No. XXI. WILL, DEVISING A FREEHOLD ESTATE TO TESTATOR'S ELDEST 1. Devise of a freehold estate to testator's eldest son to uses to bar dower. 2. Proviso against lapse. 3. In case devised property is sold, devisee to have the purchase money. 4. Devise of lands contracted for, but not conveyed to testator's second son in fee. 5. In case of contract being rescinded, executors to purchase other lands for devisee's benefit. 6. Until an eligible purchase can be 7. Proviso against lapse in favour of 8. Devise of a mortgaged estate to 9. Gifts of residue between testator's COMMENCE will, ut ante, No. I., clause 1, p. 632.] freehold estate 1. I GIVE AND DEVISE all that (short general description of Devise of a parcels), unto my eldest son (A. B.), and his heirs, to such uses, to testator's WILLS No. XXI. Estates Eldest Son to Dower. upon such trusts, and for such ends, intents and purposes, as my said son (A. B.) shall from time to time, or at any time, by deed Will devising or deeds appoint; and in default of such appointment, and subjec: Freehold thereto, TO THE USE of my said son (A. B.) and his assigns for to Testator's the term of his natural life, without impeachment of waste; and Uses to bar immediately after the determination of that estate by any means in his lifetime, TO THE USE of (dower trustee), his executors cr administrators, during the life of, AND IN TRUST FOR, my said son (A. B.) and his assigns; and after the determination of the said hereinbefore lastly limited estate, TO THE USE of the said (A. B.), his heirs and assigns for ever. AND I do hereby declare that no widow of the said (A. B.) shall be entitled to dower out of the said devised hereditaments and premises. (a) eldest son to uses to bar dower. Proviso against lapse. 2. AND I DO HEREBY DIRECT AND DECLARE, that in case my said son (A. B.) shall happen to die in my lifetime, the said hereditaments and premises so devised to him as aforesaid shall be and enure to such uses, upon such trusts, and for such ends, intents and purposes, as my said son (A. B.) shall by deed or will appoint, in the same manner, to all intents and purposes as if my said son (A. B.) had died seised thereof immediately after me, and as if his last will (if any) had then first taken effect. (b) Practical suggestions, Practical observations. (a) A declaration to bar dower is necessary to exclude an after-taken wife; for although the above form of limitation to uses to bar dower will exclude a widow married prior to 1834, it will not bar a widow married after that period. (b) This may often prove an exceedingly useful clause, as it will enable the devisee to make certain provisions for his family, or other purposes, which he could not otherwise have effected. It is true the devise itself would not altogether have lapsed by his death in his father's lifetime, provided he had left any children or other issue, as the statute 1 Vict. c. 26, expressly enacts "that where any child, or other issue of a testator to whom any real or personal estate shail be devised, or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any issue of such shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator" (s.23.) upon the construction of which statute it has been held, that the issue are not merely substituted in the place of the predeceased devisee, but that the latter will take a fee simple conditional, depending either on his surviving the testator, or of his leaving issue at the time of such testator's death; which interest the devisee may dispose of by his will, notwithstanding he should die in the testator's lifetime (Johnson v. Johnson, 3 Hare, 157; and see Griffith v. Gale, 12 Sim. 327; and see 1 Hughes Pract. Sales, 334, 2nd edit.) WILLS. No. XXI. 3. AND MY WILL ALSO IS, that in case the said hereditaments nd premises so devised to my said son (A. B.) shall at any time ereafter be sold, or be contracted to be sold by me, then, I ive and bequeath the purchase-moneys thereof, which I or my xecutors shall receive for the same, unto my said son (A. B.), to Testator's is executors, administrators and assigns absolutely. (c) Will devising Estates Eldest Son to Dower. 