¹ Dr. Morris, J. H. C. (1954) 70 L.Q.R. 61–87Google Scholar; Morris, and Leach, , The Rule against Perpetuities (1956).Google Scholar See also the Law Reform Committee's report (1956) on the rule against perpetuities, Cmnd. 18, paras. 24, 25; also Megarry, and Wade, , Law of Real Property (1957).Google Scholar

² Re Ransome, decd. [1957] Ch. 348; Re Taylor, decd. [1957] 1 W.L.R. 1043.

³ There is a different rule for gifts of a separate sum for each of the members of the class. See Rogers v. Mutch (1878) 10 Ch.D. 25; Hawkins, on Wills, 3rd ed., 93Google Scholar; Megarry, and Wade, , Law of Real Property, 469.Google Scholar

⁴ In spite of the dictum quoted with approval by Hawkins, , op. cit., 100Google Scholar, it does not seem as yet settled that “born,” for the purpose of class-closing rules, includes en ventre sa mère and subsequently born: see, e.g., Re Gardiner's Estate (1875) 20 Eq. 647.

⁵ See, e.g., Re Bleckly [1951] Ch. 740, C.A.; Hawkins, op. cit., 86–100; Megarry, and Wade, , op. cit., 229–230, 467–469.Google Scholar

⁶ For gifts by will, there is usually a presumption nowadays that the gift was intended to carry its intermediate income: see post, p. 53 and note 57. If it does not carry its intermediate income, there is merely a gap during which that income goes elsewhere: see Re Stevens [1915] 1 Ch. 429, 433 (a devise of realty before L.P.A., 1925, s. 175).

⁷ See, e.g., Re Mellor [1922] 1 Ch. 312 (Eve J. and C.A.); Re Leng [1938] Ch. 821, 826. See also Trustee Act, 1925, s. 31 (2), and Re Bowlby [1904] 2 Ch. 685, per Romer, L.J. at pp. 708–709Google Scholar, that where there is a power to use the income for maintaining infants any income not so used is likewise to be accumulated.

⁸ See, e.g., Trustee Act, 1925, s. 31 (2). It seems that, on his marriage, though still an infant, the trustees are nowadays entitled to pay him the income of the accumulations: ibid.

⁹ Re Holford [1894] 3 Ch. 30. C.A., e.g., per Lindley, L.J. at pp. 46–47Google Scholar; see also Re Ransome [1957] Ch. 348, 362. But perhaps the former of the two alternatives still applies (as it did for pre-1926 devises of realty) to a class gift inter vivos of realty; see Re Averill [1898] 1 Ch. 523: Re Stevens [1915] 1 Ch. 429, at pp. 433–434: for a gift of realty, legal or equitable, to a contingent class was said to vest the entire income, at first, in such members as have satisfied the contingency.

¹⁰ Somewhat illogically, perhaps, there are two exceptional cases in which they do not close the class at all: viz. (i) where the class gift (not being contingent) is immediate and there is as yet no member of the class when the testator dies; (ii) where the class gift (not being contingent) is in remainder and there is as yet no member of the class when the preceding life interest ends: see Re Bleckly [1951] Ch. 740, C.A.

¹¹ If the gift is to a contingent class (e.g., £1,000 between such children of A as reach twenty-one) his fraction may subsequently increase; for some of the other members of the closed class may ultimately fail to satisfy the contingency (e.g., may die under twenty-one).

¹² They are rules of convenience “not founded on any view of the testator's intention”: per Jessel, M.R., Re Emmet's Estate (1880) 13 Ch.D. 484, 490Google Scholar; quoted and adopted in Re Bleckly, supra, at pp. 747, 752. Contrast Hawkins' attempt (Wills, 3rd ed., 86) to base the rules upon a presumption that the testator intended the objects of his bounty to be ascertained as soon as possible.

¹³ See, e.g., Lord, Thurlow in Andrews v. Partington (1791) 3 Bro.C.C. 401, 404Google Scholar; Pearson, J. in Watson v. Young (1885) 28 Ch.D. 436, 445Google Scholar (the rule “excludes children intended by the testator to take”); also Upjohn, J. in Re Ransome [1957] Ch. 348. at pp. 358, 359.Google Scholar

¹⁴ e.g., Re Emmet's Estates, supra: To Henry for life with remainder to “all and every the children of George to be equally divided between them when they respectively attain the age of twenty-one”: Henry died and then a child of George reached twenty-one: held, no child born after that can benefit. See also Re Bleckly [1951] Ch. 740, 751; also Re Manners [1955] 1 W.L.R. 1096, per Upjohn, J. at p. 1102.Google Scholar

¹⁵ See, e.g., Langdale, M.R. in Scott v. Lord Scarborough (1838) 1 Beav. 154, at p. 168Google Scholar —quoted in Hawkins, on Wills, 3rd ed., 94.Google Scholar See also Re Deloitte [1919] 1 Ch. 209, C.A. (a gift, contingent upon reaching twenty-one, among “all the children of the present or any future marriage of Edward whether they be living at my death or born afterwards”: held class closed as soon as the first child of Edward reached twenty-one).

