in many instances, the very great benefit of wise and judicious counsels upon such subjects. And we make no question, that if more freedom were felt and exercised upon such subjects, it would be found useful.

The following are Mr. Jarman's concluding suggestions upon this subject: 1. "The obvious inquiries (in addition to those immediately suggested by the preceding remarks) to be made of a testator, of whose bounty children are to be objects, are, at what ages their shares are to vest; whether the income or any portion of it is to be applied for maintenance until the period of vesting, and if not all applied, what is to become of the excess? Whether, if any child die in the testator's lifetime, or subsequently, before the vesting age, leaving children, such children are to be substituted for the deceased parents. If the vesting of the shares be postponed to the death of a prior tenant for life, or other possibly remote period, the necessity for providing for such events is of course more urgent; and in that case it should also be ascertained, whether, if the objects die leaving grandchildren, or more remote issue, but no children, such issue are to stand in the place of their parent.

2. "If any of the objects of the gift (whether of real or personal property) be females, or the gift be made capable of comprehending them, as in the case of a general devise, or bequest, to children, it should be suggested, whether their shares are not to be placed out of the power of husbands; i. e. limited to trustees for their separate use for life, subject or not to a restriction on alienation (which, however, is a necessary concomitant to give full effect to the intention of excluding marital influence), with a power of disposition over the inheritance, or capital, as the case may be; and if it be intended to prevent that power of disposition from being exercised, under marital influence, without the possibility of retraction, it should be confined to dispositions by will, which, being ambulatory during her life, can never be exercised so as to fetter her power of alienation over the property.

3. "If the devise be of the legal estate of lands of inheritance to a man, it should be inquired (though the affirmative may be presumed in the absence of instructions), whether they are to be limited to uses to bar the dower of any wife to whom he was married, on or before the 1st of January, 1834.

4. "If a gift be made to a plurality of persons, it should be inquired whether they are to take as joint tenants, or tenants in common; or, in other words, whether with or without survivorship; though it is better in general, when survivorship is intended, to make the devisees tenants in common, with an express limitation to the survivors, than to create a joint tenancy, which may be severed.

5. "In all cases of limitations to survivors, it should be most clearly and explicity stated to what period survivorship is to be referred; that is, whether the property is to go to the persons who are survivors at the death of the testator, or at the period of distribution. It should always be anxiously ascertained, that

the testator, in disposing of the shares of dying devisees, or legatees, among surviving or other objects, does not overlook the possible event of their leaving children, or other issue. There can be little doubt, that in many cases of absolute gifts to survivors, this contingency is lost sight of. This observation, in regard to the unintentional exclusion of issue, applies to all gifts in which it is made a necessary qualification of the objects, that they should be living at a prescribed period posterior to the testator's decease, and in respect of whom, therefore, the same caution may be suggested.

6. "It may be observed, that where interests not in possession are created, which are intended to be contingent until a given event or period, this should be explicitly stated; as a contrary construction is generally the result of an absence of expression. Explicitness, generally, on the subject of vesting, cannot be too strongly urged on the attention of the framers of wills.

7. "Where a testator proposes to recommend any person to the favorable regard of another, whom he has made the object of his bounty, it should be ascertained whether he intends to impose a legal obligation on the devisee, or legatee, in favor of such person, or to express a wish without conferring a right. In the former case, a clear and definite trust should be created; and in the latter, words negativing such a construction of the testator's expressions should be used. Equivocal language, in these cases, has given rise to much litigation.

Lastly. "It may be suggested, that where a testator is married, and has no children, unless provision be made in his will for children coming in esse, or it be unreasonable to contemplate his having issue, the dispositions of his will should be made expressly contingent on his leaving no issue surviving him; for, as the birth of children alone is not a revocation, they may be excluded under a will made when their existence was not contemplated; and cases of great hardship of this kind have sometimes arisen from the neglect of testators to make a new disposition of their property at the birth of children; indeed, it has sometimes happened, that a testator has left a child enciente, without being conscious of the fact; for the same reason provisions for the children of a married testator, who has children, should never be confined to children in esse at the making of the will. A gift to the testator's children, generally, will include all possible objects. Where, however, the gift is to the children of another person, and it is intended (as it generally is) to include all the children thereafter to be born, terms to this effect should be used, unless a prior life-interest is given to the parent of such children; in which case, as none can be born after the gift to them vests in possession, which is the period according to the established rule of ascertaining the objects, none can be excluded.

