ecuted. In Ware v. Polhill, the Lord Chancellor held the
power of sale to be void, upon the ground that it might travel
through minorities for two centuries, and adds1, if it is bad to 11 Ves. 283.
the extent to which it is given, you cannot remodel it to make
it good.' As to the possibility that Lord Southampton may
attain the age of twenty-one, that never has been held to be an
answer to the objection, that the trust, as originally created, is too
remote. Supposing this accumulation to go on, and he dies
under twenty-one, what becomes of the accumulated fund? The
deed says, it shall go to the first person entitled to the estate who
shall attain twenty-one, though there should be no such person
for a century to come. As it is impossible so to dispose of it, I
should thus deprive Lord Southampton of the rents and profits
during the years he had lived, upon the speculation that he might
live to take the accumulated fund. My opinion is, that this trust
is altogether void, except so far as it is a trust for the payment of
debts."

In Marshall v. Holloway 2, which was also a case of trusts for 22 Swanst. 432.
accumulation during minorities, Lord Eldon says-"It is very dif-
ficult to distinguish this case from Lord Southampton v. The
Marquis of Hertford. The true doctrine seems to be, that, of a
trust for accumulation, which prior to Lord Loughborough's act
would have been good, so much as is now within the act shall be
good, but the excess will be bad; but if there be a trust for accu-
mulation, and part of it would have been bad before this act, that
part remains bad notwithstanding the act. Lord Southampton
v. Marquis of Hertford seems to have decided, that, if property is
given, subject to a trust which is bad, the gift of the property
takes effect exempt from the trust. The trust for accumulation
in this case, I think bad, because it may last for ages" 3.

3 Id. 450.

In Haley v. Bannister, the testator, after the death of his 4 Madd. 277. daughter, devised certain estates to the use of her children born and to be born, with a direction to accumulate the rents and profits till one of them should attain the age of twenty-one years. It was said by the court, that "the statute prevents the accumulation of interest during the minority of an unborn child; but, as to the principal, the law remains as before the statute. The excess of the accumulation, prohibited by the statute, would form part of the residue."

In Bacon v. Proctor5, the testator charged an estate with 1 Turn. 31.

11 My. & Cr. 135.

portions settled on his daughters and their children, and with the payment of other sums, and then devised the estate to trustees, to keep down the interest of the monies so charged, and to lay out the residue in the funds, in order to accumulate until a sum should be raised sufficient to pay them off, and after their liquidation to pay the net rents and profits to such persons of his family and blood as should succeed to his title, that the said estate might continue in his name and family so long as the rules of law and equity would permit. The testator died, leaving a son, and the question arose, whether the trusts for accumulation were not too remote, as being for an indefinite period, on the ground that the only trusts for accumulation excepted out of the statute were for the payment of debts and portions for children, and that grandchildren were not within the exception: but Graham, B., who was sitting for the Master of the Rolls, held, that the testator's intention went no further than to provide a fund for some specific debts and charges, and then that the persons entitled should take; the beneficial interest was only suspended until the debts and charges should be paid, and therefore the statute did not apply: and if it did, these portions and charges would be within the exception.

In Shaw v. Rhodes1, a testator devised his real estates, charged with annuities to each of his two sons and his daughter, upon trust to invest the surplus produce thereof for his grand-children then born, or thereafter to be born, until the youngest should attain twenty-one, when the accumulations were to be equally divided among such of his said grand-children as should then be living; and he directed, that in case any of his said sons and daughter should be living after the youngest of his grand-children should have attained twenty-one, the residue of the said rents and profits should be further accumulated, and that such last-mentioned accumulation should be equally divided among all his grand-children, who should be living at the death of the survivor of his said sons and daughter; and, charged as aforesaid, he directed that immediately after the decease of such survivor, the whole of his said estates should stand charged for twenty years, with the payment of two third parts of the produce of his said estates, in equal shares and proportions of so much money as would, in fifteen years, make, in the whole, 30,000l.; which sum, with the interest and produce thereof, he directed should be di

EQUITABLE ESTATES.

vided equally among all his grand-children who should live to attain the age of twenty-one, their executors or administrators. The testator died in the year 1812, leaving ten grand-children, of whom nine were the children of one of the annuitants, and the tenth was the child of a son of the testator, who died before the will was made. No grand-children were born afterwards, but those who survived the testator lived to attain twenty-one, the eldest having come of age before the execution of the will, and the youngest, in the year 1830. The last survivor of the testator's children died in 1831. "When the case was argued in the court below," observes Lord Cottenham, in delivering judgment, "the direction for accumulating the rents was throughout called a charge; and a sort of meaning was sought to be attached to the expression, as if to distinguish it from a strict accumulation. It is quite clear, however, that the term charge may be correctly and properly applied to distinguish this trust, and that the direction may, notwithstanding, come within the provisions of the statute; the real question being, not as to the form of the declaration, but as to its substance and effect.

