No. IX. WILL of a MARRIED MAN, providing for wines, &c. to THIS IS THE LAST WILL AND TESTAMENT of me [testator's name, &c.]. I BEQUEATH the wines, li- Bequest of quors, fuel, and other consumable household stores wife. and provisions, and the linen, china, and glass, of which I shall die possessed, to my dear wife [name] absolutely. I BEQUEATH to my said wife the use Bequest of and enjoyment of the household furniture utensils not hereinbefore bequeathed, and and the use of fur niture, &c., to wife for life, the then to fall due; into the resi- plate, books, pictures, and prints of which I shall die possessed, during her life; And after her decease, I direct the same articles to be disposed of as part of the residue of my personal estate, [or, -[or, to be di- I bequeath the same to my four children (names), testator's chil- to be divided between them as nearly as may be in vided between dren-divi sion to be made by trustees.] furniture, &c. equal shares, and if any dispute shall arise concerning the division thereof, then such division shall be made by the trustees or trustee for the time being of my will, whose determination shall be Inventory of final]. And I direct my executors to cause an into be taken. ventory to be taken of the same articles before the delivery thereof to my said wife, and two copies of such inventory to be signed by my said wife, of which copies so signed one shall be delivered to her, and the other be kept by my executors (a). As to the security required from legatees. (a) This direction is in accordance with the rule of equity, whose interference on the part of an ulterior legatee of chattels is at present restricted to the requisition of an inventory from the legatee for life. To support the demand of security formerly required, (2 Vern. 453), a special case of actual danger must now be made out. (Foley v. Burnell, 1 B. C. C. 279). Indeed, even where a pecuniary legacy is made liable to be defeated by a subsequent contingency, the legatee (the time of payment being arrived) is entitled to receive it without giving security, as a court of equity will not exact from a legatee what the testator has not required. Thus, where a testator bequeathed 1,0007. to A., but on condition that, if she succeeded to a particular estate by the determination of a certain estate tail then subsisting in B., the legacy to be void; it was held that A. was entitled to be paid the legacy in the lifetime of B. without tate to trus trust to sell, vest; I DEVISE all the real estate to which I shall be Devise of real, and residuary entitled at my decease, (except estates vested in me personal esas trustee or mortgagee), and I bequeath the resi- tees, upon due of the personal estate to which I shall be then get in, and inentitled, to [names, &c.], their heirs, executors, administrators, and assigns, respectively, UPON TRUST to sell my real estate, together or in parcels, by public auction or private contract, and to convert and get in my residuary personal estate, and invest the monies to arise from such real estate, and residuary personal estate, in the names or name of the trustees or trustee for the time being of my will, in or upon any of the public stocks, funds, or securities of the United Kingdom, or any real securities in England, Wales, or Ireland, with liberty for the said trustees or trustee, with the consent in writing of my said wife, to vary and transpose the investment from time to time for any other investment of the description aforesaid; AND UPON FURTHER TRUST to permit and empower my said wife to receive the annual income of the said monies, or the stocks, funds, and securities whereon the same shall be invested, during her life; and after her death, As to the same monies, stocks, funds, and securities, and the annual income thenceforth to become due for the same, UPON TRUST to pay thereout to my said her death; son [name], his executors, administrators, or as security. (Fawkes v. Gray, 18 Ves. 131; see also Griffiths v. Smith, 1 Id. 97). to permit the income wife to receive for life; after her legacy to one death to pay of testator's children, with interest from -to divide the surplus other chil dren; signs, the sum of £- which sum shall be absolutely vested in him on my decease (6), and shall carry interest after the rate of 4l. per cent. per annum from the decease of my said wife until payment thereof; And, subject to the payment of the same sum and interest, IN TRUST for my said between the other children, [names], to be divided equally among them, their respective executors, administrators, and assigns; and the respective shares of such children to be absolutely vested on my de-daughter's cease; and the share of my said daughter to be separate use. received, enjoyed, and disposed of by her as her separate estate, without the control or interference of her present or any future husband, and her receipt to be, notwithstanding coverture, an effectual Nevertheless, I declare that no sale of my real estate, or any part thereof, share for her Trustees pro- discharge for the same. hibited from selling real estate in wife's lifetime with shall be made in the lifetime of my said wife, out her con sent, and em- without her previous consent in writing; and that powered to postpone the conversion of my said trustees or trustee shall have a discre personal es tate-unsold tionary power to postpone for such period as to Express di rection as to vesting. (b) Having regard to the established rules of construction respecting the vesting of estates and interests, this declaration may appear superfluous; but, in preparing legal instruments in general, and more especially wills, some concession may be usefully made to popular notions; for it seems desirable, if possible, that wills should be so framed as to disclose the testator's intention to the most unlearned peruser. Considering how often the vesting of legacies is a subject of dispute, scarcely any degree of explicitness on the point can be deemed excessive. be deemed personal. them or him shall seem expedient, the conversion real estate to or getting in of any part of my residuary personal estate, which shall at my decease consist of stocks, funds, or securities of any description whatever; but the unsold real estate, and outstanding personal estate, shall be subject to the trusts hereinbefore contained concerning the monies, stocks, funds, and securities aforesaid, and the rents and yearly produce thereof shall be deemed annual income for the purposes of such trusts, and such real estate shall be transmissible as personal estate under the ultimate trust hereinbefore contained (c). I DEVISE all real estates (if any) Devise of vested in me as trustee or mortgagee to the said mortgage [trustees], subject to the equities affecting the same respectively. I EMPOWER the trustees or Power to give trustee for the time being of this my will to give receipts for all monies and effects to be paid or trust and estates. receipts. an express au version. (c) A declaration to this effect should always be inserted Propriety of where a discretionary power is lodged in trustees or others thority to susto suspend the conversion of the property, as otherwise the pend the conquestion occurs, whether the property is to be considered for the purposes of transmission as converted, until it actually becomes so; a point which was discussed, but not decided, in the cases of Thornton v. Hawley, 10 Ves. 129, and Van v. Barnett, 19 Ves. 102. Where the direction to sell and convert forthwith is absolute and imperative, the doctrine, that the property, in contemplation of equity, becomes immediately impressed with the qualities belonging to its destined character, is so well settled and known (see Fletcher v. Ashburner, 1 B. C. C. 499), that a clause declaratory of the testator's intention on the point is less important. |