of such issue to

ter, in like man

ner.

daughters, and

issue of both

die without issue, or she shall have but one daughter, to the use of such one or only daughter in tail: and for default of such issue, to the use of all and And in default every the daughters and daughter of my said daugh- the daughters of ter L. if more than one, as tenants in common in the eldest daugh tail, with cross remainders in tail, between or among them; and if all her daughters but one shall die without issue, or she shall have but one daughter, to the use of such one or only daughter in tail; and from and after the decease of both of my said And after the daughters, and such failure of issue of both their decease of both bodies as aforesaid, then as to the entirety of the failure of such same hereditaments, to the use of my own right last-mentioned heirs. Provided always, and I do hereby declare my their bodies, to will and mind to be, that in the settlement so to be the use of testator's own right made as aforesaid shall be contained a proviso, that heirs. all and every the person and persons who, by virtue Clause binding of the limitations to be therein contained, or of this descendants and proviso, shall become entitled to the possession, or possessors of his to the rents, issues, and profits of the manors and other hereditaments in such settlement to be comprized, and who shall not then be called by the name or use the arms of H. except as hereinafter excepted or otherwise provided, do and shall within the space of one year next after they respectively shall become entitled to the possession, or to the rents and profits thereof: and also that all and every the person or persons, whom the said L. or any issue female of my said sons or daughters, respectively

the testator's

property to take

the name and use the arms of his family".

* It seems pretty well settled that this is not a condition precedent to the vesting, and therefore a tenant in tail may suffer a recovery without troubling himself to take the name, if he objects to it. Upon this question being put to the late Mr. Fearne however, though he thought it not absolutely necessary, yet he said he would advise it to be done on the party's coming of age, before suffering the recovery, and the recovery to be suffered in the name directed to be assumed, to prevent all question on the point. See the case of Gulliver v. Ashby, 4 Burr. 1929, 1 Blackst. 607.

shall marry, shall and do, if the said L. or such other issue female respectively as aforesaid, shall at the time of such her or their marriage or respective marriages be so entitled as aforesaid, then within one year next after the solemnization of the said marriage or marriages respectively; and if the said L. or such other issue female respectively as aforesaid, shall not be entitled at the time of such her or their marriage or respective marriages, but shall afterwards, during her or their marriage or respective marriages, become so entitled as aforesaid, then within the space of one year next after she or they shall severally become entitled as aforesaid, take upon himself, herself, and themselves, and use in all deeds and writings whereto or wherein he, she, or they shall be a party or parties, and upon all other occasions, the surname of H. only, and no other surname and also shall and do quarter the arms of H. with his, her, or their own family arms; and shall and do, within the space of one year, apply for and endeavour to obtain an Act of Parliament, or proper Licence from the Crown, or take such other means as may be requisite and proper to enable and authorize him, her, or them respectively to take, use, and bear the surname and arms of H.; and that in case any such person or persons shall refuse or neglect, or discontinue, to take and use such surname and arms, and to take such proper steps and means as may be requisite to enable and authorize him, her, or them so to do, within the space of one year as aforesaid, then from and after the expiration of the said space of one year, the use or estate, or uses or estates, so to be limited to him, her, or them respectively, so neglecting or refusing, shall cease, determine, and become utterly void, and that all the said manors and other hereditaments, hereinbefore directed to be conveyed and settled as aforesaid, shall in such case immediately thereupon go to the person or persons next in remainder, under

of leasing.

the limitations in such settlement to be contained, in the same manner as if such person or persons, so neglecting or refusing, being tenant or tenants for life, were dead, or being tenant or tenants in tail male, or in tail, were dead without issue inheritable under the estate tail, or estates tail, then vested in possession or in remainder in the person or persons so refusing or neglecting: provided always, and I do hereby expressly declare my will and mind to be, that the clause herein before contained for compelling the persons herein before mentioned to use the name and arms of H. shall not extend to any person or persons, who shall, under any will or other instrument whatsoever, made prior to the 1st day of January, be under any previous obligation of using any other family name, or bearing any other family arms. And I do hereby Settlement to declare my will to be, that in such settlement shall contain a power be contained a power to enable the person or persons, who for the time being shall by virtue of the limitations in such settlement to be contained, be entitled to the said manors and hereditaments herein before directed to be conveyed and settled as aforesaid, for an estate of freehold, to grant, demise, limit, or appoint all and singular the said hereditaments, or any of them, or any part thereof, for any term or number of years not exceeding 21 years, at the most improved rent, without taking any fine, and under the usual restrictions, so nevertheless that no such lease of all or any part of the he`reditaments, comprized in the said term of 200 years, be made to commence prior to the 29th day of September, which will be in the year of our Lord. And I do hereby also direct that in such settlement so to be made as aforesaid, there be contained a power enabling the said Sir G. C., R. M., J. D., J. C. J, and J. F. and the survivors and survivor of them, and the executors and administrators of such survivor, from time to time, to demise or

enable the trustees to sell or exchange.

