and until he became possessed of the moiety, which, in that case, was to be set off against the debt. B eventually became entitled to the moiety, but it was held that the testator was not thinking of the debt when he directed the accumulation, and that it was not protected by section 2. (u) And if creditors avail themselves of their legal rights, and get their debts paid in a different way, as by resorting to the corpus, the accumulation cannot, even if the will so direct, be continued beyond the period allowed by section 1 of the act, in order to recoup the persons to whom, subject to the trust for accumulation, the estate is devised. (x) Construction of the exception as to ac The exception in the act respecting accumulations for the purpose "of raising portions for any child or children (y) of any cumulation for grantor, settlor or devisor, or any child or children of any person taking any interest under such conveyance, settlement or devise," has created great difficulty. And first, what is a portion within this exception? children's por tions. Barrington v. In Beech v. Lord St. Vincent, (z) lands were devised to A for life, with remainder to his first and other sons in tail, with remainders over, and £2000 per annum was directed to be accumulated for twenty-one years during the life of A, and so much *longer as A had any younger children; the accumulations to be held on certain trusts for such younger children. It was twice held that this was an accumulation for raising portions within the exception in the statute. And in Barrington v. Liddell, (a) where lands had been settled on the marriage of A in the usual way, with a term of years for securing (in the events that happened) the sum of £40,000 for younger children's portions; and afterwards a testator bequeathed a sum of £15,000 in trust to be accumulated during the life of A, until it reached the sum of £40,000, and then to be applied in satisfaction of the portions; and he gave another sum for building a mansion-house on the settled estate; Lord St. Leonards held, that this was clearly within the exception, and that the accumulation might continue after the expiration of twenty-one years, computed from the testator's death. A provision for raising or satisfying portions charged or created by a previous instrument is, therefore, within the exception in the statute. (b) (u) Mathews v. Keble, L. R., 3 Ch. 691. (x) Tewart v. Lawson, L. R., 18 Eq. 490. (y) This means legitimate children, Shaw v. Rhodes, 1 M. & Cr. 159. (a) 2 D., M. & G. 480. (b) But (as appears by Beech v. Lord St. Vincent and other cases, and notwithstanding Halford v. Stains, 16 Sim. 496,) (z) 3 De G. & S. 678, 3 Jur. (N. S.) 762. not exclusively so.. estate aug Gift of general mented by accumulation On the other hand, it has been decided that an accumulation of the whole of a testator's estate, (c) or of the residue, comprising the bulk, of it, (d) and a gift of the augmented fund, comprising both capital and accumulations, is not pro- is not a portion. tected by the exception. "A direction to accumulate all a person's property," said Lord Cranworth, (e) "to be handed over to some child or children when they attain twenty-one can never be said to be a direction for raising portions for the child or children: it is not raising a portion at all; it is giving everything. 'Portion' ordinarily means a part or share, and though I do not know that a gift of the whole might not in some circumstances come under the term of a gift of a portion, yet I do not think it comes within the meaning of a portion in this clause of the act, which points to the raising of something out of something else for the benefit of some children or class of children. If every direction for accumulation for a child was a portion, the intention of the legislature, which was to prevent accumulations, such accumulations being most frequently directed for the benefit of children, would be entirely defeated." Again, in Burt v. Sturt, (f) where legacies were given to all *the testator's children, and the residue was directed to be accumulated during the lives of the children and of the survivor of them, and after the decease of the survivor the whole was to be divided between the grandchildren of the testator then living, Sir W. P. Wood, V. C., said it was simply a scheme of the testator for the purpose of accumulating his property into one mass, and handing it over in that mass at the remote period of the death of the survivor of a number of persons whom he had mentioned, not to any given child or children, but to two or three or possibly one favored individual; it did not seem to him that in any sense or upon any rational construction he could call that the raising of a portion for children: in truth it was only the Thellusson scheme arranged in a somewhat less complicated and less extensive shape. In Jones v. Maggs, (g) where a legacy of £200 was directed to be (c) Wildes v. Davies, 1 Sm. & Gif. 475. (d) Eyre v. Marsden, 2 Kee. 573; Bourne v. Buckton, 2 Sim. (N. S.) 91; Edwards v. Tuck, 3 D., M. & G. 40; Mathews v. Keble, L. R., 3 Ch. 691. (e) Edwards v. Tuck, 3 D., M. & G. 58. (f) 10 Hare 415. See also Drewett v. Pollard, 27 Beav. 196. (g) 9 Hare 605. rule applies to v. Maggs. Whether same accumulated until the child of A (who then had one child) pecuniary should attain twenty-one, and on that event to be divided, legacy so augmented, Jones with its accumulations, among the children of A who should be then living, and the residue of the personal estate was given to the parent, Sir G. Turner, V. C., held that the legacy was not a portion, though in a certain sense it was raisable out of the property of the parent; otherwise every legacy given to a child of a residuary legatee must be so construed and the act would be wholly defeated. This decision was much influenced by the V. C.'s opinion, now exploded, that to bring the case within the exception, the parent must take an interest in the very fund directed to be accumulated; and no distinction was noticed between the accumulation of the entirety or bulk of an estate and of a mere pecuniary legacy. The effect upon the act of a contrary decision was certainly overstated. On the other hand, Sir J. Stuart, V. C., distinguished between a gift of the whole of a testator's estate, augmented by accumulation, and a gift of a pecuniary legacy so augmented. (h) And in Middleton v. Losh, (i) where a testatrix bequeathed £50,000 to trustees upon trust to invest, and apply a competent part of the income towards the maintenance and support of her son W., and to accumulate the remainder, and after his decease upon trust to divide the