And also a

terms of years for raising and better securing the same, as to him shall seem meet. And it is also my leasing power. will, that in such settlement there shall be inserted a

power or powers enabling the said W. W. and also the trustees or trustee for the time being under such settlement, as and when they shall respectively be in the actual possession, or entitled to the receipt of the rents and profits, of my said manors, hereditaments, and premises, under the limitations therein contained, and also during the minority or minorities of any such child or children as may be entitled to the freehold and inheritance thereof, under such limitations as aforesaid, to make leases of all or any part of the said premises for any term not exceeding 21 years in possession, and not in reversion, or by way of future interest, so as there be reserved in every such lease the best and most improved yearly rent, to be incident to the immediate reversion of the premises so to be demised, that can be reasonably had or gotten for the same, without taking any fine, premium, or foregift, for the making thereof, and so as there be contained in every such lease a condition of re-entry on non-payment of the rent thereby to be reserved, and so as the lessors execute counterparts thereof, and do thereby covenant for the due payment of the rents, to be thereby reserved, and be not made dispunishable for waste. And it is my will, that in such settlement there shall viso for obliging be inserted a proviso, condition, or clause, enjoining the persons tak- the issue male of my said niece J. M. within six calendar months next after such issue male shall come into possession of the said estates and premises, under the limitations in such settlement, to assume, take, and use the surname of W. only, and to write and sign that surname only in or to all acts, deeds, and instruments, and on all other occasions, and for determining the estate tail of such issue, refusing or neglecting to comply with such condition, and limiting the said estates and premises over to those who may be next in remainder expectant on such

Settlement to contain a pro

ing under the

limitations to use the testa

tor's surname.

contain a pro

and substitution

made from

time to time.

estate tail, under such settlement, or who would be intitled to the possession of the said premises, under the limitations in such settlement, in case the tenant in tail male so refusing or neglecting, were actually dead, without issue male. And my will further is, Settlement to that such intended settlement shall contain a proviso viso for empowthat in case any of the trustees therein named, or any ering a change succeeding trustee or trustees in their or any of their of trustees to place or places (whether introduced into the trusts be therein contained by nomination or appointment as hereinafter mentioned, or by representation of any deceased trustee or trustees,) shall die, or desire to be discharged from, or refuse or neglect to act, or become incapable of acting in the execution of such trusts, or any of them, it shall be lawful for the surviving or other trustees or trustee for the time being (whether he, she, or they may have been created a trustee or trustees by nomination or appointment, or have become so by representation as aforesaid,) by deed or instrument, under hand and seal, attested by two or more witnesses, to nominate and appoint any other person or persons to be a trustee or trustees in the stead of the trustee or trustees so dying, desiring to be discharged, or refusing or neglecting to act, or becoming incapable of acting as aforesaid; and a clause making the usual provision for vesting the trust estates, real and personal, according to such nomination or appointment, and for giving the same its full effect, and enabling the new trustees or trustee to execute every trust and power which the old trustee or trustees might have done if such appointment had not taken place, either alone or in conjunction with the continuing trustee or trustees (if any) as the case shall happen. And also the And the usual usual clause for the indemnity of the trustees or and indemnity trustee therein named, their heirs, executors, admini- to the trustee strators and assigns, and for enabling them to act with safety in the execution of the trusts of such settle

ment, and such other clauses as are usual in settle

clauses of safe

Trustees to

stand seised and

possessed of the

copyhold and leasehold estates

upon correspon

dent trusts.

ments of the like kind. And as to, for, and concerning ing my said copyhold and leasehold estates and premises, or so much thereof as may remain unsold, for making good the deficiency of my personal estate, not specifically bequeathed, in answering my debts, legacies, and funeral and testamentary charges, I will and direct that the said trustees or the trustees or trustee for the time being do and shall stand seised and possessed of the same respectively, (subject to any such mortgage or mortgages as may be made thereof as aforesaid,) upon such trusts, and for such intents and purposes as are hereinbefore directed to be limited or expressed, of, and concerning the said freehold manors and premises therein to be comprised, and with, under, and subject to such and the same powers, provisos, conditions, limitations, and declarations, as are directed to be contained therein, concerning the same freehold manors and premises, or as near thereto as can or may be, and the rules of law and equity and the different natures of the estates and tenures will admit. Provided, that it shall be lawful for my said trustees, their executors, administrators, they shall think and assigns, as and when they in their discretion. shall think proper or see occasion, to renew the lease and leases of all or any part of my leasehold premises, and pay the fines and fees, and other expences necessary to be paid for such renewal or renewals, out of any monics which may be in their hands by virtue of this my will, and to rebuild or repair all or any of the messuages or tenements, to be demised by such renewed lease or leases, (if such renewal shall be obtained on terms of rebuilding or repairing,) and to pay the expences of such repairing or rebuilding, in like manner as I have directed with respect to the expences of such renewals All the renewed aforesaid; all which renewed leases shall be vested in them the said trustees, their executors, administrators, and assigns, upon the same trusts, and for the same intents and purposes, and with, under, and subject to the same powers, provisos, conditions, and de

new the leases as and when

proper.

