beneficiary and if he die before the testator, to his heirs, his wife or his next of kin, or to another beneficiary. As many other beneficiaries may be named as the testator desires. In case the property is to be given in this way it is necessary to provide, before using the words of gift, that the person is to take the property only if he is living at the time, and if not that it is to go to someone else. Or, The following is the proper way to make such a provision: If Henry Adams shall be living at my death, then I give and devise to him and his heirs forever (description and location of property), but if the said Henry Adams shall die before me, then I give and devise the said property to James Green and his heirs forever. then the said property shall be added to and form a part of In case of a trust the same trustee may be named, and simply directed to pay the income over to the second legatee, in case the first beneficiary is dead at the time the will takes effect. If the residuary estate is not disposed of by will, it would be distributed as if there were no will according to the laws of the state. It is said to be the custom at lawyers' dinners to toast the man who makes his own will, as such a course usually results in much profitable litigation. Notes: I. If possible, avoid complex and long-term disposi tions of property. 2. Employ a competent lawyer and make sure that he knows what property you have and what you wish done with it. 3. If you change your residence after making a will, be sure to see that it complies with the law of the new state of residence or else make a new will. A simple will leaving property outright to members of your own family might safely be drawn in accordance with the rules laid down here, but, unless the disposition of the property is very simple, as in the case of the Harriman will, the best thing to do is to consult a reliable lawyer. It is impossible to give all the details of the local laws relating to wills in a work of this scope. § 442. How to Dispose of Real Property There are various ways in which a person may dispose of his real property by will after his death. He may give it to someone outright; or to one person for life, and absolutely to another at the first person's death; or to several people in succession for life, and to another absolutely on the death of the last person. The proper form of words for giving property outright is: I give and devise (description and location of property) to my nephew, John Smith, of Arlington, New Jersey, and his heirs forever. The proper form of words to give property for life is: I, Mary Green, give and devise (describe property fully) to my brother, Henry Adams of Syracuse, New York, for his life, and upon his death I give and devise (naming the property) to my son James Green and his heirs forever. It would be perfectly proper to direct that on Henry Adams's death the property shall go to another (in some states to several others) for life before giving it finally to James Green. In New York there could be only two persons to have it for life altogether, and if more were named, James Green would get it on the death of the second. The persons named must, however, be living at the death of the person making the will. One could not leave property for life to a child unborn at the time of one's death. If no one is mentioned to whom the property is to go at the conclusion of the last life estate, it will then go to the legal heir or heirs. (See § 431.) The property may be given to one person for the life of another. In that case the will would read thus: I give and devise (description and location of property) to my brother Henry Adams, during the life of my son James Green, and upon James Green's death I do give and devise said property to my grandson Samuel Brown, to him and his heirs forever. If Henry Adams should die before James Green, the right to make use of the property during the rest of James Green's life would be regarded as personal property, and Henry Adams could leave it by will or the law would dispose of it as explained in § 432. Upon James Green's death the property would go to Samuel Brown outright. Property, as a usual rule, could be left in this way only during the life of one person. But the proceeds of property may be accumulated for a child and not paid over until he becomes of age. A good direction for an accumulation would be as follows: I hereby give and devise (description and location of property) to my grandson Samuel Brown, to him and his heirs forever, and I direct my executors to hold the said property and to accumulate the rents, issues, and profits thereof, until my said grandson shall come of age, and at that time to pay the same over to him. It is also possible to leave property to one person or to a trust company in trust for another. The trustee in whose care it is left manages it and pays over the proceeds to the person to whom they were given, and accounts to the court for his dealings with the trust property. The proper form of words to create a trust is: I hereby give and devise to Henry Adams (name and description of property), to him and his heirs and succes sors in trust, to collect the rents, issues, and profits and to James Green cannot dispose of the property itself but only of the proceeds. Henry Adams cannot make use of the proceeds, but may do all necessary things with reference to the property, such as leasing it. He may be held accountable, however, by James Green for any breach of trust or negligence in his management. In order to be sure as to just what can be done with property, it is necessary to consult the real property law of the state where the property is located, as the provisions vary slightly in the different states. The creation of trusts is highly technical and should not be attempted save under the advice of a competent lawyer. If you desire to leave real property to charitable organizations, including schools and colleges, it is necessary to consult the law of the state where the property is located to find out whether you can so leave it, and, if so, with what formalities. you must comply; and the law of the state where the organization is located to see whether it can take the property. Note: I. In devising real property it should be described so completely that it will be certain as to what is included; and to avoid mistake its location should be given definitely. § 443. How to Dispose of Personal Property In disposing of personal property, one may either leave a certain amount of money to a person, or may provide that some specific piece of personal property, such as a piece of jewelry or an article of furniture, or some special stock or bonds, shall be given him. Where a specific piece of property is given to anyone, any debts will have to be paid out of the other personal property first. If there is not enough of this other personal property to pay the debts, the specific property will be sold. On the other hand, where amounts of money are left to particular persons, any personal property not specifically given to anyone will be sold in order to get funds to pay the legacy. The debts will be paid out of this property first, and if there is not enough of it to pay both the debts and the legacies, those to whom money has been left may get nothing. The proper form of words to use in making a gift of personal property by will is: I give and bequeath (description of the personal property) to so-and-so. The will may provide that in case the person to whom the gift is made is dead at the time the legacy takes effect, another person is to have the property, or that the gift shall be added to and form a part of the residuary estate. Or the will may provide that the person named is to have the property only under certain conditions, and in case these are not fulfilled it is to go to someone else. Personal property may be left in trust; then the trustee has control of the property and pays over the income as described in § 440. Before making a will of personal property, the testator should consult the personal property law of the state where he resides, and if he moves to another state at any time his will must be changed to conform to its laws. Note: 1. Generally people err who tie up property for long periods after they have gone. It is a form of egotism that leads a man to try to impose his control on those he leaves behind. |