PRECEDENT WILL OF A UNDER A GENERAL POWER. and the income thereof, or so much thereof respectively as should not have become vested or been applied under MARRIED WOMAN any of the trusts or powers therein contained, Upon the trusts following (that is to say), If I should survive the said A. B., then from and after his death, and such default or failure of children as aforesaid, which should last happen, In trust for me, my executors, administrators, and assigns; But if the said A. B. should survive me, then from and after the death of the said A. B., and such default or failure of children as aforesaid, which should last happen, In trust for such person or persons and for such purposes as I should, notwithstanding coverture, by will or codicil appoint, And in default of such appointment upon the trusts therein mentioned, and the said indenture contains. a covenant or provision for the settlement of my other or after-acquired property accruing during my said coverture (except as therein mentioned), upon the like trusts (c); 2. that there AND WHEREAS there has been no issue of the said mar has been no issue of the marriage. 3. Appointment in exercise of settlement; riage; Now IN EXERCISE of the said power to me for this purpose given by the herein before recited indenture of settlement as aforesaid, and of every or any other power the power in the or authority in anywise enabling me in this behalf, I hereby appoint, THAT IN CASE there shall be no child of the said marriage who, being a son, shall attain the age of twenty-one years, or being a daughter shall attain that age or marry (d), the trustees or trustee for the time being 4. that the trustees of the settlement shall out of the trust funds pay funeral and testa As to testamentary powers in marriage settlements which are contingent on the husband surviving the wife. (c) The recital in the text is somewhat lengthy. See in the next Precedent a more concise mode of reference to the instrument creating the power. (d) The power exercised by the will in the text is the power hitherto usually given in marriage settlements to the wife over property brought into settlement on her side, of appointing by will, subject to the life interest of the husband and in the event of his surviving her, in default of issue of the marriage attaining a vested interest. As this power is contingent on the husband surviving, a will made in exercise of the power during the joint lives of the husband and wife will fail by the death of the husband in the wife's lifetime, although WILL OFA UNDER A GENERAL mentary expenses of the said indenture of settlement shall from and after PRECEDENT xxx. the death of the said A. B., or such default or failure of children as aforesaid, which shall last happen, with and MARRIED WOMAN out of the trust moneys, stocks, funds, and securities now or hereafter subject to the trusts of the said indenture of settlement, and the income thereof, or so much thereof respectively as shall not have become vested or been applied under any of the trusts or powers in the same indenture contained, PAY and discharge my funeral and testamentary expenses (e), AND RAISE and pay the following legacies or sums (that is to say), to- the sum of £, to the sum of £ and to the sum of £ (ƒ) (the in that alternative the fund is, according to the usual form of trust, given to the wife absolutely, and it would be necessary for her in that event to re-execute the will or make a new one (see Price v. Parker, 16 Sim. 198; Trimmell v. Fell, 16 Beav. 537; Noble v. Willock, L. R. 8 Ch. Ap. 778, 7 H. L. 580). To obviate the risk of the will thus failing, the frame of the ultimate trusts of the wife's property in an ordinary marriage settlement has in this collection been altered so as to give the power of testamentary appointment in default of issue attaining a vested interest to the wife in both events, with alternative trusts in default of appointment for her or for her statutory next of kin, according as she survives the husband or not (see ante, Vol. iii., Settlements, p. 187). of duty; Testamentary appointment by married woman renders fund liable to her (e) It is settled that property over which a married woman has a general power of appointment exercisable by deed or will is subject to her debts or engagements in the nature of debts, whether the power is exercised or not, in the same manner as ordinary separate estate (London Chartered Bank of Australia v. Lempriere, L. R. engagements. 4 P. C. Ap. 572; Mayd v. Field, 3 Ch. D. 587; overruling Shattock v. Shattock, L. R. 2 Eq. 182, and the other authorities referred to ante, Vol. iii. Settlements, p. 96, note; see also Johnson v. Gallagher, 3 De G. F. & J. 516). Where the power is testamentary only, it has been held in several cases that the exercise of the power does not make the fund assets except as to the antenuptial debts of the testatrix (Vaughan v. Vanderstegen, 2 Drew. 165, 363; Hobday v. Peters, 28 Beav. 354; Blatchford v. Woolley, 2 De G. & Sm. 204); but in Godfrey v. Harben (V. C. Hall, 10th November, 1879), these cases were held to be no longer of any authority, and the contrary was decided. (ƒ) The ordinary rule that general legacies carry interest only from the expiration of a year from the testator's death (see supra, Interest on legacies out of a particular fund. PRECEDENT XXX. WILL OF A MARRIED WOMAN UNDER A GENERAL POWER. 5. and hold residue in trust for testatrix's husband. said several legacies or sums to be clear of legacy duty), (g); AND SHALL stand possessed of all the residue of the said trust moneys, stocks, funds, and securities which now are or hereafter shall be or become subject to the trusts of the said settlement and the income thereof (including in such residue any of the legacies hereinbefore bequeathed which may fail of effect by lapse or otherwise (h)), in trust for my husband, the said A. B., his executors, administrators, and assigns, for his and their absolute benefit. AND AS TO all and singular other the estate and effects, whether real or personal, to which I shall be entitled for my separate use, or over or in relation to which I shall have any general power of appointment or disposition whatsoever at my death, I devise, bequeath, and appoint the same unto my said husband, A. B., his heirs, executors, administrators, and assigns, for his and their absolute benefit. 