¹⁶ 1 Beav. 154, at pp. 168–169.

¹⁷ For the two exceptions, see note 10 ante.

¹⁸ 3 Bro.C.C. 401; ante, p. 40. In fact, however, the rule was then already at least 43 years old: see Re Bleckly [1951] Ch. 740, 751.

¹⁹ 3 Bro.C.C. 401 at p. 404:—“Where a time of payment was pointed out, as where a legacy is given to all the children of A when they shall attain twenty-one …” [These words and the decision itself are erroneously attributed to Lord Loughborough in the report of the admirable judgment of Hall V.-C. in Re Emmet's Estate (1880) 13 Ch.D. 484, at p. 488].

²⁰ e.g., Wigram, V.-C., in Mainwaring v. Beevor (1849) 4 Ha. 44, at pp. 48, 49Google Scholar; Buckley, J. in Re Stephens [1904] 1 Ch. 322, at p. 328Google Scholar, quoted and adopted by Astbury, J. in Re Chartres [1927] 1 Ch. 466, at p. 474Google Scholar; see also Hawkins, on Wills, 3rd ed., 96Google Scholar (“where…the share of each child is made payable on attaining a given age…”). The facts of some of the earlier cases appear to indicate that it was at one time common form to direct specifically that the shares of the members of the class be paid or conveyed to them “when and as they respectively attain the age of twenty-one”; see, e.g., Mainwaring v. Beevor, supra; Re Emmet's Estate (1880) 13 Ch.D. 484; Re Stephens, supra.

²¹ See, e.g., Re Chartres, supra, at p. 475, where Astbury J., having quoted Buckley J.'s dictum (see previous footnote) that the rule applies where a testator has directed that the fund be divided at a certain time, states that the rule applies if you can discover from the testator's will a “direction or intention” that the fund is to be divided at a certain time. See also Re Bleckly [1951] Ch. 740, per Jenkins, L.J. at p. 755Google Scholar (in a gift to A for life remainder to the children of B who attain twenty-one, “the period of distribution there marked out by the testator is…”).

²² e.g., Iredell v. Iredell (1858) 25 Beav. 485, approved and distinguished by the Court of Appeal in Re Deloitte [1919] 1 Ch. 209 (where the power to advance did not extend so far), at pp. 215, 217. See also Re Courtenay (1905) 74 L.J.Ch. 654. The result of such a power is presumably that, at twenty-one, the member's share becomes only vested subject to be divested.

²³ See also the judgment of Evershed, M.R., in Re Bleckly, supra, at pp. 750–751.Google Scholar

²⁴ Ibid., at pp. 750–751. Hitherto most of the judges had avoided saying this, preferring the neutral term “rules of convenience”; but there were some exceptions, e.g., James L.J. quoted in note 26. infra.

²⁵ Re Ransome [1957] Ch. 348, 358.

²⁶ Hawkins, on Wills, 3rd ed., 86.Google Scholar This assertion that the rules are founded upon intention is inconsistent with many judicial dicta (see note 12, ante. and the dicta quoted and cited post, p. 46, and notes 30–32). In support of it he cited a passage from the judgment of James, L.J. in Re Ridge's Trusts (1872) 7 Ch.App. 665, at pp. 668–669Google Scholar, to the effect that, for reasons of family convenience and public policy, interests are to be construed as vested as soon as they can be consistently with what the testator has said.

²⁷ See, e.g., the passage from James L.J. cited in preceding note: also Upjohn, J. in Re Ransome [1957] Ch. 348, at pp. 358–361Google Scholar, (as to which see further post, p. 47).

²⁸ e.g., Lord, Thurlow in Andrews v. Partington (1791) 3 Bro.C.C. 401, 404Google Scholar; Astbury, J. in Re Chartres [1927] 1 Ch., at pp. 471, 475.Google Scholar

²⁹ Re Bleckly [1951] Ch. 740, at pp. 747–748, 752.

³⁰ Mainwaring v. Beevor (1849) 8 Ha. 44, 49. See also the passage, ibid. at p. 48: “In the case of a gift to children when they attain twenty-one the reason of the rule of the Court is that the eldest child, on attaining twenty-one, has a right to demand his share, and that this right is inconsistent with a gift to ‘all the children’ including those who may afterwards be born of the parents named.”

³¹ [1904] 1 Ch. 322, 328.

³² [1927] 1 Ch. 466, at pp. 474–475. In this case, unlike Mainwaring v. Beevar, supra, and Re Stephens, supra, there was no express direction to pay.

