trustees, supra, p. 55.

PRECEDENT IX.

WILL BEQUEATHING PROPERTY IN A PERIODICAL PUBLICATION.

23. Powers of executors to extend to accounts and ar

Declaration as to devolution of trustees' powers, p. 56. Devise of trust and mortgage estates, p. 58. Appointment of executors, p. 61.] AND I DECLARE, that the powers by law (c) given to my said executors or executor in relation to my general estate shall be exerciseable by them and by my trustees or trustee for the time being in relation to any settlement of accounts and arrangements between me and the said or other my partner or partners, and also to all matters arising in the course of the carrying on of the said publication called the, and of carrying on the publication. said trade or business of a if the same is carried on after my death under such circumstances or arrangements that my estate shall be interested therein or in the profits thereof. IN WITNESS, &c.

rangements conpartnership and

nected with the

with the abovementioned

their respective sole and separate use, independently of any and every husband whom they may respectively have at my decease, or may thereafter marry, and of the debts, control, and engagements of such husband or respective husbands, and that in the case of annuities or life or other terminable or reversionary future contingent or expectant estates or interests, they shall respectively during coverture have no power to dispose or deprive themselves of the benefit of the same or any part thereof by way of anticipation."

(c) This clause is intended to have special reference to the statutory powers of arranging and compromising vested in executors, see supra, p. 62, note.

lute, given to females, shall be

for their separate use.

PRECEDENT X.

WILL

DISPOSING OF REAL AND PERSONAL ESTATE IN TRUST FOR THE TESTATOR'S WIFE AND ISSUE, WITHOUT A TRUST FOR CONVERSION.

As to wills without a trust for conversion.

As to the legacy and succession duties on monies arising from the sale of, and legacies charged on, real estate.

X.

WILL of REAL and PERSONAL estate. BEQUEST of LEASEHOLD HOUSE, upon trust for the testator's WIFE during WIDOWHOOD, and afterwards to form part of his residuary estate. POWER to SELL the house and trusts of proceeds, including power to REINVEST in the purchase of ANOTHER LEASEHOLD house, to be held upon the like trusts. PoWER of LEASING for twenty-one years, with or without FURNITURE. BEQUEST of FURNITURE to the testator's wife absolutely. GENERAL devise and bequest of REAL and PERSONAL estate, WITHOUT CONVERSION (a), upon trust

(a) The inconveniences incident to the framing of a will of the character of that in the text by declaring trusts of the residuary real and personal estate in specie, with a mere power of sale, instead of using the machinery of a trust (qualified by a power to postpone) conversion, as in Precedents I. and II. supra, has already been adverted to (see supra, p. 7); and to what is there said it may be added that a trust for sale has the additional advantage of avoiding the questions which, in the case of a mere power of sale, often arise as to whether the power is exercisable. Inasmuch, however, as it occasionally happens that the testator will not hear of his real estate being directed to be sold, although assured that this does not, any more than a mere power, necessitate an actual sale, the Precedent in the text, of a will without conversion, is inserted; and although its use as a whole is not in general to be recommended, some of the clauses will be found useful for other wills in which the machinery of a trust for conversion may more legitimately be dispensed with. It may be proper here to advert to the provisions of the Legacy and Succession Duty Acts with respect to the duties payable in the case of a devise of real estate with a trust for or power of sale, as the question which duty is payable will depend on the frame of the will in the above-mentioned respects. Legacies charged upon real estate, and monies arising from the sale of real estate directed to be sold, were subjected to duty by 45 Geo. 3, c. 28 (the 4th section of which defines a legacy for the purpose of duty, and see 8 & 9 Vict. c. 76, enlarging the definition of a legacy for this purpose),

to COMPLETE SALE of freeholds CONTRACTED to be
SOLD by testator, and for payment of the income of a

PRECEDENT X.

WILL DISPOSING OF REAL AND PERSONAL ESTATE IN TRUST FOR THE

AND ISSUE,
WITHOUT A

TRUST FOR
CONVERSION.

and they became subject to the increased rates of duty imposed first by 48 Geo. 3, c. 149, and then by 55 Geo. 3, c. 184 (see the TESTATOR'S WIFE schedule to the latter act). With reference to these enactments, it appears to be settled that where a sale is positively directed, legacy duty will be payable though no sale is actually made, but the land is taken in specie (Att.-Gen. v. Holford, 1 Price, 426; Williamson v. Advocate-Gen., 10 Cl. & Fin. 1); and that the proceeds of land sold under a mere power of sale, if the power is given with a view to the distribution of the proceeds as money, are chargeable with legacy duty (Att.-Gen. v. Mangles, 5 Mee. & Wels., 120; Att.-Gen. v. Simcox, 1 Exch. 749); and, on the other hand, that where there is a discretion to sell or not, whether expressed in the form of a mere power (as in the Precedent in the text) or in the form of a trust, with an indefinite power of postponing the sale (as in Precedents I. & II. supra), and no sale is actually made, legacy duty will not attach (Att.-Gen. v. Mangles, ubi supra, and see Hobson v. Neale, 8 Exch. 368, 17 Beav. 178); and that if a power of or trust for sale is inserted, not with a view to the distribution of the proceeds, but as part of the ordinary machinery of a settlement, the proceeds being directed to be invested in the purchase of land, legacy duty will not be payable although the property is sold (Mules v. Jennings, 8 Exch. 830, and see Heal v. Knight, id. 839 note); and it would seem that in such a case the duty would not attach even though the reinvestment was directed to be made in the funds or other securities (Re Evans, 2 C. M. & R. 206, and see The Advocate-Gen. v. Smith, 1 Macq. 760). In those cases in which legacy duty is not payable under the above-mentioned provisions succession duty will be payable at the same rate under the act 16 & 17 Vict. c. 51, and by s. 29 of that act the interest of any successor in monies to arise from the sale of real property under any trust for sale (which it seems must be deemed to include a discretionary power of sale, see Hanson on the Act, 3rd ed., p. 313), so far as not chargeable with duty under the legacy duty acts, is to be chargeable with succession duty as personal property (ie., in the same manner as legacy duty is chargeable, see s. 32), unless the proceeds of sale are subject to be reinvested in the purchase of real property to which the successor would not be absolutely entitled, in which case they are to be chargeable as real property (as under section 21) on the value of an annuity equal to the annual produce of the trust property for the life of the successor or any less period during which he may be entitled.

