756" CJnrn^U IGatu Bclpml library CORNELL UMVERSiT: JUL 11W12 LAW LIBRARY. Cornell University Library KF 755.T89 Testamentary forms and notes on wills 3 1924 018 799 290 B Cornell University S Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018799290 TESTAMENTARY FORMS AND NOTES ON WILLS TESTAMENTARY FORMS AND NOTES ON WILLS BY GEORGE F*TgCKER AUTHOR OF " THE MONROE DOCTRINE " AND JOINT AUTHOR OF " THE FEDERAL INCOME TAX EXPLAINED," AND "NOTES ON THE UNITED STATES STATUTES" BOSTON LITTLE, BROWN, AND COMPANY 1912 /3 se> Cti Copyright, 1912, By Little, Brown, and Company. All rights reserved THE UNIVERSITY PRESS, CAMBRIDGE, U.S.A. JUL 1 ( ni2 PREFACE A previous work on wills by the same author, designed for use in Massachusetts, has been of service to the profession i$ that State. The present volume is prepared with a view to its use in every' American jurisdiction. The greater part of the work is devoted to forms, and the suggestions not only embrace the recognized principles of law but numerous practical points which it is believed are to be found in no other work. Briefly stated, the purpose is to provide the at- torney with a book which, after receiving instruc- tions from the testator, he may consult in order to learn if these instructions are permissible and proper, or should be abridged or enlarged, and in which he may find the form he desires. G. F. T. Boston, April 1, 1912. TABLE OF CONTENTS CHAPTER I Reasons fob Making a Will Page I. A Will as a Matter of Record 4, 5 II. Trouble over Dower 5 III. Defeating Waiting Heirs . 5, 6 IV. The Marshalling of Assets to Pat Debts and Legacies 6 V. Trusts 6, 7 VI. Concurrent Deaths . 7 VII. Directions as to Division op Property .... 7-9 VIII. Executors, Sureties on Bond, and Powers of Sale 9 IX. Special Instructions 10, 11 CHAPTER II Where a Will Mat Be Made and Its Effect upon Phopertt in Other Jurisdictions I. Where a Will Mat Be Made 12-14 II. Effect of a Will upon Property in Other Ju- risdictions . . . . ? 14-47 CHAPTER III Who May Make a Will 48-58 CHAPTER IV What Property May or Mat not Be Bequeathed or Devised I. After-Acquired Property 59-60 II. Contingent Remainders, Executory Devises, etc., Vested Interests 60, 61 III. Devising or Bequeathing Property Which the Testator Does not Own . 61-63 IV. Trust Deeds and Declarations of Trust . . 63-66 V. Gifts Mortis Causa 66 vii Vlll CONTENTS Page VI: Good-Will 66-68 VII. Powers of Appointment 68-76 VIII. Rights as Fellow or Patron 76 IX. Renewals and Extensions op Copyrights . . 77 X. Policies op Insurance 77 XI. Personal Chattels in the Nature op Heir- looms 78-80 XII. Survival op Actions 80,81 XIII. Testator's Body, Monuments, Tombstones, Burial Lots and Cemetery Corporations . 81-88 XIV. Residence op the Testator as a Home foe the Family 88-91 XV. Real Estate Subject to Mortgage or Other Incumbrance 91-96 XVI. Personal Estate Subject to Incumbrances . 96-99 XVII. Joint Real and Personal Property .... 99-101 XVIII. Carrying On and Adjusting Testator's Part- nership and Other Business . . . 101-112 XIX. Authority Given Executors to Sign, Indorse, etc., Commercial Paper . ... . 112,113 ' XX. Pews ... 113, 114 XXI. Opera Box . ... 114 XXII. Dumb Animals 114, 115 XXIII. Manuscripts, Papers, Letters, etc 115, 116 XXIV. Various Bequests, Devises, and Provisions 116-124 CHAPTER V Who May Be a Devisee or Legatee 125-127 CHAPTER VI Form op Wills 128-138 CHAPTER VII Different Kinds op Wills 139-146 CHAPTER VIII Description op Real Estate — Fee Simple —Fee-Tail — Joint Tenancy, Tenancy by the Entirety, and Tenancy in Common — Estate por Life or for Years. Description op Real Estate 147, 148 Fee Simple 148-154 Fee-Tail 154, 155 CONTENTS IX Page Joint Tenancy, Tenancy by the Entirety, and Ten- ancy in Common 156-158 Estate fob Life or for Years 159-162 CHAPTER IX Conditions Precedent and Subsequent — Vested and Con- tingent Remainders — Executory Devises and Perpetuities Conditions Precedent and Subsequent 163-188 1. Payment of Legacies 166-171 2. Devises Charged with the Payment of Legacies or the Expenses of One's Education 171 3. Legacy to an Executor or a Trustee 172-174 4. Restraint of Marriage 174-177 5. Restraint of Alienation 177, 178 6. Conditions not to Dispute Wills 178-184 7. Conditions as to Residence 184, 185 8. Gifts to Servants, Employees, etc 185-188 9. Various Conditions 188 Vested and Contingent Remainders 189-192 Executory Devises and Perpetuities 193-208 CHAPTER X Description of Legatees and Legacies Description of Legatees 209-228 Description of Legacies ... 228-234 • CHAPTER XI Specific Legacies, Ademption, Exoneration, Abatement, and Contribution Specific Legacies . . . . 235-239 Ademption 239-243 Abatement and Contribution 243-250 Estate Given in Shares 250-252 CHAPTER XII Legacy to Debtor or Creditor of the Testator 1. Legacy to a Debtor 253-267 2. Legacy to a Creditor 267, 268 CHAPTER XIII Payment of and Interest upon Legacies 269-292 CONTENTS CHAPTER XIV Lapsed Devises — Residuary Clause — Revocation . Page 293-307 CHAPTER XV Executor I. Who Mat Be Executor 308-321 II. Special Directions ... ... . . . . 321-359 1. The Bond and Liability thereon 321-325 2. Charges of Administration, Compensation . . 325-327 3. Directions that a Majority of Executors May Act 328-329 4. Just Debts and Funeral Expenses 329-333 5. Powers to Sell, Mortgage, Lease, etc 333-344 6. Executors and Trustees Purchasing Trust Property 344, 345 7. Directions as to Insurance . 345-347 8. Taxation of Estate of Deceased Person . . 347 9. Compromise and Arbitration 348-350 10. Employment of Attorneys, Agents, Clerks, etc., Consultation with Others. Various Requests 350-353 11. Suggestions as to Keeping Records 353-355 12. Delegation of Powers and Duties by Power of Attorney 355, 356 13. Instructions as to Voting Shares 356-358 14. No Inventory or Accounting 358, 359 15. Auditing Accounts and Examining Securities . . 