hibiting alienation, if the terms of such proviso are sufficiently clear to show that the devisee's interest was to cease upon an alienation by operation of law (Cooper v. Wyatt, 5 Mad. 482); but unless this be clearly expressed, and in terms suflicient to embrace a compulsory alienation by law, as well as voluntary alienations by the act of the party, his being deprived of the enjoyment, either by bankruptcy, or being sued to outlawry, will not create a forfeiture: (Lear v. Legatt, 2 Sim. 479; S. C. 1 Russ. & Myl. 606.) But taking the benefit of an insolvent act cannot altogether be considered as a compulsory alienation by operation of law, as it originates in certain acts to be performed by the insolvent himself (such as filing his petition, schedule, &c.), and would therefore be treated as an act of alienation, when bankruptcy would not be so construed (Lear v. Legatt, sup.), unless the act of bankruptcy proceeded from the bankrupt himself by declaring his own insolvency, in which latter instance, it seems, the cases of bankruptcy and insolvency are not distinguishable, so far as acts of voluntary alienation are concerned.

Practical suggestions.]—In order to prevent all doubt or question upon the subject, the proper way, whenever it is intended that the benefit is to cease when the party upon whom it is conferred is no longer capable of enjoying it, is to make his interest determine, not only by his own voluntary acts of alienation, but also by compulsory acts of alienation by operation of law: (see the form of this kind, 2 Con. Prec., Part VII., No. XL., clause 5, p. 851, 2nd edit.; id. ib. clause 7, p. 852.)

To what extent conditions against alienation may be supported.]-We have already remarked that a restraint upon the power of alienating an estate of inheritance would be void as repugnant to the nature of the gift; a rule which extends equally to personal estate where the absolute interest is conferred in the property; yet, a restraint of the above kind may be annexed to a life estate in either real or personal estate; and a condition that such estate shall cease upon alienation, either by the voluntary act of the party, or by operation of law, will be supported. Clauses of this kind are not unfrequent where a provision is made for a party in the shape of an annuity, in which, to guard against the improvidence of the annuitant, the latter is restrained in express terms from anticipating the growing payments, and his or her entire interest is made to cease in case he should

attempt to do so; or if, by act of him or her, or by operation of law, the annuity becomes either wholly or partially vested in any other person: (see the forms 2 Con. Prec., Part VII., No. XL., clauses 5 and 6, pp. 851, 852, 2nd edit.) In cases also where property has been limited to the separate use of a married woman for life, a condition is sometimes annexed for determining her interest in case of her alienation. This indeed is the only means by which a woman can be altogether prevented from alienating property even when settled to her separate use, with an express restriction against her alienation, for this restriction is only operative during her coverture, so that the moment she becomes discovert her power of disposal is restored to her. But in those cases where she only takes a life interest, then a proviso for cesser of her estate, either by her own act, or by operation of law, will be clearly valid. A clause of this kind may indeed often be an important one where children are mainly dependent on their mother's life income for support, who by her folly or extravagance may either alienate her interest, or be deprived of all benefit from it, by operation of law. The best way of providing for a circumstance of this kind is to make the life interest to cease upon alienation or anticipation, by whatever means it may be effected, in the same manner as if the party were actually dead, and to direct that the trustees shall, during the remainder of such party's lifetime, pay or apply the income to or for the benefit of the person or persons who would for the time being be entitled thereto upon such party's decease: (see the form 2 Con. Prec., Part VII., No. XL., clause 3, p. 850, 2nd edit.)