lease all and singular the hereditaments comprised in the said term of 200 years, or any of them, or any part or parts thereof, for any term or number of years in possession, determinable on or before the said 29th day of September, which will be in the said year of our Lord, at the most improved rents, without taking any fine, and under the Also a power to same restrictions; and also a power to enable the said Sir G. C. R. M. J. D. J. C. J. and J. F. and the survivors and survivor of them, and the executors and administrators of such survivor, from time to time, and at any time or times hereafter, at the request and by the direction of the person or persons who, for the time being, shall be entitled to the hereditaments to be comprized in the settlement hereby directed to be made as aforesaid, for an estate of freehold either in possession or in remainder immediately expectant upon the said several terms of 99 years and 200 years, respectively, signified by some writing under the hand and seal or hands and seals of such person or persons, attested by two or more credible witnesses, to make sale of, or to convey in exchange for or in lieu of other hereditaments, all or any of the hereditaments to be comprized in the settlement so to be made as aforesaid, the fee simple and inheritance thereof, as well as for the said terms of 99 years and 200 years respectively, due regard being had to the proviso next hereinafter contained or expressed, with the usual clauses, making the receipts of the said Sir G. C. R. M. J. D. J. C. J. J. F. or the survivors or survivor of them, or the executors or administrators of such survivor, effectual discharges to the purchaser or purchasers of the hereditaments which shall be so sold, and the usual directions to lay out the money to arise by such sale or sales, in the purchase of other freehold lands of inheritance, or of copyhold lands convenient to be held with the lands to be

And to purchase,

with the money

arising from

such sale, other

Jands, and to

settle the newly

taken in ex

change to like

uses *.

comprized in such settlements as aforesaid, or any of purchased lands, them, or so to be purchased or taken in exchange in or such as are pursuance of this my will, and to settle the lands so to be purchased or so to be received in exchange as aforesaid, to such uses as the hereditaments which shall be so sold or conveyed in exchange stood settled and limited respectively immediately, before such sale or exchange, or as near thereto as the nature of the tenure and circumstances will permit, any thing hereinbefore contained to the contrary thereof in any wise notwithstanding. Provided always, and I Limitations redo hereby declare my will to be, that no manors, ercise of the messuages, lands, tenements, or hereditaments, si- last-mentioned tuate, lying, and being, in the parishes of -

and

stricting the ex

power as to cer tain specific

respectively, or any of them, shall be objects. sold, aliened, or disposed of, except in exchange for, or in lieu of, hereditaments in the parishes of A. and B. in the said county of N. respectively, or one of them, and two pieces of ozier ground or meadow, lying in the last-mentioned parishes, or one of them, or partly there, and partly in some other parish or parishes abutting east on a brook or rivulet that runs

not be had,

Where a will directing money to be laid out in land, points to a Where the estate particular estate, if that fails it may be laid out in other lands, the directed to be particular direction being only a mode of executing the primary inten- purchased cantion to purchase lands, 10 Vez. Jun. 618. This has been decidedly other lands may holden by the present Lord Chancellor, though Lord Thurlow used be bought. to differ with Lord Roslyn on this question, the latter Lord being of the opinion to which Lord Eldon has since added the weight of his authority.

Whether money directed to be laid out in land in a particular Where the place place, shall, if land cannot be procured there, be laid out elsewhere, and not the has been left undecided by the present Chancellor. Lord Roslyn estate is speciwas of opinion it might, Lord Thurlow that it could not, see 10 fied, Vez. Jun. 610. But as Lord Eldon held the affirmative on the other question when it came before him a short time afterwards, though it would be presumptuous to form any inference, yet a conjecture may be allowed as to the probable result, if his Lordship were now called upon to settle the point where the place and not the estate was particularized. See 3 Atk. 414. Maynwaring v. Maynwaring, 2 Atk. 458. Oldham v. Hughes.

PP