leases to be vested in the trustees upon the same trusts.

make leases in

the same terms

tioned in re

spect to the

made under the

clarations, as are contained and referred to in this my will concerning the present subsisting leases, or the premises therein comprised. Provided, and my will Trustees to further is, that it shall be lawful for my said trustees, the mean time their heirs, executors, administrators, and assigns, in until the estates the mean time, until such settlement of my said are sold, upon estates shall be made as herein before directed, as above to make or grant leases of all my said freehold, ton and also of my said copyhold and leasehold manors leases to be and premises hereinbefore devised to them upon trust power for that as aforesaid, which may be remaining unsold, for any purpose to be term not exceeding 21 years in possession, reserving settlement. the improved rents, and without taking fines, and subject to the like restrictions as are mentioned with respect to leases to be made under the power of leasing directed to be inserted in the said intended settlement, and to appoint such persons as they shall To appoint perthink proper to oversee, manage, and improve my and manage the said estates and premises, and to receive the rents, property, and issues, and profits thereof, and to pay or allow to, or permit such overseer or overseers, receiver or receivers, to retain such poundage, or sum or sums of money, by way of salary or wages, as my said trustees or the trustees or trustee for the time being shall think meet or reasonable. And I give the following legacies (4), Pecuniary le

age,

sons to oversee

and to allow

to receive rents,

the

them proper

gacies.

(4) Whenever a legacy is given, and the gift and time of pay: Of the periods ment are both future, as, if I give to A. B. a legacy of -I. at and of vesting, both when he comes of age, there the time is annexed to the gift and sub- as to legacies stance of the thing, and if the legatee die before he comes of and legatory the legacy lapses. 1 Eq. C. Abr. 295. 1 Vez. 48. 3 Atk. 101, portions. 645. I Burr. 227. 3 Vez. jun. 135. 12 Vez. jun. 75. Sansbury v. Read, 13 Vez. jun. 108. Hixon v. Oliver. A direction to pay interest upon legatory portions where they are charged upon personalty is always evidence of the vesting, for so it is always held in the Civil and Ecclesiastical Courts, from which the rules respecting legacies and legatory portions are drawn. But it is otherwise where the portion is provided by deed. 2 Vez. 207. Lord Teynham v. Webb, id. 263, Herbert v. Parsons. With respect to all interests arising out of land, the general rule is, without regard to the question, whether the land be the primary or only the secondary and auxiliary fund-or whether the charge be made by deed or

To his wife a

sum for her immediate occa

sions,

'that is to say,' to my said wife l. for mourning, and her immediate occasions, and to my other execu

will-or whether it be a portion, or a general legacy-or for a child or a stranger-or with or without interest-that charges upon land payable at a future day, shall not be raised where the party dies before the day of payment. This is the general rule, but there are many exceptions; as where the time of payment is postponed from the circumstances not of the person but of the fund: thus where a legacy is charged on land, to be paid after the death of the testator's wife, there if the legatee die after the death of the testator, and before the death of the wife, the legacy goes to the representatives of the legatee: see 1 Bro. C. R. 124, note; and Ambl. 167. Tunstal v. Bracken. But where a legacy charged on real property is given expressly with a view to the wants and occasions of the legatee at a particular time, as at 21, or marriage, if the legatee die before the time at which, according to the intention of the testator, the legacy would be wanted, it sinks into the land. See the note to the case of the Duke of Chandos v. Talbot, 2 P. Wms. 612.

Mr. Cox observes, that where portions have been given out of land, and no time of payment is expressed, the determinations are difficult to be reconciled, some considering them as presently vested, and others that they do not vest, if the legatees die before they want them; see the note last mentioned. But perhaps the cases may be reconciled by adverting to this distinction, viz. that where no time is given, and interest is made payable, they vest immediately; and that where no time is expressed, and interest not given, they do not vest before 21 or marriage: see 2 Eq. C. Abr. 248. Ch. Ca. 181. Rec.in Ch. 318. 3 Atk. 645. It seems that where a legacy is charged on a mixed fund, it sinks into the land if it becomes neces sary to resort to that fund, yet if the personal estate is sufficient it vests as to that; 1 Vez. jun. 48. And it seems that where it is charged only on personal estate, directions for maintenance will not make the portion vest; 2 Vez. 207, 262. 1 Burr. 227. 2 P. Wms. 612, note 1. And wherever payment is postponed till 21, though it may vest for some of the above-mentioned reasons, yet the representative cannot claim it until the party, had he lived, would have been 21; 2 Vern. 199. 2 Vent. 342. If the sum itself which is to be paid at a future time is uncertain, it cannot vest in the interim; 1 Vez. 57. Maddison v. Andrew. Under words importing a tenancy in common, though combined with words of survivorship, the interest in a rever sion, being limited so as to vest at the death of the testator, passed to the representatives of one of the legatees, who died between the death of the testator and of the person entitled for life; 7 Vez. jun. 279. And a legacy given at a particular age may vest immediately on the death of testator, by force of the accompanying words, as where a trustee is appointed for the legatee during his minority; 6 Vez. jun.