PRECEDENT XXI.

WILL DEVISING
REAL ESTATE

IN STRICT
SETTLEMENT IN

THE MALE LINE.

Structure of will devising

XXI.

WILL of REAL and PERSONAL estate. GENERAL DEVISE of FREEHOLDS of inheritance to nephews of the testator and their ISSUE MALE, in STRICT SETTLEMENT. PROVISO reducing to LIFE TENANCIES tenants in tail male BORN in the testator's LIFE-TIME. NAME and ARMS clause. DECLARATION as to the receipt and application of RENTS during MINORITIES. POWERS for the tenants for life to JOINTURE and CHARGE PORTIONS. POWERS to LEASE for twenty-one years, to grant BUILDING LEASES, and to grant MINING LEASES. POWERS of granting LICENCES to COPYHOLDERS, and of ENFRANCHISEMENT. POWERS of PARTITION, and of SALE and EXCHANGE. DEVISE of COPYHOLDS upon trusts to CORRESPOND with uses of FREEHOLDS. BEQUEST of LEASEHOLDS upon trusts to CORRESPOND with uses of FREEHOLDS, TRUSTS for RENEWAL of leases, and grants for lives or years. BEQUEST OF CHATTELS as HEIRLOOMS, with directions as to INVENTORY, and otherwise. BEQUEST of RESIDUARY PERSONAL estate upon trust for CONVERSION, and for application of RESIDUE after payment of debts and legacies as if it had arisen under the POWER of SALE of the real estate. PoWER to POSTPONE conversion of personal estate, and direction as to intermediate INCOME. Clause SUPPLEMENTAL to STATUTORY provisions as to APPOINTMENT of and INDEMNITY to TRUSTEES. VARIATIONS in notes giving SHORT forms of the MINORITY clause and of powers of LEASING and SALE (a).

(a) Some observations as to the structure of and clauses in an ordinary strict settlement of real estate by deed, will be found ante,

WILL DEVISING
REAL ESTATE
IN STRICT

THE MALE LINE.

1. General

estate;

I, A. B., of &c., [supra, p. 26]. I DEVISE all the PRECEDENT XXI. manors, advowsons, messuages, lands, tenements, and hereditaments, and undivided shares of manors, advowsons, messuages, lands, tenements, and hereditaments, SETTLEMENT IN being freehold of inheritance (b), situate, arising, and being in the counties of and or elsewhere in devise of real England, Wales, or Ireland, of or to which I shall at my death be scised or entitled, or over which I shall at my death have a general power of appointment or disposition by will (except what I otherwise dispose of by this my will or any codicil thereto), To THE USE of my nephew, 2. J. T., of, &c., and his assigns, for his life, without impeachment of waste (c); and from and after the decease of the

to a testator for life;

nephew of the

strict settlement.

Vol. iii., Settlements, pp. 271-276. These observations are for real estate in the most part also applicable to a will of which the main purpose is to devise real estate in strict settlement, and which (as noticed, supra, p. 10) differs but little from a deed with the like object, except in the formal commencement of the clauses, and the substitution of the words "in tail" or "in tail male" for words of limitation.

of strict settlement.

The Precedent in the text is of a will devising estates in strict Leading forms settlement in the male line only. In the next Precedent, XXII., estates in tail male and in tail are limited to sons and daughters in succession, and in the following Precedent, XXIII., estates are limited to daughters as tenants in common in tail. As to these three cardinal forms of strict settlement, and generally as to the order of limitations in a strict settlement, see ante, Vol. iii., Settlements, pp. 324, et seq.

in strict settlement should

comprise freeholds of inhcritance only.

(b) In wills devising estates to uses in strict settlement, the Devise to uses devise in strict settlement should comprise freeholds of inheritance only, and copyholds and leaseholds (whether for lives or years) should be devised and bequeathed to trustees upon trusts corresponding to the uses of the freeholds. If the fee is vested in trustees, and the limitations are equitable only, the freeholds and copyholds may be devised together, but the leaseholds, being incapable of strict settlement, should in that case also be the subject of a distinct disposition.

