WILL DEVISING IN STRICT enacted that there shall not henceforth be any merger by operation PRECEDENT XXI. of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity; and it is conceived therefore that a merger would not now take place in either of the cases supposed. Nevertheless, as the application of the Act may not be quite certain, it is considered that where a term is limited to trustees, and the subsequent part of the will contains a limitation of the freehold to trustees (as in the case of a limitation during a suspense of contingent remainders rendered necessary by a shifting clause, see p. 394, supra), or of another term, it may be prudent to adhere to the old practice of employing distinct sets of trustees; and apart from this consideration there is a practical convenience in keeping the trusts of a term (such as a portions term) distinct from the general trusts of the will. In a will containing a name and arms or other shifting clause, the necessity for inserting a limitation to trustees might be avoided by making the life estate cease in equity only, in the mode adopted in Precedent XXIV., infra (and see the note to Precedent XXIII., infra, p. 458); or if a limitation to trustees is inserted, a declaration might be added that the trustees named for that purpose, their heirs or assigns, are to be deemed trustees for that purpose only, and are not to be considered as trustees of the will, or as designated by any reference to the trustees thereof, or in any like general terms. As such trustees are a mere technical necessity, without any active duties, and it is scarcely possible that there should be any occasion for appointing new trustees in their place, the power of appointing new trustees might, in this case, be that adapted to a single set of trustees. The following clause, corresponding to that at p. 58, supra, might be inserted in a will in strict settlement with only one set of trustees, such as that in the text, in which case the expression "the said trustees or trustee " might be used throughout :" AND I HEREBY declare that all the powers, authorities, and discretions by this my will expressed to be vested in or given to the trustees thereof, whether by that or any other designation, shall devolve upon and be exercisable by the said E. F. and G. H., and the survivor of them, and the executors or administrators or (as to any hereditaments vested in them) the heirs of such survivor, or other the trustees or trustee for the time being of this my will." Declaration as to devolution of adapted to a trustees' powers will in strict settlement. XXII. PRECEDENT XXII. WILL of REAL and PERSONAL estate. WILL DEVISING IN STRICT WITH LIMITA- SUCCESSION (a). 1. General devise of freehold estates; 2.- to the testator's niece GENERAL DEVISE of FREEHOLDS of inheritance to a WOMAN for LIFE for her separate use, with remainders in STRICT SETTLEMENT so as to give estates in TAIL MALE and in TAIL GENERAL to SONS AND DAUGHTERS in SUCCESSION. NAME and ARMS clause. DECLARATION as to the receipt and application of RENTS during MINORITY of males and MINORITY and DISCOVERTURE of females. Powers of LEASING and SALE and EXCHANGE. I, A. B. of &c. hereby revoke &c. [supra, p. 26]. I BEQUEATH &c. [bequest of legacies and annuities]. I DEVISE my manor and mansion house of aforesaid with the pleasure grounds, gardens, plantations, lands, rights, easements, and appurtenances thereunto belonging or therewith held or enjoyed, and all other my messuages, farms, lands, tenements, and hereditaments situate in the parish of or any other parish or place in the county of (or such part or parts thereof as are freehold of inheritance) with their rights, easements, and appurtenances, and all other the manors, messuages, farms, lands, tenements, hereditaments, and real estate wheresoever situate, being freehold of inheritance, of or to which I shall at my death be seised or entitled, in possession, remainder, or reversion, and for either a vested estate or in expectancy or contingency, or over which I shall at my death have a general power of appointment or disposition by will, with their appurtenances (except what I otherwise dispose of by this my will or any codicil hereto), TO THE USE of my niece E. D., the daughter of (a) See p. 387, note (a), supra. - REAL ESTATE IN STRICT WITH LIMITA- for life for her 3.