WILLS. No. VI. Will, by which Testator gives directions as to Funeral, Legacies, &c. Appointment of wife and trustees as executrix and executors. Father, by the common law had no power to appoint a guardian. Stat. 4 & 5 c. 8. Object of the statute of 24. AND I HEREBY NOMINATE AND APPOINT my said wife, and the said (trustees), executrix and executors of my said will. either in chivalry or in socage, but the law appointed one for him. With regard to daughters, however, the construction of the statute 4 & 5 of Philip & Mary, c. 8, the father might, by deed or will, assign the guardian to any woman-child under the age of sixteen years, and if none was so assigned, the mother in such case was to be the guardian. The above statute of Philip and Mary enacts, under severe penalties, as fine and imprisonment, "That nobody shall take away any maid or woman-chiid unmarried, being within the age of sixteeen years, out of, or from the possession, custody, or governance, and against the will of such father of any such maid or woman-child, or of such person to whom the father of such maid or womanchild, by his last will and testament, or by any other act in his lifetime, bath appointed, or shall appoint, assign, bequeath, give, or grant the order, keeping, education, and governance of such maid or woman-child." The direct object of the above statute was to prevent the taking away or Philip & Mary, marrying maidens under the age of sixteen years against the consent of their parents: still, the statute has prohibited it in terms which imply that the custody and education of such females should belong to the father or mother, or person appointed by the former. It is also observable on this statute, that though the title is confined to maidens being inheritors, and the preamble speaks only of such as be heirs apparent, or have real or personal estate, yet the enacting clause mentions maidens under sixteen generally; and in Rex v. Corneforth (St. Tr. 1162), the Court of B. R. granted an information against the defendants for taking away the natural daughter under sixteen from under the care of her putative father, being of opinion that it was within the meaning of the third section of the above-mentioned statute. Philip & Mary. Stat. 12 Car. 2, c. 24. In case father fails to appoint guardians, the power devolves upon the Court of Chancery. This statute, however, only applied to female children, but by statute 12 Car. 2, c. 24, s. 8, it is enacted, that where any person shall have any child or children under the age of twenty-one years, and not married at the time of his death, it shall be lawful for the father of such child or children, whether born at the time of the decease of such father, or at that time in ventre se mere, or whether such father be within the age of twenty-one years, or of full age, by his deed executed in his lifetime, or by his last will and testament in writing in the presence of two or more credible witnesses, in such manner, and from time to time as he shall think fit, to dispose of the custody of such child or children, during such time as he or they respectively shall remain under the age of twenty-one years, or any lesser time, to any person or persons in possession or remainder, other than popish recusants; and such person to whom the custody of such child shall be so disposed or devised, may maintain an action of ravishment of ward, or trespass, against any person who shall wrongfully take away or detain any such child, and recover damages for the same in the same action for the use and benefit of such child. And such person to whom the custody of such child shall be so disposed or devised, may take into his custody, to the use of such child, the profits of all the lands, tenements and hereditaments of such child, and also the custody, tuition, and management of the goods, chattels and personal estate of such child, till his, her, or their age of twenty-one years, or any lesser time, according to such disposition aforesaid, and may bring actions in relation thereto, as by law a common guardian in socage may do, Before the passing of the above-mentioned statute (12 Car. 2, c. 24), guardians for real estate were under the direction of the court of wards and liveries, which, being taken away by this statute, power is given by the same statute to the father by his deed or will to appoint a guardian or guardians, which if he fails to do, or the guardians appointed by him refuse to act in the office, the power then devolves upon the High Court of Chancery; the Lord Chancellor, under the Crown, being the supreme guardian of all infants and others not capable of acting for themselves. WILIS. No. VI. 25. AND I DO HEREBY REVOKE AND MAKE VOID all former wills, codicils, testamentary dispositions, and appointments whatsoever, by me at any time or times heretofore made, and declare will, by which this to be my last and only will. IN WITNESS, &c. Testator gives directions as to Funeral, Legacies, &c. Clause of revocation. The statute of Charles 2, however, only empowers the father to appoint a Father only guardian; consequently, such an appointment by the mother (Ex parte can appoint Edwards, 3 Atk. 59), although a widow, or by a grandfather, is a mere nullity. a guardian. Nor can a guardian appointed by the father appoint another in his stead, for it is a personal trust, and not assignable, any more than the guardianship in 30cage: (Bedell v. Constable, Vaugh. 