359 CHAPTER XVI Trust and Trustee — Guardian Trust and Trustee I. Language and Subject Matter . 360-365 II. The Trustee 1. Who May Be a Trustee 365-370 2. The Bond and Liability thereon 370 3. The Compensation of Trustees . . 371-373 4. The Number and Appointment of Trustees to Fill Vacancies . . 373-381 5. Power to Sell, Mortgage, Lease, Invest, and Rein- vest, etc. . . . " 381-389 6. Auditing Accounts and Examining Securities . . 389-392 III. The Cestui Que Trust 1. Who May Be a Cestui Que Trust 393 2. Payment of Income. Alienation, Accumulation . . 393-401 3. Annuities . • 401-105 CONTENTS XI Page 4. Application of Income for Education, Maintenance, and Support ... 406-409 5. Questions between Tenant for Life and Remainder- man 410-431 6. Disposition of Income and of the Fund when the Cestui Que Trust Lives in a Jurisdiction Other than that of the Testator . . . 431, 432 IV. Termination op the Trust 1. The Rule against Perpetuities 432 2. Powers of Appointment . 433, 434 3. Instalments 435 4. One Fund Chargeable with Annuities, or as Many Funds as there Are Cestuis Que Trust . . 435-436 5. Whether "Survivor" is to be Changed "Other." Accruing Shares 436-439 6. Termination before all the Purposes of the Trust *j Have Been Accomplished 439, 440 7. General Points as to Termination 440-444 8. Resulting Trusts 444, 445 9. Heirs-at-Law, Next of Kin 445 Guardian ... 445-450 CHAPTER XVII Public Charities ....... 451-465 /CHAPTER XVIII Execution and Attestation 466-480 CHAPTER XIX Suggestions for Preparing Wills 481-495 APPENDIX I Forms op Wills 497-593 APPENDIX II Public Charities Acts op Incorporation . . 595-625 Index . . 627 TABLE OF CASES CITED ^AQE Abbott v. Middleton, 7 H. L. Cas. 68 . . .... 151, 234 Ackers v. Phipps, 3 CI. & Fin. 655 .. . ... 189 Addams v. Ferick, 26 Beav. 384 .97 Albee v. Carpenter, 12 Cush. 382 ... . ... .155 Aldrich v. Aldrich, 172 Mass. 101 ... . .... 361 Allen v. Dean, 148 Mass. 594 .. . . . .336 v. Edwards, 136 Mass. 138 ... 254 v. Maddock, 11 Moo. P. C. C. 427 . 145 v. Merwin, 121 Mass. 378 267 v. Stevens, 161 N. Y. 122 . 465 Amherst College v. Ritch, 151 N. Y. 282 . 130 v. Smith, 134 Mass. 543 153 Amory v. Meredith, 7 Allen, 397 ... 69 Appeal of Stoughton, 88 Pa. St. 198 . . 203 Trustees, 97'Pa. St. 187 .294 Arcularius v. Sweet, 25 Barb. 403 129 Armstrong v. Armstrong, 14 B. Monr. 333 . 201 v. Burnet, 20 Beav. 424 .97 Arnold v. Ennis, 2 Ir. Ch. Rep. 601 .. . . 416 v. Reed, 162 Mass. 438 4 Attorney General v. Newberry Library, 150 111. 229 ... 465 v. Parkin, Ambl. 566 235 v. Proprietors of Federal Street Meeting-House, 3 Gray, 1 365 v. Shore, 1 M. & Cr. 394; 12 Sim. 426 455 v. Winchelsea, 3 Bro. Ch. 373 455 Austin v. Oakes, 117 N. Y. 577 . ... .68 B Bacon v. Gassett, 13 Allen, 334 257 v. Pomeroy, 104 Mass. 577 . . .... 103, 329 Baker v. Baker, 8 Gray, 101 .. . 225 ■ v. Clarke, 110 Mass. 88 . . — v. Whiting, 3 Sumner, 475 Baker's Appeal, 107 Pa. St. 381. Balcom v. Haynes, 14 Allen, 204 Baldwin v. Rogers, 3 DeG. M. & G. 649 127 365 130 218 296 Ballard v. Ballard, 18 Pick. 41 190, 294 XIV TABLE OP CASES CITED Bank of Troy v. Stanton, 116 Mass. 435 Barber v. Barber, 3 Myl. & Cr. 688 Bartlett v. Nye, 4 Met. 378 . . Batchelder, Petr., 147 Mass. 465 . Bates v. Bates, 134 Mass. 110 . . v. Dewson, 128 Mass. 334 . . Bayley v. Bailey, 5 Cush. 245 .... Beard v. Westoott, 5 B. & Aid. 809 ... Beavan v. Beavan, 24 Ch. D. 649, n. ... Bedford v. Bedford, 99 Ky. 273 . . Bigelow v. Gfflott, 123 Mass. 102 . Bird v. Luckie, 8 Hare, 301 ... Blake v. Shaw, Johns. Ch. 732 .. . Blanchard v. Blanchard, 1 Allen, 223 Blatchford v. Newberry, 99 111. 11 . Boardman v. Boardman, 4 Allen, 179 Booth v. Coulton, L. R. 5 Ch. 684 Borden v. Jenks, 140 Mass. 562 Bostick v. Blades, 59 Md. 231 ... . Bothamley v. Sherson, L. R. 20 Eq. 304, . Bowditch v. Andrew, 8 Allen, 399 v. Coffin, Supr. Jud. Court, Suffolk, No. 4772, Eq v. Soltyk, 99 Mass. 136 ... . ... Bowker v. Pierce, 130 Mass. 262 ... Boynton v. Dyer, 18 Pick. 1 . . Bradlee v. Andrews, 137 Mass. 50 .... Brattle Square Church v. Grant, 3 Gray, 142 . Bridgnorth v. Collins, 15 Sim. 538 Briggs v. Briggs, 69 Iowa, 617 . v. Hosford, 22 Pick. 288 .. . v. Shaw, 9 Allen, 516 Broadway Bank v. Adams, 133 Mass. 170 . Brooks v. Jones, 11 Met. 191 . v. Lynde, 7 Allen, 64 . . . v. Rice, 131 Mass. 408 . . . . Brown v. Brown, 42 Minn. 270 . ... v. Cushman, 173 Mass. 368 v. Gellatly, 2 Ch. 751 .. . Browne v. Cogswell, 5 Allen, 556 Brownrigg v. Pike, 7 P. D. 61 . . Bryson v. Holbrook, 159 Mass. 280 Buckley v. Buckley, 157 Mass. 536 . Bullock v. Downes, 9 H. L. C. 1 . . Bunn v. Winthrop, 1 Johns. Ch. 329 Burrill v. Boardman, 43 N. Y. 254 . . Burwell v. Mandeville's Executor, 2 How. 560 Butterfield v. Hamant, 105 Mass. 338 . PAGE 62 . 301 . . 454 7,299 . 206 . 226 . 13 . 201 416 . 127 300, 304 191, 224 67 . 189 465 235 246 . 250 . 175 96 . 226, 439 1895 . 417 ... 287 373 447 ... 246 . . 166,194, 196, 208, 300 . 215 59 . 235 . 151 398 . 364 273, 277 . 402 61 . 81 . 416 . 299 3 . 222 . 311 . 224 3 . 465 . 103 . 493 TABLE OF CASES CITED XV Caldecott v. Caldecott, 1 Y. & C. C. C. 312 Calvert v. Sebbon, 4 Beav. 222 . . Campbell v. Rawdon, 18 N. Y. 412 Casper v. Walker, 33 N. J. Eq. 35 . . Chapin v. Cooke, 73 Conn. 72 Chapman v. Chick, 81 Me. 109 . . Chase v. Chase, 132 Mass. 473 . v. Chase, 2 Allen, 101 .... Cheetham v. Ward, 1 Bos. & Pul. 630 . . Childs v. Russell, 11 Met. 16 . . . . . Christy v. Commissioners, 41 Ohk/St. 711 Clapp v. Ingraham, 126 Mass. 200 Clarke v. Burgoyne, 1 Dick. 353 v. Cordis, 4 Allen, 466 Clarkson v. Clarkson, 18 Barb. 646 Cleveland v. Hallett, 6 Cush. 403 Cockerell v. Barber, 16 Ves. 461 . . Cole v. Turner, 4 Russ. 376 Collyer v. Collyer, 110 N. Y. 481 Colwell v. Alger, 5 Gray, 67 . . Compton v. Bloxham, 2 Coll (Chan.) 201 . Converse v. Starr, 23 Ohio St. 491 . . Cook v. Cook, 2 Vern. 545 . ... v. Smith, 101 Mass. 341 Cooper v. Bocket, 4 Moo. P. C. C. 419 Cotting v. De Sartiges, 17 R. I. 668 Courtenay v. Williams, 3 Hare, 539 . . Cowell v. Springs Co., 100 U. S. 55 Cox v. Curwen, 118 Mass. 198 . Coye v. Leach, 8 Met. 371 .... .' Crawford v. McCarthy, 159 N. Y. 514 Crerar v. Williams, 145 111. 