trustee or not, or, if none, for the executors or administrators, or any or either of the executors or administrators, of the last surviving trustee, to substitute, by any writing under her, his, or their hand or hands, any fit person or persons, in whom alone, or, as the case may be, jointly with the surviving or continuing trustee, my trust estate shall be vested; and the trustee or trustees for the time being of my will shall be competent to exercise the powers and directions given to the trustees herein named. And I exempt every trustee of my will from liability for losses occurring without his own wilful default, and authorize him to retain and allow to his co-trustee all expenses incidental to the trusteeship. LASTLY, I revoke all former and other wills. WITNESS &c.

IN

words of limitation, or any tantamount expressions, i. e. any words denoting the extent or quantity of estate to be taken under the devise.

No. XI.

WILL OF a WIDOWER, disposing of Real
and Personal Property in favour of his
Children, with ulterior Trusts in favour
of other Objects.-Real and Personal
Estate vested in Trustees for Sale and
Conversion; Produce to be invested, and
Fund divided among the Children equally,
with Provisions for Maintenance and Ad-
vancement; but a Moiety of each Child's
Share is settled upon Trusts for the Child
and its Issue, adapting the Trusts to the
Sex of the Child, and with a special Pro-
vision for protecting the Life-Interests of
Daughters.-Powers to let and manage
Real Estate, compound Debts, appoint
Trustees, &c.-Appointment of Execu-
tors, with Legacies for their Trouble.

mortgage and

to trustees.

THIS IS THE LAST WILL AND TESTAMENT of me [testator's name, &c.]. I devise all the real Devise of estates which shall at my decease be vested in trust estates me as mortgagee or trustee in fee unto [names, &c.], upon such trusts and subject to such equities as shall at my decease be subsisting concerning the same respectively. I devise my Devise of spefarm and lands, situate in the parish of

cific lands in fee.

cupation, and partly in the occupation of [tenant], to my eldest son [name], his heirs and assigns, he or they paying, in exoneration of my other estate, the principal sum now owing upon mortgage of the said devised estate, and any other incumbrances (except the arrears of interest on any mortgage debt) which at the time of my decease shall General devise affect the same (a). I DEVISE all other the real estate, and bequeath all the personal estate, which

of other real estates, and bequest of personal estate to trus

tees, upon

trust to sell

shall belong to me at my decease, to the said [trustees], UPON TRUST to sell my real estate, and get in, &c. and get in my personal estate, when and as the ́trustees or trustee for the time being of my will shall in their or his discretion deem it most advantageous so to do; and in the meantime such real and personal estate, and the rents, interest, and yearly produce thereof respectively, shall be subject to the trusts and provisions hereinafter

As to the exoneration of devised es

gage.

(a) A declaration to this effect is necessary, in order to exclude the doctrine which entitles the devisee of a morttates in mort- gaged estate to require the charge to be satisfied out of the testator's general personal estate. The liability of the latter is unquestionable where the mortgage is of the testator's own creation; but where the property was purchased by or otherwise devolved to him, subject to the incumbrance, the devisee's right' to exoneration depends upon the fact whether the testator can be considered to have adopted the debt, so far as to render his own personal estate the primary fund for its liquidation—a point which is sometimes difficult to be ascertained. (See the cases stated, 2 Jarm. Pow. Dev. 671). In such a case, therefore, it is especially important that the testator's actual intention on the point should be clearly expressed.

estate to be

sonal;

produce of

sonal estate,

vary invest

contained concerning the money to arise therefrom, and concerning the income of such money; and such real estate shall be considered as con- unsold real verted in equity from the time of my decease for deemed perthe purposes of such trusts and provisions; AND -to invest UPON FURTHER TRUST to invest the money to real and perarise from the real and personal estate to be sold with power to and gotten in as aforesaid, in the names or name ment; of the said trustees, or trustee, in or upon any of the public stocks, funds, or securities of the United Kingdom, or on mortgage of freehold or copyhold estates in England or Wales, and not elsewhere, with liberty to vary and transpose the investment from time to time, at the discretion of the said trustees or trustee, for any other investment of the description contemplated by this trust; And as to the money to arise as aforesaid, and the stocks, funds, and securities whereon the same shall be invested, (which money, stocks, funds, and securities are hereinafter designated "my trust fund”), IN TRUST for my child, if only one, wholly, or, for my children, if more than one, in equal shares; But if any of them shall die under the age of cruer. twenty-one years without having been married, [or, if any of them, being a son or sons, shall die [Different pe

for testaequally, with

tor's children

benefit of ac

riods of abso

under the age of twenty-one years, or, being a lute vesting.] daughter or daughters, shall die under that age without having been married, or, if any of them shall die under the age of twenty-one years without leaving issue (or, without leaving a husband, or widow, or issue) living at his or her decease], then, IN TRUST as to as well the share origin

To what period survivorship refers.

ally limited under the preceding trust, as the shares eventually limited under this executory trust, to any and every child so dying, for the others and other (b) of my children, and if more

(b) The words "survivor or survivors" are very commonly, but inaccurately, used as a substitute term for "other or others;" but the practitioner should either avoid them wholly or explain them clearly.

Obscurity as to the period to which survivorship refers, especially where the nature of the devise is such as to present a point of time other than the decease of the testator, to which it may by possibility be construed as referring, has produced numerous and conflicting decisions. In the case, for instance, of a gift to A., for life, and after his decease to B., C., and D., as tenants in common, and the survivors and survivor of them, their, his, or her heirs and assigns, if either of the devisees in remainder dies in A.'s lifetime, the question necessarily arises, whether the testator means survivors at his own death or at the death of the tenant for life. In regard to real estate the decisions seem uniformly to make the death of the testator the period of ascertaining the objects; (Wilson v. Bayley, 3 B. P. C. Toml. ed. 195; Rose v. Hill, 3 Burr. 1881; Garland v. Thomas, 1 Bos. & Pull. New Rep. 82; Edwards v. Symonds, 6 Taunt. 213); and in one of such cases it seems to have been applied even to a devise to a class (e. g. to surviving children) which, by the general rule of construction, independently of the words in question, would embrace the persons answering the description at the death of the testator. (Doe v. Prigg, 8 Barn. & Cress. 231). With respect to personal estate, however, the construction in the more recent cases refers survivorship to the death of the legatee for life; (Browne v. Lord Kenyon, 3 Madd. 410; Cripps v. Wolcott, 4 Madd. 11; Pope v. Whitcombe, 3 Russ. 124; Gibbs v. Tait, 8 Sim. 32); and even in some earlier cases, the circumstance of the