³³ (1849) 1 Mac. and G. 551: i.e., the rule that words of absolute gift, followed by a clause which imposes trusts, operates as a gift in so far as the trusts fail: it is now sometimes called the rule in Hancock v. Watson [1902] A.C. 14. See likewise the benevolent principles of construction which cut down unmanageably wide words such as “my relations.”

³⁴ [1951] Ch. 740.

³⁵ [1955] 1 W.L.R. 1096.

³⁶ [1957] Ch. 348.

³⁷ See, e.g., Megarry, and Wade, , Law of Real Property, 172–173.Google Scholar For the technical meaning of “vest,” see Hawkins, , Construction of Wills, 3rd ed., 263–265.Google Scholar It seems that this presumption of early vesting was originally confined to real estate—see Hawkins, , op. cit., 282Google Scholar; Theobald, on Wills, 11th ed., 468Google Scholar —but it seems nowadays to apply even to legacies of personalty unless the legacy is postponed for reasons personal to the legatee: see Joyce J. in Re Couturier [1907] 1 Ch. 470, 472; Browne v. Moody [1936] A.C. 635, P.C.; Harman, J. in Re Hickman [1948] Ch. 624, 627Google Scholar (necklace). It should be noted that the “vesting” which the presumption achieves is vesting in interest (not necessarily in possession) and may be only a temporary vesting—i.e., vested subject to be divested: see, e.g., Bickersteth v. Shanu [1936] A.C. 290, P.C., at pp. 297–298; Theobald, , op. cit. 468.Google Scholar

³⁸ The class-closing rules are therefore more closely akin to (i) the rule in Saunders v. Vautier, whereby “when property is once absolutely vested in a person who is sui juris, he is entitled to receive it” (Hilton v. Hilton, 14 Eq. 468, per Malins V.-C., at p. 475), and (ii) the rule in favour of distributing part of a fund, e.g., of residue, although it is charged with annuities (see notes 43, 44, post).

³⁹ His Lordship's opinion that the class-closing rules (the “artificial rules of construction”) derive from “the policy in favour of early vesting” is expounded in Re Ransome [1957] Ch. 348, at pp. 358–361, and concludes with a statement that the policy of early vesting is not applied “except where there is someone in existence who can say upon the natural construction of the language of the Will that his share has absolutely vested in interest and possession” [my italics]: cf. note 37, supra. The policy, so described, is evidently a policy about what is to be done after someone's rights have become vested, not a policy which helps them to vest early. In fact the Court of Chancery always favoured both early vesting and early possession—see Lord, Davey, Wharton v. Masterman [1895] A.C. 186, at pp. 198–199.Google Scholar

⁴⁰ Re Ransome, supra, at p. 359.

⁴¹ e.g., Oppenheim v. Henry (1853) 10 Ha. 441 (to accumulate for twenty years); Watson v. Young (1885) 28 Ch.D. 436 (same for twenty-one years): Re Stephens [1904] 1 Ch. 322 (direction, so long as any child of Sarah is under twenty-one, to invest and accumulate £24 a year; the resulting fund to be divided between such of her children as reach twenty-one, and their shares therein to become vested when and as they respectively reach twenty-one).

⁴² e.g., Mainwaring v. Beevor (1848) 8 Ha. 44 (maintenance and accumulation, subject to life annuity, until the children of William and James reach twenty-one; with directions to pay £2,000 to each child as he reaches twenty-one, and when all have reached twenty-one, to divide the fund among them); Hilton v. Hilton (1872) 14 Eq. 468 (life annuity, maintenance and education of children, and accumulate surplus till youngest attains twenty-one, and then divide the fund between them): Re Watt's Will Trusts [1936] 2 All E.R. 1553 (maintenance of Gerald and his children, annuities for Gerald and his wife, accumulate surplus income during minority of his child or children, and then divide fund among such as are then living); Re Ransome [1957] Ch. 348 (education of Robert's children and accumulate surplus until youngest reaches twenty-one: then divide fund among those then living). Contrast Re Emmet's Estate (1880) 13 Ch.D. 484 (the income of the prospective share of any child under twenty-one to be available for his maintenance and its surplus accumulated); likewise Re Turner's Will Trusts [1937] Ch. 15, C.A. (the like as to the presumptive share of any grandchild living at my death whilst under twenty-eight years of age). Contrast also Re Manners [1955] 1 W.L.R. 1096 (“to be administered towards their maintenance and education until the youngest is twenty-one years of age”—but no express provision to accumulate).

