No. 1. or desiring to be discharged, or refusing, or declining to act, or becoming incapable of acting as aforesaid: and that when, and so often, as any new trustee, or trustees, shall be nominated, or appointed, as aforesaid, all the trust-estates, and premises, which shall then be vested in the trustee or trustees so dying, or desiring to be discharged, or refusing or declining to act, or becoming incapable of acting as aforesaid, either solely or jointly with the other trustee or trustees, shall be thereupon with all convenient speed conveyed, assigned, and transferred in such sort and manner, and so as that the same shall and may be legally and effectually vested in the surviving or continuing trustee or trustees of the same trust estates and premises respectively; and such new or other trustee or trustees, or if there shall be no continuing trustee or trustees of the same trust estates, and premises, then in such new trustee only, upon the same trusts as are hereinbefore declared or expressed, of or concerning the same trust estates and premises respectively, the trustee or trustees whereof shall so die, or be desirous of being discharged, or refuse or decline to act, or be incapable of acting as aforesaid, or such of them as shall be then subsisting or capable of taking effect. And my further will is, that all and every such new trustee or trustees shall or may in all things act and assist in the management, carrying on, and executing of the trusts to which he or they shall be so appointed, in conjunction with the other then surviving or continuing trustees or trustee of the same trust estates, and premises, if there shall be any such continuing trustees or trustee, and if not, then by himself or themselves respectively, as fully and given, but not in writing, it was said by Serjeant Ellis, in the case of Foy et Ux. v. Pester, 1 Mod. 306, in addressing the court to have been ruled good by them upon another occasion, and such ruling was recognised by Lord Chief Baron Hale, who observed, that there was great equity in it, because such restraint was only a provident circumstance for obliging the party to obtain consent by a more solemn communication, and to ascertain the fact of its having been granted; and therefore it was rather circumstance than sub stance. effectually, and with all the same power and powers, autho- No. 1. rity and authorities, of consent, approbation, discretion, selling, conveying, calling in, laying out and investing, giving and signing receipts, indemnifications, and discharges, to purchasers and others, and all other powers and authorities whatsoever, as if he or they had been originally in and by this my will nominated a trustee, or the trustees for the purposes for which such new trustee or trustees respectively shall be appointed trustee or trustees, or as the trustee or trustees named in this my will, his or their heirs, executors, administrators, or assigns, in or to whose place such new trustee or trustees shall respectively come or succeed, are or is enabled to do, or could or might have done, under and by virtue of this my will, if then living and continuing to act in the trusts hereby reposed in him or them, any thing hereinbefore contained to the contrary thereof in any wise notwithstanding. And my will further is, that the several trustees hereby appointed or to be appointed in pursuance of this my will, or any of the heirs, executors, administrators, or assigns, of them, or any of them, shall not be charged or chargeable with any more of the said trust monies and premises, than they respectively shall actually receive, and that one of them shall not be answerable or accountable for the others. or other of them, or for the acts, receipts, neglects, or defaults of the others or other of them, but each one for his own acts, receipts, neglects, or defaults only; nor shall they, either or any of them, be answerable or accountable for any banker, broker, or other person, with whom any of the said trust monies may be deposited for safe custody or otherwise, in the execution of the said trusts, nor for the insufficiency or deficiency of any stocks, funds, or securities, in or upon which any of the said trust monies may be invested, in pursuance of and in conformity to this my will, or for any other misfortune, loss, or damage, which may happen in the execution of the aforesaid trusts, or otherwise in relation there. to, unless the same shall happen by or through their own wilful defaults respectively. And also that they the said several trustees so appointed, or to be appointed, shall and may, by and out of the monies which shall come to their re No. 2. spective hands, by virtue of the trusts aforesaid, retain to and reimburse himself and themselves, and allow to his and their co-trustee and co-trustees all costs, charges, and expenses which they or any of them may respectively sustain or expend, or be put unto, in or about the execution of the trusts aforesaid, or in any matter relating thereto. And, lastly, I do hereby revoke all former wills by me at any time heretofore made, and declare this only to be my last will and testament. No. 2. Of devises to children, and grandchildren. A Will disposing principally of real Property in Shares, among Children and Grandchildren. (1) THIS is the last will and testament of me J. C. of N. in the parish of S. in the county of Middlesex. I give and devise unto J. F. and W. A. and J. C. all my freehold mes (1) Where there is an immediate devise to all the children or grandchildren, or children and grandchildren, by a general description, which vests the property in possession upon the death of the testator, and is, therefore, then distributable, none but those in existence at the time, and answering the description, can