"With respect to the meaning of the testator there can be no doubt. The will sets out with creating two distinct trusts of accumulation; both of which, in the event, were within the legal period, and are admitted to have been, in form as well as substance, accumulations contemplated by the statute. The first was to continue till certain grand-children, who were designated, should attain twenty-one, an event which happened in the year 1830, eighteen years after the death of the testator; the second was to go on until the death of all the testator's children, should any of them be living at the time when the preceding accumulation determined; and the last survivor of those children died in the year 1831. Nineteen years were thus exhausted during the first two accumulations. Then follows the proviso which has been termed the third accumulation; by which, being minded to raise the sum of 30,000l., but not to raise it in the ordinary way, by sale or mortgage, the testator directs, that two-thirds of the income of the estates shall be accumulated; that out of twothirds of the rents and profits, so much shall be annually laid up as will produce 30,000l. in fifteen years; and as he foresaw a possibility, that the portion of rents thus appropriated might not be adequate to raise the specified sum so soon, he extends the

period to twenty years. The money was to be realized by means of that appropriation; and the parties interested have a right to insist, that the amount shall not be raised in any but the mode and form prescribed by the testator; that is to say, by an accumulation, determinable only at the end of a period of fifteen or twenty years.

"Now in what conceivable respect does this differ from an ordinary trust for accumulation? It is strictly within the terms of the act of parliament, being a direction, by which the income of the estate is to be wholly or partially accumulated for a longer period than twenty-one years; for the result of the three successive trusts, if full effect were given to them all, would be to lock up the rents and profits of the estate, as to the whole, for nineteen years, and, as to two-thirds, for twenty years more." And accordingly his Lordship, reversing the judgment of the ViceChancellor, held, "that this being, in reality, an attempt to defeat or evade the operation of the act of parliament, and that, for the period by which the third accumulation, when added to the others, would exceed twenty-one years, the trust must be declared void."

Trusts of terms attendant on the inheritance.]-Long terms of years are frequently created for special purposes, as by way of mortgage, for raising portions, &c. &c. Until the purpose for which the term was created has been satisfied, the term belongs to the persons who are interested in the satisfaction of this purpose; and thus the total ownership of the land is divided into two partial ownerships, the one subject to the rules which govern the law of personalty, the other subject to the rules which govern the law of real estate. So long as this state of things continues, the term is said to be a term in gross, that is to say, an estate in the land distinct from, and independent of, the inheritance. It is not unfrequent for the instrument creating the term to contain a declaration, that, as soon as the purposes for which the term has been created are satisfied, or in the event of their not arising, the term shall cease. In such a case, on satisfaction of the purposes for which the term was created, or in case of their not arising, the term absolutely ceases to exist. It may happen, also, that, on satisfaction of the purposes, the termors may surrender it to the owner of the inheritance, or of some previous estate, by which means, also, it becomes extinguished.

If neither of these things happen, the term remains outstanding, and at law they could oust the owner of the inheritance from all benefit of his estate for the residue of the term. It is plain that they have no right whatever in equity to the benefit of the term, which clearly belongs to the party who first created it, or those who claim under him. The termors, therefore, in a court of equity, are held to be trustees for the owner of the inheritance, or for the persons, if more than one, who are beneficially entitled to the inheritance according to their respective priorities, and then the beneficial interest in the term becomes united with the beneficial ownership of the inheritance, and the term becomes attendant upon the inheritance for the benefit of the owner of it, or the several persons who may have estates or interests arising out of, or charged upon it; and in the language of Lord Hardwicke, "such a term shall yield, ply, and be moulded according to the uses, estates, or charges, which the owner of the inheritance declares or carves out of the feel." Under these circumstances, the term is said to be attendant on the inheritance.

It is the practice, where a person is entitled to the benefit of the term, and wishes to avail himself of its protection, to take an assignment of it to a trustee for himself upon an express trust to attend the inheritance; but this is not necessary, for if he obtain an assignment of it to a trustee without such any declaration, it will, by implication of law, be considered as attendant on the inheritance.

declar

70.

Goodright v. Sales, 2 Wils.

329.

Whenever the term would merge in the inheritance if united, it will attend, if in a different person without an express ation, by implication of law founded on the Statute of Frauds 2; 1 Bro. C. C. and therefore, if a person purchase the inheritance in his own name, and take an assignment of the term in the name of a trustee3, or take a conveyance of the fee in the name of a trustee and an assignment of the term in his own name 4, in either case the term attends, unless there be an express declaration to the contrary. And the same rule prevails where a man, possessed of a term for years, contracts for the inheritance, for the vendor stands seised in trust for the purchaser from the time of the contracts. Even where the term is vested in the purchaser, together with the fee, but cannot merge, owing to an intermediate term outstanding, if the purchaser be entitled to such outstanding

North v. Langton, 2

Ch. Ca. 156.

5 Capel v. Girdler, 9 Ves.

509.