⁴³ See previous footnote for cases in which there were both annuities and powers of maintenance. The facts which gave rise to Harbin v. Masterman, infra, and Wharton v. Masterman, infra, involved annuities alone (fund to be divided among five charities after the death of last surviving annuitant and, meanwhile, surplus income to be accumulated) but there the question of closing a class did not arise—see note 44, infra. It seems that the court's practice (note 44, infra) of distributing what it can of a fund, in spite of annuities, does not displace an express direction to accumulate surplus income: see the brief paragraph dealing with the ascertainment of the class in Re Deloitte [1926] Ch. 56, 62 (annuity for Annie, charged on the income of a fund, with a direction to accumulate surplus income followed by a gift of the fund, from and after her death, to her children who attain twenty-one: the decision that the class could not close in Annie's lifetime did not, in terms, mention the annuity but emphasised only the direction to accumulate during her lifetime). For the principles of construction which determine whether the annuity is charged upon both the capital and the income of the fund, or only upon the income, see Re Coller's Deed Trusts [1939] Ch. 277, C.A. If the annuity is charged only on income, this usually means (cf. note 55, post) that each payment due to the annuitant is charged on surplus income from other years as well as on current income: hence there is, with such annuities, an implied (even if no express) trust to accumulate surplus income—though not beyond the permissible statutory periods: ibid., at p. 282; Re Robb [1953] Ch. 459.

⁴⁴ It seems that, in the absence of an express direction to accumulate surplus income, the period of distribution of a fund is not ordinarily deferred either by annuities payable out of it (Hill v. Chapman (1791) 3 Bro.C.C. 391; Re Whiteford [1903] 1 Ch. 889) or by powers of maintenance out of the whole fund (see Upjohn, J. in Re Manners [1955] 1 W.L.R. 1096, 1102Google Scholar; but contrast Re Courtney (1905) 74 L.J.Ch. 654, 655, obiter, to the contrary: the latter decision followed Iredell v. Iredell (1858) 25 Beav. 485, in which there were both powers of maintenance and powers of advancement extending beyond the normal period of distribution—see note 22, ante). The rule appears to be, at any rate for immediate class gifts, that the fact that a mere part of the fund will not become available until a later date, does not, even as to that part, postpone the closing of the class: see Hawkins, , Wills, 3rd ed., 95.Google Scholar Annuities seem to fall within this rule, since the court's practice is to set aside for them a supposedly adequate part of the fund in order that the rest of the fund (despite the annuitant's undoubted right to follow it in case of need) can be distributed without delay. See Harbin v. Masterman [1896] 1 Ch. 351 (Stirling, J. and C.A.), at pp. 355–356, 361, 362Google Scholar, where a direction to accumulate surplus income until all the annuitants were dead was in fact a complete nullity (see note 55, post) in consequence of the rule in Saunders v. Vautier—so held in Wharton v. Masterman [1895] A.C. 186, as explained in Berry v. Geen [1938] A.C. 575. at pp. 583–584. [Where annuities are charged upon income, there may be an implied trust to accumulate surplus income: see preceding note.]

⁴⁵ Oppenheim v. Henry, supra; Watson v. Young, supra; Re Stephens, supra, Re Watt's Will Trusts, supra. Compare Malins, V.-C., in Hilton v. Hilton, supra, at p. 475Google Scholar, seeming to imply that such indications of intention to postpone division of the fund are not of themselves strong enough to keep the class open unless one can discern some sound reason for them: but there the class was not capable of increasing; moreover he was seemingly influenced there by an unduly wide conception of the rule in Saunders v. Vautier.

⁴⁶ Law of Property Act, 1925, s. 164, re-enacting Accumulation Act, 1800. Another period of accumulation allowed by the statute is “the life of the grantor or settlor”: it is available for accumulations directed by a settlement inter vivos (as in Jagger v. Jagger (1883) 25 Ch.D. 729), but it obviously cannot apply to an accumulation directed by will: Re Cattell [1914] 1 Ch. 177. C.A., at p. 186. There would appear to be nothing in section 164, nor in the Act of 1800, to indicate that (as 19th-century decisions have held) directions to accumulate which exceed the perpetuity period are to be treated differently (i.e., as entirely void) from those which merely exceed the statutory periods.

⁴⁷ As to this exception, see L.P.A. 1925, s. 164 (2): also Re Stephens [1904] 1 Ch. 322, 327 (an accumulation for a class); and Re Elliott [1918] 2 Ch. 150.

⁴⁸ See post, p. 64 and note 92, for the authorities on this difficult point.

⁴⁹ L.P.A., 1925, s. 164 (1), repeating almost verbatim the words of the Act of 1800.

⁵⁰ See the judgments in Wetherall v. Thornburgh (1878) 8 Ch.D. 261, C.A.; also Berry v. Geen [1938] A.C. 575, 581–582; Re Ransome [1957] Ch. 348, 362. It would be otherwise, presumably, if the will gave to the ultimate beneficiaries both the accumulations and an immediately vested interest in the original fund: see Re Travis [1900] 2 Ch. 541, C.A., per Rigby, L.J. at p. 549Google Scholar: in such a case, if such beneficiaries are sui juris and entitled to the absolute interest therein, they could presumably stop the accumulating altogether (by the rule in Saunders v. Vautier) and so the statutory limits upon accumulating would not apply at all. See further pp. 52–55, post.