625 ... . Crippen v. Dexter, 13 Gray, 330 . . Croft, Petr., 162 Mass. 22 . . Crossman v. Crossman, 95 N. Y. 145 Cummings v. Bramhall, 120 Mass. 552 Cusack v. Rood, 24 W. R. 391 ... . Cushing v. Spalding, 164 Mass. 287 . . Page 416 172 295 185 174 229 161 370, 406 312 191 127 69 264 221 422 364 284 153 304 322 129 12 190 439 467 68 258 163 227 7 239 465 13 259, 493 303 258 191 177 D Daggett v. Slack, 8 Met. 450 . . Damon v. Damon, 8 Allen, 192 . . Dancer v. Crabb, 3 P. & D. 98 . Davenport v. Coltman, 9 M. & W. 481 219. 141 305 148 XVI TABLE OF CASES CITED Page Davis v. Taul, 6 Dana, 51 294 De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524 221 Denne v. Wood, 4 L. J. (O. S.) 57 ■ • • 472 Dennison v. Goehring, 7 Barr. 175 3 De Nottebeck v. Astor, 13 N. Y. 98 213 Despard v. Churchill, 53 N. Y. 192 310 Dexter v. Harvard College, 176 Mass. 192 229 Dickinson v. Purvis, 8 S. & R. 71 294 Dickson v. United States, 125 Mass. 311 127 Dixon v. Homer, 12 Cush. 41 373 Doe v. Timins, 1 B. & Aid. 530 ... 118 v. Wynne, 23 Miss. 251 59 Dole v Johnson, 3 Allen, 364 299 v. Keyes, 143 Mass. 237 190 Doody v. Higgins, 9 Hare, App. xxxii 220 D'Ooge v. Leeds, 176 Mass. 558 415 Dorr v. Lovering, 147 Mass. 530 190 Drew v. Wakefield, 54 Me. 291 165 Drummond v. Crane, 159 Mass. 577 80 Duffield v. Duffield, 3 Bligh, N. S. 260 169 Dunbar v. Soule, 129 Mass. 284 368 E Eager v. Whitney, 163 Mass. 463 192 Easterbrooks v. Tillinghast, 5 Gray, 17 ...... 206, 444 Edmonds v . Crenshaw, 14 Pet. 166 324 Edward's Estate, 190 Pa. St. 177 203 Ellis v. Page, 7 Cush. 161 118, 249 Ellison v. Ellison, 6 Ves. 656 2 Emery v. Wason, 107 Mass. 507 97 Evans v. Crosbie, 15 Sim. 600 148 Evers v. Challis, 7 H. L. Cas. 531 201 Ex parte Garland, 10 Ves. Jr. 109 103 F Fabens v. Fabens, 141 Mass. 395 221 Falk v. Turner, 101 Mass. 494 3 Faloon v. Flannery, 74 Minn. 38 . . 68 Fargo v. Miller, 150 Mass. 225 191 Farnum v. Bascom, 122 Mass. 282 236, 249 Fawkes v. Gray, 18 Ves. 131 161 Fay v. Sylvester, 2 Gray, 171 190 Fearing v. Swift, 97 Mass. 413 . . 159 Fellows v. Miner, 119 Mass. 541 17, 454 TABLE OF CASES CITED XV11 Page Ferrer v. Pyne, 81 N. Y. 281 219 Ferson v. Dodge, 23 Pick. 287 234 Field v. Hitchcock, 17 Pick. 182 160 Finlay v. King, 3 Pet. 346 . . . 164 Fisher v. Fields, 10 Johns. 495 364 Fiske v. Cobb, 6 Gray, 144 . . ... .... 161 Flummerfelt v. Flummerfelt, 51 N. J. Eq. 432 393 Fontain v. Ravenel, 17 How. 369 454 Foote, Apt., 22 Pick. 299 .. . ... 235 Forster v. Sierra, 4 Ves. 766 . . 221 Forward v. Forward, 6 Allen, 494 313, 325 Fosdick v. Fosdick, 6 Allen, 41 Fox v. Senter, 83 Me. 295 .. . Francis v. Clemow, Kay, 435 . . . Freakley v. Fox, 9 Barn. & Cres. 130 Fuller v. Fuller, Cr. Eliz. 422 203 77 153 312 190 • v. Wilbur, 170 Mass. 506 322 G Gardner v. Gardner, 3 Mason, 218 v. Webber, 17 Pick. 407 . . Garman v. Glass, 197 Pa. St. 101 Gibbs v. Marsh, 2 Met. 243 . . Gibson v. Bott, 7 Ves. 89 . . . v. Cooke, 1 Met. 75. . . . v. Montfort, 1 Ves. Sen. 485 Girard v. Philadelphia, 7 Wall. 1 Gittings v. McDermott, 2 Myl. K. 69 Goldtree v. Thompson, 79 Cal. 613 . Goods of Bailey, L. R. 1. P. & D. 628 De Bode, 5 N. of C. 189 . . . Eeles, 2 Sw. & T. 600 . . Francis Owston, 2 Sw. & Tr. 461 Horsford, 3 P. & D. 211 Howard, L. R. 1 P. & D. 636 Jordan, L. R. 1 P. & D. 555 Lancaster, 1 Sw. & Tr. 464 . . McCabe, 3 P. & D. 94 . . . Smith, L. R. 1 Prob. & D. 717 Terrible, 1 Sw. & Tr. 140 . Gorham v. Dodge, 122 111. 528 . . Gould v. Lamb, 11 Met. 84 v. Mansfield, 103 Mass. 408 . . Graves v. Hicks, 11 Sim. 536 . Gray v. Siggers, 15 Ch. D. 74 . . . . Green v. Hewitt, 97 111. 113 .... 153 278 69 336 416 425 364 127 294 203 145 305 305 476 305 3 3 3 305 141 145 61 364 140 246 422 175 XV111 TABLE OF CASES CITED Greenwood v. Greenwood, 5 Ch. D. 954 Greville v. Browne, 7 H. L. Cas. 689 . Griggs v. Veghte, 47 N. J. Eq. 179 . . Gruver v. Wood, 174 Mass. 540 . . . Gundry v. Pinniger, 1 D. M. & G. 502 Page 234 153 273 249 224 Hadley v. Hadley Manfg. Co., 4 Gray, 140 Haley v. Boston, 108 Mass. 576 Hall v. Hall, 123 Mass. 120 v. Hancock, 15 Pick. 255 v. Priest, 6 Gray, 18 Hamlin v. Stevens, 177 N. Y. 39 . . Hammond v. Putnam, 110 Mass. 232 Hapgood v. Houghton, 10 Pick. 154 . Haraden v. Larrabee, 113 Mass. 430 Hardy v. Smith, 136 Mass. 328 . . Harlow v. Cowdrey, 109 Mass. 183 . . Harris v. Watkins, Kay. 438 . . Harrison v. Pepper, 166 Mass. 288 . . . Hartnett v. Wandell, 60 N. Y. 346 . Hartop v. Whitmore, 1 P. Wms. 681 . Hartwell v. Rice, 1 Gray, 587 . Harvey v. Richards, 1 Mason, 381 Hascoll v. King, 162 N. Y. 134 . . Hatch v. Bassett, 52 N. Y. 359 . . . Haxall v. Shippen, 10 Leigh, 536 . Hayden, v. Barrett, 172 Mass. 472 . v. Stoughton, 5 Pick. 528 .. . Hayward v. Davidson, 41 Ind. 212 . . v. Loper, 147 111. 41 Healey v. Toppan, 45 N. H. 243 . . Hess v. Singler, 114 Mass. 56 ... . Hewes v. Dehon, 3 Gray, 205 . . Hicks v. Chapman, 10 Allen, 463 . . . Higginson v. Turner, 171 Mass. 586 . . Hill v. Bacon, 106 Mass. 578 . . v. Tucker, 13 How. 458 . . Hillen v. Iselin, 144 N. Y. 365 . Hills v. Simonds, 125 Mass. 536 Hitchcock v. Shaw, 160 Mass. 140. . . . Hogan v. Curtin, 88 N. Y. 162 ... Holland v. Cruft, 3 Gray, 162 . . Holloway v. Holloway, 5 Ves. 399 . . . Holm v. Low, 4 Met. 190 . . Homer v. Shelton, 2 Met. 194 165 215 208 211 189 143 335 . 330 222 228 201 153 . 410 . 310 . 