WILLS. Strict Limitations. (Full Form.) be of the age of seventeen years or upwards (1), for the purpose of carrying the trusts and directions thereof into execution, but not for taking any beneficial interest in any residuary property which I may die possessed of, otherwise than as is hereinbefore expressly declared (2). AND I hereby give and bequeath to each of them the Appointment of executors not necessary in will of land. Residuary property, at law, belongs to executor. Legal and equitable assets. (1) In a will of lands only, it is not essential that executors should be appointed, nor is any probate of such will in the ecclesiastical court requisite; Doe dem. Ash v. Calvert, 2 Campb. 389; the jurisdiction of that court extending to personalty and chattels only; but where they are appointed, they should be of the age of seventeen years at least, as until that age they are inca pable of acting. (2) As an executor is at law entitled to the residue of a testator's personal effects after payment of debts and legacies, Urquhart v. King, 9 Ves. 229, and this right is not rebutted in equity without some "strong and violent presumption" of a contrary intention of the testator; see Newstead v. Johnson, 2 Atk. 45; Pratt v. Sladow, 14 Ves. 193; this inference of law should, if so intended, be prevented by expressly giving the residue aliunde, or by declaring that the executors shall stand possessed of the residue in trust for the next of kin, or as above in the text; but where executors are also trustees, it is said they are not entitled to the residue; Read v. Snell, 2 Atk. 643, sed quære; and see Batteley v. Windle, 2 Brow. Ch. Ca. 31; and the distinction taken, Pratt v. Seadden, 14 Ves. 193. And if devisees in trust for payment of debts are made executors, the subject of the devise becomes legal assets, (¿. c. distributable, by the rules of law, according to priority); but if they be not executors, the devise is equitable assets (i. e. distributable pari passu); Hixon v. Witham, 1 Ch. Ca. 248; Anon. 2 Vern. 406; Edwards v. Graves, Hob. 265; Girling v. Lee, 1 Vern. 63; a distinction which should therefore be attended to in framing a will, where the circumstances of the devisor require it. said (trustees) the sum of £ for their WILLS. , trouble in the execution of this my will (1). [AND I do hereby revoke (2) all and every other (1) As executors are not entitled to any allowance for their trouble in executing the will, Webb v. Shaftsbury, 7 Ves. 481, it is reasonable that some bequest should be made them. And where such legacy be given to him, and it is not intended that he should have the residue of the testator's estate (which by law will belong to him, see above, n. (2), it should be expressly mentioned to be given him for his care and trouble in the execution of the will, which will in equity control the rule of law, and make him a trustee of the residue for the next of kin of the testator; see Rackfield v. Careless, 2 P. Wms. 158; White v. Evans, 4 Ves. 21; for if it be given generally without being expressed to be for his care, &c. it will not exclude him without other circumstances; Langham v. Sanford, 17 Ves. 435.443. And it may here be noticed that legacies given to executors for care and trouble are not payable if they decline to act; Freman v. Fairlee, 3 Mer. 31. Strict Limitations. (Full Form.) (2) By the stat. 29 Car. II. c. 3, s. 6, it is enacted that no de- Revocation of wills. vise in writing of lands, tenements, or hereditaments, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing revoking the same, signed in the presence of three or four witnesses. But a will being in its nature imperfect, and ambulatory as it were, until the decease of the testator, it is always revocable at the pleasure of the devisor, provided the ceremonies required by the statute are pursued; see Hatcher v. Curtis, 2 Freem. 61; D. Marlborough v. Lord Godolphin, 2 Ves. 61. 