CONTRACT TO LEAVE AN EQUAL SHARE, 135 order to obtain an equal share of the £200 with the other child. This you should always keep in view, and more particularly where there is not such a clause in the settlement; for in that case a child would not only take the part actually appointed to him, but would be entitled equally with the other children to the residue, although this can seldom be the intention of the party executing the power. If you should ever covenant to purchase and settle estates, you will, if you are wise, perform the covenant in your lifetime. However, if you do purchase estates, which are proper to go in performance of your agreement, they must go accordingly, although you have permitted them to descend to your heir: consequently he will not be entitled to retain them for his own benefit. It is not unusual for a parent, upon a daughter's marriage, to agree to leave her at his death a fortune equal to his other children. Such an agreement does not confine or restrict the father's power; he may alter the nature of his property from personal to real, or he may give scope to projects, or indulge in a free and unlimited expense-but he will not be allowed to entertain mere partial inclinations and dispositions towards one child at the expense of another. If his partiality do rise so high, and he will make a difference, he must do it directly, absolutely, and by a gift surrendering all his own right and interest; he must give out and out; he must not exercise his power by an act which is to take effect, not against his own interest, but only at a time when his own interest will cease. He cannot, for instance, give property in his lifetime to one child, reserving the interest to himself, for such a gift is, in fact, testamentary, and in fraud of his agreement. If after you have disposed of an estate by will you 136 INFANT'S SETTLEMENT. make a settlement of it, under which the estate is still vested in you, subject to the interest given to others, generally speaking, it will not now be necessary to reexecute your will. Partial interests may be created, so as not to affect the operation of a prior will as to the interest left in the settlor, if there are proper general words in the will to pass it; but you should inquire whether the conveyance renders a re-publication of your will necessary, or, perhaps, it would be better to republish your will without inquiry. The operation of your will in such a case will be explained to you in a future Letter.* I have still to draw your attention to a recent Act of Parliament, of great importance, which would have led to much mischief if the Court had not properly come to the determination that it had power to consider the propriety of the marriage. This Act makes it lawful for every infant, upon or in contemplation of marriage, with the sanction of the Court of Chancery, in a summary way, to make a binding settlement or contract for a settlement of all or any part of his real and personal estate, or of property over which he has any power of appointment. But this is not to extend to powers, of which it is declared (by the instrument creating them), that they shall not be exercised by an infant. The Act gives the same power to a female infant, but the male must not be under the age of twenty years, or the female under the age of seventeen years. The policy of the Act in giving this power to a young man between twenty and twenty-one may be doubted. But if any appointment under a power, or any disentailing assurance, as it is termed that is, the mode appointed by law to enable a tenant in tail to dispose of +18 & 19 Vict., c. 43. *Letter XIX. SUCCESSION DUTY. 137 the fee which I have explained to you in my last Letter -shall have been executed by any infant tenant in tail under the Act, and such infant shall afterwards die under age, such appointment, or disentailing assurance, will become absolutely void. This was quite right. : I must conclude by reminding you of the Succession Duty Act,* which has deprived property of half its charms it is as if a blight had fallen on the fair fields of England. Every man had the right to keep his parchments—his sheepskins-in his own box, in his own house no one had a right to pry into the contents of his settlements. Now every man's settlement must be open to the tax office and to the Government of the day, ever on the watch for a new succession, in order to levy a new duty. If, for example, a stipend is provided for an old servant who dies, as even annuitants some time must, that creates a succession, and the person entitled to the property has to pay duty for his new enjoyment. You cannot, when liable to duty, cut trees on your estate beyond the value of £10 a-year, without giving notice to the tax officer, and paying duty. Mr Pitt, in the plenitude of his power, was foiled in his attempt to introduce a much milder impost on successions than is fixed upon them by the law to which I have referred you. The net is large and widespread, and the tax, from its nature, is the most vexatious burden ever laid upon property in England. I have no more information to give you as to settlements, and therefore adieu! * 16 & 17 Vict., c. 51. 138 INSTRUCTIONS FOR WILL. LETTER XVIII. I NOW write to you upon one of the most important subjects on which I have promised you any information. It has been in some measure anticipated in my 3rd Letter. Before making your will, there are many questions which you should ask yourself.—Is it probable that I shall be much in debt at my decease? Are there charges on my estate which must be provided for on my death? What is the nature of my property? Is any part of it already settled, or agreed to be settled, on my family? Have I charged portions on any part of it for my children? What advancements have I already made for them? Is my wife dowable of any part of it? Am I only tenant in tail of any part of my estate? in which case it would be necessary to bar the entail to give effect to your will, even if the property be leasehold for lives, in which you cannot, properly speaking, be tenant in tail, but only a tenant in the nature of a tenant in tail. I have explained the nature of an estate tail in my 10th Letter. These are questions which you should resolve before you give instructions for your will. If any part of your family estate is leasehold for years, you should direct it to go along with the estate with which it is held. This lawyers can easily effect to the utmost limits which the law allows. They can, in like manner, direct pictures, sculpture, and other personal effects, to go as heir-looms. If your children are entitled to portions, you should declare whether you intend what you give them by your will to be in addi INSTRUCTIONS FOR WILL. 139 tion to their portions, or in satisfaction of them. I have already advised you, if you make any provision for your wife, to state whether you mean it to be in lieu of dower. If you have given your children legacies by your will, and afterwards advance portions with them on their marriage, you should declare by a codicil whether they are still to be entitled to the legacies. If you have advanced them in your lifetime, and then make any provision for them by your will, you should declare whether you mean it to be in addition to the advances. So if you have given a legacy by your will, and you afterwards give another to the same person by a codicil, you should declare whether or not you mean him to have both. In giving instructions, where you wish your estate to remain in your family, state to your solicitor, whether you mean your sons' daughters to be preferred to your own or not, and whether your sons' daughters are to be preferred to your daughters' sons, and so on; and also state what powers you wish them to have-as to lease, jointure, grant portions for younger children, sell and exchange; and if you do not intend them to exercise the powers given to tenants for life generally by the Legislature (which I have referred to in my 16th and 17th Letters), state so distinctly. Never in your will say generally that your debts shall be paid, but declare out of what fund they are to be paid; nor leave it in doubt, if it should become necessary to sell your property to pay them, by whom the sale is to be made. The Legislature has saved you from the danger of "sinning in your grave," by not providing for the payment of your debts; for now all your property, both freehold and copyhold, which you shall * 3 & 4 Will. and Mary, c. 14; 11 Geo. IV., and 1 Will. IV., c. 47; 3 & 4 Will. IV., c. 104. |