264 265 14,15 203 161 410 217 300 127 264 422 361 91 448 127 59, 190 18 225 202 472 175 335 224 192 161 TABUS OF CASES CITED XIX Page Hosea v. Jacobs, 98 Mass. 65 200 Hovey v. Dary, 154 Mass. 7 335 Howe v. Earl of Dartmouth, 7 Ves. 137 .415 v. Morse, 174 Mass. 491 195 v. Watson, 179 Mass. 30 143 Howland v. Slade, 155 Mass. 415 296 Hubbard v. Hubbard, 6 Met. 50 249 Hubbell t>. Hubbell, 9 Pick. 561 249 Humes v. Wood, 8 Pick. 478 236 Hunt v. Hunt, 11 Met. 88 494 Hunter v. Bryson, 5 Gill & J. 483 18 Hyde v. Baldwin, 17 Pick. 303 61 v. Hilliard, Supr. Jud. Court, Suffolk, No. 762, Eq., 1883 417 I Inglis v. Sailors' Snug Harbor, 3 Pet. (U. S.) 99 . . . . 465 In re Best's Trusts, L.R. 18 Eq. 686 227 Dugdale, 38 Ch. D. 176 . . . 195 Martin, 25 R. I. 1 236 Morgan, [1893] 3 Ch. 322 299 Parker, 17 Ch. D. 262 216 Porter's Trust, 4 Kay & Johns. 188' 294 Powell's Trusts, 39 L. J. Ch. n. s. 188 208 Rosher, 26 Ch. D. 801 195 Ipswich Co. v. Story, 5 Met. 310 312 J Jackson v. Chase, 98 Mass. 286 285 v. Phillips, 14 Allen, 539 202, 204, 452, 454 Jaques v. Swasey, 153 Mass. 596 265 Jenkins v. Horwitz, 92 Md. 34 • 185 v. Merritt, 17 Fla. 304 185 Johnson v. Ames, 11 Pick. 172 62 v. Goss, 128 Mass. 433 . . . ..' 96, 234 v. Home for Aged Men, 152 Mass. 89 248 Jones v. Colbeck, 8 Ves. 38 191 v. Richardson, 5 Met. 247 265, 322 v. Walker, 103 U. S. 444 104 K Kanew. Bloodgood, 7 Johns. Ch. 90 365 Keay v. Boulton, 25 Ch. D. 212 220 Kekewich v. Manning, 1 De Gex, Macn. & Gord. 176 ... . 2 XX TABLE OF CASES CITED Paqe Kenaday v. Sinnott, 179 U. S. 606 238 Kent v. Dunham, 106 Mass. 586 273 Kernochan v. Murray, 111 N. Y. 306 80, 81 Kilpatrick ». Barron, 125 N. Y. 751 213 Kimball v. Ellison, 128 Mass. 41 59 v. Story, 108 Mass. 382 294 Kinmonth v. Brigham, 5 Allen, 270 415, 416 Kirby v. Potter, 4 Ves. 748 235 Kirkland v. Narramore, 105 Mass. 31 . . 172 Knight v. Mahoney, 152 Mass. 523 175 Kunkel v. Macgill, 56 Md. 120 235 L Langdon v. Astor, 16 N. Y. 9 257, 266 Laible v. Ferry, 32 N. J. Eq. 791 102 Laing v. Barbour, 119 Mass. 523 229 Lee v. Lee, 1 Dr. & Sm. 85 .224 Lees v. Massey, 3 De Gex, F. & J. 113 191 Lerow v. Wilmarth, 9 Allen, 382 . . . 410 Little v. Little, 161 Mass. 188 . . . 412 LoderV Hatfield, 71 N. Y. 92' . . . 153 Lombards Boyden, 5 Allen, 249 ... 295,301 Longhead v. Phelps, 2 W. Bl. 704 . . . . . 201 Loring v. Blake, 98 Mass. 253 200, 207 v. Marsh, 2 Clifford, 469; s. c. 6 Wallace, 337 454 Lovell v. Charlestown, 66 N. H. 584 127 Lovering v. Lovering, 129 Mass. 97 208 v. Worthington, 106 Mass. 86 208 Lovett v. Gillender, 35 N. Y. 617 177 Lowell et al., Apts., 22 Pick. 215 455 Lucas v. Williams, 3 Giff. 150 102 M Malcolm v. Martin, 3 B. C. C. 50 284 Malone v. Hobbs, 1 Rob. (Va.) 346 303 Manbridge v. Plummer, 2 Myl. & K. 93 118 Manners v. Pearson & Son (1898), 1 Ch. 581 284 Manuel v. Manuel, 13 Ohio St. 559 . 12 Marsh v. Hague, 1 Edw. Ch. 174 273 Martin v. Martin, 131 Mass. 547 141 Mason ». Mason, 1 Meriv. 308 7 Mathis v. Mathis, 18 N. J. Law, 59 236 Matter of Coburn, 9 Misc. (N. Y.) 437 . 307 Kimberly, 150 N. Y. 90 . . 212 327 TABLE OF CASES CITED Matter of McConnick, 40 N. Y. App. Div. 73; 163 N. Miner, 146 N. Y. 121 . . . . Phelps, 22 St. Rep. (N. Y.) 896 Russell, 168 N. Y. 169 ... . — Smith, 46 Misc. (N. Y.) 210 . . Stewart, 88 N. Y. App. Div. 23 Van Slooten v. Dodge, 145 N. Y. Wells, 113 N. Y. 396 . . . . . Maybank v. Brooks, 1 Bro. Ch. 84 . McArthur v. Scott, 113 U. S. 340 . . McDonogh v. Murdoch, 15 How. 367 Merriam v. Simonds, 121 Mass. 198 Merrill v. Emery, 10 Pick. 507 . . v. Hayden, 86 Me. 133 ... Merritt v. Richardson, 14 Allen, 239 Metcalf v. Framingham Parish, 128 Mass. 370 Meyer v. Simonsen, 5 De G. & Sm. 723 Miller v. Miller, 79 Hun. 197 .... Minot v. Amory, 2 Cush. 377 v. Paine, 99 Mass. 101 .... v. Thompson, 106 Mass. 583 . Minter v. Wraith, 13 Sim. 52 . . . Moore v. Hegeman, 72 N. Y. 376 . . . Morse v. Mason, 11 Allen, 36 v. Natick, 176 Mass. 510 ... . Morton v. Perry, 1 Met. 446 Moultrie v. Hunt, 23 N. Y. 394 . Mounsey v. Blamire, 4 Russ. 384 . . . Murphy v. Walker, 131 Mass. 341 . XXI Page Y. 551 406 ... 300 ... 470 . . 211 77 . . 89 . 102 . 293 . 294 . 189 . 127 . 295 . 160 . . 294 . 291 493 , . 416 228 , . . . 370 . . 412 . . 415,417 , . . . 201 . 494 . . 214 . 206 , . . . 234 . 13 . . . . 221 . 103 N Newcomb v. Webster, 113 N. Y. 191 144 v. Williams, 9 Met. 525 308 Newhall v. Wheeler, 7 Mass. 189 .364 Newton v. Seaman's Society, 130 Mass. 91 . . . . 130 New York Life Ins. Co. v. Baker, 165 N. Y. 484 427 Nichols v. Eaton, 91 U. S. 716 .395 v. Coffin, 4 Allen, 27 '. . 258, 259 Nickerson v. Buck, 12 Cush. 332 . 470 Nightingale v. Burrell, 15 Pick. 104 193 Nudd v. Powers, 136 Mass. 273 .. . ... 159, 188, 246 O Oates v. Cooke, 3 Burr. 1684 O'Brien v. New England Trust Co., 183 Mass. 186 364 62 XX11 TABLE OF CASES CITED Odell v. Odell, 10 Allen, 1 202-205 Ogden v. Pattee, 149 Mass. 82 241 Olliffe v. Wells, 130 Mass. 221 361 Olney v. Hall, 21 Pick. 311 192 v. Lovering, 167 Mass. 446 227 Oppenheim v. Henry, 9 Hare, 802, n 129 Otis v. Coffin, 7 Gray, 511 285 v. Prince, 10 Gray, 581 117 Overton v. Lea, 108 Tenn. 505 175 Paine v. Parsons, 14 Pick. 318 Paine, Petr., 176 Mass. 242 . Palms v. Palms, 68 Mich. 355 Parker v. Coburn, 10 Allen, 82 v. Iasigi, 138 Mass. 416 . v. Sears, 117 Mass. 513 . . Parrott v. Avery, 159 Mass. 594 . Parsons v. Winslow, 16 Mass. 361 Pastene v. Bonine, 166 Mass. 85 . Peabody v. Norfolk, 98 Mass. 452 Perkins v. Ladd, 114 Mass. 420 . . v. Mathes, 49 N. H. 107. . . Peter v. Beverly, 10 Pet. 532 .. . Philips v. Chamberlaine, 4 Vesey, 51 Phipps v. Ackers, 9 CI. & Fin. 583 v. Williams, 5 Sim. 44 . . Pickens v. Davis, 134 Mass. 252 . Pierce v. Proprietors, 10 R. I. 227 Pierson v. Garnet, 2 B. C. C. 39 . Pinkham v. Blair, 57 N. H. 226 . Plympton v. Boston Dispensary, 106 Pollard v. Pollard, 1 Allen, 490 . . Poole v. Munday, 103 Mass. 74 . v. Poole, L. R. 7. Ch. 17 Porter v. Howe, 173 Mass. 521 Pratt v. Rice, 7 Cush. 209 . , Prescott v. Prescott, 7 Met. 141 Prior v. Talbot, 10 Cush. 1 . Prudential Assur. Co. v. Edmonds, 2 App Pruen v. Osborne, 11 Sim. 132 . Putman v. Gleason, 99 Mass. 454 Mass. 544 Cas. 487 265 215 203 267 234 337 233 411 228 67 309 236 324 129 189 189 304 81 284 222 411 249, 290 102 257 246, 248, 249 . . . 