capital and accumulations between the children of W., and in case of the death of W. without issue the *capital and accumulations to sink into the residue of her personal estate; he decided that the accumulation was valid as a provision for portions, relying mainly on "the just principles of construction" adopted by Lord St. Leonards in Barrington v. Liddell. Middleton v. Losh. The question chiefly discussed in that case was not what is a portion, but what interest must be given to the parent. (k) And although the subject of gift was, as in Middleton v. Losh, a pecuniary legacy augmented by accumulation, and although it must be admitted that whether the testator has or has not directed the legacy to be taken in satisfaction of portions already charged on the estate of another person, the result quoad the testator's own estate is the same, yet the presence of such a direction brings the case literally within the words of the act, and distinguishes it too widely from Middleton v. Losh to permit its being regarded as an authority for the decision in the latter case. (h) Wildes v. Davies, 1 Sm. & Gif. 475. (i) 1 Sm. & Gif. 61. See also St. Paul v. Heath, 13 L. T. (N. S.) 270; and the observations on Middleton v. Losh, in 10 Hare 426. (k) See this insisted on, 2 Dr. & Sm. 61. A similar direction would equally bring within the letter of the act a case where (as in Edwards v. Tuck) the subject of gift was not a pecuniary legacy only but the bulk of the testator's estate. But there is no actual decision to that effect. Legacy to trust for one accumulate in for life, and afterwards for his children, A trust to accumulate a legacy during a stated period, and at the expiration of it to pay the income to A for life, and afterwards to divide the capital among the children of A, is plainly not a provision for raising portions for children, but only a legacy in trust for a parent for life, and after his death for his children. () And it cannot be material to the construction of the statute that the testator has or has not called the children's shares of an accumulated fund their "portions." (m) not a portion. valid or not according to whereto in applicable. the purpose event it is It will have been seen that, in Middleton v. Losh, the aggregate fund was not necessarily to go to the children of W., but if all his issue died in his lifetime it was to fall into the residue, so that it was not in all events a fund for portions. But the validity Accumulation of the accumulation may well depend on the event: as in In re Clulow's Trusts, (n) where a fund was directed to be accumulated, and was given to the children of the testator's son (who took an interest under the devise); but if there should be no children, to such persons as the parent should by will appoint: Sir W. P. Wood, V. C., said that if there had been children, this might have been upheld as a provision for their portions; but as there were and could be none, and the testamentary power *of appointment was clearly no "portion" for the parent, the V. C. held that the direction to accumulate was within section 1 of the act, and invalid after the lapse of twenty-one years from the testator's death. the parent must take under the de The next question is, what is the interest which a parent, not being the grantor, settlor or devisor, must take under the con- What interest veyance, settlement or devise, in order to render valid an accumulation for portions for his children? May it be vise. an interest of any kind, or must it be an interest in the identical property from which the income directed to be accumulated arises? and must it be a substantial interest, or will a merely nominal interest suffice? In Barrington v. Liddell, (o) Lord St. Leonards read the word (1) Watt v. Wood, 2 Dr. & Sm. 56. (m) See per Kindersley, V. C., Bourne v. Buckton, 2 Sim. (N. S.) 96. (n) 1 J. &. H. 639. Morgan v. Morgan, 15 Jur. 319, 20 L. J., Ch. 109, appears to decide that a specific legacy to the parent will not render valid an accumulation of a general legacy to (0) 2 D., M. & G. 480, stated above. the child. But the case is obscure. "devise" in the act as meaning "will," and held, that the interest need not be one in the very fund to be accumulated, and that the legacy for building a mansion-house on the estate of which the parent was tenant for life, gave him a sufficient interest within the act. And as to quantum, the L. C. cited, with apparent approbation, the opinion expressed by Lords Lyndhurst and Brougham, (p) and approved by Lord Cranworth, (q) that any interest, however minute, was sufficient. But, according to Lord Langdale, (r) it would seem that, where accumulation is directed for the benefit of children of several parents, if any one parent takes no interest, the whole direction fails. Destination The destination of the income which the statute releases from accumulation has occasioned much debate. The law on this point, however, may now it is conceived be stated as follows: of the income released from accumulation. 1. Where there is a present gift in possession, and the direction to accumulate is engrafted upon that gift, the statute, by discharging the property from the superadded trust, has the effect of entitling the donee or successive donees to the immediate income, as if the prior: gift had stood alone. (s) 2. Where the vesting of a contingent interest, (t) or the pos*session of a vested interest (u) is postponed till the expiration of the period of accumulation, the statute, by stopping the accumulation, does not accelerate the vesting in the one case, or the possession in the other; but where the property is not a residue carries the income in the case of personal property to the residuary legatee; (x) and in the case of real property, to the residuary devisee, or heir, according as the will (p) Evans v. Hellier, 5 Cl. & Fin. 126. (q) Edwards v. Tuck, 3 D., M. & G. 40. Wood, V. C., appears to have been of the same opinion, Burt v. Sturt, 10 Hare 423. (r) Eyre v. Marsden, 2 Kee. 573. (8) Trickey v. Trickey, 3 My. & K. 560; (t) Jones v. Maggs, 10 Hare 605. (u) Macdonald v. Bryce, 2 Kee. 276; Eyre v. Marsden, Id. 574; Ellis v. Maxwell, 3 Beav. 597; Nettleton v. Stephenson, 3 De G. & S. 366; Lord Barrington v. Liddell, 10 Hare 429; Weatherall v. Thornburgh, 8 Ch. D. 261. Where accumulation is directed for a stated period, "or so much of it as the law will allow," and the gift is to take effect at the expiration of the stated period (without more) acceleration is excluded by the will itself, Talbot v. Jevers, L. R., 20 Eq. 255. (x) Ellis v. Maxwell, 3 Beav. 587; Att.Gen. v. Poulden, 3 Hare 555; Jones v. Maggs, 9 Id. 605. |