Chap. LII. CHAPTER LII. SUGGESTIONS FOR PREPARING WILLS. THE possible dispositions of property by testators are so infinitely various that general suggestions can be of very little use. The following points have, however, been selected as likely to be of frequent occurrence :— 1. With regard to payment of debts, if land is to be applied in exoneration of the personalty an express direction to that effect should be inserted. 2. The testator should consider whether mortgages are to be borne by the devisee or to be discharged out of the general personal estate. In the latter case a declaration to that effect should be inserted. 3. It should be ascertained whether legacies are to be free from duty or not. It is cheaper for the estate to give a legacy of £9,000 free of duty than to give a legacy of £10,000 subject to duty. If the duty is 10 per cent. the legatee gets £9000 in either case, whereas in the former case the estate pays £9,900 only instead of £10,000. 4. In the description of the subject-matter of the testator's bounty language generally intelligible should be used. Thus, terms of art, symbols, terms derived from local custom and so on should be avoided. 5. Things should be described by their permanent and not by their changeable characteristics; for instance, description of land by occupation should be avoided. 6. In the case of specific bequests care should be taken to ascertain the exact title of the stock or other security which is the subject of the bequest, and the testator should be reminded of the liability of specific gifts to ademption by change of security or sale. 7. Inquiry should be made whether annuities given by the will are intended to be for the lives of the annuitants only or perpetual. 8. Residuary gifts should be expressed in the most general terms and enumeration of particular things should be avoided. 9. When a residue is given to several persons in succession, the testator should consider whether the tenant for life is intended to enjoy the property in the state in which it may be found at the testator's death or whether it is to be converted. 10. In the description of persons the same general caution applies as in the description of things. 11. If the gift is to a husband and wife with others, care should be taken to secure that the wife should take a separate share. 12. In the case of gifts to several persons or to classes words of severance should be introduced unless a joint tenancy is intended. 13. If illegitimate children are to be provided for, the fact that illegitimate children are intended should be unmistakeably expressed. 14. In the case of bequests to children where it is possible that children may be born after the time of distribution has arrived, the testator should consider whether he wishes all the children to be included, and, in the latter event, clear words to that effect should be introduced. 15. In the case of gifts to several classes of persons or to different generations of issue, if the distribution is intended to be per stirpes there should be words to that effect. 16. It will as a rule be found advisable to avoid such vague terms as relations or family. 17. In gifts of personalty, words whether of purchase or limitation appropriate to realty should be avoided, and the same applies mutatis mutandis to devises. 18. In the case of gifts to a parent and children, or to a parent and issue, care should be taken to show whether the children or issue were intended to take concurrently with their parent or not. Chap. LII. Chap. LII. 19. The difficulties arising upon the rule in Shelley's Case are too familiar to need comment. 20. The testator should be careful to distinguish between a recommendation and an obligation intended to be imposed on a legatee, and in cases where he merely desires to express a wish there should be an express declaration that no trust is intended. 21. Clear directions should be inserted with regard to vesting in cases where bequests are intended to be contingent upon the attainment of a given age, and care should be taken to bring clearly before the testator's mind the distinction between payment and vesting. 22. In the case of conditions imposed upon legatees there should be a gift over in the case of a clear and definite breach, and care must be taken that the breach should accurately correspond with the condition. Testators should, however, be warned that to impose any but the simplest conditions upon legatees is as a rule an invitation to litigation. 23. Care should be taken that the dispositions of the testator do not infringe the rule against perpetuity, and that there is no trust for accumulation beyond the limits allowed by statute. 24. In substitutional gifts to children inquiry should be made whether any persons satisfying the description of the members of the original class are dead at the date of the will leaving children and provision should be made accordingly. 25. In survivorship clauses, it should be clearly indicated to what period survivorship is to be referred, and whether survivorship is contemplated between individuals or between stirpes, but the prudent draftsman will avoid the use of the word survivor altogether. APPENDIX. 