take; the fund is then disposed of, and distributed, and consequently the after-born children are excluded. But, if the vesting in possession be postponed, so that no distribution need take place at the death of the testator, then all who answer the description, not only at the death of the testator, but born afterwards, and before the fund is to vest in possession, shall take; the general description includes all; and until the period of distribution arrive, none are excluded, Hughes v. Hughes, 3 Bro. C. C. 434. Barrington v. Tristram, 6 Vez. Jun. 345. Walker v. Shore, 15 Vez. 122. Crone v. Odell, 1 Ball v. Beatty 483. This rule is the same in grants as in wills. In all suages, lands, tenements, and hereditaments whatsoever, to No. 2. hold unto them the said J. F. W. A. and J. C. and their heirs, to the uses, upon the trusts, for the intents and purposes, and under and subject to the powers, provisos, limitations, and declarations hereinafter expressed, limited, and declared, of and concerning the same, that is to say, as to, for and concerning all that my freehold messuage or te grants of estates in land there must be a person in existence to take at the time the estate vests by the grant; therefore, in the case of a conveyance to one and his children and their heirs, if he has children at the time, the father and all his children take jointly in fee, but if he has no child the father alone takes; an after born child cannot take because the gift was immediate. So if a devise be to a man and his children, if he has children at the time, the expressed intent of the testator can take effect, according to the rule of the common law; but if A. devise his land to B. and his children, and B. hath not any issue at the time of the devise, he takes an estate tail; for the intent, which is the guide in the construction of a will, is clear that the children are to have an estate; and as immediate devisees they cannot take, because they are not in rerum naturæ, and by way of remainder they cannot take, for the devisor designed to give an immediate estate; therefore, the word children shall in such a case operate as a word of limitation, as if the gift had been to B. and the issue of his body. Wild's case, 6 Rep. 16. On these general principles the law is settled that where a gift by will is immediate, it must operate accordingly. But where a devise or gift is to one for life, remainder to the children, or where the distribution is postponed to a future time, then the children born during the life, or before the time appointed for distribution, become entitled. Graves v. Boyle, 1 Atk. 509. Haughton v. Harrison, 2 Atk. 329. Atty General v. Crispen, 1 Bro. C. C. 386. Baldwin v. Carver, Cowp. 309. Andrews v. Partington, 3 Bro. C. C. 401. Pulsford v. Hunter, 3. Bro. C. C. 416. Under a bequest to children, grandchildren are not entitled, except from necessity, as, if the will would be otherwise inoperative: Or, where the testator has clearly shewn by other words that he does not use the word children in the proper sense, but according to a more extensive signification. Radcliffe v. Buckley, 10 Vez. Jun. 195. by the Master of the Rolls, Sir W. Grant. Crone v. Odell, 1 Ball v. Beatty, 449. Devise of freehold messuages, &c. to trustees. To keep the same in repair, and in sured from fire. No. 2. nement in which I now reside, with the chaise-house, woodhouse, stable, and garden thereunto belonging, and also all testator's that my freehold messuage or tenement, being No. 5, in N. street aforesaid, with the garden behind the same, now in the tenure of and also all that my freehold messuage or tenement, being No. 4, in N. street aforesaid, with the garden thereunto belonging, now in the tenure of together with all the fixtures and appurtenances to the said messuage or tenement and premises, or any of them, belonging, to the use of the said trustees, their heirs, and assigns, during the natural life of my wife Sarah, upon trust from time to time, during the continuance of that estate, to cause the same premises to be kept in good substantial repair, and to be kept insured from loss or damage by fire, to the full value thereof, or as near thereto as may be, so as that in case any such loss or damage shall happen, the money to be received upon or by means of such insurance, may be laid out in reinstating the same, and to retain or apply so much of the yearly rents, issues, and profits of the same premises as shall be necessary for the respective purposes aforesaid; and subject and without prejudice to the trusts hereinbefore declared, upon trust to pay unto or empower my said wife to receive the rents, issues, and profits of the same premises, or so much thereof as shall remain unapplied for the purpose Limitation aforesaid, to and for her own use and benefit; and from and immediately after the decease of my said wife, to the use of intail, with my four children, William, Henry, James, and Elizabeth, as tenants in common, and the several heirs of their respective bodies, and in case there shall be a failure of issue of any of such children, then as to the share or shares of him, her, or them, whose issue shall so fail, to the use of the others of them, as tenants in common, and the several heirs of their respective bodies, and in case there shall be a failure of issue of the bodies of all such children but one, then to the use of such one child, and the heirs of his or her body, and in default of such issue, to the use of my own right heirs for ever. And as to for and concerning all those my three freehold messuages or tenements, numbered 1, 2, 3, situate in N. street aforesaid, and now in the several occupations of —, with the gardens and appurtenances thereunto respectively creating a tenancy in common, cross remainders. |