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or expressed to have been received; and that such purchaser or purchasers, his or their heirs, executors, administrators, or assigns, or any of them, shall not afterwards be answerable or accountable for any loss, misapplication, or misapplications of such purchase money so received, or any part or parts thereof. And that the monies my will further is, that the monies which shall arise arising by the
sale shall be per by or from such sale or sales as aforesaid, shall be sonal estate, and, deemed to be part of my personal estate; and that rent shall be conthe clear yearly rents and profits of the said heredi- sidered as the intaments and premises, in the mean time, until the come of the pero same shall be sold, or of so much thereof as shall be that the said
monies, rents remaining unsold, shall be deemed to be part of the and annual income of my personal estate; and that the be subject to the same monięs, and rents and profits, shall be subject mentioned reto the dispositions hereinafter made concerning my garding the pers personal estate, and the annual income thereof, re- of the testator. spectively. And as touching my personal estate remaining after payment of my debts, funeral and
sidered as in the nature of a charge only, 3 Vez. jun. 210, Halde. mand v. Hudson.
A trustee for sale, as long as he retains that character, is riever of the rule in permitted to purchase for his own benefit. And though in a respect to trusparticular case there may be the most satisfactory evidence that tees becorning the transaction amounts to no more than what the general interests of purchasers. justice, and of the parties, would warrant; yet, as the
powers of the court would not be equal to protect it against deception, from the impossibility of knowing the truth in every case, the rule of exclusion must of necessity be universal. The ground of the rule is, that the situation of the trustee gives him the opportunity of knowing the value of the estate be is to buy, better than the cestui que trust, and therefore they do not deal on equal terms; besides which, he is by his trust bound to apply his knowledge for the benefit of his cestui que trust; and therefore he cannot be permitted to make a bargain adversely with the party whose interest he is in conscience obliged to promote. But the trustee may shake off the character of a trustee by a previous agreement with his cestui que trust, if of age and capable of discharging him, (though it may be difficult to determine when that has been done effectually) and put himself in circumstances in which he will no longer be the person intrusted to sell, and then, it seems, he will be permitted to purchase; see the cases ex parte Bennett, 10 Vez. jun. 381, and Sanderson v. Walker, 13 Vez. jun. 601.
And as to his
testamentary charges, and the legacies hereinafter personal estate remaining after bequeathed, I give the same to the said trustees, payment of debts their executors, administrators, and assigns, upon the funeral and tes- trusts, and for the intents and purposes, and under camentary and subject to the powers, provisoes, declarations, charges. To the trustees and agreements, hereinafter expressed and declared upon trust to
of and concerning the same, that is to say, upon invest the same in the public trust that they, the said (trustees), or the survivors funds.
or survivor of them, or the executors or administrators of such survivor, do and shall place out and invest the same in or upon any of the parliamentary stocks or funds of Great Britain, or on real securities in England, at interest, and do and shall vary, alter,
or transpose (5) such stocks, funds, or securities co vary the
for others of the like nature, when and so often as it securities. To pay the die shall seem expedient; and do and shall pay the invidends to the terest and dividends of the said stocks, funds and testator's daughter for life, for securities, unto such person or persons only, and for her separate use. such intents and purposes only, as my daughter,
E. H. by any writing or writings under her hand, from time to time, shall direct or appoint, notwithstanding any coverture she may be under; and in default of such direction or appointment, and in the mean time until she shall make any such direction or appointment, do and shall pay the same, or so much whereof she shall or may from time to time happen to make no such appointment, into the proper hands of my said daughter, exclusively(6) of
Of the propriety (5) If a trustee of stock takes upon him to transfer at all with. of giving the out such a power, he is guilty of a breach of trust, and the cestui power of varying que trust is entitled in equity to his election, either to have the indithe securities.
vidual stock restored to him, or to have the money it produced ; 2 Atk. 121, Harrison v. Harrison, 2 Bro. C. C. 653, Bostock o. Blakeney, i Vez. jun. 297, Powlet v. Herbert, 4 Vez. jun. 497,
Long v. Stewart, 5 Vez. jun. 800, (n). Where no
(6) Where no trustee happens to be appointed for the wife to trustec ap
whose separate use property is devised, the husband becomes a true. pointed. tee for the wife; 2 P. Wms. 316.
any husband she may happen to marry, who is not to intermeddle therewith, nor is the same or any part thereof to be subject or liable to such husband's controul, debts, or engagements. And I will and declare, that the receipts of my said daughter, or of such person or persons as she shall or may, from time to time, direct or appoint to receive such dividends or interest, shall, notwithstanding any such coverture, be good and effectual releases and discharges for the same, or so much thereof as in such receipts shall be expressed to be received; and from And after the and immediately after the decease of my said daugh- daughter's der ter, upon trust, that they, the said trustees or trustee the principal to for the time being, do and shall pay or transfer all children in equal such principal monies, stocks, funds, and securities, shares. unto all and every the child or children of the body of my said da:ighter, lawfully to be begotten, equally to be divided between or among them, share and share alike, if there shall be more than one; and if there shall be but one such child, the whole to be paid or transferred to such one child; the share or shares of such of them as shall be a daughter or shares to become daughters to become vested in her or them respec- vested at 21, of
marriage. tively, on her or their attaining her or their age or respective ages of 21 years, or on t'e day or respective days of her or their marriage, which shall first happen; and the share or shares of such of them as shall be a son or sons to become vested in him or them respectively, on his or their attaining his or their age or respective ages of 21 years, and to be paid or transferred at such age or ages, time or times as aforesaid, to such of the said daughters or sons as shall arrive at or attain the same after the decease of my said daughter, but as to such of them as shall arrive at or attain such age or ages, time or times, as aforesaid in the life-time of my said daughter, the payment or transfer of his, her, or their share or shares to be postponed till after her decease: pro- With accruer by vided and I do hereby declare my will to be, that if survivorship. any such child or children, being a son or sons,
shall depart this life before he or they shall attain his or their respective ages of 21 years, or being a daughter or daughters, shall happen to die before she or they shall attain her or their age or respective ages of 21 years, or be married, then the share or shares of him, her, or them so dying, shall
dying, shall go and accrue to the survivors or survivor, or others or other, of such children, and be equally divided amongst them, if more than one, share and share alike; and the same shall be come vested and payable, or transferible, at such ages, days, and times as his, her, and their original portion and portions are hereby directed to become vested and payable, or transferible, as aforesaid ; and in case of the death of any other of the said children of my said daughter before such accruing or surviving share or shares shall become vested as aforesaid, then every such accruing or surviving part or share shall again be subject and liable to such right, chance, contingency, or condition of accruer to and amongst the survivors or survivor (7), and others or other of the said children,
as herein before is provided, touching the said Provision for original portion or portions; and upon further
trust, that the said trustees or trustee for the time being, do and shall, after the decease of my said daughter, pay and apply the dividends er interest of the share or shares of such of the said children as shall not have acquired a vested interest in the portion or portions hereinbefore provided or intended for him, her, or them, respectively, for and towards his, her, or
their maintenance and education, respectively, until In case of there the same respectively shall become payable. Provided take the benefit that if there shall be no child of the body of my said of the before.... daughter, lawfully begotten, or there being one or
Of the clause
(7). A. gives 10001 among four persons as tenants in common, making the ac- and directs that if one of them dies, before 21 or marriage, it shall cruing shares survive to the other; if one dies, and three are living, the share of subject to
that one so dying will survive to the other three; but if a second survivorship.
dies, nothing will survive but his original share, for the accruing share is a new legacy, 3 Atk. 80, 2 Ch. Rep. 131, 1 P. Wms. 275, Ca. temp. Talb. 124, 1 Bro, C. C. 575.' The will therefore must specially provide for this.
decease to raise
more such child or children, and such, of them as then to pay the shall be a son or sons shall happen to die before he testator's mother or they shall attain the age of 21 years, and such of them as shail be a daughter or daughters shall happen to die before she or they shall attain her or their age or respective ages of 21 years, or be married, then, aad in such case it is my will, that they the said trustees or trustee for the time being shall pay or impower to receive the dividends or interests thereof during her life, and from and immediately after her decease, do, and shall raise the And after her sum of -1. of lawful money of Great Britain, and pay the sum of the same to my nephew D., his executors, or adıninis- for – and to trators, and do, and shall pay or transfer one third part plus among -of the surplus thereof to
her executors, or and administrators, one other third part to her executors, or administrators, and the remaining third part thereof to - --, her executors, or administrators; provided that in case my said daughter Proviso, in casę shall be in her minority and unmarried at the time of
of the daughter's
being a minor my decease, the said trustees or trustee for the time at testator's being shall apply the dividends or interest of such death, for applyprincipal monies, stocks, funds, or securities as afore- for her maintesaid, for or towards her maintenance and education, lier coring of until she shall attain her age of 21, or shall be age. married ; provided further, that it shall be lawful for my said trustees or trustee for the time being, in case my said daughter shall marry, (so as such marriage, if she shall be under the age of 21 years, shall be had with the consent (8) of her guardians or
(8) Conditions in restraint of marriage are considered with some jealousy by the Courts, and therefore a strict performance has sometimes been dispensed with: as where orly the major part of the guardians have consented, I Atk. 375. where the consent has been conditional, 2 Atk. 264. 2 Vez. 535, where only a tacit or implied consent has been given, 2 Vern. 580. And where the condition has been general, it has been construed with a limitation to the period of minority, 2 P. Wms. 547. Where the consent has been once given, a second marriage has been held good without consent, 3 Bro. C.C. 128. And even where che party has married once between the will and testator's death, the restriction has been adjudged not applicable to a second marriage, 3 Vez. Jun. 227.