(c) As to estates for life without impeachment of waste, see ante, Vol. iii., Settlements, pp. 279 et seq.; as to the rights of a tenant for life impeachable for waste, see also Ilonywood v. Honywood, L. R. 18 Eq. 306, Lowndes v. Norton, 6 Ch. D. 139; and as to the

PRECEDENT XXI.
WILL DEVISING

REAL ESTATE

Said J. T., TO THE USE of K. T., the eldest son of the Said J. T., and his assigns, for his life, without impeachment of waste; and from and after the decease of the said K. T., TO THE USE of the first and every other son of the said K. T. successively, according to their respecto his eldest son tive seniorities in tail male (d); And in default of such

IN STRICT SETTLEMENT IN THE MALE LINE.

3. remainder

for life;

4. remainder

to the son's first and other sons in tail male;

Manner of introducing estates tail and limiting remainders by will.

Contingent Remainders Act,

right to the proceeds of timber cut by the order of the Court, see Honywood v. Honywood, ubi sup. The enactment in the Settled Estates Act extending the jurisdiction of the Court to direct the fall of timber (see Vol. iii., p. 289), is re-enacted by the Settled Estates Act, 1877, 40 & 41 Vict. c. 18, s. 16. If the tenant for life is to be impeachable for waste, this may be effected by omitting the words "without impeachment of waste;" or, if it be thought desirable to express it, by substituting the words "subject to impeachment for waste;" see Vol. iii., p. 1141, note. As to qualified exemptions from impeachment for wasto, e. g., a limitation "without impeachment of waste, except spoil or destruction, or wilful or permissive waste in pulling down houses or buildings, or suffering the same to fall into decay," or otherwise, see Vol. iii., pp. 304, 1140, note.

(d) As the word "heirs" is not essential to create an estate of inheritance by will, it is usual in wills, instead of framing the limitations in tail in the same manner as in settlements (see ante, Vol. iii. pp. 986 et seq.) to express the testator's intention by the phrases"in tail," or "in tail male," as the case may be (see last page, note). It must of course be stated whether the devisees are to take in succession according to seniority, or together as tenants in common in equal shares. It is also common to introduce the successive limitations by the words "with remainder," instead of the more formal phrase "in default of such issue;" but the latter phrase is frequently used, as in the Precedent in the text. As to the omission in modern conveyancing (in consequence of the provision in the Act 8 & 9 Vict. c. 106, s. 8, protecting contingent remainders from failure by the forfeiture of the preceding estate of freehold) of the limitations formerly inserted to trustees during the continuance of the life estates to preserve contingent remainders, see ante, Vol. iii., pp. 266–268; and as to the doubt whether that enactment applies to a case in which the life estate is determined under a provision in the instrument creating the limitations, such as a shifting clause, and the expediency in that case of inserting a limitation to trustees to preserve, see Vol. iii., p. 268, note (u). By the recent Act to amend the law as to contingent remainders, 40 & 41 Vict. c. 33, it is enacted that "Every con

1877.

WILL DEVISING
REAL ESTATE

IN STRICT

issue, TO THE USE, &c. [similar limitations to the second PRECEDANT XXI. son of the testator's nephew for life, with remainder to his first and other sons in tail male]; And in default of such issue, TO THE USE of the third and every other after- SETTLEMENT IN born son of the said J. T. successively, according to their respective seniorities, in tail male; And in default of such limitations to

THE MALE LINE.