⁵¹ Contrast the acceleration of a remainder to a class when the preceding life interest perishes: post, pp. 57–60.

⁵² See ante, p. 50 and note 47.

⁵³ e.g., Re Deloitte [1926] Ch. 56 (class gift preceded by life annuity with direction to accumulate surplus income), per Tomlin, J., at p. 62.Google Scholar See also the more recent of the cases mentioned in note 50, ante, which tend to show a presumption, without express reference to the words of the statute, that the income during the excessive part of an invalid direction to accumulate falls into residue or intestacy— e.g., Berry v. Geen [1938] A.C., at pp. 581–532. per Maugham L.C.

⁵⁴ See also the dictum of Rigby L.J. mentioned in note 50, ante.

⁵⁵ [1894] 2 Ch. 184; [1895] A.C. 186. Here the direction was to accumulate the surplus income of a fund of residuary personalty, which was bequeathed to X subject to certain annuities, until the death of the last survivor of the annuitants. The words of the will showed that each annual payment of each annuity, though payable out of the income from the fund in that particular year, was not payable out of the surplus income of any other year. Hence, the annuitants had no rights against the surplus income of the fund. Hence, the gift to X, of both the surplus income and the accumulations of it, meant that X (who was in fact five charities) was solely and absolutely entitled to all surplus income. This same will had given to X (the five charities) the capital also of the residuary fund, as from the death of the last surviving annuitant. Was X entitled to have all or any of the capital of the fund immediately? At first sight one would think not, for, if some of the capital is thus reduced, the income available for paying the annuitants is reduced also. However, when this question in turn was litigated, in Harbin v. Masterman [1896] 1 Ch. 351 (Stirling, J., and C.A.)Google Scholar, the court applied another ancient rule which, like the rule in Saunders v. Vautier (1841), gives an absolute donee early possession in spite of the words of the will. By this rule, part of the capital of a fund charged with annuities is payable at once to the donee of the fund, so long as what remains is almost certainly sufficient to produce the annuities. See, further, notes 43, 44, ante.

⁵⁶ See the cases cited in note 50, ante. In Berry v. Geen [1938] A.C. 575, where there was a direction, during the lives of annuitants, to accumulate for X the surplus income of a fund of residue which was subject to annuities, the will (unlike the will in Wharton v. Masterman—see preceding note) gave the annuitants each year a right both against the current income of that year and against the surplus income of other years. Hence X was not solely entitled, under the will, even to the surplus income which was validly accumulated. Nor indeed (unlike Wharton v. Masterman, supra) did the will in this case distinctly give to X, who was in fact two charities, the surplus income of the fund whether accumulated or not. Hence X had no right to surplus income during the invalid part of the direction to accumulate: that went accordingly as on intestacy. There were thus two separate reasons here why X was not solely entitled to the surplus income and so was outside the rule in Saunders v. Vautier.

⁵⁷ Those rules do not apply to future vested gifts of residue: Re Gillett's Will Trusts [1950] Ch. 102. Nor do they ordinarily apply to general pecuniary legacies: ordinarily these, at best, carry interest—not income—for the legatee's maintenance (e.g., if bequeathed to testator's infant child): see Snell, Principles of Equity, 24th ed., 330.Google Scholar But, when a money legacy is to be set aside as a separate fund, that fund thereupon carries its income with it: see Re Boulter [1918] 2 Ch. 40, 44–45; Re Reade-Revell, infra. The rules when they apply to a contingent gift mean only that the intermediate income is accumulated until the contingent beneficiary obtains a vested interest: see Re Leng, infra, at p. 826; Re Ransome [1957] Ch. 348, 362. They do not apply to gifts inter vivos: those, when contingent, do not carry intermediate income unless the gift says so: Re Crosslay's Settlement Trusts [1955] Ch. 627.

⁵⁸ Ante, p. 52.

⁵⁹ See the decisions which hold that there is no statutory power of maintenance (under Trustee Act, 1925, s. 31) because an express direction to accumulate prevents a deferred contingent gift from carrying its intermediate income: e.g., Re Reade-Revell [1930] 1 Ch. 52 (accumulate till legatee becomes twenty-one); Re Stapleton (1946) 174 L.T. 188: [1946] 1 All E.R. 323 (accumulate surplus income of contingent residuary gift during the life of an annuitant). The latter decision distinguished Re Leng [1938] Ch. 821 (to the contrary), where there was no express direction to accumulate during the contingency, though the executors were in fact accumulating pending the contingency according to the normal practice (see penultimate sentence of note 57, supra).

⁶⁰ So held by Upjohn, J. in Re Ransome, supra, at pp. 364–366Google Scholar, in answer to an argument that X ought to be paid all the income during the excessive part of the testator's direction to accumulate the income of the fund. [In fact X, in Re Ransome, had only as yet a contingent right in the fund; but he was twenty-one, and so, if the gift to him carried intermediate income, he was entitled by virtue of section 31 (1) of the Trustee Act, 1925, to be paid the income of his prospective share—which at present was the whole of the fund.]

