WILL OF A WIDOW PRECEDENT XV. fit. AND I HEREBY DECLARE, that during the minority or respective minorities of any son or sons of the said D. B., and the minority and discoverture or respective minorities and discovertures of any daughter or daughters 13. Maintenance of the said D. B., the said trustees or trustee for the time being shall at their or his discretion (but without prejudice OF A SON. clause. 14. The income of the presump tive shares of adult children to be paid to them. 15. Disposal of the income dur ing a suspense of there being children. Destination of income after children have attained vested interests liable to be partially divested. £ to the trusts aforesaid for raising the said annual sums of and £), apply the whole or such part as the said trustees or trustee shall think fit of the income of the share or respective shares to which any child or children of the said D. B. shall for the time being be entitled in expectancy under the trusts hereinbefore declared for or towards his, her, or their maintenance and education respectively, and accumulate all the residue, &c. [accumulation clause, supra, p. 44]. PROVIDED ALWAYS, and I hereby declare, that after any child or children of my said son D. B. being a son or sons shall have attained the age of twenty-one years, or have died under that age leaving issue living at his or their death or respective deaths or born in due time after, or being a daughter or daughters shall have attained the age of twenty-one years or married, the said trustees or trustee shall (subject as aforesaid) pay the income of the expectant or presumptive share for the time being of each such child under the trusts herein before declared, unto such child or his or her executors, administrators, or assigns (g). PROVIDED ALSO, and I hereby declare, that if at any time or times during the life of my said son D. B. no child of the said D. B. shall have attained a vested interest or be entitled in (g) It is right to make express provision by the will for the destination of the income during the period when there are children in existence who have attained a vested interest, but whose shares are presumptive by reason of their being liable to diminution on other children becoming entitled to participation; but, even in the absence of such a provision, it appears that the children for the time being presumptively entitled to the principal, are absolutely entitled to the accruing income (2 Jarm. Wills, 3rd ed., 156-157). expectancy under the trusts herein before declared, then said C. B. if living, and the said annual sum of £- PRECEDENT XV. WILL OF A WIDOW IN FAVOUR OF THE CHILDREN OF A SON. that if there 16. Trusts of the the (h) Where the gift is of a residue of personalty, if there be no object in existence at the time when it might vest in possession, and no express provision to the contrary, the gift will carry intermediate produce as part of such residue (2 Jarın. Wills, 3rd ed., 155; and see Genery v. Fitzgerald, Jacob, 468; Trevanion v. Vivian, 2 Ves. Sen. 430; Hodgson v. Earl of Bective, 1 Hem. & M. 376, 10 H. L. C. 656). If the gift be of a sum of money, it is sufficient to say that the legacy is not payable until the birth of a child (2 Jarm. 155); and if the subject-matter of the bequest be a specific trust fund, the intermediate income will fall into the residue (Wyndham v. Wyndham, 3 Bro. C. C. 58; Shawe v. Cunliffe, 4 Bro. C. C. 144; Harris v. Lloyd, Turn. & Russ. 310; Fullerton v. Martin, 1 Drew. & Sm. 31). In the case of real estate specifically devised, the rents and profits during such suspense will pass by the residuary clause, if there be one, and if not will descend to the heir (1 Jarm. Wills, 616, and notes (d) and (e) thereto). When the devise on which the question arises is itself residuary, the intermediate rents and profits will go to the heir (Hopkins v. Hopkins, Ca. t. Talb. 44, see Hawkins, Constr. Wills, App. 1; Hodgson v. Earl of Bective, ubi sup.), unless the residuary real and personal estate are blended for the purpose of devolution, in which case the devise will carry the intermediate rents (Genery v. Fitzgerald, ubi supra; Ackers v. Phipps, 3 Cl. & F. 691, 9 Bligh, N. S. 430). An accumulation of the rents or income during the suspense of there being objects, whether expressly directed, or arising by implication, cannot be continued beyond twenty-one years from the testator's death, having regard to the Thellusson Act, 39 & 40 Geo. 3, c. 98 (Hodgson v. Earl of Bective, 10 H. L. C. 656; Wade Gery v. Handley, 1 Ch. D. 653); and the Act does not permit an accumulation during the minority of a person ultimately becoming entitled, and also during the interval between the death of the testator and the commencement of the minority (Ellis v. Macwell, 3 Beav. 587). Destination of income when there is no object in existence. WILL OF A WIDOW IN FAVOUR OF THE CHILDREN OF A SON. of children. PRECEDENT XV. shall be no child of the said D. B. living at my death or afterwards to be born, who being a son attains the age of twenty-one