146 297 369 274 . 215 . . . . 192 Q Quincy v. Rogers, 9 Cush. 291 137 TABLE OF CASES CITED XX111 R Page Read v. Devaynes, 3 Bro. Ch. 95 172 Be Earl of Chesterfield's Trusts, 24 Ch. D. 643 416 Llewellyn, 29 Beav. 171 . . 416 Walker's Estate, 12 Ch. D. 205 437 Way's Trusts, 2 De Gex, Jones & Smith, 365 . ... 2 Richards v. Humphreys, 15 Pick. 133 238, 264, 265 Richardson v. Hall, 124 Mass. 228 96, 145, 230, 249 v. Stodder, 100 Mass. 528 ... . 361 Robertson v. Quiddington, 28 Beav. 529 67 Robinson v. Simmons, 146 Mass. 167 . . .... 313 Rogers v. Daniell, 8 Allen, 343 .. . ... . . 258 v. Pittis, 1 Add. 30 483 Rollwagen, v. Rollwagen, 63 N. Y. 504 476 Roquet v. Eldridge, 118 Ind. 147 266 Rose v. Gould, 15 Beav. 189 258 v. Porter, 141 Mass. 309 .... 489 Ross v. Tremain, 2 Met. 295 165 Rotch v. Lovering, 169 Mass. 190 . 191, 302 Russell v. Loring, 3 Allen, 121 402 S Sage v. Woodin, 66 N. Y. 578, 581 Saltonstall v. Sanders, 11 Allen, 446 . . Sanderson v. White, 18 Pick. 328, 334 Saunders v. Drake, 2 Atk. 466 . . . Schumaker v. Schmidt, 44 Ala. 454 . . Scott v. Riley, 16 Phila. 106 ... . Sears v. Hardy, 120 Mass. 524 . . v. Putnam, 102 Mass. 5 v. Russell, 8 Gray, 86 ... Seaver v. Griffing, 176 Mass. 59 . . Security Co. «. Brinley, 49 Conn. 48 . . Selwyns's Case, 3 Hagg. Eccl. Rep. 748 Sewall v. Wilmer, 132 Mass. 131 . Shannon v. Whitney, 109 Mass. 146 . Shaw v. Cordis, 143 Mass. 443 . v. Paine, 12 Allen, 293 . . Shearer v. Shearer, 98 Mass. 107 Shelley's Case, 1 Co. 88 b., 101 a. Shelton v. Hadlock, 62 Conn. 140 Sherman v. Page, 85 N. Y. 123 . Shreve v. Shreve, 176 Mass. 456 ... . Shuttleworth v. Greaves, 4 Myl. & Cr. 35 Sibley v. Cook, 3 Atk. 572 .. . . 101 453 206 284 140 81 129, 302, 445 . . . . 198, 204 193, 197 .... 493 .... 264 7 . 18, 68 .... 15 . . 427 . . 374 . . 5 ... .190 . . 293 18 . 190 . . 294 . 294 XXIV TABLE OP CASES CITED Page Sibley v. Perry, 7 Ves. 522 215 Slaney v. Watney, Law Rep. 2 Eq. 418 . ... 172 Slark ». Dakyns, 10 Ch. App. 35 207 Sloane v. Stevens, 107 N. Y. 122 . . . 146, 254 Slocomb v. Slooomb, 13 Allen, 38 .... . 13 Smell v. Dee, 2 Salt, 415 .273 Smith v. Ayres, 101 U. S. 320 103 v. Everett, 27 Beav. 446 .... . . 67 v. Harrington, 4 Allen, 566 439, 440 Society for Promoting Education ». Attorney-General, 135 Mass. 285 .164 Sparhawk v. Sparhawk, 114 Mass. 356 . . . 367 Stackpole v. Howell, 13 Ves. 417 .. . . 172 Staigg v. Atkinson, 144 Mass. 564 . . .5 Stanwood v. Owen, 14 Gray, 195 . . . . 104 Stearns v. Palmer, 10 Met. 32 364 Steel v. Cook, 1 Met. 281 300 Sterrett v. Barker, 119 Cal. 492 102 Stetson v. Day, 51 Maine, 434 ... 410 Stevenson v. Abingdon, 31 Beav. 305 . 215 Stivers v. Gardner, 88 Iowa, 307 .175 Stockbridge, Petr., 145 Mass. 517 274 Stone v. Framingham, 109 Mass. 303 205 Sturgis v. Paine, 146 Mass. 354 130 Sumner v. Crane, 155 Mass. 483 3, 309 Swaine v. Burton, 15 Ves. 365 221 Swett v. Boston, 18 Pick. 123 402 v. Dutton, 109 Mass. 589 222 Sweetland v. Sweetland, 4 Sw. & T. 6 471 T Taft v. Taft, 130 Mass. 461 192 Talbot v. Chamberlain, 149 Mass. 57 13 Talbott v. Hamill, 151 Mo. 292 185 Tanton v. Keller, 167 III. 129 265 Taylor v. Means, 4 De G., J. & S. 597 466 v. Taylor, 145 Mass. 239 258 v. Taylor, L. R. 17 Eq. 324 246 Thayer v. Boston, 15 Gray, 347 209 v. Finnegan, 134 Mass. 62 153 ». Pressey, 175 Mass. 225 227 v. Wellington, 9 Allen, 283 299 Thellusson v. Woodford, 4 Ves. 227; s. c. 11 Ves. 112 ... . 202 Thorndike v. Loring, 15 Gray, 391 204, 208 Throckmorton v. Holt, 180 U. S. 552 . . ... 304 Tilden v. Green, 130 N. Y. 29 465 TABLE OF CASES CITED XXV Tilden v. Tilden, 13 Gray, 103 144 Tillinghast v . Cook, 9 Met. 143 .' 158 Tobey v. Moore, 130 Mass. 448 ' [ 206 Tomlinson v. Bury, 145 Mass. 346 236,249 Toms v. Williams, 41 Mich. 552 '203 Towle v. Swasey, 106 Mass. 100 236, 248, 249, 250 Towne v. Weston, 132 Mass. 513 301 Towns v. Wentworth, 11 Moore P. C. 526 . 234 Treadwell v. Cordis, 5 Gray, 341 . 258,310 Turner v. HallowellSav. Inst., 76 Me. 527 ' 177 Twitty v. Martin, 90 N. C. 643 293 U Underwood v. Curtis, 127 N. Y. 523 334 United States v. Fox, 94 U. S. 315 ! 127 V Vaughn v. Northup, 15 Pet. 1 14 Vaux v. Henderson, 1 Jac. & W. 388 220 Vidal v. Girard, 2 How. 127 127 Viney v. Abbott, 109 Mass. 300 3,433 W Wainwright v. Tuckerman, 120 Mass. 232 Wait v. Belding, 24 Pick. 129 . . Wallis v. Wallis, 114 Mass. 510 . . Ward v. Ward, 15 Pick. 511 . Ware v. Rowland, 2 Phill. 635 . . Wankford v. Wankford, 1 Salk. 299 Warner v . Beach, 4 Gray, 162 . Waters v. Stickney, 12 Allen, 1 . . Webb v. Neal, 5 Allen, 575 ... Webster v. Ellsworth, 147 Mass. 602 Wedderburn v. Wedderburn, 22 Beav. 84 Welch v. Adams, 152 Mass. 74 . . . v. Brimmer, 169 Mass. 204 . . Wells v. Heath, 10 Gray, 17 . West v. Ray, Kay, Ch. 385 Westcott v. Nickerson, 120 Mass. 410 Wharton v. Barker, 4 K. & J. 498 Wheeler v. Bent, 7 Pick. 61 .... v. Howell, 3 Kay & Johns. 198 White v. Massachusetts Institute, 171 Mass. 84 . 145 . 59 . 307 239 . 224 312 301, 306 . 145 . 367 . 61 . 67 279, 290 . 191 . 205 . 466 415, 416 . 224 . 304 . 153 185, 248, 494 249. XXVI TABLE OF CASES CITED Whiting's Appeal, 67 Conn. 379 . . Whitney v. Twombly, 136 Mass. 145 Wilbanks v. Wilbanks, 18 111. 