"To the preceding suggestions, it may not be useless to add, that it is in general desirable, that professional gentlemen, taking instructions for wills, should

receive their instructions immediately from the testator himself, rather than from third persons, particularly where such persons are interested. In a case in the Prerogative Court, Rogers v. Pittis, 1 Add. 46, Sir J. Nicholl admonished professional gentlemen generally, that where instructions for a will are given by a party not being the proposed testator, à fortiori, where by an interested party, it is their bounden duty to satisfy themselves thoroughly, either in person, or by the instrumentality of some confidential agent, as to the proposed testator's volition and capacity, or, in other words, that the instrument expresses the real testamentary intentions of a capable testator, prior to its being executed de facto as a will at all.'"

CHAPTER XIII.

APPENDIX.

FORMS OF WILLS AND FAMILY SETTLEMENTS, ETC., WITH NOTES.

No. I.

In the name of God: Amen. I, A. B., being in sound health of body, and of disposing mind and memory, do make and publish this my last will and testament; hereby revoking all former wills, by me at any time made. I commend my spirit to my merciful Creator, Redeemer, and Sanctifier, and in the hope of a joyful resurrection, I commit my body, in Christian burial, to the earth, in the church-yard of St. Paul's Church in according to the direction and discretion of my executors hereinafter named.1

1 These formalities were, for many years, almost universal in the English practice. But they are now but seldom found in English Wills. Hayes & Jarman's Concise Forms of Wills, p. 102 et seq. It is common, in drawing wills, for those in declining health, or in extreme sickness, to advert to that fact, in the introductory part of the instrument, as coming nearer to what the testator himself might be expected to say, if he were his own amanuensis; thus:

I, A. B., "being in declining health;" or "laboring under a severe and painful malady;" "but in my own apprehension and belief, in the full and perfect possession of my mental faculties," &c.

But there is such a disposition among men, even those who have no real feeling of seriousness, upon any subject, to flatter themselves that they are setting an example of becoming solemnity, when they give utterance to sad and sombre words; that it often causes a shrinking, with the earnest-minded and truly thoughtful, from giving utterance to any such words, even in the solemn act of inditing their own testaments, lest they might be suspected of affectation. It is of some consequence, therefore, to suit these matters, as far as practicable, to the taste of the testator. But in drawing wills, we have, more and more, of late, especially, fallen into the use of the English practice of

1. I DIRECT that all my just debts, including funeral expenses and the expenses of administration, be paid by my executors.2

2. I BEQUEATH to my beloved wife (A. B.), one thousand dollars, annually, in equal quarterly payments, in advance, reckoning from the first day of January in each year, as the means of supporting herself and family, so long as she remains my widow, the first payment, for the current quarter, to be made within one month after my decease. I also give and devise to my said wife the use of my mansion house in free of rent, and expenses of repairs and taxes, during the term of her natural life, to be occupied by herself, or any other person to whom she shall give permission.3

3. I DEVISE and BEQUEATH all the residue and remainder of my estate, both real and personal, to my children which shall survive me; and to the legal issue of any deceased child or children, by way of representation of such child or children, and to the heirs and assigns of such children forever, in equal parts.

4. If none of my children shall survive me, and there shall, at my decease, remain no issue of any of my deceased children, then I DEVISE and BEQUEATH all such residue of my estate to such persons as may be my lawful heirs and distributees, at that time, to be distributed according to the statutes then in force; or to such charitable and religious societies as are hereafter named, in proportion to the several sums attached to the names of such societies respectively. In witness whereof, I have hereunder set my hand, this day of in the year of our Lord — [Testator's signature.]

(Signed)

introducing a will in the simplest form, as in No. II., and the following Forms. The following is as good form as can be adopted:

"I, John Doe, of Boston, in the Commonwealth of Massachusetts, do hereby make and publish my last will and testament, intending thereby to dispose of all my worldly estate, of which I shall be possessed at the time of my decease."

2 The direction for the payment of debts and funeral expenses and those of administration, is now merely formal, except that as it may sometimes aid in the construction of a will, by showing that the subject of the testator's debts was brought distinctly to his mind, at the time of executing his will.

8 This is as convenient a form of indicating provisions for the widow, as any other. Such provisions are so infinitely various that no general form could afford more than an example.