179.) Neither can a reputed or putative father appoint a guardian to his illegitimate child; still, where he has named certain persons as guardians by his will to such illegitimate child, the Court of Chancery will generally carry out his intent, by appointing the same persons guardians without any reference to the Master for his approbation: (Ward v. St. Paul, 2 Bro. C. C. 583.) It is observable that as this statute only empowers the father to appoint a Guardianship guardian until the infant attains twenty-one, or any lesser time, it gives him no cannot be made power to appoint a guardian to his child, being an idiot or a lunatic, after he to extend shall be of the age of twenty-one years: (Oxenden v. Lord Compton, 4 Bro. beyond the C. C. 231; S. C., 2 Ves. 69.) But the marriage of an infant under twenty-one, minority of will not dissolve the guardianship: (3 Atk. 625.) the ward. As the statute enabled the father to appoint a guardian either by deed or by As to power a will attested by two credible witnesses, a will so attested would have revoked of revoking a previous appointment either by deed (Earl of Shaftesbury v. Haman, Cha. appointment of Cas. temp. Finch. 328) or by will. But a testamentary appointment not executed guardians. according to the statute would have been a mere nullity: (Ex parte Ilchester (Earl of), 7 Ves. 348.) Under this statute a minor, as well as persons of full age, was empowered to Operation of make an appointment of guardians, either by deed or by will; but the statute stat. 1 Vict. 1 Vict. c. 26, s. 7, has deprived him of this testamentary power: although the c. 26, upon power for a minor to nominate a guardian by deed still remains in force. testamentary appointments of guardians. No. VII. SHORT FORM OF A WILL, BY WHICH A TESTATOR GIVES THE Devise of the whole of testator's real and I (testator), of, &c., do hereby by this my last and only will, give unto my dear wife (A. B.) all my real and personal estate whatpersonal estate soever and wheresoever, TO HOLD unto her, her heirs, executors to his wife, whom he and administrators, according to the respective natures and qualities constitutes his of the said premises absolutely and for ever; AND I hereby appoint my said wife sole executrix of this my will; AND revoking ali former and other wills, codicils, testamentary dispositions and appointments whatsoever by me at any time heretofore made, do hereby declare this to be my last and only will. sole executrix. IN WITNESS, &c. Practical observations. (a) The above form contains all that is essential where a testator designs to give the whole of his property to his wife, and short forms of wills are often the best, particularly where a testator from illness is incapable of going through the fatigue of having a lengthy instrument read over and explained to him, which might often be attended with dangerous consequences. To meet exigencies of this kind, several very short forms will be supplied, which may be adopted under such circumstances. No. VIII. HORT FORM OF A WILL DEVISING REAL AND PERSONAL 1. General devise of real and personal estate upon trust to sell and invest the moneys, with power to vary securities. 2. To pay income to wife during widowhood. 3. Trust for children in equal shares; sons at twenty-one, and daughters at twenty-one or marriage. 4. Provision for maintenance and 5. Power to trustees to compound 6. Authority to give receipts. [COMMENCE will, ut ante, No. I., clause 1, p. 632.] of real and personal estate, upon trust to 1. I GIVE all my real and personal estate unto (trustees), their General devise heirs, executors and administrators, UPON TRUST that my said trustees or the survivor of them, his executors or administrators, gell and invest will collect, sell and convert into money all my said real and the moneys, personal estate, and invest such moneys in real securities, or in vary securities. some of the public stocks or funds, with power to vary such securities as my said trustees or trustee may think expedient. with power to WILLS. No. VIII. Short Form of a Will devising Real and Personal Estate, upon Trust to Sell, fc. To pay income to wife during widowhood. Trust for children in equal shares, sons at twenty-one, and daughters at twenty-one or marriage. Provision for maintenance and power of advancement. Power to trustees to refer to 2. AND to pay the annual income thereof to my dear w (A. B.) during her life, if she shall so long continue my wido and after her decease or second marriage, 3. As to the capital and income of my said trust moneys, UPO TRUST for all my children, who, being sons, shall attain the age c twenty-one years, or who, being daughters, shall attain that age c marry, in equal shares. 4. AND I AUTHORIZE my said trustees or trustee, at any time after the decease or second marriage of my said wife, to apply the whole or part of the income of the presumptive share or shares of any child or children of mine who, being a son or sons, shall be under the age of twenty-one years, or being a daughter or daughters, shall be under that age and unmarried, towards his, her or their maintenance and education; AND also to advance any part of such presumptive shares, not exceeding one-half thereof, towards the advancement in life of any such children respectively. 5. AND I HEREBY AUTHORIZE my said trustees or trustee to compound debts, release or compound any debts owing to me or to my estate, or to arbitration, &c. give time for payment, or take such security for payment, and to adjust and pay all claims made upon my estate, whether the same shall be supported by legal evidence or not; and also to refer to arbitration any dispute respecting any debt claimed to be owing to or from me, and generally to act in the premises as my said trustees or trustee shall in their or his discretion think fit. (a) Authority to give receipts. Power to 6. AND all receipts given by my said trustees or trustee, acting in the execution of the trusts herein contained, shall exonerate the parties taking the same from all responsibility with respect to the application of the moneys therein expressed to be received. (b) 7. AND I HEREBY AUTHORIZE the acting trustees or trustee of | change trustees. this my will, and the executors or administrators of the late (a) See observations upon this clause, ante, p. 643, note (c). |