⁶¹ The class in this problem closes at A's death; meanwhile the theoretical possibility that A may have more children prevents X from establishing that he is solely and absolutely entitled. If the class gift here, instead of being postponed by a direction to accumulate income, were merely postponed for a certain period, during that period X (having already a vested interest) would be entitled, by a rule of convenience, to be paid the whole income for the time being, until the class increased: Re Ransome [1957] Ch. 348, 362.

⁶² Even if he were entitled to stop the accumulating, quaere whether this would close the class. Presumably it would; for the fact that to close the class thus prematurely would do violence to the testator's evident intentions seems to be no objection—see the cases on acceleration discussed in the following paragraphs.

⁶³ [1926] Ch. 56, where there was also a life annuity for A charged on current income, but not on accumulations of income—see note 43, ante.

⁶⁴ Nevertheless, the court, by a rule of convenience in administration, would treat the class as closed in such a case if no third parties (such as a residuary legatee having a claim to income when the statutory rules stop an excessive accumulation) are concerned: ibid., at p. 65. And in Berry v. Geen [1938] A.C. 575, the Law Lords seemed unsympathetic to leaving the class open in such a case—so also were the Law Reform Committee in 1956 (Cmnd. 18, paras. 13, 14).

⁶⁵ [1927] 1 Ch. 466.

⁶⁶ A power in the nature of a trust cannot be released: see Re Mills [1930] 1 Ch. 654. That the power in Re Chartres was not such a power is shown by the gift over in default of appointment: ibid.

⁶⁷ [1927] 1 Ch., at p. 477.

⁶⁸ Ibid., at pp. 470–471.

⁶⁹ Ibid., at pp. 478–479. Some at least of these “misgivings” were evidently due to the fact that, in the result, the fund went (under Archibald's will) to Richard; whereas the original testator, by inserting in his own will a forfeiture clause (concerned, apparently, with religious belief) had left Richard nothing: see ibid., pp. 467, 471, 479.

⁷⁰ In Lainson v. Lainson (1853) 18 Beav. 1; affd. 5 D.M. & G. 754; where a remainder in tail (not a class gift) was held to be accelerated by the revocation by codicil of its preceding life interest, Romilly, M.R. held that the words “from and after J.L.'s decease” meant “from and after the determination of his [life] estate by death or otherwise.” In Eavestaff v. Austin (1854) 19 Beav. 591Google Scholar, the revocation of a preceding life interest in personalty was held by Romilly M.R. to accelerate a remainder to a class. And in Jull v. Jacobs (1876) 3 Ch.D. 703, where Louisa's preceding life interest in realty and personalty failed because she had attested the testator's will, Wickens, V.-C. held that the remainder, to be divided “after her decease … between her children,”Google Scholar was likewise accelerated. But where there is as yet no one having a vested interest in remainder no acceleration occurs until there is: Re Townsend's Estate (1886) 34 Ch.D. 357 (residuary gift to A for life and after his death to his children equally: A's wife attested the will and as yet A has no child: held, by Chitty J., the income until A has a child went as on intestacy): see also Re Taylor [1957] 1 W.L.R. 1043, 1049, revealing and applying an implication in Chitty J.'s judgment (supra) that, if a child is eventually born to A, the remainder to A's children will then be accelerated because it then will have become vested.

⁷¹ See Re Flower's Settlement Trusts [1957] 1 W.L.R. 401, C.A., at p. 405: also note 74, post.

⁷² 68 L.T. 20. This decision was followed and applied in Re Crothers' Trusts [1915] 1 I.R. 53 (bequest of income of fund to widow for life so long as she remain unmarried, and on her death the fund to be divided between the members of a specified class “then living”: she remarried: held, both the gift to the class and the date for ascertaining the class were accelerated.

⁷³ See Lainson v. Lainson (1853) and Eavestaff v. Austin (1854) in note 70, supra. As to the former, Stirling J. quoted the judgment of Turner L.J. (5 De G.M. & G., at p. 756) who had said in effect that prima facie such phrases as “from and after the death of A” (the life tenant) are to be understood as merely denoting the order of succession of the limitations.

⁷⁴ Re Flower's Settlement Trusts [1957] 1 W.L.R. 401, C.A. (principle not applied where discretionary trusts throughout a settlor's lifetime were void for uncertainty), states at p. 405 the general principle, that it applies equally to realty and to personalty, and semble that in settlements inter vivos—unlike wills—it needs some support from the context. Re Hatfeild's Will Trusts [1957] 3 W.L.R. 28: devise to A for life, remainder to his sons successively in tail, remainder to B; A disclaims, having as yet no son: held (Harman J.), income pending the birth of a son is payable to B. Re Davies [1957] 1 W.L.R. 922: disclaimer by life-tenant of share of residue “to be hers for life and then divided equally between her issue.” Re Taylor [1957] 1 W.L.R. 1043: disclaimer by life-tenant of residue and “after his death” upon trust for B and C or “such of them as shall be living at the death of myself and…” the life-tenant, with a divesting clause in favour of their issue in case B or C should die, leaving issue, before the testator's brother. Held (Upjohn J.): the rule as to acceleration applies in favour of vested remainders even if they are subject to be divested.

