General Distinction Between the English and Pennsylvania Acts 624. The Pennsylvania act is a clumsy copy of a portion of the first section of the English act, containing two provisions not found in the English act, and making a change in the time of going into effect. It will be observed that the English act provides that no direction to accumulate shall be valid unless during the life of the grantor, or a term of twentyone years, or during minority, etc., so that the whole effect of the English act is to limit the time during which an accumulation may be directed, and as to the objects within that time there is no limitation whatever, and the proviso 3 permits, as to the objects therein designated, accumulations not limited by the time prescribed in the first section. Under the construction put upon the English act, only one of these four periods may be taken. In the Pennsylvania act, on the other hand, no such alternative is provided. The first, second and fourth periods of the English act are thrown together, omitting the third period, and connecting the first and second clauses by the word "and" and the second and the fourth by the words "that is to say, until after such decease," the effect of which clumsy language is to give the settlor the choice only of one period, that is, the life of the grantor and twentyone years thereafter.

The Pennsylvania Act Examined in General

625. By the first clause, all directions to accumulate are

prohibited in sweeping terms. By the provisos, certain directions are permitted. Directions to accumulate were, before the act, governed only by certain rules of law. These rules of law are still in force, consequently a direction to accumulate, which, although within a proviso is void under such rule, is still invalid as much as it was before the act. The proviso permitting directions to accumulate did not make lawful those directions, which while within the proviso, were before invalid. As has been said, a direction to accumulate may be invalid de hors the act. This distinction is important, as it is necessary to clear thinking to distinguish between a direction to acccumulate which is in conflict with the act, and one which is void anyhow."

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The Act Considered in Connection With the Rule Forbidding Restraints on Alienation

626. It is plain that if the contingent gift depends on the accumulation, the donee has an interest which may or may not be alienable, and that the alienability cannot depend in any way on the circumstance that the interest is to take effect when the accumulation is accomplished. When the gift is

5 See §§626, 627, 628, post.

"Hargrave, Thellusson Act, p. 91 (1842). Mr. Lewis, Perp. (1843), p. 593, puts the point very well as follows: "The act, however, being one of a restraining force, it was evident that it could not affect or give any increased efficiency to trusts of accumulation expressly or possibly extending over a longer period than that allowed by law for the limitation of future estates. The act could only apply to provisions for accumulations, valid independently of it, which was not the case with respect to trusts exceeding or not confined to the period of remoteness prescribed by the perpetuity rule."

7 Mr. Hargrave says, Thellusson Act, p. 40, n. (1842), that the act is a restraining statute considered with reference to alienation by the owner of property in any case; yet considered with reference to alienation in the abstract, it is an enabling act. It is to be observed that as a

direction to accumulation involves a restraint on the donee, the statute is so far as such directions are removed, an enabling statute as to those persons entitled to the income directed to be accumulated-it is a restraining statute considered from the point of view of the donor, and an enabling statute considered from the point of the donee. Paxson, J., in Washington's Est., 8 Phila., 182 (1871) said, at 185, "It is further to be observed that this act is in derogation of the common law right to dispose of property, and must be construed strictly. Any interpretation of it not expressly authorized by its terms must be rejected. To enlarge its scope would be legislation, and this is beyond the power of the judiciary." Since the act first prohibits all directions to accumulate, and by the proviso permits some, the proviso is not in derogation of the common law. The learned judge does not point out whether he has in mind the proviso or the act as a whole.

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vested the direction to accumulate can have no effect upon alienation, and as has been pointed out, the accumulation can be stopped by the donee under another rule. The act, therefore, does not in any way touch the rule forbidding restraints on alienation.

The Act Considered in Connection With the Rule Against

Perpetuities

627. The particular in which a direction to accumulate violates the rule against perpetuities has already been pointed out." The statute against accumulations, therefore, still further limits the period prescribed by the rule against perpetuities, so far as directions to accumulate are concerned.

The Act Considered in Connection With the Rule Forbidding

Restraints on Enjoyment

628. When the contingent gift is dependent on the accumulation, no question as to restraint on enjoyment can arise, because there is no right to enjoy until the interest is vested. Where the direction to accumulate is engrafted on a vested gift, the direction is void as a restraint on enjoyment. In this respect the statute is coextensive with the rule forbidding the imposition of restraints on use and enjoyment. Although no authority on the point has been found, it is apprehended that such a direction would have been void before the act was passed.10

Cases on Accumulation Before the Act

629. Very few cases on accumulation arose in Pennsylvania prior to the Act of 1853, and as that act probably contains all the law on the subject the earlier cases, with one exception, are practically obsolete and require no special comment.1

8 See $8621, ante, 628, post.

See $620, ante.