17 . Wilcox v. Wilcox, 13 Allen, 252 . . . Wild v. Davenport, 48 N. J. Law- 129 Wilding v. Bolder, 21 Beav. 222 . Wilkins v. Young, 144 Ind. 1 . . . Wilkinson v. Duncan, 23 Beav. 469 Williams v. Bradley, 3 Allen, 270 . v. Corbet, 8 Sim. 349 ... . v. Williams, 142 Mass. 515 . . Williamson v. Williamson, 6 Paige, 298 . . . Willis v. Sharp, 113 N. Y. 586 . . Wilmarth v. Bridges, 113 Mass. 407 Wilson v. Wilson, 145 Mass. 490 . . .... Wilton v. Humphreys, 176 Mass. 253 .... Wingfield v. Wingfield, 9 Ch. D. 658 . " .... Winsor v. Mills, 157 Mass. 362 Withy v. Mangles, 4 Beav. 358; 10 CI. & Fin. 215 . Wood v. Gaynor, 1 Ambl. 395 v. Thomas, [1891], 3 Ch. 482 .. . Woodbridge v. Winslow, 170 Mass. 388 . Woodcock v. Woodcock, 152 Mass. 353 Worcester v. Worcester, 101 Mass. 128 . . Workman v. Workman, 2 Allen, 472 Wright v. Gilbert, 51 Md. 146 v. Trustees of Methodist Episcopal Church, Hoffm 202 Wynn v. Bartlett, 167 Mass. 292 Yeomans v. Stevens, 2 Allen, 349 300 Young's Estate, 123 Cal. 337 130 TESTAMENTARY FORMS AND NOTES ON WILLS CHAPTER I REASONS FOR MAKING A WILL The observation is frequently made that the intention and purpose of a person can sometimes be the better carried out by a trust deed than by will. There are, however, grave objections to this method of dispensing with the making of a will. It is true that if the trust applies only to personalty it is a private affair and the instrument need not be recorded anywhere. However, if realty is included the deed must be recorded at the registry of deeds and thus become a matter of public knowledge. The contention may perhaps be successfully raised in some jurisdictions that the transaction is void because intended to be testamentary in its character and as an evasion of the provisions of law regulat- ing the execution of last wills and testaments. If realty is included and the instrument is recorded at the registry of deeds, this very publicity may prove to the settlor unpleasant and embarrassing. Very few would care thus to advertise their affairs long before death. Again, if the trust is likely to last for any period either previous to or after the death l 2i TESTAMENTAEY FORMS of the party creating the trust, transfers of shares may be necessary, and if the trust consists only of personalty and hence is not recorded, the corpora- tion counsel may object to such transfers unless the corporation is amply protected. It is not proposed to give here any forms of such trust deeds or declarations of trust, but counsel practising in States which have laws providing for the taxation of legacies and successions will probr ably find, if called upon to draw such instruments, that they come within the provisions of such laws. Counsel may also well consider the following statement of law: "It is immaterial whether there was any other consideration than appears upon the face of the indenture; for even if the settlement was purely voluntary, the case falls within the doctrine, now well established in equity, that a voluntary settlement', completely executed, with- out any circumstances tending to show mental incapacity, mistake, fraud, or undue influence, is binding and will be enforced against the settlor and his representatives, and cannot be revoked, except so far as a power of revocation, has been reserved in the deed of settlement; and that the fact that by the terms of the deed the income of the property is to be applied by the trustee to the benefit of the settlor during his lifetime does not impair the validity or effect of the further trusts declared in the instrument. Ellison v. Ellison, 6 Ves. 656. Kekewich v. Manning, 1 De Gex, Macn. & Gord. 176; Re Way's Trusts, 2 De Gex, Jones & KEASONS FOR MAKING A WILL v 3 Smith, 365; Falk v. Turner, 101 Mass. 494; Bunn v. Winthrop, 1 Johns. Ch. 329; Dennison v. Goehr- ing, 7 Barr, 175." Viney v. Abbott, 109 Mass. 300, 302. This matter of revocation should be brought to the attention of the client. Assuming that a will is preferable to a trust deed we are confronted by the affirmation of many that they are satisfied with the law providing for the disposition of the property of intestates and hence they see no reason for making their wills. The statement will not bear the test of analysis, for the very best reasons may exist for the making of a will, even if the testator intends to leave his property conformably to the laws providing for the distribu- tion of intestate estates. The settlement of estates in nearly all cases is facilitated by the clothing of an executor with adequate power to act, and a few directions of the testator may avoid embarrassment. A person of property, therefore, if some or all of the suggestions in this chapter are brought to his atten- tion, may conclude to make a will, even though he disposes therein of his estate in the same manner as that in which it would pass by descent, if no will were made. "A will is valid which merely appoints an executor. In the Goods of Lancaster, 1 Sw. & Tr. 464; In the Goods of Howard, L. R. 1 P. & D. 636; Brown- rigg v. Pike, 7 P. D. 61. And this is so, even though the executor renounces probate. In the Goods of Jordan, L. R. 1 P. & D. 555." Sumner v. Crane, 155 Mass. 483, 484. 4 TESTAMENTAEY FORMS Many reasons may be presented for making a will, but it is believed that the following are sufficient. I. A Will as a Matter of Record. "The heirs of deceased persons usually do not appear of record anywhere." Arnold v. Reed, 162 Mass. 438, 440. This statement was made in ref- erence to persons dying intestate. In such cases conveyancers are often put to great trouble in searching titles; for while in most jurisdictions an inventory of the estate of an intestate contains a reference to the realty left by him, yet sometimes where a person has real estate but little or no per- sonalty and leaves but few or no debts, adminis- tration is not taken out at all, and hence there is nothing on record giving the names of inheritors. In the case of a will the law nearly everywhere makes a reference to wife and children necessary, because, if omitted, they still have certain rights under the law; and in some cases testators declare who their children are, as in the following illustra- tion, which is taken from the will of a well-known man: I declare that at the date of