PRECEDENT WILL OF A MARRIED WOMAN POWERS. 8. Shares of daughters to be for their separate use. advancement my children now living or hereafter to be born (exclusive of the said R. S. and M. B.) as shall survive me and being sons or a son have attained or shall attain the age of UNDER LIMITED twenty-one years, or being daughters or a daughter have attained or shall attain that age or have married or shall marry under that age, and if more than one in equal shares; AND I DECLARE that the legacies and shares hereinbefore given to my respective daughters shall be for their respective separate use, independently of any husband or husbands whom they respectively have married or may 9. Provisions for hereafter marry (e); AND (so far as I have power so to do) and maintenance I appoint and declare that the several provisions by the will of my said late father made applicable by reference as herein before appearing to the said last mentioned trust premises for and in relation to the advancement of any child of mine entitled to an expectant or vested share, and the maintenance and education of any child entitled to a share in expectancy, and the accumulation of surplus income, and the power of resorting to such accumulations, shall apply and be operative in relation to their respective interests under the appointment hereinbefore contained (ƒ). [Appointment of trustees of will of testatrix's father to be executors.] IN WITNESS, &c. by reference. As to restraining anticipation in appointments to females. aid of the hotchpot clause in the instrument creating the power, to the representatives of a deceased child. See supra, p. 268, note. (e) That a restraint on anticipation cannot be imposed in the case of appointments to females under powers, if it would suspend the power of disposition beyond the legal limit, see ante, Vol. iii., Settlements, p. 157, note (z). Such a restraint might be annexed in this Precedent during the life of the husband of the testatrix if he was in esse at the time of the creation of the power. (f) See a similar clause in an appointment, supra, p. 556. The above clause assumes it to be doubtful whether it was competent to the testatrix to give the powers in question. The provisions for maintenance and advancement in the instrument creating the power were in this case framed so as apparently to apply to appointed shares. See as to this, ante, Vol. iii., Settlements, p. 159, and note; and with reference to the operation of a power of advancement out of appointed shares, see supra, p. 278, note. XXXIII. CODICIL bequeathing a SPECIFIC and a PECUNIARY LEGACY (a). day of PRECEDENT XXXIII. CODICIL SPECIFIC AND A PECUNIARY 1. Bequest of specific legacy; I, A. B., of &c., hereby declare this to be a codicil to BEQUEATHING A my last will, dated the I BEQUEATH to my wife (in addition to all bequests in her favour contained in my said will) (b) one of my carriages and one pair of my carriage horses to be selected by her, with their harness and appurtenances (c); I BEQUEATH to the sum of £- free of legacy duty; AND IN ALL other respects I hereby confirm my said will. IN WITNESS of will. whereof I the said A. B. have hereunto set my hand this 2. of pecuniary legacy. 3. Confirmation day of 18 Testator's signature. Signed and acknowledged by the above-named testator A. B. as a codicil to his will in the presence, &c. [Supra, p. 63.] (a) As a rule codicils are objectionable except for simple purposes, Proper objects such as the gift or revocation of a legacy; for, independently of the of codicil. risk of a document unattached to the will being lost, there is often much difficulty in fitting the provisions of the codicil into the trusts or limitations of the will. If larger changes are contemplated a new will should be made. In practice, however, the expediency of this course is frequently disregarded, and extensive alterations are effected by codicil. For the learning connected with codicils, see the references in the Index to Williams on Executors, and in that to Jarman on Wills, title Codicil; Badger's Hayes & Jarm. Conc. Wills, 8th ed., pp. 419 et seq., note. Legacies given by will and codicil, whether (b) Legacies given by two separate instruments, as a will aud codicil, are primâ facie cumulative, but circumstances may show that substitution was intended. See the rule with its qualifications cumulative. examined in Hawkins, Construction of Wills, pp. 303 et seq. Even when unnecessary, it is not improper to explain (as in the text) the testator's intention in this respect. (c) It appears that, under a gift of this description, the right of Right of specific legatee to select. selection would belong to the legatee, though not expressly conferred. See Jacques v. Chambers, 2 Coll. 435, 441; 1 Jarm. Wills, 3rd ed., p. 335, and notes. XXXIV. PRECEDENT CODICIL SUBSTITUTING A ONE APPOINTED 1. Revocation of appointment of trustee, executor, and guardian. of substituted CODICIL SUBSTITUTING & TRUSTEE and EXECUTOR and I, A. B., of &c., declare, &c. [supra, p. 593.] I REVOKE the appointment in my said will contained of E. F. of &c., as a trustee and executor thereof, and one of the guardians of my infant children, and revoke the bequest thereby made to him of the sum of £--; AND I APPOINT X. Y. of &c., to be a trustee and executor of my said will, and guardian of my infant children, in the place of the said 2. Appointment E. F., with all the estates, trusts, and powers by my said will vested in or given to the said E. F. as a trustee or executor thereof (jointly with my said wife and G. H., therein named), or intended so to be, to the intent that my said will