⁷⁵ See, e.g., Re Wimperis [1914] 1 Ch. 502; also Re Flower's Settlement Trusts, supra, at p. 405 “…or if the gift does not take effect because it is disclaimed.” Contrast a release, as in Re Chartres, ante p. 56. A release or a surrender (unlike a disclaimer), is not retrospective: see c.g., Hood, and Challis, , Property Acts, 8th ed., 284.Google Scholar For the old strict meaning of these words, see Co. Litt., ff. 102a, 337b; also Hargreaves' note 294 thereto.

^75a As a result of section 45 (2) of the Finance Act, 1940, a legatee disclaiming an absolute legacy is deemed, for purposes of estate duty, to make a gift to the residuary legatee: Re Stratton's Disclaimer, [1958] Ch. 42, C.A. The ratio decidendi there (that the disclaimer extinguishes a “right” and thereby confers a benefit) seems wide enough to cover a disclaimer of a life interest. So also, perhaps, do the words of section 43, which concerns life interests “disposed of or determined, whether by surrender … or in any other manner”; but contrast counsel's assertion to the contrary in Re Stratton's Disclaimer, supra, at p. 46.

⁷⁶ [1957] 1 W.L.R. 922.

⁷⁷ [1957] 1 W.L.R. 1043; summarised ante, note 74.

⁷⁸ See ante, note 70, where each of them is summarised.

⁷⁹ Upjohn, J. said so ([1957] 1 W.L.R. at p. 1048) as regards Jull v. JacobsGoogle Scholar; Vaisey J. said so (ibid., at p. 926) as regards both Jull v. Jacobs and Re Townsend's Estate.

⁸⁰ The remainder is accelerated because the courts construe it (at least in a will) “as a gift taking effect on the death of the first taker or on any earlier failure or determination of his interest”: Re Flower's Settlement Trusts [1957] 1 W.L.R. 401, 405, per Jenkins L.J. This seems necessarily to imply, when the remainder is to a class, that the testator is assumed to have intended that any premature determination of the life interest would advance the date of distribution among the class. Moreover, the fact that a release or surrender (unlike a disclaimer) merely terminates the preceding life estate without making it void ab initio, seems to be no objection: see the Irish decision, Re Crothers' Trusts [1915] 1 I.R. 53, summarised ante. note 72. For the words “release” and “surrender,” see note 75, ante.

⁸¹ Presumably “all of them” must be construed here to mean payable when all who in fact live long enough reach twenty-one: see the decision in Armitage v. Williams, post, p. 62, and note 88.

⁸² A possible difference exists in relation to the question whether a child, who after the testator's death dies under twenty-one, can be said to have already acquired a vested interest so that, when payment ultimately becomes due, his estate will be entitled to share in the fund. It would appear, however, that, whether the gift is to be divided when “all” or when the “youngest” shall have reached twenty-one, there is no presumption that a child who dies under twenty-one obtains no vested interest: see Re Lodwig [1916] 2 Ch. 26, C.A., reviewing previous decisions to the contrary. The presumption in favour of early vesting (ante, p. 47), formerly applicable only to realty, seems now to apply in some degree to personalty (ante, note 37).

⁸³ But see the preceding footnote for a possible difficulty on the question of vesting.

⁸⁴ See Wigram, V.-C. in Mainwaring v. Beevor (1849) 8 Hare 44, at p. 48Google Scholar, commenting adversely upon Elliott v. Elliott (1841) 12 Sim. 276—a decision in which a wrong construction was given on this point in order to evade the perpetuity rule. See also Upjohn, J. in Re Ransome [1957] Ch. 348, at pp. 359–360Google Scholar, commenting likewise.

⁸⁵ Ante, note 13.

⁸⁶ 8 Hare 44. It was mentioned with approval, as an example of words which oust the class-closing rules, by Evershed, M.R. in Re Bleckly [1951] Ch. 740, at p. 750.Google Scholar

