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English and

§ 150. The English rule is that lands cannot be tied up Comparison of or determined as to their future destination for a longer Scotch rules. period than the lives of existing persons and a term of twenty-one years after their decease. The Scotch statutory rule was perhaps intended to be the same, but as will be observed, there is an important difference between them. In England, the interest of a person unborn at the date of the deed may be restricted for twenty-one years after the death of a then existing person: in Scotland, a life interest to a person unborn at the date of the deed cannot be granted for longer than twenty-one years from the date of his own birth.

In England the period is computed from the date or delivery of the deed creating the limitation, or from the testator's death when given by will, that being the time at which a will takes effect.

151. In this connection the Thellusson Act should be Peter

Thellusson's

kept in view. Peter Thellusson, by his will dated 2nd Will.
April, 1796, directed his personal property to be invested
in land, and the rents and profits of that land and
of his other real estate, to be accumulated during the
lives of all his children, grandchildren, and great grand-
children who were living at the time of his death, for
the benefit of certain of his future descendants to be
living at the decease of the last survivor. The property
consisted of land in England worth above £4,500 a year,
some real estates in the West Indies, and personalty
estimated at above £600,000; it was calculated that the
fund might probably reach £100,000,000 before it would
be enjoyed, and it was said that in thirty years, which was
the lowest period that could be looked forward to for
accumulation, it would amount to about £19,000,000. The

The
Thellusson

Act.

Applied to moveable estate in

Scotland from its date.

testator's object was to create enormous wealth for the purpose of founding three families to spring from his three sons. The will was upheld after sixty years of litigation, which only ended in 1858, but the fund under the management of the Court of Chancery turned out to be much smaller than was anticipated, and was distributed amongst a greater number of claimants.2

152. To prevent the repetition of such an attempt, an Act 3 was passed, on the suggestion of Lord Loughborough, in the year 1800, which forbids the accumulation of income of real or personal property for any larger term than— (a) The life of the grantor or settlor, or

(b) Twenty-one years from the death of the grantor, settlor, devisor, or testator, or

(c) During the minority of any person living, or in ventre sa mère at the death of the grantor, devisor, or testator, or

(d) During the minority of any person who, under the settlement or will, would for the time being, if of full age, be entitled to the income so directed to be accumulated.

§ 153. The Act applied to moveable property in Scotland

1 Thellusson v. Woodford, 4 Ves. 227, 11 Ves. 112; Oddie v. Woodford, 3 M. and C. 584; Thellusson v. Robarts, 5 Jur. N.S. 1031; Thellusson v. Rendlesham, 7 H. L. Ca. 429; 3 and 4 Will. IV. c. xxvii.

2 At the end of thirty-three years there was practically no increase on the fund. See per Lord Brougham in Strathmore v. Strathmore, 1831, 5 W. and S., at p. 192. The accumulation of capital between 1802 and 1833 amounted to £326,364 1s. 3d.; the costs paid by the trustees to £122,729 16s. 4d.; besides which the individual litigants had incurred large costs. Hargrave, Treatise on the Thellusson Act p. 13 et seqq. (London, 1842.)

3 39 and 40 Geo. III. c. 98, Appendix, p. 201.

from the date of its passing,1 but heritable property in Scotland was expressly excepted from its operation. In 1848, To heritage ince 1848. however, the exception was repealed, and the Act was declared in future to apply to heritable property likewise.2

The Act therefore does not apply to trusts of heritage in existence prior to 14th August, 1848, so that rents of heritable property may be the subject of accumulation, under trusts then existing, for a period exceeding twenty-one years.3

of No one can

constitute a liferent in his

to the exclu

for sion of his

creditors.

154. While provisions made by a husband in favour his wife and children may be good against his creditors, as own favour will presently be explained, he cannot make a provision himself which will have the same result. A husband may by ante-nuptial contract come under an obligation to pay his wife an alimentary annuity during the marriage, and this will be good against his creditors, and will enable her to rank along with them in the event of his sequestration: or if property has been set apart to meet it, to retain it preferably.5 A man cannot, however, by marriage contract, ante-nuptial or post-nuptial, by deed of entail, trust disposition, or any other deed, settle any part of his property so as to take

1 The Act extends both to real and personal property, but the exception applies to heritable property in Scotland only, so that moveable property in Scotland necessarily fell under its operation. See per Lord Brougham in Strathmore v. Strathmore, 1831, 5 W. and S., at p. 193. Hargrave, Treatise on the Thellusson Act, p. 209.

2 The Rutherfurd Act, 11 and 12 Vict. c. 36, § 41, Appendix, p. 204. 3 Keith's Trustees v. Keith, 17 July, 1857, 19 D. 1040, and Interlocutor at p. 1071; M'Larty's Trustees v. M'Laverty, 23 Jan. 1864, 2 M. 489; Appendix, p. 205.

