his will, repeatedly designated and described as the persons by whom the trusts were to be performed; and, (upon a careful examination of the will,) I am of opinion, that the testator intended that the trusts of his will should be performed by the trustees named, and the survivors and

66

(a) 1 Myl. & K. 561.

1844.

TITLEY

v.

WOLSTEN

HOLME.

1844.

TITLEY

v.

WOLSTEN

HOLME.

and survivor, and by the heirs and assigns, or by the executors or administrators of the survivor, and that he has used words sufficient to give validity and effect to that intention.

The testator has not, by his will, given any power to appoint new trustees, and it is thereupon argued, justly, that the trustees, or the survivors or survivor of them, could not, by any assignment or act inter vivos, relieve themselves from the responsibilities and duties of the trust; but it is further contended, that the same disability attends any assignment by way of devise or bequest, and that although the estate and property may be vested in the devisees or legatees of the surviving trustee, the duties and the responsibilities attending the execution of the trusts remain in the legal representatives, real and personal, of the surviving trustee.

Upon this occasion, there is no question as to the trustworthiness of the devisees, or as to any fraudulent or improper motive of the surviving trustee in making the devise and bequest. The argument, in this case, has been, properly, conducted on the supposition that the devise was, or at least may have been, made to trustworthy persons, for the purpose of better executing the trusts. No imputation has been cast upon the conduct of the surviving trustee, or upon the conduct, character, or trustworthiness of his devisees and legatees; and the case is, therefore, to be considered independently of any circumstance involving any such imputation.

When a trust estate is limited to several trustees, and the survivors and survivor of them, and the heirs of the survivor of them, and no power of appointing new trustees is given, we observe a personal confidence

given, or at least probably given, to every one of the several trustees. As any one may be the survivor, the whole power will eventually come to that one, and he is entrusted with it, and being so, he is not, without a special power, to assign it to any other; he cannot, of his own authority, during his own life, relieve himself from the duties and responsibilities which he has undertaken.

But we cannot assume, that the author of the trust placed any personal confidence in the heir of the survivor; it cannot be known, beforehand, which one of the several trustees may be the survivor; and as to the contingent survivor, it cannot be known, beforehand, whether he may have an heir or not, or whether the heir may be one, or may consist of many persons, trustworthy or not, married women, infants, or bankrupts, within or without the jurisdiction. The reasons, therefore, which forbid the surviving trustee from making an assignment inter vivos, in such a case, do not seem to apply to an assignment by devise or bequest; which, being made to take effect only after the death of the last surviving trustee, and consequently after the expiration of all personal confidence may, perhaps not improperly, be considered as made without any violation or breach of trust. It is to take effect, only at a time when there must be a substitution or change of trustees: there must be a devolution or transmission of the estate, to some one or more persons not immediately or directly trusted by the author of the trust:- the estate subject to the trusts must pass either to the hæres natus or the hæres factus of the surviving trustee, and if the heir or heirs at law, whatever may be their situation, condition, or number, must be the substituted trustee or trustees, the greatest inconvenience may arise, and there are no means of obviating them, other than by application to this Court. With great respect

[ocr errors]

for

1844.

TITLEY
บ.

WOLSTEN-
HOLME.

1844.

TITLEY

v.

WOLSTEN

HOLME.

for those who think otherwise, and quite aware that some inconveniences, which can only be obviated in this Court, may arise, from devising trust estates to improper persons, for improper purposes, I cannot, at present, see my way to the conclusion, that in the case contemplated, the surviving trustee commits a breach of trust by not permitting the trust estate to descend, or by devising it to proper persons, on the trusts to which it was subject in the hands of the surviving trustee.

66

But the case so considered is not the present case. We have, in this will, expressions which clearly show that the testator intended the trusts to be performed by the assigns" of the surviving trustee; and in construing the will, we must, if practicable, ascribe a rational and legal effect to every word which it contains. We cannot, consistently with the rules of this Court, consider the word "assigns" as meaning the persons who may be made such by the spontaneous act of the surviving trustee to take effect during his life; but there seems nothing to prevent our considering it as meaning the persons who may be made such by devise and bequest; and if we do not consider the word "assigns "as meaning such persons, it would, in this will, have no meaning or effect whatever.

For these reasons, and under the circumstances of this case, I am of opinion, that the devise and bequest made by Robert Tebbutt of the trust estates held by him under the will of Richard Titley, was a good and valid devise and bequest; and that the estates thereby given to Edward Titley, David Waddington, and Charles Wolstenholme are vested in them, on such of the trusts thereof declared by the will of Richard Titley, as now remain to be performed.

1844.

RIDGWAY v. WOODHOUSE.

JOSEPH RIDGWAY, by his will dated the 13th
February 1841, directed the charitable bequests
given by him to be paid out of such part of his per-
sonal estate not specifically bequeathed as might be
legally bequeathed or charged by will for charitable
purposes, in preference to his debts, testamentary and
funeral expences, and legacies, and all other charges
whatsoever, and he exempted such part of his estate as
might be legally given, bequeathed, or charged for cha-
ritable purposes from payment of or contribution to his
debts, and such other charges, and he imposed the same
upon the remainder of his estate, real and personal, so
far as might be necessary; and he directed his assets
be duly marshalled for that purpose.

to

March 184

April 2.

directed his

A testator
charitable
bequests to be
paid out of his
pure person-
alty, in pri-
ority of all
other charges;
vised his real
and personal
tees, upon
trust, to lay
out the per-
sonal estate in
real estate,
and
pay the
rents, &c. to

and he de

estate to trus

his wife for life; and he

directed, that

The testator also gave to his sister Alice Harrison the in case his clear yearly sum of 400l.

But he provided, that in case Thomas Harrison, son of his said sister, should, at any time after his decease and notice to his said sister of this condition, reside with his said sister, or dwell in her house or place of residence, or become part of her family, the bequest thereinbefore contained for her benefit should cease and become void, as if she were actually dead.

The testator then gave several legacies and charitable bequests, and devised all his freehold, copyhold, and real

estate,

wife's sister should reside with, or dwell in the house

or place of residence of his said wife, or become part of her

family, then, for every day sidence, &c.

of such re

his trustees should retain 100/. out of

the rents, &c. payable to his

wife, and pay

the same to a charity: Held,

first, that the condition was not illegal; secondly, that its effect being to divest a vested interest, it must be strictly construed; and, thirdly, that as the benefit intended for the charity could not, in consequence of the statute of Mortmain, take effect, the condition was void.

« ElőzőTovább »