10 See 8621, ante.

1 In Ashhurst v. Given, 5 W. & S., 323 (1843), see Gray, Restraints on Alien., 2 ed. (1895), §223, there was a direction to accumulate the profits of the trust during the lifetime of the trustee for the

benefit, at his decease, of his children, the ultimate remaindermen. The direction to accumulate was held to be valid; see Brown v. Williamson, 36 Ps. 338 (1860), stated $631, post; an identical case arising after the act. In Kelso v. Dickey, 7 W. & S. 279 (1844), there was a direction to accumulate until the bene

Preliminary Discussion of Directions to Accumulate Which are Valid Under the Act

630. We shall first ascertain what directions to accumulate are valid under the act. It is necessary to approach the subject from this point of view because the act starts out by prohibiting all directions to accumulate, and then allows, by a series of provisos, certain exceptions to the general rule previously laid down. The subject can best be understood by taking up the cases in chronological order.

Brown v. Williamson

631. In Brown v. Williamson2 the testator gave one-third of his estate to his son, in trust, to hold the same during his life and out of the profits to make investments for the same uses and trusts, to wit: for the use of such children as F. might have at the time of his death, and if he should die without issue, then for the use of those who should then be the testator's heirs, with a further direction that F. should have a reasonable support out of the trust fund for personal services rendered. The case arose on a proceeding by the son's creditors to attach the trust estate. The attachment was served on the executors of the testator, from which it seems that the trust fund had not yet been handed over to F. The court said that the question was whether the interest of F. in the trust fund was liable to such attachment. It was argued, on behalf of the creditor, that the direction to accumulate was void, and therefore the interest was vested in F. absolutely. The court said that the trust might be transgressive, but that the act avoided only the excess in transgressive trusts, and the interest of F. could not be attached. It is submitted that the court overlooked the

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ficiary should reach twenty-five, which was apparently acquiesced in by all parties. In McKee's App., 96 Pa. 277 (1880), Gordon, J., at 284, said that before the act of 1853, accumulations as necessarily and naturally formed part of the original estate as vegetable accretions form part of the growing plant. In Holloway's Est., 11 Pa. C. C. 90 (1892), the will was dated and proved prior to the act, consequently act did not apply; see remarks of Hanna, P. J., on p. 94, where

there is a misprint of 1855 for 1853. In this case there was a direction to pay out the income in the construction of houses on the testator's vacant lots, which would be clearly void since the act. Hillyard v. Miller, 10 Pa. 326 (1849).

236 Pa. 338 (1860).

3 Mr. Gray, Rule Perp., 2 ed. (1906) §717, n. 2, makes the following observation on this case: "The court seem to have overlooked the fact that under the Pennsylvania statute accumulation is

force of this argument, which, more accurately stated, amounts to this: the direction was to accumulate the fund and pay it at a certain time to the persons designated. The gift was void, and there was, therefore, a resulting trust of the whole income to the heir at law, and the interest of Francis in this resulting trust was liable to be attached. He would, however, be entitled only to share equally with the other heirs, if any, and not, as was argued, to take the whole income. The case decides, therefore, that a direction to accumulate during the life of a certain person, and to pay the accumulation to his children, is valid and not within the statute. The case is probably overruled, but it is necessary to notice it as it does not appear to have been accurately understood, and it is frequently cited as an authority.

Washington's Estate

632. 5 In Washington's Estate there was a direction to accumulate the income of a minor over and above a certain annuity which was to be paid to her, and to add the accumulations to the principal of the estate on the arrival of the minor at twenty-one. A petition was presented by the guardian of the minor, which set forth that there were large accumulations of income, beyond the amount directed to be paid for her maintenance, and that the petitioner was advised that upon her arrival at age, she would be entitled, under the Act of April 18, 1873 (a misprint for 1853), to receive the whole income of the estate, and praying for an increased allowance for the use of the minor. The trustee answered that the minor was not entitled to the additional allowance under the

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allowed only during the actual minority of a person who would be entitled to the income, if of full age. It does not appear that A. (Francis' children) were minors, and they were certainly not entitled to the income until the death of A."

Penrose, J., in Grim's Est., 12 W. N. C. 354 at 356, (1882), said that this case expressly admitted that the trust for accumulations was invalid, the point decided being that such invalidity did not extend to the entire trust, of which the direction to accumulate was only an incident. The court, however, only said that