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tion or portions; the same respectively, to be paid to such child or children at such age, day or time, or ages, days, or times, and, if more than one, in such parts, shares, and proportions, and subject to such conditions, restrictions, and limitations over, such limitations over to be for the benefit of some or one of such children, (other than and except as aforesaid) as my said daughter Margaret shall deem prudent and expedient, and by any deed or deeds, instrument or instruments, in writing, so sealed, delivered, and attested as aforesaid, or by such last will and testament, codicil or codicils thereunto so signed, published, and attested as aforesaid, shall direct; limit, or appoint; but so, nevertheless, that if such children so entitled to have or be provided with portions as aforesaid shall be reduced to three, such three children shall not be entitled to have more than 15,0001. raised for their respective portions; and if such children shall be reduced to two, such two children shall not be entitled to have more than 10,0001, raised for their respective portions; and if such children shall be reduced to one, such one child shall not be entitled to have more than 50001. raised for his or her portion.

Power to create a term of years for raising the said portions.

2 P. Wms. 244, and if a younger son becomes eldest, he is excluded, 2 Vez. 198, Lord Teynham v. Webb. Indeed, in Lady Lincoln's case, one who was a younger son at the death of the testator, and the tenant for life, becoming eldest before 21, till which the portions were subject to survivorship, on the whole will was held not entitled, 10 Vez. jun. 166.

Even an eldest son not provided for may be considered as a younger, of which see a curious instance in Duke v. Doidge, 2 Vez. 203, in the note. And where the descent is according to the custom of Borough English, without doubt, upon the same principle, The eldest son would be a younger to this purpose in equity.

3

A convenient form of a Will containing dispositions

of real and personal Property, the whole to form one Fund, and go as personal Estate (1).

THIS is the last will and testament of ine, Samuel H. of, &c. I give and devise unto A. B., C. D. and E. F., their heirs, and assigns, all my freehold and copyhold messuages, lands, tenements, and hereditaments, whercof I have power to dispose, with their, and every of their, rights, members, and appurtenances, in possession (2), reversion, remainder, or expectancy, to hold the same unto and to the use of them the said, &c. their heirs and assigns, for ever, upon trust, that they, the said (trustees), trustees and their or the survivors or survivor of them, or the heirs or assigns of such survivor (3), do and shall, as soon into money.

Real estate to

heirs to sell and convert the same

(1) Instead of settling freehold estates as land, (a mode which, of the advanwhere there are several persons and their families to be provided for

tage of treating who are equally the objects of the testator's care, is inconvenient, as well all the property from the difficulty in the way of a specific division by metes and bounds, as personal. as from the embarrassment and expence which often arise from creating numerous undivided shares in tail) it is adviseable to vest the lands in truetees, to be sold with the consent of those beneficially interested, to place out the produce of such sale, after discharging debts and legacies, in the funds or on real securities, to pay the interest in certain proportions to the persons who are to have life interests, and after their deaths to pay over the principal in equal shares among the children, with such other provisions as are exemplified in this will; and no sale need be made till the convenience of the parties calls for it, or a proper

occasion offers itself. (2) The word possession always relates in legal construction to the time of the death, not of the execution of the will, unless explained, 5 Vez. jun. 816, Wilde v. Holtzmeyer.

(3) If lands are devised to be sold and no body appointed to sell, it is the province of the executors, and a court of equity will com. pel all proper parties to join in the sale, 1 Atk. 490. The word * dispose' does not of it self import a direction to sell, but to manage the estate, 3 Atk. 287.

as conveniently may be after my death, sell and absolutely dispose of the same, together, or in parcels, by public auction or private contract, as to them or him shall seem expedient, for the best price or prices, in money, that can be reasonably had or obtained for the same respectively, and respectively to convey and surrender the same accordingly. And I will and declare, that the receipt or receipts of the said (trustees), or the survivors or survivor of them, of the heirs or assigns of such survivor, for the money for which the same shall be so respectively sold, shall from time to time be a sufficient dis. charge(4), or sufficient discharges, to the purchaser

Of the clause for (4) This clause ought never to be omitted, for though where it discharging pur- is not inserted the purchasers from the trustees are justified at law in their liability

, in paying their money to the trustees; yet, in equity, they are, in certain

cases, considered as responsible for the application of the money acthe absence of such clause, to cording to the trusts. They have been held liable in most cases where Jook to the ap- there is a specification of the debts to be paid with the produce of the plication of the sale, but not where the trust is to pay debts generally, even though purchase-money. they have notice of the debts; nor are the purchasers bound where

the trust is to pay debts generally, and also legacies, for though these last are specified objects, yet they are coupled with others which are unascertained, and they shall not involve the purchaser in the account of the debts: neither is the purchaser bound to see to the ap. plication of the purchase money, where the debts are charged generally upon the estate, though the contrary seems formerly to have been held, 6 Vez. jun. 654, n. But where lands are charged with the payment of annuities, they are liable in the hands of purchasers; for the object of making the lands a fund for the payment in this case was, that there should be a constant and subsisting fund, Barnard 82, 5 Vez. jun. 130, Wynn v. Williams. These appear to be the most

important distinctions. Where trustees

A few further remarks on these trusts for sale may not be for sale are also without use to the student. He will observe that the power of sale is made executors; generally given to the same persons as are named executors; and and of thestatute where that is the case and the subject is leasehold, there is no doubt 31 Hen. 8. c. 4. but that any one, or any part of the executors, may alien the legal

estate without the concurrence of the rest of the number; and this not by reason of their interest as trustees, because as such they are merely joint-tenants, and can only sever the jointure and alien their respective undivided shares, but by reason of their office of executors; for the particular power might in such case be said to flow into and

or purchasers of the said several premises hereinbefore made saleable by this my will, or any part or

j koncept

be lost in their authority as executors, or perhaps more properly to give place and precedence to that general power which executors possess, ratione officii, over all chattels.

