having elected to take his paramount rights: (Streatfield v. Streatfield, Ca. temp. Talb. 106.) If a person is under restraint and cannot elect, the claim of that party must be barred as long as such disability continues: (Wilson v. Lord John Townsend, 2 Ves. 697.) When, however, the devisee is an infant or feme covert, the usual practice, if there be any doubt about the matter, was to refer to the Master to say which is most for their benefit, taking under or against the will: (ib. id.) Still, it seems, that where an infant is an heir, he will be allowed until he comes of age to elect: (Boughton v. Boughton, 2 Ves. sen. 15.) The party bound to elect is also entitled first of all to ascertain the value of the funds: (Hender v. Rose, 3 P. Wms. 124, n.; Pusey v. Desbouverie, ib. 315; Boynton v. Boynton, 1 Bro. C. C. 445; Butricke v. Brodhurst, 3 ib. 88; Wake v. Wake, ib. 255; Chalmers v. Storil, 3 Ves. & Bea. 222); and for that purpose may sustain a bill in equity to have all the necessary accounts taken; and an election under a misconception of the extent of claims on the fund (Kidney v. Cousmaker, 12 Ves. 136) may be set aside.

to the

When the party elects to take in opposition to the will, the interest given Interest devised him by such will will be applied in compensation to the disappointed devisee: by the will shall (Anon., Gilb. Eq. 15; Ward v. Baugh, 4 Ves. 623.) But the estate thus taken be applied in in opposition to the will vests in the party, with all the legal consequences compensation attached to it. Hence, where a tenant in tail devised away the entailed estate, disappointed and gave the issue in tail, who was a married woman, and also her husband, devisee when other benefits by his will, and she elected to take her estate tail, but her the party elects husband took under the will. Some time after this the wife died, upon which the to take in husband entered as tenant by the curtesy, when it was contended, that as he opposition to took under the will he could not claim in opposition to it: it was nevertheless the will. ruled, that the wife took the estate tail with all its legal incidents, and that consequently her husband, upon surviving her, became entitled to be tenant by the curtesy in right of her seisin, notwithstanding that he claimed in his own right under the will: (Cavan (Lady) v. Pulteney, 2 Ves. 544; 3 ib. 384; and see Brodie v. Burry, 2 Ves. & Bea. 127.)

No. XVII.

BEQUEST OF LEGACIES TO CHILDREN. ALSO ANNUITIES OF 1001. TO EACH OF TESTATOR'S THREE YOUNGER SONS, AND OF 50l. EACH TO HIS FOUR DAUGHTERS; THE SHARES OF THE DAUGHTERS TO BE TO THEIR SEPARATE USE. PROVISO FOR DETERMINING THE ANNUITIES GIVEN TO THE SONS, IN CASE OF THEIR BANKRUPTCY OR INSOLVENCY, THE ANNUITIES TO BE CHARGED UPON THE WHOLE OF THE TESTATOR'S REAL AND PERSONAL ESTATE, WITH POWERS OF DISTRESS. DEVISE OF RESIDUE, CHARGEABLE WITH ANNUITIES, TO TESTATOR'S ELDEST SON, ABSOLUTELY, AND APPOINTMENT OF THE SON AND THE TRUSTEES AS EXECUTORS. VARIATION WHERE TRUSTEES ARE INVESTED WITH A POWER TO PAY THE ANNUITIES OUT OF THE TESTATOR'S GENERAL ESTATE, OR TO PURCHASE SUCH ANNUITIES FROM THE GOVERNMENT, OR PUBLIC COMPANIES, &c.

1. Bequest of legacies of 1001. each to testator's three younger sons; and of 50l. to each of his three daughters.

2. Bequest of annuities of 100%. each to testator's three younger sons.

3. Of annuities of 50l. each to his three daughters.

4. Proviso for avoiding the annuities given to his sons in case of their bankruptcy or insolvency.

5. Charge of annuities upon the whole of testator's real and personal estate.

6. Devise of residue, charged with annuities to testator's eldest son, for his absolute use.

7. Appointment of executors and clause of revocation.

A. Variation clause, where the trus tees are to be empowered to pay the annuities out of the testator's general estate, or to purchase such annuities from the govern ment, or from public companies, &c.

[COMMENCE will, ut ante, No. I., clause 1, p. 632; INSERT ALSO, general devise of real and personal estate to trustees, ut ante, No. III., clause 1, p. 644.]

WILLS.

No. XVII.

1. I GIVE AND BEQUEATH unto each of my sons [INSERT names of testator's three younger sons], the legacy or sum of 1007. sterling, and I also give to each of my three daughters [INSERT daughters' names] the legacy or sum of 501. sterling; such legacies to be paid of Legacies to free of all legacy duty.

Bequest

Children.