The result appears to be, that though it may not always be easy

PRECEDENT X.

WILL

DISPOSING OF REAL AND PER

SONAL ESTATE IN TRUST FOR THE TESTATOR'S WIFE

AND ISSUE, WITHOUT A TRUST FOR CONVERSION.

MOIETY of the estate to the testator's WIFE during
WIDOWHOOD (subject to a PRECATORY request to
MAINTAIN children), and subject to the widow's
interest for the testator's CHILDREN LIVING at his
DEATH, and the CHILDREN then living of any CHILD

to determine, it will in most cases be a matter of indifference, whether legacy or succession duty is payable; but that in the case of a will (such as that in the text) containing a power to sell the real estate, whether the proceeds are to be reinvested in real estate or not, the question whether the ultimate devisees in fee are chargeable with duty on the corpus, or on the value of their life interests only, will depend on whether or not a sale takes place before the property comes to their hands.

In Laurie v. Clutton, 15 Beav. 131, Sir J. Romilly, M. R., expressed an opinion (though under the circumstances it was needless to decide), that if a testator devise real estate to A., and make a bequest to B. of A.'s personal property, so as to raise an election against the latter, this would be in substance a charge upon the real estate, which would be liable to legacy duty; and in Att.Gen. v. Wyndham, 1 Hurl. & Colt. 563, it was held that where real estate was devised to A. with an option for B. to purchase it at a specified price, and the option was exercised, legacy duty was payable on the price (but see Lord-Advocate v. Meiklam, 22 Sco. Sess. Ca., 2nd series, 1427). An annuity being expressly included in the statutory definition of a legacy, it has been decided that a rent charge created by will (Att.-Gen. v. Jackson, 2 Cro. & Jerv. 101), and a jointure charged under a testamentary power to jointure (Att.-Gen. v. Pickard, 3 Mee. & Wels. 552, in Cam. Scac., 6 Mee. & Wels. 348), though the jointure be expressly given in bar of dower (Att.-Gen. v. Lord Henniker, 7 Exch. 331), or the power be to appoint a jointure in bar of dower (Sweeting v. Sweeting, 1 Drew. 331), are subject to legacy duty, the rate as to the jointure being, of course, that attaching to a legacy from the donor of the power. Although real estate situate abroad, or a legacy given thereout, is not chargeable under the legacy duty acts (see Hanson on the Acts, p. 132), or the succession duty act (see the definitions in s. 1 of the act); the share of a deceased partner in the real estate of the partnership, whether in this country or abroad, is, for fiscal as well as other purposes, to be deemed personal estate, and as such liable to legacy duty (Forbes v. Stevens, L. R. 10 Eq. 178). As to the duty on personal estate directed by will to be laid out in land, see 36 Geo. 3, c. 52, s. 19, Att.-Gen. v. Hancock, 2 Mee. & Wels. 563.

PRECEDENT X.

WILL

DISPOSING OF REAL AND PERSONAL ESTATE IN TRUST FOR THE

PREDECEASING the testator, as to males attaining
TWENTY-FIVE and as to females attaining that age
or marrying per stirpes. DIRECTION to pay
LIMITED sum out of INCOME of EXPECTANT shares of
minor CHILDREN to the testator's WIFE during TESTATOR'S WIFE
WIDOWHOOD, for their MAINTENANCE. SPECIAL
MAINTENANCE, accumulation, and ADVANCEMENT
clauses as to children and grandchildren UNDER
TWENTY-FIVE. ULTIMATE trust for testator's
NEPHEWS AND NIECES or their CHILDREN LIVING at

time of FAILURE of prior trusts. Powers of
MANAGEMENT, LEASING, and SALE and EXCHANGE,
and GENERAL power of INVESTMENT. POWER to AP-
PROPRIATE parts of estate SPECIFICALLY in satisfac-
tion of SHARES of RESIDUE.

I, A. B. of &c., hereby revoke, &c. [supra, p. 26]. I BEQUEATH to my wife C. B., E. F. of &c., and G. H. of &c., their executors and administrators, the leasehold messuage or tenement situate at with the coach-house, stables, offices, and appurtenances thereto belonging, as the same are held under a lease thereof for the residue of a term of years, at the yearly rent of £————, UPON TRUST, to permit my said wife to have the use and enjoyment or receive the rents and profits (b) of the same premises during her life or until she shall marry again after my death, she paying the said yearly rent of £ —, and performing at her own expense the covenants and conditions reserved and contained in the said lease under which the same premises are held, and indemnifying my other executors and trustees and my estate in respect thereof; AND I DECLARE, that after the death or future marriage of my

(b) In Mannox v. Greener, L. R. 14 Eq. 456, a gift to the testator's widow of "the free occupancy" of his house was held to entitle her either to reside in it or let it.

AND ISSUE,
WITHOUT A

TRUST FOR
CONVERSION.