shall take effect as if in every devise and bequest upon trust, and in the devise of estates vested in me as a trustee or mortgagee, in my said will contained, and generally throughout my said will and the former codicils thereto, the name of the said X. Y. had been substituted for that of the said E. F. (a), But not so as to affect any trustee, executor, and guardian. As to appointment of new trustee by codicil. (a) The appointment of a new trustee is one of those alterations which may judiciously be made by a codicil. An appointment by codicil of a trustee in the place of a trustee named in the will, operates as an implied gift to the former of the trust estate; 2 Jarm. Wills, 3rd ed., p. 282, referring to Re Hough's Will, 4 De G. & Sm. 371, and to Re Turner, now reported 2 De G. F. & J. 327. Where the will contains the usual devise of the testator's trust and mortgage estates to the trustees and executors by name, it may be doubted whether the appointment by codicil of a substituted trustee and executor, with the estates, &c., given by the will to the original trustee and executor in those characters, would extend to the testator's trust estates, though it would probably be otherwise as to mortgage estates. It is desirable that the codicil should be explicit in this respect, as in this and the next Precedent. In Re Purk, 14 Sim. 89, the revocation of the appointment of certain per beneficial devise, bequest, or disposition to or in favour of and the PRECEDENT XXXIV. CODICIL SUBSTITUTING A ONE APPOINTED 3. Bequest of day of (c), IN WITNESS, &c. legacy to him. 4. Confirmation of will and prior codicils. sons as trustees and executors was held not to affect their appointment as guardians. (b) See p. 95, note, supra. (c) As every codicil is a constituent part of the will to which it belongs, the confirmation of a will by codicil has not the effect of setting up the will exclusively of intermediate codicils engrafted upon it, but is to be considered as confirming the will, with every codicil which may belong to it. See 1 Jarm. Wills, 3rd ed., p. 176, and the references in note (x) thereto, Green v. Tribe, 9 Ch. D. 231. In general, however, as it is an object that the last testamentary instrument should ascertain beyond dispute what are the several instruments forming the whole will, it is desirable that where there are several codicils, each codicil as it is executed should refer to and confirm not only the will, but every codicil which is intended to be part of the testamentary scheme. Sometimes, when the main course of the dispositions made by the will is important and complex, and little likely to undergo change, legacies and other matters of detail are provided for by codicil for the express purpose of enabling them to be from time to time altered to meet the fluctuating intentions of the testator, without disturbing the dispositions made by the will itself. A codicil of this description is a sort of subsidiary will, in which slight changes may be made by further codicil; but as to which, if it is proposed to make any considerable changes, the most convenient course will usually be to revoke the codicil by destruction (see the 20th section of the Wills Act, supra, p. 19), and substitute a new codicil. As when this method is followed, it may sometimes be proper to give effect to an alteration of intention by destroying some of the existing codicils without interfering with others, the preferable plan as to confirmation seems, in this case, to be for each codicil to confirm the will without any express reference to prior codicils. It may be added, that the method above referred to, though possessing some advantages, has a tendency to lead to an excessive multiplication of codicils, which is always a source of great inconvenience. Confirmation of will by codicil. XXXV. PRECEDENT CODICIL APPOINTING SUBSTITUTED EXECUTORS AND 1. Recital of executor, and guardian. 2. Revocation of appointment of another trustee, &c. CODICIL SUBSTITUTING two TRUSTEES and EXECUTORS and GUARDIANS in the place of Two appointed by the Will. I, A. B., of &c., declare, &c. [supra, p. 593]: WHEREAS since the execution of my said will, my brother E. B. therein named as a trustee and executor, and one of the death of trustee, guardians of my infant children, has died, and my eldest son K. B. has attained the age of twenty-one years. Now I HEREBY REVOKE the appointment in my said will contained of E. F. therein named as a trustee and executor thereof, and one of the guardians of my infant children, and also the legacy of £ thereby bequeathed to him; AND I APPOINT my son-in-law X. Y., of &c., and my said son K. B., to be trustees and executors of my said will, and guardians of my infant children during their respective minorities, jointly with my brother F. B. therein named as a trustee and executor thereof and one of the guardians of my infant children during their respective minorities; AND I DECLARE that my said will, and the devises, uses, estates, trusts, and powers thereof, shall throughout take effect and be vested and exercisable as if the said X. Y., F. B., and K. B. had been originally named as trustees and executors of my said will, and as devisees of estates vested in me as a trustee or mortgagee, and accordingly the name of the said X. Y. had been inserted instead of that of the said E. B., and the name of the said K. B. instead of that of the said E. F. (α); AND I BEQUEATH to each of them, the said X. Y. and K. B., the sum of £ for their trouble (being the like sum as 3. Appointment of substituted trustees, &c. 4. Bequest of legacies to them. (a) See supra, p. 594, note. |