7. Appointment AND I HEREBY appoint the said E. F. and G. H. executors of this my will (2). IN WITNESS, &c. 6. General bequest of real and personal estate to husband. of executors. Legacy and probate duty in respect of wills under general powers. As to appointment of trustees and executors of wills under general powers. p. 28, note) is applicable to legacies given out of a particular fund'; but if the legacies are of specific portions of the fund, they will follow the rule as to specific legacies, and carry the interest or dividends from the testator's death, Davis v. Fowley, L. R. 16 Eq. 308. (g) Under a will exercising a general power of appointment, legacy duty is payable on the appointed fund as on a bequest from the donce of the power (Re Cholmondeley, 1 Cro. & Mee. 49, 3 Tyrhw. 10; Platt v. Routh, 6 Mee. & Wels. 756, 3 Beav. 257, 10 Cl. & Fin. 257). In Att.-Gen. v. Brackenbury, 11 W. R. 380, 9 Jur. N. S. 257, 32 L. J. Ex. 108, it was held that appointees, who would also have taken in default of appointment, and would in that case have been chargeable with duty at a less rate, could not elect, but must take under the appointment. Under 23 Vict. c. 15, ss. 4, 5, probate duty is also now payable upon personal estate appointed by will under a general power. (h) See supra, p. 279 note (k), and especially the case of Hoare v. Osborne, 10 Jur. N. S. 694, 12 W. R. 661, there referred to. (i) It is competent to the donee of a general power of testamentary appointment, whether a married woman or not, to appoint either the trustees of the settlement or any other persons to be trustees and executors for carrying out the trusts of the will as to the appointed fund; but there is an obvious convenience in appoint WILL OF A MARRIED WOMAN POWER. ing the trustees of the settlement for this purpose, as they must PRECEDENT XXX. necessarily, to some extent, be implicated in the disposition of the funds. Where other persons are appointed executors, and there is no express provision in the will to the contrary, this is equivalent UNDER A GENERAL to appointing the executors trustees for the purpose of distributing the fund according to the will, and the trustees of the settlement will be bound to transfer the fund to the executors, whose receipt will be a complete discharge to them (Re Philbrick, 34 L. J. Ch. 368, 11 Jur. N. S. 558, 13 W. R. 570; Hayes v. Oatley, L. R. 14 Eq. 1; In re Hoskin, 5 Ch. D. 229, on app. 6 Ch. D. 281). In the case of a will of a testator, other than a married woman, appointing personalty, and expressly directing that the trustees of the settlement shall execute the trusts of the appointment, or nominating other trustees, distinct from the executors, for that purpose, it follows from the doctrine that the appointment renders the fund part of the testator's assets for general purposes (Wilday v. Barnett, L. R. 6 Eq. 193, Re Wilkinson, 4 Ch. Ap. 587, see supra, p. 280, note), that the executors will be entitled to call for a transfer of the fund to themselves in the first instance, and their assent to the appointment to the trustees will be necessary, as in the case of any other bequest of personalty in trust. But if the will is that of a married woman, the functions of the executors in the case just supposed are not so well defined. Inasmuch as the executors of a married woman do not take jure representationis, but only by virtue of the power (see Williams, Executors, p. 60, referring to Tugman v. Hopkins, 4 M. & Gr. 389, O'Dwyer v. Geare, 1 Sw. & Tr. 465; and the remarks of Lord Romilly, M. R., in Hayes v. Oatley, ubi sup.), although the will would operate to render the fund liable to the general engagements of the testatrix (see supra, p. 583 note (e)), the administration of the fund for this purpose would not in the case supposed (of a will nominating trustees distinct from the executors) devolve on the latter, and it would seem that they would not be charged with any duty except that of proving the will and paying the probate duty (see Re Fraser, L. R. 2 P. & D. 183, and as to the probate duty, see 23 Vict. c. 15, s. 5, and Re Philbrick, ubi sup.). It would be in general advisable to appoint the same persons trustees and executors, in order to avoid questions of this kind as to the division of duties. The will must be proved in the usual manner, in order to authenticate it as a testamentary instrument; see the references, supra, p. 579, note. As to the practice of the Probate Division with regard to deciding questions as to the validity of wills under powers, see Re Tharp, 3 P. D. 76. As to the mode of executing wills under powers, see s. 10 of the Wills Act, supra, p. 17; and as to the case of a testator domiciled abroad, see supra, p. 349, note. XXXI. WILL OF A MARRIED WOMAN PRECEDENT XXXI. WILL of a MARRIED WOMAN under ALTERNATIVE GENERAL POWERS contained in her Marriage Settlement giving LEGACIES, and containing a RESIDUARY appointment and a GENERAL BEQUEST of personal estate to Two persons equally (a). EXERCISING GENERAL 1. Recital of post-nuptial settlement. I,C. B., the wife of A. B., of &c., hereby revoke, &c. [supra, p. 26]: WHEREAS by virtue of an indenture dated &c., and expressed to be made between [parties], being a postnuptial settlement pursuant to an ante-nuptial agreement upon the marriage of the said A. B. and me the said testatrix, the moneys, stocks, funds, shares, securities, and property therein mentioned, which were then partly reversionary, but the whole of which have now fallen into possession, and such other existing and future property to which I was or might become entitled as therein expressed, were settled upon trusts for the benefit of myself and my husband, the said A. B., during our respective lives, and afterwards for the issue of our marriage, and it was thereby declared that in the event of there being no child of the said A. B. by me the said testatrix who, being a son, shall attain the age of twenty-one years, or being a daughter shall attain that age or marry under that age, the said trust premises shall (subject to the prior trusts in the same indenture declared, and after the death of the said A. B. and such default or failure of children, and in case of the said A. B. surviving me) be held in trust for such person or persons and for such purposes as I the said testatrix shall, notwithstanding coverture, by will or codicil appoint; And the same indenture also contains a power for me the said testatrix, whether covert or sole, by will or codicil to appoint as I think fit (but subject to the therein men (a) See the notes to Precedent XXX., supra. |