610; Reid v. Shergold, 10 Ves. jun. 370; except only, it has been said, where the devise is made as a security for a debt or other bonâ fide obligation; sed quære. And the making of a latter will, is of itself a revocation of a prior will, this express revocation, usually inserted, of all former wills, is therefore unnecessary. And a will made in the execution of a power will be revocable without the reservation of a power for that purpose, which, therefore, is not requisite where such execution is by will. As to appointing a guardian of children ; see post, p. 808. Guardian. WILLS. Strict Limitations. Witness. will and wills, and codicil and codicils by me at any time heretofore made, and declare this to be (Full Form) my last and only subsisting will and testament. IN WITNESS whereof, I have to each sheet {or skin} of this my will, contained in sheets of paper {or skins of parchment,} subscribed my name, and to this last sheet {or skin} my seal also, this day of in the year of our Attestation. Lord SIGNED, sealed, published, and declared by the said (testator) as and for his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have hereunto set our names as witnesses (1). A. B. C. D.three witnesses. Execution, &c. (1) With respect to the form of the execution and attestation of a will, see INTRODUCTION, ante, (after p. 696.) Other bequests, &c. **See various other devises, bequests, &c. post, p. 767, et seq. and INDEX, voc. DEVISE, BEQUEST, LEGACIES. WILLS. Strict Limitations. (A.) Opinions of Counsel on the Surrender of an Estate for (Full Form.) Life to a Reversioner, in order to enable him as in Possession, to jointure a Wife. A. B. by his will devised his estate (subject to a sum of money charged thereon for the benefit of his wife) to trustees and their heirs. To the use of his said wife and her assigns for life, and after her decease to the use of his eldest son his assigns, for his life, sans waste; remainder. and To trustees to preserve contingent estates; remainder. To the first and other sons of his said son tail male, with remainder over in like manner to other sons of the testator, and their first and other sons. in And in the said will was contained the following proviso: "PROVIDED ALWAYS, and I do hereby declare my will to be, that it shall and may be lawful to and for my said sons, &c. when and as they shall respectively be in the actual possession of the said manors, &c. by virtue of the limitations aforesaid, by any deed or deeds, writings or writing under their respective hands and seals, to limit or appoint to or to the use of any woman or women that shall be their respective wife or wives, for the life or lives of such woman or women, for her or their respective jointure or jointures, such part or parts of my said lands, &c. in the county of , as they shall think fit, so as such parts so limited do not exceed the yearly sum of £100 for each and every £1000 such woman shall bring as her fortune, to my said sons, or be bonâ fide worth in money or lands, and so as such jointure do not exceed the yearly sum of £ The testator's eldest son being about to make a settlement on his intended marriage, and desirous of limiting a jointure in pursuance of the said proviso, his mother, in order to enable him so to do, has agreed to surrender her WILLS. life estate in the devised lands, and as she is entitled to the sum of £ charged on the whole of the testator's estate she further agrees wholly to exonerate that part of (Full Form.) the estate which she so surrenders from that sum. Strict Limitations. Quære. Whether this mode will effectually answer the purpose intended, and completely enable the eldest son, to execute his power of jointuring on his intended marriage; and if not, what other mode can be adopted for the security of his lady? Opinion of MR. SIDEBOTTOM. Powers of jointuring and charging are, I apprehend, of the nature of springing or executory uses, to take effect upon particular events or at particular periods, and cannot be executed before the events happen or the periods arrive. In the present case the powers in question arise from (the son) being actually in possession by virtue of the antecedent limitations, which I conceive to mean after the determination of his mother's estate for life. It is too much for me to maintain that these words will be satisfied by a conveyance of his mother's life estate merely for the purpose of enabling him to make a jointure, and work a possible prejudice to those in remainder. May it not rather be said that during his mother's life he is in the actual possession under and by virtue of her conveyance, (though, indeed, there would be a merger of the life estate) or were she disposed to convey to a second or third son could that son be said to be in the actual possession under the limitations in the will during the life of an elder brother, so as to make the limitation of a jointure by such second or third son valid if his elder brother should afterwards die without issue. There cannot, however, I think, be any objection to the plan proposed upon the principle of valent quantum valere potest, unless it should be said that a defective exe |