the husband's of the portion in which any child has acquired a vested lifetime. interest but the trustees may in such a case, at their Appointment of trustees option, instead of actually raising any portion, mortgage a sufficient part of the property to the child by way of security for it, and pay him, or her, interest on such mortgage, so as to provide an income in lieu of that which would otherwise be derived from the severed portion. They may also, if they think fit, include in such mortgage the husband's life interest in the estate, in which case he will be bound to keep down the interest on the sum so raised; receiving the surplus income only, after providing for all the expenses incurred by the trustees in the execution of their trust. Until the passing of recent statutes, it was necessary to give the general trustees powers for the management of the estate, and application of the rents, in the event of the next succeeding tenant in tail being an infant at the time of the husband's death. These, however, have been rendered unnecessary, in the case of a settlement made after the 31st December 1881, by the Conveyancing Act of that year, which enacts (x) that if and so long as any person who would, but for the enactment, be beneficially entitled to the possession of any land is an infant, and being a woman is also unmarried, the trustees appointed for that purpose by the settlement may enter into possession of the lands, and, in that case, shall have the large powers enumerated in the Act for dealing with the land in a proper and due course of management; paying their expenses thus incurred out of the income, applying such part of the rest of it as they may think fit for the maintenance or education of the infant, and investing the residue and accumulating it at compound interest in trust for the infant on attaining twenty-one years, or if a female attaining that age or marrying; failing which the fund is to be held in trust (x) 44 & 45 Vict. c. 41, s. 41. for the persons designated by the settlement. And it will be remembered that the Settled Land Act, 1882 (y), has given to every tenant for life of land full powers of disposition over the settled estate, the only check (if such it can be called) upon his exercise of them being that he must (2) give previous notice to the trustees of the settlement, of whom there must be at least two, unless the settlement provides otherwise (a), and who will, ordinarily, receive any proceeds of sale or other capital money produced by the exercise of his powers, and invest it for the benefit of the persons for the time being entitled to the land. Hence all that is requisite at the present day, instead of the powers of management, &c., formerly given to the general trustees, is to appoint them trustees for the purposes of the two Acts; and, if so desired, to declare that their powers under the Settled Land Act, 1882, may be exercised by a sole trustee. It may be added that the lastmentioned Act (b) enables the trustees, during the minority of an infant tenant in tail in possession, to exercise on his behalf all the powers conferred by the Act on a tenant for life. After these clauses come others, whereby the hus- Power to husband to joinband is enabled to appoint, in favour of any future ture future wife, a rent charge of a specified amount by way of wife. jointure, with or without its being in bar of dower. He is also empowered, in the event of his marrying And to charge again, to charge the estate with portions for the portions for children of any future marriage, under conditions future marsimilar to those already stated in the case of his having younger children by his first marriage; and with the usual maintenance and advancement clauses. children of riage. These clauses are sometimes followed by others Additional enlarging the powers conferred on the tenant for life (y) 45 & 46 Vict. c. 38. (2) S. 45. (a) S. 39. (b) S. 60. Powers. Power of appointing new trustees. by the Settled Land Act. For instance, that Act does not enable a tenant for life to sell or lease the principal mansion-house on the property, or any lands usually held therewith, without the consent of the trustees, or an order of the Court, unless the settlement expressly authorizes him so to do (c). And it is sometimes desired that he should have this power. Also it is not unusual to insert a clause enabling any capital money which may become subject to the trusts of the settlement to be invested in a greater variety of securities than those mentioned in the Act. Next comes a clause which relates to the appointment of new trustees of the settlement. Under the Conveyancing Act, 1881 (d), where a trustee, either original or substituted, and whether appointed by the Court or otherwise, is dead or remains out of the United Kingdom for more than twelve months, or desires to be discharged from the trusts or powers reposed in or conferred on him, or refuses, or is unfit, or incapable, to act therein, then the person or persons nominated for this purpose by the instrument, if any, creating the trust, or if there is no such person, or no such persons able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may appoint a new trustee or new trustees. It is generally considered desirable that the appointment of new trustees should rest with the person, if of full age, who for the time being is entitled to the possession or to the receipt of the rents and profits of the land. The clause in question therefore declares that such person shall have power to appoint a new trustee or new trustees of the settlement. The deed sometimes contains a proviso that the settlement shall be altogether void unless the marriage is solemnized within a specified time. It concludes with the ordinary Testimonium clause. (c) 45 & 46 Vict. c. 38, s. 15. CHAPTER VII. OF WILLS. THE subject for our consideration in this, our final chapter, is a Will of Land. In the previous chapters of this part of our work we have gone through the clauses of a simple form of the particular instrument under discussion, in order to show how the practical work of conveyancing is made to comply with the rules of law. But when we come to the subject of wills it is not possible for us to adopt our usual plan. All the other instruments to which our attention has hitherto been directed, however much they may vary in detail, have some parts common to the class to which they belong. The covenants in a mortgage deed, the lessee's covenants in a lease, the limitations in a strict settlement, vary only within moderate limits; and the observation, therefore, of any one set of them serves as a guide in framing all other assurances of a like nature. But with wills the case is different. There may be, and often is, a similarity between one will and another. The conveyancer may be able to lay his finger upon this and that form, and say that they ought, respectively, to be made use of in certain cases, but he cannot say of any of the important parts of any one will that they are matters of common form. We will, therefore, after a few words on the qualifications necessary to enable a person to make a will, arrange our subject under three headings, namely:Ist, the execution and attestation of wills; 2nd, the Proposed estates and interests in land which can be disposed of subject. division of the Who may make a will. Infants may not make a will of real property. by will; and 3rd, the revocation of wills; the first and third of these divisions applying to all wills equally. The principal rules which govern the making of wills at the present day are to be found in the 7 Wm. The Wills Act. IV., and 1 Vict., c. 26 (generally known as the Wills Act), which applies to all wills made in England and Wales, or Ireland, since the 31st of December 1837. The Act first says that it shall be lawful for every person (a) to make a will, and subsequently excepts two classes from this general rule. These are, persons under the age of twenty-one years (b), and married women, except in so far as they might have made a will before the passing of the Act (c). To the incapacity of an infant to make a will of real property (an Exception as to exception to his general incapacity being made, by personal property. another section (d) of the Act, with regard to a will of personalty by a soldier or sailor who is an infant (e) ) we may add that of persons who cannot make a will on account of natural or temporal incapacity, such as idiots, lunatics, those who from old age or other causes have outlived their understanding, or who are subject to undue influence, and of persons who are disabled by statute (f) on account of their being sentenced to death, or undergoing penal servitude, for any crime. Wills of married women. Married women, it will be noticed, are under the same disability as before the Act (g). By an old statute of Henry the Eighth relating to wills (h), but repealed by the present Wills Act (i), it was enacted (j) that no will made of any lands, manors, or other here |