the execution of this instrument my wife A. B. and my son C. D. are living; that I have no living children besides this last mentioned son, and no grandchildren represent- ing a deceased child excepting E. F. and G. H., the minor children of my deceased son I. J. REASONS FOR MAKING A WILL 5 A form like the following may be used: A. B., C. D., E. F., and G. H. named in this will are my only children and issue now living. II. Trouble over Dower. In States where the common-law right of dower exists, difficulties attending the setting off of dower may be avoided by the making of a will. The inducement to make a will is all the more impera- tive if the testator is living with a second wife who is not in harmony with the children by the first wife. So, too, if the testator owns lands in other jurisdictions than that of his domicile (Staigg v. Atkinson, 144 Mass. 564), or is a member of a part- nership which has real estate holdings. Shearer v. Shearer, 98 Mass. 107. III. Defeating Waiting Heirs. The propriety of making a will in cases where there are offensive relations anxious to inherit may be shown by the following illustration: A. and B. are brothers or sisters. They are un- married, their parents are dead, and they have no other brothers or sisters. They have distant rela- tives who are waiting for their money, but their desire is to remember charities or certain friends. . Let them make wills, each giving the other the net income of his or her property during life, the princi- pal, upon the life tenant's decease, to go, discharged of all trust, to the charities or the friends. On the D TESTAMENTARY FORMS death of either, the trust may be carried out as to the one so dying, as, the survivor being sole heir, there is no one to contest the will, and that sur- vivor may then destroy his own will. The property of one of them may thus go as the testator desires without any fear of litigation. If A. and B. are possessed of ample means, each may give his property by will directly to the charity or to the friends, and on the death of one the will cannot be con- tested by waiting heirs. IV. The Marshalling of Assets to Pay Debts and Legacies. Suppose a person who is satisfied with the laws of intestacy has many obligations, and also assets of considerable magnitude and value but not readily marketable. If he is likely to leave little ready money he may make a will for two reasons, — one to appoint as executor a person who is both competent and familiar with his affairs, and the other to give the executor instructions as to what interests to dis- pose of for the liquidation of obligations and as to what methods to pursue in order to husband resources. V. Trusts. In some jurisdictions it has been decided that the founder of a trust can secure the income thereof to the cestui que trust by providing that it shall not be* alienable by him, or be subject to be taken by his creditors. A testator may therefore put the share of a child whose deportment is unsatisfactory in REASONS FOE MAKING A WILL 7 trust, and provide that the income shall not be alienable by him, either by assignment or by any other method, and that the same shall not be subject to be taken by his creditors by any legal process whatever, and shall not pass in any event to his assignee or trustee under any trust deed that may be executed by him or under any insolvent or bank- rupt law, State or National. VI. Concurrent Deaths. Suppose A. and B. are wealthy unmarried brothers and they have only remote relatives, to whom they do not wish their property to go. If they travel much together, the making of wills is advisable; as in the event of their being killed at the same time, not leaving wills, the remote relatives will take their estates. i Many perplexing questions arise as to the inherit- ance of property in the case of concurrent deaths. See Mason v. Mason, 1 Meriv. 308; Selwyns's Case, 3 Hagg. Eccl. Rep. 748; Batchelder, Petitioner, 147 Mass. 465; Coye v. Leach, 8 Met. 371. VII. Directions as to Division of Property. Statutes providing for the distribution of intes- tate estates sometimes promote inequalities. Suppose a man is living with his second wife, who is distasteful to the children of his first wife. It may be advisable to make a will giving the second wife practically what the law would give her if he left no will, and providing that as a part of her share 8 TESTAMENTARY FORMS the homestead shall be hers in fee, and all the furni- ture and personal effects shall be hers absolutely. Differences with the children are thus likely to be avoided. Where a man is living with a second wife and has had children by both wives, he may deem it best to make a will, because of certain inequalities occasioned by the laws providing for the distribu- tion of intestate estates. Suppose that he is worth three hundred thousand dollars, and that according to the laws of his domicile the widow of an intestate is entitled to one-third and his children to two- thirds of his estate. Suppose that he has three children by his first wife, all living, and that he has one child by his second wife, also living. In the event of intestacy, the widow and her child will take one-half of the estate, and each of the three children by the first wife one-sixth. In such case it is probable that the widow will leave her entire property to her own child, so that he will ultimately receive three times the amount received by each of his half-brothers or half-sisters. A man may make a will to redress this inequality by inserting therein a provision like the following, having first given his second wife one-third of his estate and the children by the first wife the other two-thirds, to be equally divided among them: I make no provision in this will for my son A. B., who is the only child by my present wife, as I have already