4. I ALSO GIVE AND BEQUEATH unto and to the use of my In case devised property is econd son (C. B.) ALL, &c. [DESCRIBE parcels], which I have sold, devisee to have the purchase money. Contract to sell (c) Whenever a testator intends that, in the event of the property being sold, a total revocahe devisee should have the benefit of the purchase money, a clause to the Devise of bove effect should always be inserted; because not only an actual sale but lands contracted ven, as previously remarked (ante p. 620), a mere contract for the sale of the for, but not levised property, will be an equitable revocation of the devise, and nothing conveyed, to vould be left to the devisee but the mere dry legal estate, which he would hold testator's second is a trustee for the purchaser, without any claim whatever upon the purchase son in fee. noney, which will then form part of the testator's general personal estate. A loubt has certainly been suggested (Sug. on Wills, 53; Sug. Vend. 304) as to whether this doctrine has not been altered by the Wills Act (1 Vict. c. 26); out the cases which have since been determined upon the subject show clearly that such doubts are altogether without foundation, and that as well subsequently as previously to the Wills Act, the devisee will have no claim whatever upon the purchase money. Thus, in Farrer v. Earl of Winterton (5 Beav. 1), a testatrix devised a real estate, and afterwards sold it. The purchase was not completed until after the death, and it was held that the purchase money belonged to the personal representatives of the testatrix and not to her devisees, notwithstanding her lien on the estate for the purchase money, and notwithstanding the 1 Vict. c. 26, s. 23, which directs "that no conveyance, or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of a will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of at the time of his death." And Lord Langdale, M. R., observed, "the question whether the devisees can have any interest in that part of the purchase money which was unpaid, depends on the rights and interests of the testatrix at the time of her death. She had contracted to sell her beneficial interest. In equity she had alienated the land, and instead of her beneficial interest in the land, she had acquired a title to the purchase money. What was really hers in right and equity was, not the land but the money, of which alone she had a right to dispose, and though she had a lien upon the land, and might have refused to convey till the money was paid, yet that lien was a mere security, in or to which she had no right or interest, except for the purpose of enabling her to obtain payment of the money. The beneficial interest in the land which she had devised was not at her disposition; but was by her act wholly vested in another at the time of her death; and the case is clearly distinguishable from cases in which testators, notwithstanding conveyances made after the dates of their wills, have retained estates or interests in the property which remain subject to their disposition. Being of opinion that by the contract, the testatrix must, in this court, be deemed to have alienated the whole of her beneficial interest in the estate; that at the time of her death she had no beneficial interest in the land at her disposition, and that the will only passes that which was at her disposition, I am of opinion, that the devisees of the land have no interest in the purchase money:" (1 Beav. 8, 9.) WILLS. No. XXI. contracted to purchase of (J. S., Esquire), for the sum of 5,000L. which I direct shall be conveyed and assured unto my said soc Will devising (C. B.) his heirs or assigns, or to such uses as he or they shal direct, and the purchase-money paid by my executors hereinafter Freehold Estates to Testator's named out of my general personal estate. eldest Son to Uses to bar tion of the devise, and the whatever upon contract being executors to purchase other lands for devisee's benefit. Until an eligible purchase can be 5. AND MY WILL FURTHER IS, that in case the aforesaid contract shall be rescinded on account of any defect of title in the vendor, or for any other cause whatever, that my said executors shall lay out the said sum of 5,0007. in the purchase of some other lands and hereditaments, (c) which said lands and hereditaments shall be conveyed and assured unto and to the use of my said son (C. B.), his heirs or assigns, or otherwise, as he or they shall direct or appoint. (d) 6. AND until an eligible purchase can be found, I HEREBY found, executors DIRECT my said executors to invest the said purchase-money or sum of 5,000% in some of the public stocks or funds, or in the to invest Direction to purchase lands implies a purchase in fee. Practical suggestions. (c) A direction to purchase lands for another always implies that the purchase shall be in fee-simple: (Green v. Armstead, Hob. 65.) (d) Whenever lands contracted for are devised, and the same is consistent with the testator's intent, a clause to the above effect should always be inserted; otherwise, in case the contract should after the testator's death be rescinded, either because the vendor is unable to make a title, on account of the contract itself being imperfect, or such as a court of equity should think ought not to be executed, the devisee will lose all benefit under the devise, and will not be entitled to the money agreed to be paid for the lands, or to have any other estate purchased for him: (Green v. Green, 1 Atk. 573; Attorney-General v. Day, i Ves. sen. 218; Broome v. Monck, 10 Ves. 597: Sewage v. Carroll, Ball & B. 265.) Nor will the devisee be allowed to waive all objections, and take a defective title, although the testator himself might undoubtedly have done so had he thought proper (Collier v. Jenkins, You. 295); for after his death the court will not speculate on what he would or would not have done: the only question is, whether at the time of his death there was an existing contract by which he was bound, and that which he could be compelled to perform; for that alone it is which can give the devisee a right to call for the personal estate to be applied in completing the purchase: (Potter v. Potter, 1 Ves. 438; Radnor (Earl of) v. Shafto, 11 Ves. 448.) But if the contract is abandoned, not on account of any imperfection either in the contract, or in the vendor's title, but on account of circumstances arising subsequently to the testator's death; as, for example, where his estate does not afford the means of paying the purchase-money within the time prescribed by the terms of the contract, in that case the purchase-money will not sink into the personal estate, but must be laid out in other lands to the same uses as the testator had devised the lands contracted for: (Whittaker v. Whittaker, 4 Bro. C. C. 30.) WILLS No. XXI. Bank of England, or by way of mortgage upon the security of ufficient freehold, leasehold, or copyhold estates, with power to ary such securities from time to time, in such manner as my said xecutors may think fit, and to pay the interest, dividends and nnual produce hereof unto my said son (C. B.), his heirs and to Testutor's ssigns, for his and their own use and benefit. of Will devising Estates Eldest Son to moneys, and apply the devisee's benefit. 7. AND I HEREBY FURTHER DIRECT, that my said son (C. B.) purchasea case of his death in my lifetime, shall have the same powers isposition over the said lands so contracted for and devised to him, r of such other lands as may be purchased for him as aforesaid, or Proviso against ver the said sum of 5,000l., as are hereinbefore directed concerning lapse in favour he hereditaments and premises so devised to my said son (A. B.) made by devisee, s aforesaid. of appointment testator's third son, charged mortgage debt. 8. I ALSO GIVE AND DEVISE unto my third son (D. B.), Devise of a mortgaged nd his heirs, ALL [HERE DESCRIBE parcels shortly], now in estate to nortgage to (mortgagor), for securing the sum of 1,500l. and nterest, (e) at the rate of 4l. per cent. per annum; TO HOLD the with the ame unto and to the use of my said son (D. B.), his heirs and assigns for ever, subject to the said mortgage debt, which I hereby lirect shall be borne by my said estate so charged therewith, exclusively of any of my other property, and that my said son (D. B.), is heirs, executors, administrators or assigns, shall pay off and discharge such mortgage debt, and all interest accruing thereon from the time of my decease accordingly; but any arrear of interest which shall have accrued thereon up to the time of my decease, shall be paid out of my general personal estate. (ƒ) (e) A doubt appears to have been once raised as to whether, prior to the Rights of entry breach of the condition, at which time the mortgagor has only a right of entry now rendered upon such condition being performed, a valid devise could have been made, on devisable. the ground that the benefit of a condition was not devisable (2 Cha. Cas. 12); out upon whatever grounds this doctrine might have been supported at law, here can be no doubt the devise would have stood good in equity; and now, since the Wills Act (1 Vict. c. 26) has come into operation, the devise must mecessarily be operative even at law; for by the third section of that act, a will s made to comprehend all the real and personal estate a testator is entitled to, either at law or in equity, at the time of his death, and which if not devised or bequeathed, would devolve upon the heir at law, including all the right of entry for condition broken, and other rights of entry. Personal estate (ƒ) The personal estate was always formerly considered as the primary fund the primary |