No. 21. the hereditaments and premises, or any part thereof, either in possession or in remainder, expectant on the decease of my said daughter, under the limitation contained in this my will,) not exceeding the amount hereinafter mentioned, that is to say, if there shall be no more than one such child, (other than and except as aforesaid,) not exceeding the sum of 5000%. for his or her portion; if there shall be two such children, and no more, (other than and except as aforesaid,) not exceeding 10,000l. for the portions of such two children ; if there shall be three such children, (other than and except as aforesaid,) not exceeding 15,000l. for the portions of such three children; and if there shall be four or more such children (other than and except as aforesaid,) not exceeding 20,000l. for the portions of such four or more of them; with interest for such portion or portions; the same respectively to be paid to such child or children at such age, day or time, or ages, days or times, and if more than one in such parts, shares, and proportions, and subject to such conditions, restrictions, and limitations over, such limitations over to be for the benefit of some or one of such children, (other than and except as aforesaid,) as my said daughter Margaret shall deem prudent and expedient, and by any deed or deeds, instrument or instruments in writing, so to be sealed, delivered and attested as aforesaid, or by such last will and testament, codicil or codicils thereunto so to be signed, published and attested as aforesaid, shall direct, limit, ar

all to a remainder-man, is a younger child in equity, Beale v. Beale, 1 P. Wms. 244. And if a younger son becomes eldest, he is excluded, Lord Teynham v. Webb, 2 Vez. 198. Indeed, in Lady Lincoln's case, one, who was a younger son at the death of the testator, and the tenant for life, becoming eldest before 21, till which the portions were subject to survivorship, on the whole will was held not entitled, 10 Vez. Jun. 166.

Even an eldest son, not provided for, may be considered as a younger, of which see a curious instance in Duke v. Doidge, 2 Vez. 203, in the note. And where the descent is according to the cus tom of Borough English, without doubt, upon the same principle, the eldest son would be a younger to this purpose in equity.

appoint; but so, nevertheless, that if such children, so en- No. 21. titled to have or be provided with portions as aforesaid, shall be reduced to three, such three children shall not be entitled to have more than 15,000/. raised for their respective portions; and if such children shall be reduced to two, such two children shall not be entitled to have more than 10,000l. raised for their respective portions; and if such children shall be reduced to one, such one child shall not be entitled to have more than 50007. raised for his or her portion.

(Power to create a term of years for raising the said portions.)

No. 22.

Devise of an Advowson to Trustees to present a certain Person to the next Avoidance.

I GIVE and devise my advowson and right of patronage of and to the living of H., in the county of, to F. P., of, &c. and W. L., of, &c. and their heirs, to the use of the said F. P. and W. L., their heirs and assigns, in trust that they or the survivor of them, or the heirs or assigns of such survivor, shall and do present I. T. of, &c. to the next turn or avoidance thereof, and subject thereto, upon trust to convey the same to and for such uses, intents, and purposes, upon such trusts, and under and subject to such powers, provisos, limitations, and declarations, as in and by this will are limited, declared and expressed, of and

No. 22. concerning my other hereditaments and real estate in the county of, &c. or such of them as shall be subsisting and capable of taking effect.

No. 23.

What

words are necessary

cies.

Words of a Will whereby a Testator charges his
Debts, Legacies, &c. upon all his Estate.

day of

in the year

I

THIS is the last will and testament of me, M. H., of, &c. made this charge all my real and personal estate, of what nature or kind soever, with the payment of all my debts, funeral expences and legacies, as well such as I shall hereby give, as such other legacies and annuities as I may hereafter give by any codicil or codicils to this my will (1).

(1) By such words in a will duly executed, a testator enables himself to lay any number of additional legacies on the land by a subsequent testamentary disposition unxecuted. See Vol. I. ch. 1. s. 6. of this treatise.

To entitle a legatee to recover his legacy out of the real estate, there seems to be no necessity for proving the will in the Spiritual Court. 3 Atk. 361.

It is to be observed that words importing clear intention te charge the realty are necessary to make the land in the hands of a to charge specific devisee subject to legacies; therefore, if a clause, either at the specific devisce the beginning or end of a will, run thus, "First, I will and diwith legarect that all my debts, legacies and funeral expences shall be fully paid," these words will not give the legatee place of the specific devisee, though perhaps by such words the residuary real estate might be charged with the legacies. And perhaps also this would be considered as sufficient to charge even specific devisees in their order, (for the general devisee and the heir come first into contri

No. 24.

Clause to prevent an Annuitant under the Will from parting with his Annuity,

AND my will further is, and I do hereby expressly declare and direct, that in case my said nephew, A. B., shall alien, sell, assign, incumber or transfer, or in any manner dispose of or anticipate the said annuity or yearly sum of 2007. or any part thereof, then and in such case, and from and immediately after such alienation, sale, assignment, or transfer, the said bequest so made thereof as aforesaid, and the use and estate so given to him therein, shall cease and be void, to all intents and purposes as if the same had not been mentioned in this my will, or as if the said C. K. were naturally dead..

bution) with the debts. See Knightley v. Knightley, 2 Vez. Jun. 328. But the Lord Chancellor doubted of the distinction in this respect, in Williams v. Chitty, 3 Vez. Jun. 545. The Master of the Rolls, however, maintained the distinction, in Shallcross v. Finden, 3 Vez. Jun. 738. And see 3 P. Wms. 91. Harris v. gledew, ib, 358.

In

"After pay

In this last case the words at the beginning were, ment of all my just debts, funeral expences;" and it was clearly held that the debts were charged by these words.

No. 25.

Devise of Copyholds and Leaseholds, for lives and years, to Trustees, to the same uses as the Freehold.

AND I give and bequeath all my customary, or copyhold (1) messuages, lands, and hereditaments, and also all my messuages, farms, lands, tenements, and hereditaments

Of the necessity for the party's having the legal estate in him at

his surren

dering his copyholdto the use of

his will.

(1) The necessity for, and the operation of a surrender of a copy. hold estate to the use of the will made, or to be made, has been considered. To what has been observed, it may be here added, that for the will to have its legal effect, it is necessary that the party, when he the time of makes the surrender to the use of his will, should have the legal estate, Doe d. Ibbott, v. Cowling, 6 T. R. 63. otherwise the surrender to the use of the party's own will, can have no effect, any more than if the surrender were made to a stranger. Thus, where a copyhold was surrendered to J. S. on the 10th October, 1793, and the surrenderee afterwards, and before he was admitted, surrendered the same to the use of his will; and on the 17th June, 1795, and not before, the surrender was presented and the testator admitted; it was held that the surrender to the use of the will was inoperative, and that the admittance did not relate; for before the surrender to the testator was executed by the admission, the legal estate was wholly in the surrenderor, and the surrenderee could not enter without being a trespasser to the surrenderor, and the surrenderee could not have maintained ejectment unless he was admitted before the trial. And as to the question of relation, it was held that the admission could not relate so as to validate the surrender by J.S. to the use of his will, for though relation will in many cases help acts in law, it will not help the acts of the party, that is, it will not make void acts of parties good by the fiction of law. See the learned judgment pronounced by Lord Ellenborough, in the case of Doe on