- remainder successively in tail male; to her sons 4. remainder now deceased, for her life without impeachment of PRECEDENT xxii. waste, for her sole and separate use, independently of WILL DEVISING any husband with whom she may intermarry, and of his debts, control, and engagements (b); And from and after the death of the said E. D., TO THE USE of the first and every other son of the said E. D. successively according to their respective seniorities in tail male; with remainder To THE USE of the first and every other son of the said E. D. successively according to their respective seniorities in tail; with remainder To THE USE of the first and every other daughter of the said E. D. successively according to their respective seniorities in tail (c); with remainder TO THE USE of F. C. of and his assigns during his life without impeachment of waste; and from and after the death of the said F. C. TO THE USE of the first and every other son the said F.,C. successively according to their respective seniorities in tail male; with remainder To THE USE of the first and every other son of the said F. C. succes- for life; sively according to their respective seniorities in tail; 7.- remainders with remainder TO THE USE of the first and every other to his sons sucdaughter of the said F. C. successively according to their respective seniorities in tail; with remainder To THE USE of the first and every other son of G. C., deceased, successively according to their respective seniorities in tail male; with remainder TO THE USE of the first and every other son of the said G. C. successively according of (b) See a form of limitation to trustees for the separate use of a woman for life and restraining anticipation, infra, Precedent XXIII., p. 456, and a fuller form, ante, Vol. iii., Settlements, Precedent XXXVIII., p. 1195. (c) When the estates in tail general of the sons of the tenant for life immediately follow their estates in tail male (the estates of the daughters being postponed to both), there is no object in limiting estates in tail male to the daughters, and it is conceived, that the more consistent frame of settlement is to limit to the daughters in succession estates in tail general only, as in the text. VOL. IV. GG to them successively in tail; 5.- remainder to her daughters to another person cessively in tail 8. in tail; 9. remainders -- to the sons of a deceased person successively in tail male and in tail; WILL DEVISING REAL ESTATE PRECEDENT XXII. to their respective seniorities in tail; with remainder To THE USE of the first and every other daughter of the said G. C. successively according to their respective seniorities in tail; with remainder To THE USE of my own right heirs for ever (d). PROVIDED ALWAYS, and I IN STRICT WITH LIMITA- MALE AND DAUGHTERS IN 10. SUCCESSION. remainder to his daughters successively in tail; 11. ultimate remainder to the testator's right heirs. 12. Name and arms clause. 11a. Ultimate remainder to the Proviso reducing tenants in tail (d) As to the effect of a devise to the testator's right heirs, see p. 390, note (e), supra. The following is a form of limitation to the testator's right heirs to be ascertained at the time when the limitation takes effect in possession: "TO THE USE of the person or persons who at the time of the failure or determination of the preceding uses, and when the present ultimate limitation shall or but for the same being wholly or partially suspended by any tenancy by the curtesy or in dower in respect of such preceding uses or any of them would take effect in possession, shall be heir or heirs at law, and the heirs and assigns my of such person or persons for ever, such persons (if more than one) to take as tenants in common in the shares in which they would have taken by descent from me had I died intestate immediately before the said period at which the person or persons taking under this ultimate limitation is or are to be ascertained: Where estates in tail male and tail general are limited to the same persons, as in the text, a proviso in the following form reducing the estates of those born in the testator's lifetime to life estates may be added, if it falls in with the scheme of the will, which however it will be seen would not be the case in the will in the text. Compare the form supra, p. 391. Where, as in the text, some of the devisees take estates in tail general only, a further proviso would be necessary for that case, reducing those born in the testator's lifetime to life estates, with remainder to their sons successively in tail, remainder to their daughters successively in tail: "PROVIDED ALWAYS, and I declare, that if any person born in testator's to whom I have given an estate in tail male by purchase and also an estate in tail by purchase in the said premises hereinbefore devised is born in my lifetime, such respective estates in tail male and in tail shall not take effect: AND IN LIEU of such estate in tail male, I devise the said lifetime to life estates where estates in tail male and tail general are limited to the same persons. my hereby declare, that every person who under this hereditaments To THE USE of such person during his PRECEDENT XXII. WILL DEVISING WITH LIMITA- 13. Penalty for not assuming the name and arms. |