advisable in all cases that the testator limit the gift over to another in the event of its failing by reason of any provision as to marriage or separation, see §§ 1062-1064. In respect to provisions as to marriage and divorce, the distinction between conditions and limitations should be borne in mind, it being advisable to make the estate one upon limitation so that it terminates in the event of the contingency, see §§ 1063, 1064.

(a) Gift failing upon marriage of beneficiary. I bequeath to my niece H- MM-, the interest on the sum of twenty thousand dollars, said twenty thousand dollars to be held in trust by the Trust Company of New York City for her use, she to receive the net income arising therefrom to be paid her semi-annually during the term of her natural life, or so long as she remains unmarried. In case of either the death or marriage of my said niece, I direct that said sum of twenty thousand dollars shall go and be paid to A— R as his absolute property.

Note. See §§ 1059-1064. For form of devise in fee with limitation over if first taker dies under age or unmarried, see, ante, form No. 28 (c).

(b) Determinable life estate: Until marriage. I devise that certain tract of land (insert description), to my unmarried daughter R— for her full and free use and enjoyment so long as she remains unmarried, but limited in all events to the term of her natural life; and upon either the marriage or death of my said daughter R—, said property is to go to and vest absolutely in my daughter T- to whom said property is hereby devised subject to the aforesaid interest hercin conditionally given to my daughter R.

8

As to condi

Note. The foregoing confers on the unmarried daughter Rlife estate determinable upon her marriage, see § 964. tions in restraint of marriage generally, see §§ 1059-1070.

(c) Gift effective only during widowhood. In the event my wife B dies before the time of my death, I devise

that certain tract of land (insert description) to my son J- absolutely; but in the event my said wife B survives me, I devise to her the above tract of land for her use so long as she remains my widow, but limited in all events to the term of her natural life, with remainder over in fee simple to my son J upon her death or re

marriage.

I devise that certain tract of land (insert description) to my son J, subject, however, to the use, occupation and enjoyment thereof by my wife B—— so long as she remains my widow.

Note.-See §§ 964, 1065. The same provision may be made against the remarriage of a widower, see § 1066.

(d) Gift contingent upon beneficiary marrying only with consent of trustee. I bequeath all the stockholdings which I may possess at the time of my death in the Company and in the ― Company to my brother C D—— in trust, as follows: To hold and care for the same, collect the dividends and profits arising therefrom, defray all the proper expenses connected therewith, and pay the net income derived therefrom to my daughter Muntil she attains the age of twenty-one years or until her marriage without the consent of said trustee. Should my said daughter M marry before attaining the age of twenty-one years without having first obtained the consent thereto of said trustee, then and in that event all the property and income in the hands of said trustee shall immediately pass to and vest in my son Ras his sole and separate property free from any trust; should my said daughter attain the age of twenty-one years without having married or attain such age after having married with the consent of said trustee, then said property and income in the hands of said trustee shall pass to and vest

absolutely in my said daughter M as her sole and separate property.

Note.-See §§ 1070, 1071.

(e) Gift of income, principal to pass only upon death or legal separation. I bequeath the sum of

dollars

to CD in trust to hold, manage, invest and care for in a prudent and careful manner, to pay all proper expenses connected therewith, and to pay the net income derived therefrom to my daughter S

R

for her R

sole and separate use, and at the death of Whusband of my said daughter, or upon her permanent and legal separation from said W R- the said trustee shall pay or deliver the whole of the principal and income then held by him as trustee, to my said daughter as her absolute property, free from any trust. Should my said daughter S― R― die before her said husband or before her permanent and legal separation from him, I direct that said trustee hold the property so held in trust for my said daughter, upon the same trust for the children of my said daughter, during their minority, said property to vest absolutely in and be paid in equal proportions to such children as they respectively become of age; but should my daughter S R— die as aforesaid without leaving issue surviving her, I direct that said property then so held in trust shall pass to and be divided equally among my remaining children, and their issue in the event of their death, the issue to take only by right of representation.

Note. See §§ 1067, 1068.

(f) Gift effective upon legal separation or death. I devise that certain real property (insert description) to my son FH, not for himself individually but as trustee, as follows: Said F-———— H—————, as such trustee, may, in his discretion, sell and dispose of any or all of

said real estate and invest the proceeds of any sale or sales so made by him in other real estate or in stock of any corporation or otherwise, according to his best discretion, and may again sell the same and reinvest the proceeds. So much of the rents and proceeds of the real estate and so much of the interest or income of the personal estate so held in trust by him, as he shall deem necessary for the comfortable maintenance of my deceased sister's daughter, JS T —, he, as such trustee, may pay to her from time to time in his discretion, or he may add the whole or any part of such rents, proceeds, interest and income to the principal of said trust property so held by him as trustee and shall not be compelled to pay anything to said JS——— T— except in his discretion. This said trust shall continue so long as said F H shall remain the husband of M— J—— H, now his wife, and for such time thereafter as said trustee shall, in his discretion, desire and determine, provided that said trust aforesaid shall not continue for more than ten years after said trustee shall cease to be the husband of said M J H– Upon the termination of said trust by the death or divorce of said M——— J——— H— and the expiration of ten years thereafter, or for less than ten years if said. trustee shall so elect, my will is and I hereby direct that my son, FH, shall have and retain all the real and personal estate then held by him as such trustee, to have and to hold the same free from any trust or obligation whatsoever; and in the event my said son FH- shall die prior to the death or divorce of his said wife M― J—— HH——————, then it is my will and I hereby direct that all the real and personal estate held by my said son, as trustee, at the time of his decease, shall pass to and vest absolutely in my said niece J T—————, as her absolute property.

Note. See §§ 1067, 1068.

S

No. 31.

CONDITIONS AGAINST CONTESTING WILL OR MAKING CLAIMS

AGAINST ESTATE.

(a) General condition against contesting will.

(b) Beneficiary forfeiting interest in case of contesting will. (c) Disinheriting child and giving portion to another.

(d) Condition against making claims upon estate.

(e) Condition that beneficiary release debt.

General Note.—As to provisions against contesting wills generally and making claims against the estate, see §§ 1053-1058. Such conditions are lawful; the beneficiary is not bound to accept a gift burdened with such a condition, but if he does accept it, he must take it subject to the condition imposed. The design of such conditions is to prevent the inauguration or prosecution of contests which would defeat the testator's disposition, see §§ 1053, 1054. The decisions are not harmonious as to the necessity of a gift over in the event the first taker forfeits his right thereto by reason of making a claim or contest, so it is advisable that the testator designate to whom the property shall pass in the event of such a forfeiture on the part of the first taker, see § 1055. As to probable cause for contest and what amounts to a contest, see §§ 1056-1058.

(a) General condition against contesting will. By this my last will and testament I have disposed of my estate after due consideration of the respective needs and rights of all persons, and all benefits herein conferred in any manner whatsoever are conferred upon the express condition that the beneficiaries thereof acquiesce in this my last will and testament and all the provisions thereof, and in any and all codicils thereto; if any beneficiary under this my last will and testament, or any person who, if I died intestate, would be entitled to any part of my estate, should either in his or her name, or in the name of another, either directly or indirectly, or by procuring, aiding or abetting another, contest, controvert, dispute or call into question the validity of this my last will and testament, or any of its provisions, or any codicil thereto, such person or persons shall take nothing by rea