Bequest of legacies of

testator's three

and of 50%.

his three

2. I ALSO GIVE to each of my said three younger sons [INSERT 1007. each to sons' names], an annuity or annual sum of 100l. each, to be paid to younger sons, them respectively by two equal half-yearly payments during the to each of term of their respective lives, but subject and determinable as daughters. hereinafter mentioned; the first half-yearly payment to be made at Bequest of the expiration of the first six calendar months next after my 1007. each to decease, together with a proportionate part of such annuity as shall testator's accrue due from the last half-yearly day of payment, up to and sons. inclusive of the day of the death of each annuitant respectively.

annuities of

three younger

of 50%. each

3. I ALSO GIVE AND BEQUEATH unto each of my said three Of annuities daughters [INSERT daughters' names], an annuity or annual sum of to testator's daughters. 50., to be paid to them respectively by two equal half-yearly payments during the term of their respective lives, for their sole and separate use, free from the control, debts, or engagements of any husband with whom they may at any time intermarry, and so that they shall have no power to alien or anticipate the growing payments thereof, the respective receipts of my said daughters being alone a sufficient discharge for the same.

to the sons in case of their

insolvency.

4. PROVIDED ALWAYS, and I hereby direct, that in case either Proviso for avoiding the of my said three younger sons [INSERT sons' names] shall become a annuities given bankrupt, or take the benefit of any Act for the Relief of Insolvent Debtors, or enter into any deed of composition for the benefit of bankruptcy or his creditors, or commit, do or suffer any act, deed, matter or thing whatsoever, whereby or by reason or means whereof any annuity so respectively bequeathed unto or in trust for either of my said sons respectively, if still permitted to exist, would become wholly or partially vested in, or be for the benefit of any other person or persons whomsoever, THEN such annuity shall from thenceforth cease, and sink into and become part of my general residuary estate.

5. AND I HEREBY CHARGE all my real and personal estate with Charge of

annuities upon

WILLS.

No. XVII.

Bequest

Children.

the payment of the whole of the aforesaid annuities (a) and direct that in case any half-yearly payment of the said annuities, or any of them, or any part of the same, shall be in arrear for the space of Legacies to of fourteen days next after the time for payment thereof, it shall be lawful for the annuitant or annuitants entitled to such payment, to enter upon all or any part of my real estates hereinbefore devised, and then and there to distrain for the same, in like manner as in case of distresses taken for rent in arrear upon common demise or lease.

the whole of testator's real and personal

estate.

Devise of

residue charged

6. AND subject and chargeable as aforesaid, I give, devise and with legacies to bequeath all the rest, residue and remainder of my estate both

Practical directions.

Variation clause, where the trustees are to be empowered to pay the

annuities out of the testator's

general estate, or to purchase

such annuities from the

government or from public companies, &c.

Annuity an incumbrance

which is matter of title.

(a) If the trustees are to be empowered to purchase annuities from the government, public companies, or private individuals, substitute for the above the following clause:

A. AND I HEREBY AUTHORIZE, EMPOWER AND DIRECT the trustees or trustee for the time being of this my will to appropriate and set apart a sufficient portion of my testamentary estate to satisfy and secure the due payment of the several annuities hereinbefore respectively bequeathed by this my will, either by investing a sufficient portion of my said estate in real or government securities, or in some of the public stocks or funds to produce an annual sum sufficient for the purposes aforesaid, or by purchasing from the government, or from some or one of the public offices or companies for granting annuities, or upon the security of a rentcharge to be issuing out of real estates in England, but not in Ireland, an annuity for any or either of the aforesaid annuitants, for the term of his or her life, for the like amount as is hereby bequeathed to them by this my will, as my said trustees or trustee shall deem most expedient.

*

This is a very useful clause, as it will always empower the trustees to rid the estate of an incumbrance they would otherwise be unable to compel a release of; for, in the absence of some provision of this kind, there is no means of compelling an annuitant, who has a charge upon real estate, to release his or her interest upon any compensation whatever; consequently, an annuity charged upon an estate is one of those incumbrances which are matters of title, and which will always afford an intended purchaser sufficient ground for rescinding his contract: (Lewin v. Guest, 1 Russ. 325; Elliott v. Merryman, Barnard, $2; Wynn v. Williams, 5 Ves. 130; Page v. Adam, 10 L. J. (N. S.), 407; 1 Hughes Pract. Sales, 17; 2 ib. 70, 72, 2nd edit.)

WILLS.

real and personal, to my said (eldest son by name), TO HOLD unto and to the absolute use and benefit of him, his heirs, executors, No. XVII. administrators and assigns, according to the nature and qualities of the premises. [ADD declaration that trustees' receipts shall be sufficient discharges, and power to change trustees, ut ante), No. VIII., clause 6 and 7, pp. 664, 665.]

Bequest of Legacies to

Children.

testator's eldest son for his absolute use.

executors and

7. AND I HEREBY APPOINT my said (eldest son) and the said Appointment of (trustees) joint executors of this my will, and revoking all former clause of and other wills by me at any time heretofore made, do hereby declare this to be my last and only will and testament.

IN WITNESS, &c.

revocation.