Where the subject of the power was freehold some regard was also had at common law to their office of executor, and to some purposes, even the power of disposing of freehold seems to have been considered as vesting in them ratione officü; and for this reason, it seems that if a power to sell lands were given to two executors, and one died, this power was by the better opinion held to survive, and to be transmissible to the executors of the survivor. Whether part of the executors could sell the whole of such property without the rest was a doubt at common law, as appears by some of the books, but particularly from the recital of the statute 21 H. 8, C. 4, which was made to put an end to these doubts.

That statute, reciting that, according to the opinion of divers persons, where a tes. tator had devised his lands to be sold by his executors, a bargain and sale would in no wise be effectual unless made by the whole number of the executors, for remedy thereof enacts “that all bargains and sales by those who accept the charge without the rest, shall be as a good and efectual in law as I the rest had joined.”

This statute the charges

he has always been construed largely and liberally as a very beneficial law; and thus though it expressly provides only for cases where the rest llen lands are willed to be sold by the executors, yet the settled construc conney . tion has extended to cases where the will devises the lands to exe. cutors to be sold. Thus Lord Coke, in commenting on the 169th section of Littleton, P. 113, b. makes the following observations on this statute: “ In Littleton's case admit that one executor had refused to sell, then as the law stood when Littleton wrote, it was clear that the others could not sell, but now by the statute it is propart of them refuse, yet the rest may sell; and álbeit the letter of the law extendeth only to where executors have a power to sell, yet, being a beneficial law, it is by construction extended to where lands áre devised to executors to be sold.” And the construction has been still further enlarged, for it has been held that where lands are devised to trustees to be sold, and the same persons to whom the lands are so devised, are in another part of the will made executors, the statute will extend to this case. Thus, in Bonifaut v. Sir Richard Greenfield, Cro. El. 80, the case was this: “ a testator seised of the manor of D. devised the same to I. S. and three others, and their heirs, to the intent that the trustees should sell it for the best profit, and apply the money as therein mentioned. And in the conclusion of the will he made the same four persons bis executors, and died. Dne of the four refused to meddle with the will or sale, and the other

vided that where lands are willed to be sold"by executoro, tihorny 24 miekline

parts thereof, for his, her, or their purchase money, or so much thereof as shall be therein acknowledged

three sold the land in the life-time of the fourth, and whether the sale was good was the question. The case was argued by Popham and Egerton, and it was adjudged that the sale was good by the three executois, either by the common law, or by the statute 21 H. 8, c. 4.; for when he devises the land to four to sell, and afterwards makes them his executors, this doth tantamount as if at the first he had devised that such his executors should sel!; and in such a case at the common law the sale by three, the fourth refusing, was good; for these three may perform the will without the fourth, but the statute makes it clear. :)

It is proper however to add, that though such a sale by one or some of the trustces and executors, the rest refusing, should seem to be good and valid to carry the whole legal estate and interest, yet where the receipts of the trustees are, by the deed, made discharges to the purchaser, there may be doubts whether he would be safe in paying his purchase money without a receipt and acknowledgment in

which all are joined. Of the conver

It is a general rule, that where property is devised to be sold by sion of real into the trustees for particular purposes, as for payment of debts and legapersonal estate, cies, nothing more is subject than those purposes require, and the in equity, when personal estate must first be applied. There is in these cases, therepartial and

fore, always a resulting trust of the residue, after the purposes are when total.

answered: the real results to the real, and the personal to the personal representative ; and if the personal is sufficient to answer all the purposes, the whole real estate results and descends to the heir, or goes to the residuary devisee. And by the way it may be here noticed, that this residue is not like the residue that arises by lapse, in respect to which there is a difference between real and personal estate, as has before been noticed in page 381 of this treatise.

But sometimes by the effect of the dispositions of the will, as where there are ulterior general purposes to be answered by the sale, which require the estate to be converted, as is the case in the will to which this note is attached, the real estate by the direction to sell is made personal estate out and out, as it is usually expressed And then there is no resultancy for the heir at law, but the character of personalty is impressed upon it to all intents and purposes; and if there is a residue it goes with the residuary bequest, or if there is no disposition of the residue, the mere appointment of an executor is sufficient to carry it to him, either for his own benefit, or as trustee for the next of kin; which question, between the executor and next of kin, is discussed in a subsequent chapter under its proper title; see 2 Bro. C.C. 589, and I Vez. jun. 44, Robinson v. Taylor, and see 11 Vez. jun. 87, Berry v. Usher. The truth is, when the fetate is only devised to be sold to pay debts and legacies, it is con

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