years or dies under that age leaving issue living at his death or born in due time after, or funds in default being a daughter attains that age or marries, then, subject and without prejudice to the trusts hereinbefore declared, and after the death of the said D. B. and such failure of his children as aforesaid, the said trustees and trustee for the time being shall stand possessed of the said trust premises, and the income thereof, or of so much thereof respectively as shall not have been applied under any of the trusts or powers herein contained, IN TRUST to pay the income thereof to my said sisters, L. M. and N. O., and the survivor of them during their and her lives and life, survivor for life. and to be payable to them during their joint lives in equal 17. For payment of the income to the testatrix's two sisters or the 18. Ultimate trust as to such part as can be so bequeathed for such charit trustees shall think fit; shares, for their and her respective separate use, free from the debts, control, and engagements of any husband whom they may respectively marry, and so that they respectively shall not during any coverture have power to dispose thereof by way of anticipation. AND FROM and after the deccase of the survivor of my said sisters the said trust. premises shall, subject and without prejudice to the trusts able uses as the powers and provisions herein before declared and contained, go and be held upon the trusts following (that is to say), AS TO SUCH part or parts of the same trust premises as can by law be bequeathed for charitable purposes, upon trust for the disposal of the same for such charitable uses or purposes as the trustees or trustee of this my will holding such office at the time or respective times when the trust premises shall become disposable under this present trust shall in their or his absolute and uncontrolled 49. and as to discretion think fit (i), AND AS TO the remainder (if any) the remainder () As to charitable legacies, see supra, p. 128, note, and the references there. In connection with bequests of the nature of that in the text it is important to bear in mind that if the bequests were not confined to charitable purposes, but were extended to PRECEDENT XV. IN FAVOUR OF THE CHILDREN OF A SON. for the survivor sisters. of the testatrix's 20. Direction to marshal the assets so as to give the fullest of the said trust premises, in trust for the survivor of my said sisters, L. M. and N. O., her executors, administrators, WILL OF A WIDOW and assigns absolutely. PROVIDED ALWAYS, and I hereby declare and direct that for ensuring as far as possible that effect shall be given to my aforesaid intention as to the disposal of the ultimate residue of my estate, as far as may be for charitable purposes, my debts, funeral and testamentary expenses and pecuniary legacies (other than charitable legacies), and the legacy duty on any legacies (other than as aforesaid) given free of duty, shall be borne and defrayed primarily out of the proceeds of my real and mixed personal estate, in exoneration of my pure personal estate capable by law of being bequeathed for charitable purposes (k). [Power to postpone sale and conversion of real and personal estate, and direction as to intermediate income, and other usual clauses, as is Precedent I., supra, pp. 49, et seqq., so far as applicable.] IN WITNESS, &c. or to other indefinite purposes, without any apportionment of the be- (k) For a form of a clause providing for giving the largest possible operation to a residuary bequest in favour of charities, see supra, p. 133, note. effect to the bequest to charity. XVI. PRECEDENT XVI. WILL of REAL and PERSONAL ESTATE. WILL DECLARING TRUSTS OF RESIDUE IN SEVERAL SHARES, WITH CROSS TRUSTS. 1. Devise of rent-charges in lieu of tithes for life, with remainder in tail, with remainder to trustees upon the trusts of the general real SPECIFIC DEVISE of REAL ESTATE for LIFE with remainder in TAIL, with remainder to trustees upon the trusts of the general real estate. TRUSTS of the produce of the GENERAL estate by way of EXONERATION of the real estate SPECIFICALLY devised from CHARGES, and subject thereto for division into SHARES to be held as to one share for the testatrix's father for LIFE, with power to pay him a limited sum YEARLY out of the CAPITAL, and as to the other shares for her BROTHERS and SISTERS, their wives, husbands and children, the TRUSTS of some of the shares being DECLARED by REFERENCE. Proviso that nephews or nieces PREDECEASING testatrix leaving ISSUE, shall be entitled to shares. CROSS TRUSTS as to all the shares. The MAINTENANCE clause is OMITTED in reliance on the STATUTE. Proviso DETERMINING life interests on BANKRUPTCY, &c. Power to DEPOSIT securities to BEARER in a BANK. Provision for remuneration of TRUSTEES. SPECIAL power to executors and trustees to ARRANGE and COMPROMISE. I, A. B., of &c., widow of hereby revoke &c. [supra, p. 26. late of &c., deceased, Recital that by the will of the testatrix's husband his real estate, including rent- sister cstate. |