PRECEDENT II. WILL OF REAL AND PERSONAL ESTATE, WITH TRUSTS FOR WIDOW AND 54; clause supplemental to statutory provisions as to appointment of and indemnity to trustees, p. 55; declaration as to devolution of trustees' powers, ib.; devise of trust and mortgage estates, p. 58]. AND I HEREBY appoint my said wife, and the said E. F., G. H., and J. K., CHILDREn, and executors of this my will. AND I BEQUEATH to each of my said executors and trustees (other than my said wife) who shall prove my will and accept the trusts thereof the sum of £- (y). And (in addition to or extension (y) Where legacies are given to persons in the character of executors, they are considered to be given on condition that the legatees clothe themselves with that character (Williams' Executors, part iii., book iii., chap. ii., s. 6, 7th ed. pp. 1280, et seq.; and see Hawkins, Constr. Wills, pp. 309, et seq.). This doctrine gives rise to the questions under what circumstances legacies are considered to be given to persons in the character of executors, and what is a sufficient assumption of the character. The presumption is that a legacy to a person appointed executor is given to him in that character, so that where two persons were appointed executors, and legacies were given to them and others, it was held that the executors having renounced, were not entitled to their legacies (Calvert v. Sebbon, 4 Beav. 222; and see the cases collected in the reporter's note, at p. 223; Slaney v. Watney, L. R. 2 Eq. 418); and of course the case is stronger when the bequest is to executors eo nomine, 'or is given to them for their trouble. On the other hand, the presumption is repelled, and the legacy will be a personal legacy when it is given in token of respect (Burgess v. Burgess, 1 Coll. 367), or as a remembrance (Bubb v. Yelverton, L. R. 13 Eq. 131); and where an executor was described as the testator's friend and partner, and took much larger benefits under the will than the other executors, it was held that the legacy was not annexed to the office (Cockerell v. Barber, 2 Russ. 585; and see Wildes v. Davies, 1 Sm. & Gif. 475; Re Denby, 3 De G. F. & J. 350). The presumption that the gift was to the executor in that character was held to be rebutted by the inequality of the subject matter of the gifts to the two executors (Jewis v. Lawrence, L. R. 8 Eq. 345), and by the fact that the legacy was not payable till after the death of the tenant for life (In re Reeve's trusts, 4 Ch. D. 841). The rule has been held to be inapplicable to a bequest of residue (Griffiths v. Pruen, 11 Sim. 202; Christian v. Devereux, 12 Sim. 264; see the observations on those two cases, 2 Coll, 202); and in a case in which the ISSUE OF DECEASED CHILDREN. 30. Appointcutors. ment of exe 31. Legacies to executors and trustees. 32. Power for executors to wind up partnership business. Legacies to executors. Presumption that a legacy to an executor is given to him in that character. PRECEDENT II. WILL OF REAL CHILDREN, AND ISSUE OF DECEASED CHILDREN. What will be a sufficient assumption of the executorship, of the powers by law given to executors) I AUTHORISE and empower the acting executors or executor for the time legatee was described as the testator's cousin (Dix v. Reed, 1 Sim. & Stu. 237), and in another case in which he was described as the testator's brother (Compton v. Bloxham, 2 Coll. 201), he was held to be entitled, though he did not prove. In Williams' Executors, 7th ed., p. 1284, note (g), it is said that "Lord Alvanley, in Reed v. Devaynes, 2 Cox, 285, said that he thought a child who had a portion left him by will in which he was appointed executor, could not take the portion unless he acted as executor. But this may be considered inconsistent with the more recent authorities." Surely, however, this is greatly underrating the objection to the doctrine referred to. In the case of a will, making a provision for the widow and children of the testator, and also appointing them executors, it would be obviously unreasonable to connect the bequest with the office instead of the relationship. If there were any foundation for that view, every will appointing the widow or children executors should expressly provide that they should not lose their legacies by not acting, but such a clause is never introduced into wills, nor in practice is the title of the widow and children ever treated as contingent on their proving. There can be no question that bequests coming within the testamentary scheme of family provision are personal legacies, and not annexed to the office of executor, though some of the legatees may be appointed to that office. As to what will be a sufficient assumption of the executorship to satisfy the rule, it is enough to prove the will with a bona fide intention of acting; and in a case in which the executor performed executorial acts but died without proving, he was held to be entitled (Harrison v. Rowley, 4 Ves. 212; Lewis v. Matthews, L. R. 8 Eq. 277); but where the executor was disabled by illness and infirmity from ever acting or proving, the legacy was held not to be payable (Hanbury v. Spooner, 3 Beav. 630; Re Hawkins, 33 Beav. 570). An executor who has renounced cannot now retract his renunciation (20 & 21 Vict. c. 77, s. 79); but before that Act it was held that he could, by doing so, and proving the will, entitle himself to his legacy (Angermann v. Ford, 29 Beav. 349). An annuity given to a trustee so long as he should continue to execute the office was held to have determined on the cesser of the active trusts by a person becoming absolutely entitled (Hull v. Christian, L. R. 17 Eq. 546); but an annuity given to an executor for his trouble till a final settlement should be made of the testator's affairs was held not necessarily to cease on the institution of a suit for administration (Baker v. Martin, 8 Sim. 25). From the above observations it will be inferred