1 VIC. CAP. 26. AN ACT FOR THE AMENDMENT OF THE LAWS WITH RESPECT Appendix. Meaning of certain words in this Act: "Will: " THE Words and Expressions hereinafter mentioned, which in their ordinary Signification have a more confined or a different Meaning, shall in this Act, except where the Nature of the Provision or the Context of the Act shall exclude such Construction, be interpreted as follows: (that is to say,) the Word "Will" shall extend to a Testament, and to a Codicil, and to an Appointment by Will or by Writing in the Nature of a Will in exercise of a Power, and also to a Disposition by Will and Testament or Devise of the Custody and Tuition of any Child, by virtue of an Act passed in the Twelfth Year of the Reign of King Charles the Second, intituled An Act for taking 12 Car. 2, away the Court of Wards and Liveries, and Tenures in capite, and by c. 24. Knight's Service, and Purveyance, and for Settling a Revenue upon His Majesty in lieu thereof, or by virtue of an Act passed in the Parliament of Ireland in the Fourteenth and Fifteenth Years of the Reign of King Charles the Second, intituled An Act for taking away the Court 14 & 15 Car. of Wards and Liveries, and Tenures in capite and by Knight's Service, 2 (I.). and to any other Testamentary Disposition; and the words "Real Estate" shall extend to Manors, Advowsons, Messuages, Lands, Tithes, Estate:" Rents, and Hereditaments, whether Freehold, Customary Freehold, Tenant Right, Customary or Copyhold, or of any other Tenure, and whether corporeal, incorporeal, or personal, and to any undivided Share thereof, and to any Estate, Right, or Interest (other than a Chattel Interest) therein; and the Words "Personal Estate " shall extend to Leasehold Estates and other Chattels Real, and also to Monies, Shares of Government and other Funds, Securities for Money (not being Real Estates), Debts, Choses in Action, Rights, Credits, Goods, and all other Property whatsoever which by Law devolves upon the Executor or Administrator, and to any Share or Interest therein; and every Word importing the Singular Number only shall extend and be applied to several Persons or Things as well as one Person or Thing; and every Word importing the Masculine Gender only shall extend and be applied to a Female as well as a Male. "Real "Personal Estate: " Number: Gender. 3. It shall be lawful for every Person to devise, bequeath, or All property dispose of, by his Will executed in manner herein-after required, may be disall Real Estate and all Personal Estate which he shall be entitled posed of by Appendix. Will, compris ing Customary Freeholds and Copyholds without Surrender, and before Admittance, and also such of them as cannot now be devised; Estates pur autre vie; contingent Interests; Rights of acquired after As to the Fees and Fines payable by Devisees of Customary and Copyhold Estates. to, either at Law or in Equity, at the Time of his Death, and which, if not so devised, bequeathed, or disposed of would devolve upon the Heir at Law, or customary Heir of him, or, if he became entitled by Descent, of his Ancestor, or upon his Executor or Administrator; and the power hereby given shall extend to all Real Estate of the Nature of Customary Freehold or Tenant Right, or Customary or Copyhold, notwithstanding that the Testator may not have surrendered the same to the Use of his Will, or notwithstanding that, being entitled as Heir, Devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a Custom to devise or surrender to the Use of a Will or otherwise, could not at Law have been disposed of by Will if this Act had not been made, or notwithstanding that the same, in consequence of there being a Custom that a Will or a Surrender to the Use of a Will should continue in force for a limited Time only, or any other special Custom, could not have been disposed of by Will according to the Power contained in this Act, if this Act had not been made: and also to Estates pur autre vie, whether there shall or shall not be any special Occupant thereof, and whether the same shall be Freehold, Customary Freehold, Tenant Right, Customary or Copyhold, or of any other Tenure, and whether the same shall be a corporeal or an incorporeal Hereditament; and also to all contingent, executory, or other future Interests in any Real or Personal Estate, whether the Testator may or may not be ascertained as the Person or one of the Persons in whom the same respectively may become vested, and whether he may be entitled thereto under the Instrument by which the same respectively were created or under any Disposition thereof by Deed or Will; and also to all Rights of Entry for Conditions broken, and other Rights of Entry; and also to such of the same Estates, Interests, and Rights respectively, and other Real and Personal Estate, as the Testator may be entitled to at the time of his Death, notwithstanding that he may become entitled to the same subsequently to the Execution of his Will. 4. Provided always, that where any Real Estate of the Nature of Customary Freehold or Tenant Right, or Customary or Copyhold, might, by the Custom of the Manor of which the same is holden, have been surrendered to the Use of a Will, and the Testator shall not have surrendered the same to the use of his Will, no person entitled or claiming to be entitled thereto by virtue of such Will shall be entitled to be admitted, except upon payment of all such Stamp Duties, Fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such Real Estate to the Use of the Will, or in respect of presenting, registering, or enrolling such Surrender, if the same Real Estate had been surren dered to the Use of the Will of such Testator: Provided also that where the Testator was entitled to have been admitted to such Real Estate, and might, if he had been admitted thereto, have surrendered the same to the Use of his Will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such Real Estate in consequence of such Will shall be entitled to be admitted to the same Real Estate by virtue thereof, except on Payment of all such Stamp Duties, Fees, Fine, and Sums of Money as would have been |