* Muirhead v. Miller, 19 July, 1877, 4 R. 1139; Stair, 1. 4. 9 and 17; Forbes, Institutes of the Law of Scotland, i. p. 64; Menzies, Lectures, p. 446 (3rd edition).

5 Grant v. Robertson, 15 June, 1872, 10 M. 804, as regards the £1,000 there mentioned.

a liferent therein determinable or defeasible upon his sequestration, or SO as in any way to reserve the income to himself and place it beyond the reach of his creditors.1 In other words a husband cannot create an alimentary annuity in his own favour. If he does he can recall it. "No man," says Lord O'Hagan, "is permitted to filch his own income from the hands of his creditors." 4 On sequestration any such provision passes to the trustee, and will be realized by him for the creditors.5 This is a principle which is to be kept carefully in view, as it is often overlooked, and many a family has had a rude awakening, when on the husband's bankruptcy a fund which he had set aside

1 MacKenzie's Creditors v. Mackenzie (Redcastle Case), 1792, Bell's 8vo Cases, p. 404; Wood v. Begbie, 7 June, 1850, 12 D. 963; Ker's Trustee v. Justice, 7 Nov. 1866, 5 M. 4; Learmonth v. Miller, 2d App. 1875, L.R. 2 Sc. App. 439, S.C. 2 R. (H. of L) 62; Forrest v. Robertson's Trustees, 27 Oct. 1876, 4 R. 22.

As to Entail, see Bell, Pr. § 1747 (3).

The case of a settlement, e.g. by entail made in respect of a payment in money or other remuneratory consideration is of course different. Stewart v. Agnew, 1822, 1 Sh. App. 320. Per Lord Brougham in Dickson v. Cuninghame, 1831, 5 W. and S. at p. 696.

The English law is the same. Higinbotham v. Holme, 19 Ves. 88; Gilchrist v. Cator, 1 De G. and S. 188; In re Pearson, Ex parte Stephens, L.R. 3 Ch. D. 807. Vaizey, Law of Settlements of Property, ii. p. 951; Campbell, Law relating to the Sale of Goods, p. 81.

2 Hamilton's Trustees v. Hamilton, 9 July, 1879, 6 R. 1216.

3 In Learmonth v. Miller, supra, at p. 445. See also per Lord Brougham in Dickson v. Cuninghame, 1831, 5 W. and S. at p. 693.

4 The rule is not confined to the case of family provisions, but is general. Ex parte Barter, Ex parte Black, In re Walker, L.R. 26 Ch. D. 510.

5 In England the case of a married woman is allowed as an exception to this rule. A restriction upon anticipation-the counter part of the Scotch declaration that a provision is alimentary-has been held as valid when imposed by the married woman herself as when imposed by a stranger. Buckton v. Hay, L.R. 11 Ch. D. at p. 648; Clive v. Carew, 1 J. and H. 199; Arnold v. Woodhams, L.R. 16 Eq. at p. 33. See Gordon v. Murray, 9 Feb. 1833, 11 S. 368.

by ante-nuptial contract for the maintenance of his family, but made payable to himself, has been suddenly snatched away.1

till bank

alienation.

§ 155. To meet this difficulty, it has long been the practice Life interest in England, and is now becoming the practice in Scotland,2tex on to provide in ante-nuptial contracts that the income of property brought into settlement by the husband shall only be payable to him "during his lifetime or till he shall become bankrupt, or shall assign, charge, or encumber it, or shall do or suffer something whereby the same or some part thereof would, through his act or default, or by operation or process of law, if belonging absolutely to him, become vested in or payable to some other person, and that from and after the determination of that trust the income is to be paid to" some other person, e.g. his wife or children; or generally to be dealt with as if he were dead.3 It is settled in England that this device is valid. The husband's creditors cannot touch the income of property brought into settlement by him, if the alienation or charge has taken place, either by his voluntary acts or by involuntary alienation by operation of law, in favour of a particular creditor before the commencement of bankruptcy. If the 1 Wood v. Begbie, 7 June, 1850, 12 D. 963.

2 The form of clause given in the Juridical Styles, i. pp. 214, 226 (5th ed., 1881), would be ineffectual. It simply amounts to a declaration by the husband himself that the creditors are not to take the liferent he has set aside for himself.

3 Lewin, Law of Trusts, p. 104 (8th ed., 1885), Williams; Law of Real Property, p. 95 (ed. 1880); Robson, Law of Bankruptcy, pp. 437, 439 (6th ed.); Yate-Lee and Wace, Law of Bankruptcy, p. 342 et seqq. (1884); Baldwin, Law of Bankruptcy, p. 205 (6th ed., 1890).

4 Detmold v. Detmold, 1889, L.R. 40 Ch. D. 585; Knight v. Browne, 7 Jur. (N. S.) 894. It is different in the case of a post-nuptial settlement--such an arrangement is there held to be fraudulent within the meaning of the Statutes of Elizabeth. See In re Pearson, ex parte Stephens, 1876, L.R. 3 Ch. D. 807.

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