PRECEDENT II. WILL OF REAL AND PERSONAL ESTATE, WITH TRUSTS FOR WIDOW AND CHILDREN, AND ISSUE OF DECEASED CHILDREN. 5. Inventory not to be required. afterwards to divide among children living at period of distribution. my residuary estate, AND I DECLARE, that an inventory of the said fixtures, effects, furniture and articles shall not be required, and that the trustees and trustee that a home and establishment should be kept up for the benefit of my unmarried children, permit the same premises to be from time to time used and enjoyed by all or any my unmarried children or child for the time being (sons as well as daughters, and whether by my first or second marriage), or by such of my said children as to whom, having regard to the course of their education or to their business or career in life or other circumstances, the participation in the use and enjoyment of the same premises shall (in the opinion of the said trustees or trustee and subject to their or his determination in any case of doubt or difficulty) be practicable and consistent with such premises being kept together in the family establishment; AND SHALL, when they or he the said trustees or trustee shall think proper to determine the trust aforesaid, divide and distribute or deliver the said. premises among all my children or any my child (whether by my first or second marriage) who shall be living at the said period of distribution, and if more than one in such shares and manner, &c., [remainder of trust for division as in last form]. PROVIDED ALWAYS, and I declare, that from time to time, and at all times before the division of the same premises, it shall be lawful for the said trustees or trustee to provide for the insurance and repairs thereof (but without being responsible for any neglect or omission so to do); and also to sell or exchange any of the said premises, laying out the net proceeds of any such sale in the purchase of other plate, furniture, or articles of household use or ornament. PROVIDED ALSO, and I further declare, that it shall be lawful for the said trustees or trustee, at any time or times portion rent, and before the division of the same premises, to let the use and enjoyment thereof, or of any of them, together with any house in which the same may happen to be, to any tenant or occupier of such house, and in case of a gross Power to provide for insurance and repairs, and to sell or exchange. Power to let furniture with house and ap direction as to rent. PRECEDENT II. WILL OF REAL AND PERSONAL ESTATE, WITH TRUSTS FOR of this my will, other than my said wife, shall not during her widowhood be in any way liable for, or concerned to see to the custody, insurance, or preservation of the said fixtures, effects, furniture, and articles, or any of them. I ALSO BEQUEATH to my said wife absolutely all my jewel- CHILDREN, lery, trinkets, watches, ornaments of the person, and wearing apparel, and wines, liquors, and consumable stores and provisions (c). I BEQUEATH, &c. [pecuniary legacy to testator's wife, see supra, p. 28]. I BEQUEATH to each of rent being taken for the house and the effects and furniture therein, to apportion the same between the house and effects and furniture in such manner as the said trustees or trustee shall think proper; and I declare, that in such case the rent (actual or apportioned, as the case may be) payable for such effects and furniture shall be paid or applied for the benefit of the children or child of mine who would for the time being be entitled to the use thereof under the trusts aforesaid, in such manner as the said trustees or trustee shall in their or his uncontrolled discretion think proper, and without any right to object on the part of any such children in respect of any inequality in the mode of division or of the exclusion of any of the said children from the benefit of the application of any such monies. [Power to provide for preservation and insurance of effects appropriated to minors, and to deliver articles to minors, and to sell, etc., as in last form.] WIDOW AND 6. Bequest of jewellery, &c., and consumable stores, and pe cuniary legacy to wife. 7. Bequest of legacies to the consumables carries the entire interest. (c) A gift for life if specific of things "quæ ipso usu consumun- Gift for life of tur," is a gift of the property, and there cannot be a limitation over after a life interest in such articles (per Sir W. Grant, M.R., in Randall v. Russell, 3 Mer. 194; and to the like effect, see per Knight Bruce, V. C., in Andrew v. Andrew, 1 Coll. 691, in which it was held that a gift of consumable articles to a woman until marriage was an absolute gift). Having regard to this rule, consumable articles should not be bequeathed in the way of successive trusts, and they should in general be bequeathed absolutely. In such a case as that provided for by the power at p. 69, note, supra, where there are no limitations in succession, it would appear that wines and other such matters may be made available for the purposes of the trust. As to durability being essential to chattels bequeathed as heirlooms, see Hure v. Pryce, 12 W. R. 1072. The PRECEDENT II. WILL OF REAL AND PERSONAL ESTATE, WITH TRUSTS FOR WIDOW AND my children who shall be living at my death, or born in due time afterwards, (d) and who being a son attains the age of twenty-one years, or being a daughter attains that age or marries under that age with the consent (if CHILDREN, AND marrying after my death) of her guardian or guardians (e), the sum of £, each (but so that such legacies shall not carry interest except from the time when the same respectively shall become payable until actual pay ISSUE OF DECEASED CHILDREN. testator's children living at his death and attaining 21 or marrying. doctrine as to consumables does not apply to stock in trade of a business, such as farming stock (Groves v. Wright, 2 Kay & J. 347; Cockayne v. Harrison, L. R. 13 Eq. 432), or the stock of a wine merchant (Phillips v. Beal, 32 Beav. 25). (d) This being a gift to the testator's own issue, the words confining the gift to those who survive him are necessary, the intention being to exclude the application of the 33rd section of the Wills Act, which would otherwise apply, as the gift is to the children individually, and not as a class (see above, p. 42, note). In this precedent provision is made for the issue of children predeceasing the