5. -similar

the nephew's second son and

his issue male; remainder

6.

to the nephew's third and other sons in tail

tingent remainder created by any instrument executed after the
passing of the Act, or by any will or codicil revived or republished
by any will or codicil executed after that date, in tenements or
hereditaments of any tenure, which would have been valid as a
springing or shifting use or executory devise or other limitation, male;
had it not had a sufficient estate to support it as a contingent
remainder, shall, in the event of the particular estate determining
before the contingent remainder vests, be capable of taking effect
in all respects as if the contingent remainder had originally been
created as a springing or shifting use or executory devise or other
executory limitation." The Act, it will be observed, does not save
the remainder from failure unless it would have been valid, if
originally created by way of springing or shifting use or executory
devise or otherwise; so that a remainder, which if so created
would have been void as infringing the rule against perpetuities,
will not be saved by the Act. Reference has already been made
(supra, p. 225, note) to the doubt whether the late Act has
effected its object in the case of a gift in remainder to a class, some
only of whom have attained a vested interest at the time of the
determination of the particular estate. By the effect of the
late Act the necessity for the insertion of a limitation to trustees
to preserve contingent remainders is superseded in all cases
in which the gift in remainder is to an individual; but if the
gift is to a class, subject to a contingency which may continue
after the natural determination of the particular estate; or where
the contingency cannot so continue, but the particular estate is
subject to premature determination by means of a shifting clause,
it appears, to say the least, to be the safe and proper course, in
the present state of the law, to insert a limitation to trustees to
preserve; but it may be proper, having regard to the late Act, that
the form of the trust should be modified, and that it should not (as
in the old form) be in terms expressed as intended to preserve the
contingent remainders. The late Act makes no provision for the
destination of the rents in the interval between the determination
of the particular estate and the vesting of the remainder, this being
--and no doubt properly-left to depend on the ordinary rules of
law and construction which may be applicable to the particular

WILL DEVISING

REAL ESTATE

IN STRICT

PRECEDENT XXI. issue, &c. [limitations as above, mutatis mutandis, to another nephew, L. X., for life, with remainder to his eldest son, N. X., for life, remainder to the first and SETTLEMENT IN other sons of N. X. in tail male, remainder to the second and other after-born sons of L. X., in tail male]; And in default of such issue To THE USE of the right heirs of my late father, E. B., Esquire, for ever (e). PROVIDED

THE MALE LINE.

7. limitations in favour of

another nephew and his issue

case (see as to this, supra, p. 311, note); but it will of course be the business of the draftsman to make express provision for this, and not to leave it to implication; and the insertion of a limitation to trustees during the suspense of the contingent remainders, may be convenient for this purpose even where it is not required for the preservation of the remainders. The two last editions of this volume contained a note extracted from the Penny Cyclopædia (Art. "Remainder") in which the leading principles of the theory and law of remainders were given with much brevity and exactness, suggesting at the same time some novel views on the subject, which was the work of the editor, the late eminent scholar and jurist, Mr. George Long. This article has been reprinted with the alterations rendered necessary by the Act of 8 & 9 Vict. c. 106, in the English Cyclopædia, and as access to it may be had in Lincoln's Inn Library, it is, to save space, omitted in this edition. (e) A devise to the right heirs of a specified person will vest in the person answering the description of heir at the testator's death a fee simple descendible as if it had been actually acquired by descent from the ancestor. See 3 &4 Wm. 4, c. 106, s. 4; 22 & 23 Vict. c. 35 (Lord St. Leonard's Act), ss. 19, 20; ante, Vol. iii., Settlements, pp. 342 et seq. and notes; and see also 2 Jarm. Wills, 3rd ed., c. 28, pp. 55 et seq.; and to the cases there cited, add Thorpe v. Thorpe, 1 Hurl. & Colt. 326 (devise of lands to the testator's right heirs of the name of Henry Thorpe). A devise to the testator's right heirs, which would formerly have been inoperative, leaving the heir to take by his better title by descent, will now, under 3 & 4 Wm. 4, c. 104, s. 3, confer on the heir a title by purchase as a devisee. Under such a devise the person answering the description of heir at the death will take, but when the devised estate would be descendible otherwise than to the heir general, as in the case of gavelkind or borough English estates, the question arises whether the heir general or the person or persons who would have been inheritable to the devised estate, shall take under the description of heir. In Sladen v. Sladen, 2 Johns. & Hem, 367, in which by a will dated in 1822, freeholds of gavelkind tenure and