that when a PRECEDENT II. WILL OF REAL AND PERSONAL ESTATE, WITH TRUSTS FOR WIDOW AND ISSUE OF DECEASED CHILDREN. being of this my will, to make any arrangements which to them, him, or her shall seem fitting and reasonable for the settlement and adjustment with my surviving partner or partners, of all my rights and liabilities in respect of the business in which I am at present a partner, or any CHILDREN, AND other business in which I may be engaged as a partner at the time of my death, with full power to accept an agreed or estimated sum as the value of my share and interest in such partnership business or otherwise to agree at an estimated sum every or any claim in favour of or against my estate in respect of any such business, and to make any arrangements for giving time to my surviving partner or partners, and for accepting payment from him or them by such instalments as may be thought proper, and generally to act in the premises in such manner as the persons or person exercising the present power shall think proper, without being liable for any loss which may be occasioned thereby. AND I DECLARE that the present power may be exercised either in connection with, or independently of any provision for similar objects contained in any deed or articles regulating any partnership in which I may be engaged at my death (). [Appointment of guardians, p. 62]. IN WITNESS, &c. legacy to one appointed executor is intended to be personal, and not to be contingent on his proving the will, that intention should be explicitly stated; and on the other hand, that when a legacy is given to an executor in that capacity, it will be well to define what shall be a sufficient assumption of the executorship, as is done in the text by the bequest being to each of the executors who shall prove the will. So also, where a legacy is given to a trustee as such, it should be expressed to be conditional on his accepting the trust, as in the text. (z) This clause appears a proper one to insert when the testator is engaged in business in partnership, though it may be that some of the powers expressly given by it are conferred by the Act 23 & 24 Vict. c. 145, s. 30 (supra, p. 62, note). Other forms of clauses enabling partnership businesses to be carried on for the benefit of the estate, and conferring various other powers, will be found infra. VOL. IV. Н III. PRECEDENT III. WILL CONTAINING ESTATE, AND LEGACIES AND ANNUITIES. 1. Revocation of prior wills. WILL of REAL and PERSONAL estate, providing for testator's WIFE by ANNUITY. SPECIFIC DEVISES of including one to a niece for her SEPARATE USE. Bequests of READY CON Be MONEY, and LETTERS and PAPERS. Bequest of a VESTING. I, A. B. of &c., hereby revoke all wills, codicils, and other testamentary dispositions heretofore made by me, 2. Specific devise and declare this to be my last will. I DEVISE my freehold land, messuages, and buildings called, situate at of freeholds to a son absolutely. 3. Specific devise in the parish of and county of, and all other my real estate situate in the same parish, with the rights, easements, and appurtenances thereof respectively, unto and to the use of my son D. B., his heirs and assigns for ever. I DEVISE all my copyhold or customary messuages, lands, tenements, and hereditaments, situate, &c., held of the manor of [to which I was admitted at a court manor on the day of -], with held for the said PRECEDENT III. WILL CONTAINING VARIOUS SPECIFIC DEVISES OF REAL ESTATE, AND BEQUESTS OF LEGACIES AND ANNUITIES. 4. Devise of separate use the appurtenances thereof respectively, unto and to the use of my sons E. B. and F. B., their heirs and assigns, in equal shares as tenants in common. I DEVISE all my houses and lands situate at, with their appurtenances, to the use of such persons or person, for such estates or estate, for such purposes, and in such manner as my niece shall, whether covert or sole, by any other real estate deed or deeds, with or without power of revocation and new to a niece for her appointment, or by will or codicil, appoint; And in default absolutely. of such appointment, and so far as no such appointment shall extend, to the use of my said niece her heirs and assigns, for her separate use, independently of any husband, and of his debts, control, and engagements, and so that during any coverture she shall have absolute power to dispose of and deal with the same premises as if she were sole and unmarried (a). [Bequest to testator's wife of furniture, &c., supra, p. 26, and pecuniary legacy, p. 28.] I ALSO BEQUEATH to my said wife all the 5. Bequest of ready money ready money which at the time of my death shall be in wife. my house or standing to the credit of my current account at my bankers (b). I BEQUEATH all letters, manuscripts, 6. Bequest of (a) It is now settled that a married woman has the same power of disposing of the equitable interest in real estate settled to her separate use, to the extent of the interest so settled, as if she were a feme sole; see ante, Vol. iii. p. 101, note. And it is also settled that in default of any disposition by the wife, the husband is entitled to an estate by the curtesy in a fee simple estate so settled; see ib., Cooper v. Macdonald, 7 Ch. D. 288. In order to secure to a married woman the utmost freedom of disposition, a power of appointment operating under the Statute of Uses should be given to her as in the text, so as to enable her to pass the legal estate without a deed acknowledged. In the case of copyholds or leaseholds, the devise should be to a trustee, in trust for the married woman for her separate use. For a form of devise to a married woman restraining her from anticipation, see the next Precedent. to manuscripts and papers to a son. As to devise of real estate to a married woman for her separate use. (b) Under a bequest of "ready money," money at the testator's As to bequest of ready money. H 2 |