testator in the trusts of the residue. (e) A bequest may be validly made subject to a condition (as in the text) that the legatee do not marry before a certain age without consent, as not before 21 without the consent of guardians, or not before 25 without the consent of the trustees (Scott v. Tyler, 2 Bro. C. C. 431, 2 Dick. 712, 2 Lead. Ca. Eq. 5th ed. 115; Stackpole v. Beaumont, 3 Ves. 89); and a condition that the legatee should remain unmarried till the age of 28 was held to be good, and not to be dispensed with by her marrying before that age with the testator's consent (Young v. Furse, 8 De G. M. & G. 756). Approbation subsequent to the marriage is not in general a sufficient compliance with a condition requiring consent; see 2 Jarm. Wills, 3rd ed. p. 49; and see further on this subject, id. pp. 38, et seq.; 2 Lead. Ca. Eq. 5th ed., note to Scott v. Tyler, pp. 183–185, and 192-198. The condition should in general be confined, as in the text, to a marriage after the testator's death, although a general condition against marriage without consent of guardians or trustees would be dispensed with by a marriage in the testator's lifetime with his previous consent or subsequent approbation. It is to be observed that under a gift of the frame of that in the text a daughter attaining the specified age would take, although she had previously married without consent. If this is not intended, some words excluding such a daughter must be added. PRECEDENT II. WILL OF REAL AND PERSONAL ESTATE, WITH TRUSTS FOR WIDOW AND ISSUE OF DECEASED CHILDREN. ment) (ƒ), such legacy to a daughter of mine to be for her separate use, independently of any husband, and her receipt, order, or direction shall be a sufficient discharge for the same, notwithstanding her coverture, and (as to any daughter who shall be a married woman) notwith- CHILdren, and standing that she may also be under the age of twentyone years (g). I BEQUEATH the sum of £- to each of the six children of my late brother namely, [names of legatees]: Provided always that as to each of the said children of my said late brother who, being a son, shall be under the age of twenty-one years, or, being a daughter, shall be under that age and a spinster deceased, (ƒ) As to the time for payment of and interest on legacies, and as to the exception allowing interest for maintenance to an infant child of the testator, see supra, p. 28, note. It seems proper to exclude this right expressly (where so intended), as in the text. If maintenance is intended, it should not be left to implication, but should be expressly provided for, as is done in the next bequest to the children of the testator's brother. (g) When a legacy is made payable to a woman for her separate use upon her marriage, if she marry under 21 there is no one who can give a discharge for it, as she is precluded by her infancy, and her husband by reason of the separate use. To obviate this inconvenience, it is common to render her receipt, when she marries, a discharge notwithstanding her infancy, as in the text. It has been doubted whether the disability of minority can be effectually dispensed with, but in re Cardross' Settlement, Weekly N., 1878, p. 58, a power to an infant feme covert to consent to a change of investment was upheld. Power is sometimes given to pay an infant's legacy to the parent or guardian. The following is a form for the purpose:— "AND I HEREBY empower my executors to pay the legacies hereinbefore bequeathed to the said and in case they shall respectively be under the age of twenty-one years, to their father or guardian or guardians, whose receipt shall be a sufficient discharge for the same, and shall exonerate my executors from all responsibility with respect to the application thereof." As to the payment of a legacy bequeathed to an infant domiciled abroad, see Re Hellmann, L. R. 3 Eq. 363. 8. Bequest of legacies to children of a deceased brother, with directions for investment of the legacies of minors; As to enabling a married legatee to give a receipt notwithstanding minority. Power to pay infant's legacy to parent or guardian. PRECEDENT II. WILL OF REAL AND PERSONAL ESTATE, WITH TRUSTS FOR WIDOW AND CHILDREN, AND ISSUE OF DECEASED CHILDREN. tenance; at my death, his or her legacy aforesaid shall be in any of vested by the trustees or trustee of this will in my the investments in which my residuary estate is hereinafter authorised to be invested, with power to transpose the investment thereof at discretion. AND I DIRECT that as to each such legatee, until he or she shall attain the age of twenty-one years, being a son, or attain that age 9. and for main- or marry under that age being a daughter, all or any part of the income of the investments representing his or her legacy may be applied by the said trustees or trustee at their or his discretion for or towards the maintenance and education of such legatee, or paid by the said trustees or trustee to his or her mother, or guardian or guardians for the time being, for that purpose, without seeing to the application thereof, and that the surplus (if any) of such income shall be accumulated by the said trustees or trustee in the way of compound interest by the investment thereof and of the resulting income thereof in manner aforesaid as an addition to the capital of such legacy, but with power to apply such accumulations in any subsequent year for the maintenance or education of such legatee; AND UPON the legatee attaining the age of twenty-one years, or, or as to a daugh- being a daughter, marrying under that age, the invest 10. and for pay ment to the legatee at 21, ter, upon mar riage. 11. Legacies 12. Power of ad vancement. ments representing his or her legacy and the income thereof, and any accumulations of such income, shall be transferred and paid to him or her. BUT IF such legatee shall die under the age of twenty-one years, and, being a daughter, without having been married, the same shall revert to and sink into and become part of my general personal estate. PROVIDED ALWAYS and I declare that it shall nevertheless be lawful for the said trustees or trustee at any time or times to apply any part or parts or the whole of the legacy or investments representing the legacy to which any such legatee shall be entitled in expectancy as aforesaid, for his or her preferment, advancement, or benefit, as the said trustees or trustee |