⁸⁷ Presumably, at the birth of another grandchild, the will's provision for maintaining him and investing any surplus income would intervene. Although this provision perhaps involved an invalid direction to accumulate, it seems that it merely directed to be done out of the whole income what the court would itself have directed to be done out of the income of the infant grandchild's presumptive share of the fund, and so was to that extent at least effective. See Re Ransome [1957] Ch. 348, 362, for the “well-known rule of convenience that, where the share of one or another member of a class has vested, the income of that share may be paid to one or more members of that class, notwithstanding that the class is capable of increase or decrease. It has no application to the case where no share can be said with certainty to have vested.” Under this rule, the birth of another grandchild would ordinarily merely reduce the shares of the income payable to each of the five adults, from one-fifth to one-sixth: the remaining one-sixth being available, semble, for the new grandchild's maintenance, and any surplus thereof being accumulated: see Re Holford [1894] 3 Ch. 30 (Chitty, J. and C.A.)Google Scholar; Re Maber [1928] Ch. 88. When there is a statutory provision for maintenance out of income, the statute itself directs that surplus income shall be accumulated during the infant's minority (Trustee Act, 1925, s.31 (2), formerly Conveyancing Act, 1881, s. 43 (2) ). And such an accumulation, whether directed by statute or by the general law (above), is now, by virtue of section 165 of the Law of Property Act, 1925, specifically excluded from the province of the statutory rules against excessive accumulations. The rights to income, when a member of a contingent class obtains a vested interest and nevertheless the class has not closed, were stated very clearly by Romer, J. in Re King [1928] Ch. 330, e.g., at pp. 335–336Google Scholar; but cf. note 95, post.

⁸⁸ 27 Beav. 346. There is no definite rule that death under twenty-one disqualifies in such a case: see Hawkins, on Wills, 3rd ed., p. 278Google Scholar, note. Romilly M.R.'s judgment in Armitage v. Williams was very briefly reported, without mentioning any reasons or authorities. But counsel who had contended successfully for eighteen shares had cited Mainwaring v. Beevor whereas counsel who had contended unsuccessfully for ten shares (children born before the first child reached twenty-one) had cited Andrews v. Partington. Contrast Gooch v. Gooch (1853) 3 De G.M. & G. 366, in which Lord Cranworth's judgment (in a perpetuity case), though very fully reported, had likewise mentioned no rules or authorities—seeking merely the intentions displayed by the testator's will. There a distribution to be made, when Mary's youngest child to reach twenty-one reaches twenty-one, among those of Mary's children who are then living, was held (in the light of a preceding sentence) to refer only to the youngest child at the time when some elder child had reached twenty-one: so it meant that the class was to close as soon as some child reached twenty-one, but was not to be distributed until the youngest child then living reached twenty-one.

⁸⁹ [1957] Ch. 348.

⁹⁰ Ibid., pp. 358–361, at p. 361.

⁹¹ One would have thought that this decision could have been reached, irrespective of the point that David's rights are still contingent, by merely following Mainwaring v. Beevor (ante, p. 61). There the class gift of residue when all reach twenty-one was described by Wigram V.-C. (at p. 49) as a gift when the youngest reaches twenty-one; yet the question whether those members who were already twenty-one had vested or contingent rights was (as to the capital) completely ignored, as though immaterial.

⁹² Re Ransome [1937] Ch. at p. 361. Where, as happened in Re Ransome, a will directs accumulation to begin at once the period selected is either twenty-one years from testator's death or (if relevant) the minority of some person or persons then in being or en ventre. Thus, in Re Watts' Will Trusts [1936] 2 All E.R. 1555 (direction to accumulate surplus income “during the minority of the children or child of Gerald,” Gerald and three infant children having outlived the testator), the latter period was selected: but in Re Ransome neither of them seemed really appropriate. See, further, Jagger v. Jagger (1883) 25 Ch.D. 729 (settlement inter vivos); Re Cattell [1907] 1 Ch. 567; [1914] 1 Ch. 177, C.A. (“accumulate the share of any minor child for the time being”—4th period selected): also Megarry and Wade, Real Property, 251 et seq.

⁹³ At pp. 354, 356.

⁹⁴ At pp. 362–366.

⁹⁵ At p. 362. His Lordship's comment here, as reported, seems to say also that, even where there is one vested member of the class, only the income of his presumptive share can be paid out, whether to him or for the benefit of any contingent member. This dictum (if such it was) does not seem to be consistent with the earlier authorities: ante, note 87.

⁹⁶ Re Turner's Will Trusts [1937] Ch. 15.

⁹⁷ Re Ransome, supra, at p. 365. But query whether the old rule about first construing the will without regard to the statutory limits upon accumulating (ante, p. 52) should be extended as far as this. His lordship's other answer to counsel's argument was (at p. 366) that section 69 (2) of the Trustee Act requires only a contrary intention, not a contrary provision, in order to negative statutory powers such as those conferred by section 31.

⁹⁸ Re Ransome, supra, at pp. 366–367, citing Ward v. Van der Loeff [1924] A.C. 653, 665.

⁹⁹ Counsel for those entitled to the residue, at p. 355, had argued for this result both on the grounds stated by the learned judge and on the interesting ground that (the residue itself being a trust fund), in so far as the codicil's trusts have failed, “the original trusts take effect on the principle of Lassence v. Tierney.” For the rule in Lassence v. Tierney see ante. note 33.