upon the trusts, &c., mentioned and declared in the "settlement," with a covenant "that he has done no act All conveyances to the uses of settle

"to encumber."

ments, may be done by reference in this manner.

CHAP. II.

SECT. II.

trade.

A provision for a wife or child, by a person in trade, Settlements by or likely to enter into trade, should never, where the persons in security is merely personal, depend on a contingent event. The intended wife can never be advised to accept so precarions a provision, since it is evident, that if the settlor become a bankrupt before the contingency happen, that his wife and children may go without a farthing of the provision intended for them. If the circumstances of the settlor admit of such an arrangement, the best way would be, to invest a sum of money in the names of trustees, upon trust to pay the interest to the settlor, till the event arises, upon which the wife or children are to have the money, and then, upon trust for the wife or children. In this way they would be effectually protected against the bankruptcy of the settlor. It will frequently happen, however, that the settlor cannot spare the money out of his trade, and, when this is the case, a bond should be entered into for payment of the sum agreed upon immediately after the marriage; and by a deed entered into before the marriage, and made between the obligor, the settlor, the intended wife and the trustees, the trusts of the money may be declared. By this deed, the trustees should have power, at their discretion, to let the money remain in the hands of the obligor; and, in case they should at any time call it in, that they may afterwards, at their discretion, (upon his entering into a new bond, payable at a day certain,) lend it him again, and so from time to time, as often as they should think fit. The deed

CHAP. II.
SECT. II.

Effect of a limitation to

"" survivors or

survivor" only.

ought to contain a declaration, that the trustees are not to be considered guilty of a breach of trust, although they should not call in the money received by any such renewed bond, at the time it became payable. In this way, with due vigilance and sound discretion on the part of the trustees, the provision for the wife and children may be pretty well protected, and at the same time the settlor have the use of the money (1).

(1) In the limitation of cross remainders, in old settlements, there is a common mistake, by declaring that on the death and failure of issue of any of the daughters, the shares of such of them so dying without issue, shall be "In trust for the survivors or survivor of them, and the heirs of the body, "or respective bodies, of such survivors or survivor,” which is making the cross remainders contingent, when they ought to be vested. For instance, a father dies, leaving four daughters, two of age and two under age, the eldest daughter marries and dies, leaving children, and, afterwards, another daughter dies without issue, and without having suffered a recovery. In this case it may be doubtful, whether the children of the eldest daughter can take the share which their mother, if living, would have had in the part of the daughter who died after their mother, the limitation being to the survivors or survivor, and their mother having died in the lifetime of the younger sister, and, consequently, not coming within the meaning of these words. It ought, therefore, in all settlements, to be said “sur"vivors or survivor, and others or other &c.," and then the cross remainders will be vested and not contingent; for, in the case above supposed, though the mother first dying cannot be said to be a "survivor," yet she is one of the "other" children.

These observations apply to personal estate, with this difference only, that the executors or administrators of a deceased child who had a vested, not a contingent, interest in the shares of his brothers and sisters, stand in his place instead of his children or descendants. Suppose, for example, a sum of money to be settled upon two children equally, with a clause, that if either of them die under twenty-one, the share of such of them so dying shall be in trust for the survivor of them; the elder attains twenty-one, and dies, leaving an executor, afterwards the younger dies under age. Now as the word "survivor" only is mentioned, and the elder has died first, in strictness, his executor cannot take, because he is not the "survivor ;" but if the word "other" had been used instead of the word "survivor" then the accruing interest would have vested in the elder in his lifetime, (for he is the "other," though not the "survivor").

CHAPTER III.

OF WILLS.

Sect. 1. Of the general form and provisions of a will of real and personal estate.

Sect. 2. Of the general form and provisions of a will of real and personal estate, or of personal estate only.

SECTION I.

Of the general form and provisions of a will of real and personal estate.

personal estate.

widow.

A PERSON entitled to a considerable landed and per- Provision in a sonal estate, and having a wife, sons and daughters, and will of real and it being his intention that his wife shall receive an annuity for life, and that the eldest son shall have the real and personal estate charged with portions for the younger children, may make his will in the following manner :— He may devise the real estate to trustees, to the use, Annuity for intent and purpose, that his wife shall take a specified annuity, with the usual powers of distress and entry ; and, subject thereto, to the use of trustees for a term of years, to commence from his death, upon the trusts after mentioned; remainder to the use of his first and Limitations to other sons successively, in tail (or in tail male, if such be the intention,) care being taken, in the case of persons who have titles, that that part of the property which is intended as the family estate be kept in the same line

the children.

CHAP. III,

SEC. I.

Trusts of the term.

as the title), remainder to his daughters as tenants in
common in tail, with cross remainders between them in
tail, with such remainders over as the intention may
require. In a will so framed, it is to be observed, that,
as the children are made tenants in tail, the eldest son,
on attaining twenty-one, may, by suffering a recovery,
bar the remainders over. For the purpose of saving the
expense of a recovery, the lands might be limited suc-
cessively to each son in fee, determinable on the event
of his dying under twenty-one, without leaving issue at
his death; and if he die under twenty-one, leaving
issue, the issue may be substituted in his place. With
a view, however, of preventing alienation by a son to
the prejudice of his children, or those in remainder, it
is most common for testators to make each son,
in being,
tenant for life, with remainders to trustees to preserve,
&c., remainder to the daughters, as tenants in common
for life, with limitations over of each of the shares, with
remainders, as tenants in common in tail, with cross
mainders in tail between them.

When the sons are made tenants in tail male, there should be a second series of limitations to them as tenants in tail general.

The trusts of the term may be, in the first place, for better securing the annuity to the wife, during her life, and to raise and pay a proportionate part thereof to her executors, after her death, and to raise portions for the younger children; the portions of the sons to vest at twenty-one, and of daughters at that age, or marriage with such consent as may be deemed proper. The trustees should be empowered, out of the rents of the premises comprised in the term, to raise maintenance, the amount of which may be specified by express pro

vision of the testator, or left to their discretion, according to the circumstances of the parties and the property, -the maintenance to be paid to the wife during her widowhood, and to be applied according to her discretion, but not to be obliged to keep any accounts.

any of the

There is

younger

CHAP. III.

SEC. I.

Where the sum to be raised for portions is made to Portions. depend on the number of children,-as a given sum, if there should be so many,-there should be the usual proviso for survivorship among the children; but when a specific sum is to be raised for each child, this proviso is unnecessary, and there should be simply a declaration that the portions of sons shall vest when, and if they attain twenty-one, and of daughters when and if they attain twenty-one, or marry with consent. generally, also, a provision that "if any "sons shall die, or become an eldest son, his portion "shall go over to the rest," for otherwise, he would become entitled as well to a money-portion as to the estate; but of this provision it may be observed, that if the younger son, so becoming an eldest son, have previously attained his age of twenty-one years, his portion either has been, or ought to have been, raised. It seems to be improper to recall the portion; but if such be the intent of the parties, the same end may be attained, by directing, on this event, an additional sum, equal to the portion received by such son, to be raised for the other younger children. As all the younger children but one may die under the age of twenty-one, in which case the survivor, by having all the portions accumulate upon him or her, might thus acquire a provision much larger than was intended for a younger child, it is proper to declare that no child, by accruer, shall have more than a given sum,-a declaration, how

H