CHAP. III. SEC. I. Disposition of the surplus. ever, which is necessary only where there is a clause of accruer, and, consequently, should not be inserted where a specific sum is to be raised for the portion of each child. Then must follow a proviso that the trustees shall suffer the residue of the rents and profits of the premises comprised in the term, which shall not be applied for the purposes before-mentioned, to be received by the person entitled to the land immediately expectant on the term; but if that surplus would be more than sufficient for the maintenance of the eldest son, a trust may be inserted, that the trustees shall, under the term, raise such sums as they may think proper, or a specific annual sum, for his maintenance during his minority, and that the residue of the rents remaining unapplied shall be invested and disposed of in the same manner as the residue of the personal estate is afterwards directed to be invested and disposed of, where the intention is to apply the residue of the personal estate in the purchase of land. The trusts of the term must be terminated by a proviso for the cesser of the term, when all the trusts of it shall have been performed, or become unnecessary or incapable of taking effect. This last proviso, where the sons are to be made tenants in tail, would complete the disposition of the real estate; but if, as is the general case, the sons are to be merely tenants for life, there must be added powers of leasing, of sale, exchange and partition, of jointuring and for raising portions for younger children; and, even if the sons are to be tenants in tail, there should be a power to trustees to lease for [seven] years, during the minority of the person for the time being entitled to the first estate, with the exception of the mansion-house, &c., or such other part of the property as it may be deemed expedient וה CHAP. III. SEC. I. real estate. to except from this power; and sometimes, also, it may be proper to enable the sons, when tenants for life, to raise a gross sum,-say £500 or £1,000,―that they may have the means of forming an establishment without anticipating their future income by granting annuities, &c. With regard to the personal estate, where the testator Debts, &c. when they does not think it amply sufficient to discharge his debts, should be the first trust of the term should be to raise and pay charged on the out of the rents and profits of the real estate, or by mortgage, such sums of monies as the trustees shall deem expedient or necessary for the payment of his debts; and it may be directed that the personal estate shall, as it comes in, be applied, in paying off or reducing the sums borrowed on mortgage of the real estate; and the residue thereof (reserving the books, furniture, &c., if it be intended to keep them for the eldest son,) may be directed to be laid out in the purchase of lands, to be settled to the same uses as the real estate before devised. When the personal estate is known to be amply suf- Disposition of the personal ficient for the payment of debts, such part of it as does estate, when it not consist of furniture, &c., and is not specifically be- is considerable. queathed, may be given to trustees," In trust to pay "the debts and funeral expenses, and any small pecu"niary legacies," and the residue may be directed to be laid out in the purchase of lands, and settled to the same uses as the real estate; but, in order to prevent the wife from having a double annuity, and the younger children from having double portions, it should be declared that the lands to be purchased with the surplus of the personal estate shall be considered only as an additional security for the raising and payment of the jointure annuity and portions, and the trustees should be SEC. I. CHAP. III. authorized, in the mean time, and until a purchase should be found, to invest the money in government or real security, with the usual power to alter and vary the securities. When the personal estate is so inconsiderable that it where it is in- might not be thought worth while to invest the surplus considerable. in the purchase of land, such surplus should be di Disposition of the surplus Power to charge the real rected to accumulate and be, In trust for such of the sons as shall first attain the age of twenty-one, and, if no son should live to attain that age, or there being only one son, if he should die under twenty-one without leaving issue at his death, in trust for the daughters equally, in the same manner as leaseholds for years are limited. Where the testator intends that a part only of the surplus, which may remain, after the payment of debts, &c. shall be laid out in lands, and that the remainder should go to his wife or younger children, he may, in the beginning of his will, direct such a sum to be laid out in the purchase of lands, and connect the limitations of the lands to be purchased with the subsequent limitations of the real estate. Where the personal estate is small, one of the trusts estate, for the of the term should empower the trustees to take up purpose of purchasing conti- money under it, for the purpose of purchasing lands guous lands &c. which may be contiguous to, or very convenient to go with, the family estate. In consequence of the absence of such a power, considerable inconvenience has sometimes been experienced in executing the trusts of a will. If debts are to be provided for out of the real estate, they should be directed to be raised out of the trusts of the term, for then a sum sufficient for the payment of all the debts may be taken up at once, and the personal WHEN THE FEE SHOULD BE VESTED IN TRUSTEES. estate, as it is got in, may then be applied in exonerating the real estate from the money borrowed. 101 CHAP. III. SEC. I. leasehold. If there be leaseholds, either for lives or years, Settlement of which are to be entailed with the family estate, there should be a direction to renew the leases, either out of the rents and profits of the lands therein comprised, or by mortgage thereof, or that money for that purpose should be raised under the trusts of the term in the freehold estate (1). trusts are com It may be observed, in the last place, that where the Fee, and not a trusts of the will are complex, and, especially where part vested in trusterm, should be of the lands are to be sold, it is the most prudent course tees, where the to vest the inheritance in trustees, because the inherit- plex or the real ance sells so much better than a term,-and, for this estate much reason, it is very common to apply to Parliament for an Act, authorizing the trustees to sell the inheritance where a term only has been vested in them. Where an estate is to be given among a numerous family of children, it is wrong to give it as real estate, because if one die, and leave an infant heir, this prevents the others from selling so advantageously as if the property could be sold entire, or a complete title could be made at once. It is also very proper, under certain cir cumstances, for the real estate to be sold, but subject to be treated, nevertheless, either as real or personal estate, at the option of the parties, in any subsequent disposition of it. But, in both cases, the execution of the trust may be postponed to any future period, or any given event, with a direction that the rents shall, in the mean time, and until the sale, be applied in the same manner as the interest of the money would have been if the land were sold. And, as the persons entitled to the absolute interest in the (1) Allan v. Backhouse, 2 Ves. & Bea. 65. incumbered. CHAP. III. SEC. I. Form of will where testator has a small landed estate. money to be produced by the sale may elect to have their shares in land—or, in other words, may elect that the estate shall not be sold,-no prejudice can result to any party if the trustees honestly discharge their duty; for it is a settled point, that where a person is solely entitled to the money to arise from the sale of an estate, he may dispose of it either as real or personal property, and that by deed as well as will, for the act signifies his election which way it shall be considered. Where a testator has a small landed property and wishes to make a provision for his family, consisting of a wife, a son and daughters, the son of age, and the daughters of age or nearly so, he may devise the land to a trustee, to the use of him the trustee for a term of years, remainder to the son in fee. The trusts of the term may be, in the first place, for raising and paying the testator's debts, an annuity to the wife, and the daughters' portions, the portions to vest at twenty-one, or marriage with consent, with a declaration that, as to any, or so many of the daughters as die under twenty-one, the portion or portions of the daughters so dying shall not be raised, with the usual clause that the receipt of the trustee shall be a good discharge, and the proviso for the cesser of the term. |