given his mother in this will one-third of my REASONS FOR MAKING A WILL 9 entire estate and to the children of my first wife the remainder. I assume that she will leave her entire property to her son; in which event he will receive from what was originally my estate considerably more than any one of his half-brothers and half-sisters will receive. I trust that he will appreciate the fact that this disposition of my property is prompted by a spirit of fairness and is in no sense intended to emphasize a distinction founded on favor and preference. Reference may be had here to disinheriting an heir or one who is next of kin of the testator. If the testator declares that he disinherits, for example, a son, and he dies intestate as to any portion of his estate, the son would take his share thereof. The testator should take care to dispose by will of his entire estate. Even then, local statutes should be carefully examined. VIII. Executors, Sureties on Bond, and Powers of Sale. The law may provide that a widow is entitled to administration. This responsibility she may not seek, and her inexperience may also be an objection. A testator may by will name his own executor. Again, the statutes providing for releasing an ad- ministrator from giving a bond, or surety or sureties on his bond, may require the observance of annoying formalities, while those permitting a testator to release his executor by will may require only notice to creditors. 10 TESTAMENTARY FORMS Again, also, an administrator nearly everywhere cannot sell real estate, and sometimes personal property, without an order of court. In such cases the petition to the court must specify with par- ticularity the property to be sold. In the case of a will, a carefully worded power of sale will give an executor ample authority, thus avoiding expense and providing a quick method of procedure. IX. Special Instructions. Many matters of importance may be referred to in a will, such as special instructions, the observance of which may facilitate the settlement of the estate, the saving of money, and the carrying out of the testator's wishes, without interfering with the set- tlement of the estate if given according to the laws providing for intestacy. It is perhaps the duty of an administrator in most jurisdictions to insure the intestate's property, but a testator may desire to give particular instructions on the subject. He may desire to give directions as to fully insuring all his interests, or, having always been his own underwriter, he may be in- clined to instruct his executor not to insure at all. It may be advisable to give directions as to carry- ing on the testator's business for a period long enough prudently to liquidate obligations and effec- tually to husband resources. Without such instruc- tions contained in a will an administrator might be subject to legal limitations and restraints necessitat- ing a too hasty settlement of the estate. EEASONS FOR MAKING A WILL 11 The compensation of an administrator is not always commensurate with the services rendered. A testator may make a will for the very purpose of fixing the executor's charges. If his affairs are so involved as to require in adjustment much skill, patience, time, and experience, he may provide in the will liberal remuneration. If the estate is invested in sound securities and there are few obligations, he may provide for a smaller compensation. Some- times an executor is given a legacy in lieu of all charges for services. The statutes providing for advances to children may not be satisfactory, and a will may be drawn, for the purpose of expressly providing as to such advances. In a State where the common law does not allow an administrator to pay for a monument, a lot in a cemetery and the care of it, and where there is no statute providing that a reasonable amount expended for a burial lot, the care of it, and a monument may be allowed by the court as part of the funeral ex- penses of a testator or intestate, the whole matter may be fully provided for by will. Sometimes a will which disposes of an estate as it would pass by law if there were no will contains a provision imposing on a relative or friend an obli- gation which has no legal force and is not intended to have any. Frequently this is embodied in the form of a request in a paper separate from the will and merely alluded to therein. CHAPTER II WHERE A WILL MAY BE MADE, AND ITS EFFECT UPON PROPERTY IN OTHER JURISDICTIONS I. Where a Will may be Made. As a general rule a will may be made in any part of the world, and, if executed according to the law of the testator's domicile, will be there admitted to probate without question. If an American makes his will while abroad, he should, if possible, have as witnesses Americans of his own domicile, so that there may be no trouble in proving the will. "The will of a person whose domicile at the time of his death is in this State is a domestic will, and prop- erly admitted to original probate at the place of such domicile, without regard'to where the will was made or where such person died. Manuel v. Manuel, 13 Ohio St. 559; Story's Conflict of Laws, §§ 467, 468." Converse v. Starr, 23 Ohio St. 491, 498. In many States, as in Massachusetts, it is provided that "a will which is made out of the commonwealth and is valid according to the laws of the state or country in which it was made may be proved and allowed in this commonwealth, and shall there- upon have the same effect as if it had been executed according to the laws of this commonwealth." Rev. Laws, c. 135, § 5. Accordingly A., domiciled in 12 "WHERE A "WILL MAY BE MADE 13 Massachusetts, may go into another jurisdiction and excute his will there with only two witnesses as there required, and the will may be probated in Massachusetts where three witnesses are required. