WILLS. Strict Limitations. (Full Form.) Receipts of and appoint. AND I do hereby declare that the receipt and receipts of them the said (trustees) or of the survivors or survivor of them, or of the heirs, executors, or administrators of such survivor, or their or his assigns or of the other trus- trustees to be tees or trustee, or the only acting trustees or good discharge. trustee of or concerning the said premises for the time being, shall be a good and sufficient discharge for the purchase-money thereof; and that no such purchaser or purchasers, his, her, or their heirs, executors, administrators, or assigns, shall after payment of the same to such trustees or trustee, be in any manner answerable for, or liable to see to the application thereof or any part thereof (1). AND I do hereby further will and direct that the monies to arise from such sale, and also (1) Where freehold lands are directed by the testator to be sold and the money applied in payment of specified debts, or to supply a deficiency in his personal estate bequeathed for that purpose, or for payment of legacies (except where general and not specific debts are also to be paid thereout), it is material that a declaration should be inserted that the purchasers shall not be bound to see to the application of the consideration money, as they will otherwise in equity be considered as trustees for such creditors, and personally answerable for the debts; see Wynn v. Williams, 5 Ves. jun. 130. But where the property consists of leaseholds or other chattel or personal estates, and the trustees for sale are also executors, this is not absolutely requisite, as this species of property vests in the executors by the rules of law in the first instance, notwithstanding a specific bequest of it to others; see Ewer v. Corbett, 2 P. Wms. 149; Whale v. Booth, cited 4 Durnf. and E. 625; they may, therefore, alone make a valid sale and title to a purchaser; and see ante, Class VII. No. II. p. 363, n. (2), p. 375, n. (1). The purchase. applied in money to be making good deficiency of personal estate. Purchaser not to see to application of purchase-money. WILLS. Strict Limitations. (Full Form.) in or by the fall of timber in the meantime, (and which my said trustees are hereby directed to make, or cause to be made as and when they shall think fit (1), shall in the first place be applied in making good the deficiency (2), if any, which there may be in my personal estate for the payment of funeral expenses, the probate of this my will, my just debts, such of my said debts as are by simple contract only being first paid and satisfied (3), and the several legacies hereby bequeathed, or which shall be bequeathed by any codicil Timber. Personalty first subject to debts. Simple contract debts to be first paid. (1) A direction to trustees to cut trees in aid of the testator's real and personal estate is not a trust, but merely a power, Gower v. Eyre, Cooper, 156. (2) The personal estate of the testator is the natural fund for payment of debts; and nothing will exonerate from it being first liable but an express declaration or manifest intent to the contrary, and therefore a charge of the debts on the realty, a direction to sell, or the creation of a term for the payment of them has been held not sufficient; Tower v. Lord Rous, 18 Ves. 132; and see Tait v. Lord Northwick, 4 Ves. jun. 816; Howe v. Earl of Dartmouth, 7 ib. 149; Milnes v. Slater, 8 ib. 305; v. Brickwood, 9 ib. 447; if, therefore, he mean to exonerate such estate, he must expressly declare such to be his intention. (3) A direction in a will to pay simple contract creditors before specialty ones, which may sometimes suit the nature and disposition of the testator's property, is within the exception in the statute of fraudulent devises, Millar v. Horton, Cooper, 45; and therefore valid. And so executors may pay a bond debt in preference to a debt on judgment not docketed, Rickey v. Hayton, 1 Cop. 313; 6 Durnf. and E. 304, S. C. and Steele v. Steele, 1 Bos. and Pul. 307; which are rules of law to be made known to the testator for his guidance in the making of his will. or codicils hereto, and that the residue thereof, or the whole thereof, in case there shall be no such deficiency in my said personal estate, be invested in the purchase of three per cent. consolidated bank annuities, in the names of them the said (trustees), or other trustees or trustee last aforesaid, upon and for such trusts, intents, and purposes, as are hereinafter declared concerning the sum of £ three per cent. consolidated bank annuities, hereinafter bequeathed to them. AND I do hereby further will and direct that the estates hereby directed to be sold as aforesaid, and the rents and profits thereof, shall, until sale thereof, be taken and considered as part of my personal estate (1), and be applicable and applied in such manner, and for such intents and purposes as the dividends or interest of the money to arise from such sale, would be payable or applicable under this my will, in case such sale had actually taken place, and the purchase-money been paid. WILLS. Strict Limitations. (Full Form.) Until sale the sidered as personalty. sum to be con Direction for sale a conversion of the pro (1) Where the trust for sale is merely to answer the deficiency of the personal estate, such a trust will not be an absolute conversion of the land, but only pro tanto, i. e. to the ex-perty. tent the deficiency may require; Berry v. Usher, 11 Ves. jun. 87; for per Lord Eldon, it is a clear rule in equity, that when real estate is directed to be converted into personalty for a purpose which fails either wholly or partially, the money will, notwithstanding the conversion, be considered realty, to the extent for which the purpose fails; Hill v. Cock, 1 Ves. and Beam. 174; but where land is directed by will to be sold generally, and without regard to a partial or particular object, it is considered as personalty; Trejowell v. Sydenham, 3 Dow. 207: hence, if the intent of the testator be otherwise, he should expressly declare it to be so. WILLS. Strict Limitations. (Full Form.) Bequest of Bank annuities to trustees. such persons, Bequest of Bank Annuities to Trustees in Trust for a Daughter. I GIVE and bequeath unto them the said (trustees) their executors, administrators, and assigns, the sum of £ three per cent. bank consolidated annuities, if there shall be that sum standing in my name at the time of my decease, and if not, then I give and bequeath unto them my said last named trustees, such sum of money out of my personal estate, as will be sufficient, according to the then current price of stocks, to purchase the same, upon, and for the trusts, intents, and purposes, and with, and subject to the powers and provisos hereinafter mentioned or expressed of or Upon trust for concerning the same, that is to say, UPON TRUST that they the said (trustees) and the survivors and survivor of them, and the executors and administrators of the survivor, and their and his assigns, do and shall pay, apply, and dispose of the interest, dividends, and annual proceeds of the said sum of £ three per cent. consolidated bank annuities, from time to time, as and when the same shall be received from and after my decease, unto or for such person or persons, upon such trusts, and to and for such ends, intents, and purposes, and in such manner and form as my daughter being then of the age of twenty-one years, shall or may by any deed or writing, under her hand and seal, to be by her &c. as testator's daughter shall ppoint. WILLS. Strict Limitations. (Full Form.) appointment to executed in the presence of, and attested by two or more credible witnesses, whether she be covert or sole, and notwithstanding any her then coverture, direct or appoint; and in default of, and until any such direction or appointment, do and In default of shall pay the same, or so much thereof, of which her for life. none such shall be so made, into the proper hands of her my said daughter, for her sole and only use, benefit, and disposal, during the term of her natural life, so, and in such manner, as that the same, or any part thereof, shall not be subject or liable to the control or interference or the debts or engagements of any person to whom she may happen to be then married, but so and in such manner also, that she my said daughter shall or may not sell, or dispose of, or otherwise receive by anticipation, such dividends, interest, or proceeds, or any part thereof, but only from time to time as and when the same shall arise, and be paid or payable from or out of the stocks, funds, or securities upon which the said monies shall for the time being be invested. AND I do accord- Whose receipt ingly declare, that the receipt of her my said good discharge. daughter shall, from time to time, notwithstanding any such her coverture, or any assignment or disposition by her made of the said dividends, interest, or proceeds, or any part thereof, and of her only, be a good and effectual discharge for the same. PROVIDED ALWAYS that Maintenance, in case my said daughter shall at the time of my minority. decease be under the age of twenty-one years alone shall be a &c. during her |