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WHAT PROPERTY MAY BE DISPOSED OF.

LETTER XX.

THIS is my last Letter on the subject of Wills. I have already pointed out to you how your will should be executed, and how it may be revoked, and how revived after revocation. I proceed now to point out to you the operation which, by statute law, various dispositions your Will will have. There are enactments as to the effect of devises to trustees, to which I do not think it necessary to call your attention.

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1. You may dispose by will of all your real and personal estate to which you may be entitled at the time of your death-property of every description, including copyhold and customary lands, although you may not have been admitted to them, or have not surrendered them to your will. And very general descriptions will pass copyholds and leaseholds, as well as freeholds. A general devise or bequest, too, will pass any real or personal estate which you have power to appoint in any manner you think proper; that is, to whom you think proper, and therefore a power to appoint to your children would not fall within this description. In both cases, however, as to copyholds and leaseholds, and as to property over which you have a general power, the property will not pass if a contrary intention appear by your will. You will observe, that if you devise all your real property generally, any subsequently-acquired real estate will pass by it without the necessity of any reexecution. If you intend to confine the operation of your gift, you should express that intention.

GIFT OF EXPECTANCIES.-SPECIFIC GIFTS. 159

You may devise and bequeath any of your expectancies, and if they drop in in your lifetime they will pass by your will. Whatever, therefore, you may expect as heir-at-law, or next of kin, or devisee, or legatee of any living person, will pass by your will, if you bequeath it, and live to be entitled to it; and as to one interest, as I will presently point out to you, although you do not survive the testator. Although you have no real estate when you make your will, yet if you give all your real estate by it, any estate which you subsequently acquire by purchase or otherwise will pass by it without the necessity of a re-execution. In trusting to your will passing, without your re-executing it, any subsequently acquired property, be careful that the words are sufficient to pass it: for where an estate was devised by its name, "All my Quendon Hall estates in Essex," after-acquired property, although the testatrix had contracted to buy part of it before the will, and most of it consisted of small additions to the principal estate, was held not to pass, for the Court could not think that the testatrix intended to include it.

Do not, where it is not necessary, give any personal chattel specifically. This you cannot avoid, if you wish to give a particular watch, for example; but if you should sell or give it away, of course your bequest becomes inoperative, and no other watch that you may acquire can supply its place. In bequeathing your stock, give it generally, as all your funded property, or all your three per cents, or the like, and not the funds or three per cents which you have now in your name. It seems that if, having a brown horse, you were to bequeath it, and then to sell it and buy another brown horse, the latter would not pass.

If you devise an estate and afterwards sell it, the

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LAPSED DEVISES.-RESIDUE.

devise, as I have stated to you in my 3rd Letter, will become revoked: should you re-purchase the same estate, I recommend you not to trust to your former gift, but to re-execute your will, or rather to execute a codicil, and confirm the gift in your will. I can give you an instance which will convince you how dangerous it is to deal with the property given by your will, without ascertaining what effect the disposition will have on the previous gift. Under a settlement on a marriage, the husband, in the event which happened of a failure of issue of the marriage, had a power to appoint the property to whom he pleased; and there was the usual power of sale in the settlement with the consent of the husband and wife (the nature of which power I have explained to you in my 17th Letter). The husband, by his will, appointed his interest in the estate to trustees to be sold, and gave the produce to persons named in his will. The estate itself was afterwards sold under the power in the settlement, and was conveyed to the purchaser, and then the husband died, and it was held that the gift in the will was void, and could not affect either the purchase-money of the settled estate, or the new estate to be purchased with it.

If formerly you gave any part of your real estate by your will which lapsed, as it is termed, that is, failed, by the death of the devisee in your lifetime, or the gift was for an illegal object, the devise failed altogether, and the property would go to your heir-at-law, although there was a residuary devise in your will, or, in other words, a devise of all the residue of your real estate to a person who survived you. As to personal estate, the law was always otherwise, and lapsed legacies fell into the residue as they still do. And now, by the new law,*

* 7 Will. IV., and 1 Vict., c. 26.

CAUTIONS IN PROVIDING FOR CHILDREN.

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residuary devises of real estate are placed on the same footing as residuary bequests of personal estate; therefore the residuary gift of the real estate would carry to the residuary devisee an estate which lapsed by the death, in the lifetime of the testator, of the person to whom it was devised. So where a gift is to a charity of an estate, which is void, the estate will go to the residuary devisee. But this will not be so, if a contrary intention should appear by the will. It is not necessary for the residuary devisee to show that the testator intended, in the given event, that the estate should pass as part of the residue; but it is necessary for the heir-at-law, resisting the claim of the residuary devisee, to show, that by the declaration of the testator in the will, or from the frame of the devise, such was not his intention. It is seldom that any testator has any such intention. In making your will, if you do not intend your residuary devise to have this operation, state so distinctly. If you do intend it, then see that your residuary devise is open to no cavil, but will pass all the residuary estates of which you can dispose at your death.

No hatred is more intense than that which arises in a man's family after his death, where, under his will, the rights of each member of it are not separate and strictly defined. None is more afflicting or degrading to our common nature. We weep over the loss of our relative, and we quarrel over the division of his property. Be careful not to make an unwise or ill-considered disposition, particularly of your residue, upon which the contest generally arises. As you love your

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family, pity them-throw not the apple of discord amongst them. If you leave to every one separately what you desire each to have, and give nothing amongst them all which requires division, and therefore selection and choice, peace and good-will will continue to reign amongst them.

Still further in disposing of your residue, neither overrate nor underrate its value. It is a duty which you owe to yourself, and to those who are to succeed you, carefully to ascertain the value of your property. I know an instance of a person who succeeded to a great estate, simply by declining a particular legacy, in common with the general legatees-the mere gift of the residue would satisfy him-he begged the testator would not consider him until every other claim was satisfied! The residue greatly exceeded in value the aggregate amount of all the legacies.

On the other hand, it has frequently happened that a man over-estimating the value of his property, or not allowing for its depreciation, has given large legacies to all his children but one, and has reserved his residue for that one. At his death it has turned out that every one was well provided for except the chief object of his bounty, his residuary legatee. You can easily avoid this by giving to the child whom you mean to make your residuary legatee, equally with the rest, what you wish it at all events to possess, and then you can give to this Ichild the residue. If your funds should fail, every legatee would have to abate in proportion, which would be what you intend. If there should be enough to answer all the legacies, the child taking the legacy and the residue would yet not take more than you intended. If you really mean one child to take its chance as to