VII. PROVISIONS AGAINST LAPSE.

Whenever a testator intends that any devised property shall not lapse but become transmissible to the devisee's representatives in case of her death in the testator's lifetime, it will be proper to insert an express clause to that effect: (see the form 2 Con. Prec., Part VII., No. XXI., clause 2, p. 736, 2nd edit.), otherwise, except in the instance of a child or other issue of the testator, the devise would fail if the devisees did not survive the testator. And this it will be proper to provide for, even in the cases of gifts to children or other issue of the testator, notwithstanding the provision of the statute 1 Vict. c. 26, "that where any person being a child or other issue of the testator to whom any real or personal estate shall 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 such issue of such person 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," unless a contrary intention shall appear by the will: (sect. 33.) Upon the construction of this 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 his leaving issue at the time of such testator's death; and the devisee may dispose of by will, notwithstanding he should die in the testator's lifetime: (Johnson v. Johnson, 3 Hare, 157; see also Griffith v. Gale, 12 Sim. 327; 1 Hughes Pract. Sales, 334, 2nd edit.) Nor does the enactment that a bequest to a child who died in the testator's lifetime, leaving issue living at the testator's death, shall not lapse, apply to a testamentary appointment: (Griffith v. Gale, sup.)

CHAPTER VI.

OF CHARGING DEBTS, LEGACIES, AND ANNUITIES ON THE REAL ESTATE.

I. AS TO DEBIS AND LEGACIES.

II. ANNUITIES.

I. AS TO DEBTS AND LEGACIES.

THE real estates of a deceased person were not, by the common law, liable to his simple contract, or even to his specialty debts, unless in the latter case the heir was expressly bound, and even then, the claim of the specialty creditor might have been defeated by the debtor devising away the lands, until the statute 3 & 4 Will. & M. put a stop to this, by giving the specialty creditor a right of action against the devisee concurrently with the heir. The statute 47 Geo. 3, c. 74, also went a step further than this, by letting in the claims of simple contract creditors of a deceased owner of real estate, who at the time of his death was amenable to the bankrupt laws (Hitchen v. Bennett, 4 Mad. 180); and by statute 3 & 4 Will. 4, c. 104, it is provided, "that after the 29th day of August, 1833, when any person shall die seised or entitled to any real estate, which he shall not by his last will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered in courts of equity for the payment of the just debts of such persons, as well debts due on simple contract as on specialty, and that the heir or heirs-at-law, customary heir or heirs, devisee or devisees of such debtor, shall be liable to all the same suits in equity, at the suit of any of the creditors, whether creditors by simple contract, or by specialty in which the heirs were bound; but the creditors by specialty in which

the heirs were bound are to be paid before creditors by simple contract in which the heirs are not bound."

Where real estate is expressly charged with the payment of debts, all the creditors will be entitled in pari passu.]—In case, therefore, the real estates are not expressly charged with the payment of debts, specialty creditors, whose security binds the heirs will be entitled to a preference over a creditor by simple contract, or by specialty not binding the heirs. But if the real estates are expressly charged with the payment of debts, then all classes of creditors will be entitled to payment in pari passu.

What words will be sufficient to create a charge on the real estate.]—The general rule with respect to the words sufficient to create a charge of debts and legacies upon real estate to be collected from the leading authorities upon the subject appears to be, that whenever there is a general direction that the debts and legacies shall be paid, and any disposition is afterwards made of real estates, that the real estates will thereby become charged with the payment of both the debts and legacies: (Parker v. Marchant, 1 You. & Coll. N. C. 290; Shaw v. Bosser, 1 Kee. 559; Price v. North, 1 Turn. & Phil. 84.) Whether such a charge would be created where the dispositions of the will are confined to personalty does not appear to have been yet decided, as in all the cases which have as yet occurred in which the question has arisen, the will appears to have embraced real estate; still, as a learned writer, when treating on this subject, remarks, "considering the strong tendency of the recent cases in favour of such charges, it seems unlikely that any distinction of this nature will be established:" (see Jarm. on Wills, 320.)

Rule will not apply where testator sets apart a particular fund.-It appears that if a testator has provided any particular fund for the payment of his debts and legacies, that circumstance will be sufficient to rebut the inference of an intent to charge the whole of his property with these incumbrances (Thomas v. Britnell, 2 Ves. sen. 313); as where a testator, after directing that all his debts and legacies shall be paid, directs certain real estates to be applied for that purpose, in which the general charge by implication arising out of the introductory words will be controlled by the specific charge in the subsequent part of the will (Braithwaite v. Britain, 1 Kee. 206); but the appropriation of particular lands to the payment of debts and legacies, will