Imatges de pàgina
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SETTLE
MENTS.

Separation.

acts, matters, and thing, in any wise relating thereto, as she the said (wife) or as he the said (trustee) his executors or administrators, or any of them, or as her, his, their, or either of their counsel in the law shall reasonably advise and require, [so that for the doing thereof he the said (husband) shall not be required to go from his then place of abode.] IN WITNESS," &c.

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remarks.

Ir would be a fruitless attempt to offer the proper form of General every mode of disposition of the various species of devisable property, a great variety is, however, given in the subsequent pages, and the following observations (1) will serve to show, in many of the most common cases, which form will best answer the purpose intended.

Let us suppose a person entitled to real and personal estates, and having a wife, sons, and daughters, and that it is his intention to secure to his wife an annuity for life, and to devise

his real estate to his eldest son, charged with portions for his

younger sons and daughters. In this case the will may be made

in the following manner:

Devise of real and personal estates, providing an annuity to wife and eldest son

in tail, and portions for children.

estates.

Let him devise the real estate to trustees, to the use, intent, As to the real 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 two thousand years, to commence from his death, upon trusts after-mentioned; remainder to the use of his first and other sons successively in tail; re

(1) See ante, Vol. I. p. 426, n. (†).

WILLS.

General Remarks.

mainder to his daughters as tenants in common in tail; with cross remainders over; 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 proportional part to her executors, and to raise portions for younger children, viz. if only one child, such a sum-if two, such a sum; or the trust may be to raise a specific sum, suppose £3000, for each younger child.—The portions of sons to vest at twenty-one, and of daughters at that age or marriage with the consent of the wife if living, and the testator's widow, or if dead or married again, with the consent of the trustees.—The trustees must be empowered out of the rents of the premises comprised in the term to raise maintenance, which should be left to their discretion, but should be restricted to not more than two per cent. till the age of twelve, and three per cent. till the age of fifteen, and four per cent. till the age of twenty-one or marriage; such maintenance to be paid to the wife during her widowhood to be applied by her, but she not to be obliged to keep any account; there must be the usual proviso of survivorship amongst the children, but with this distinction, that if any of the younger sons become an eldest or only son his portion to go to the rest, otherwise on attaining twenty-one he would become entitled to a money portion as well as the estate; and all the younger children but one may die under twenty-one, in which case the surviving child, by having all the portions accumulate upon him or her, might have a provision equal to the eldest son. Where the estate is not large, it should be provided that no one child should by accruer have more than such a sum. There must be a proviso that the trustees shall suffer the residue of the rents and profits comprised in the term, which shall not be applied for the purposes before-mentioned, to be received by the person entitled immediately expectant on the term, but if that surplus be more

than is wanted for the maintenance of the eldest son, a trust may be inserted that the trustees shall under the two thousand years term raise such sums as they shall think proper 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 or disposed of. Then must follow the usual proviso for ceasing the term when all the trusts are satisfied. This completes the disposition of the real estate.

WILLS.

General

Remarks.

sonal estate.

With regard to the personal estate, if it should not be deemed As to the perby the testator to be amply sufficient for the payment of the debts, the first trust of the two thousand years term should be to raise and pay out of the real estate such sums of money as the trustees shall judge necessary or expedient for payment of the debts; or to borrow money for that purpose; and the personal estate may be directed to be applied as it comes in, either to pay off any interest then undischarged, or in paying off, or reducing the sums borrowed on mortgage, and the residue of the personal estate may be directed to be laid out in lands and settled as after-mentioned. But if the personal estate is known to be amply sufficient for payment of debts, such part of it as does not consist of furniture, or the like, and is not bequeathed to the wife or children, may be given to trustees, in trust thereout to pay the debts and funeral expenses, and any small pecuniary legacies. And the residue of the personal estate may be directed to be laid out in the purchase of lands, and settled to such uses as 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 shall be considered only as an additional security for raising and paying off the jointure annuity and por

WILLS.

General Remarks.

Debts charged on real estate.

tions. The trustees should be authorised in the meantime and until a purchaser shall be found to invest the money upon government securities, or place it out upon mortgage. If, however, the surplus of the personal estate should be so inconsiderable as not to be thought worth the expense of investing it in land, such surplus may be directed to accumulate, and to be in trust for such of the sons as shall first attain twenty-one; or in trust for the daughters equally.

If the testator intend that only a part of the surplus of his personal estate remaining after payment of debts shall be laid out in lands, and that remainder shall go to his wife or younger children, he may in the beginning of his will direct such a sum to be laid out; and connect the limitations of the land to be purchased with the limitations of the real estate.

In cases where the personal estate is but small, there should be a power under the trusts of the two thousand years term to take up money for the purchasing of any lands which may be contiguous to or very convenient to go with the family estate. If debts are to be provided for out of the real estate, they also

may be directed to be raised under the trusts of the two thousand years term, which is better than directing such a sum to be raised as the personal estate may be deficient to pay, as in that case a sum sufficient for the payment of all debts may be taken up at once, and the creditors satisfied, and the personal estate, which may not be wholly got in for some time, may be applied in exonerating the real estate from the money borrowed.

It has been doubted, whether in a case where the real estate was subjected to the payment of debts in aid of the personal estate, any money could be raised till the whole of the latter had been got in and applied; but the better opinion seems to be that the real estate may be mortgaged before the per

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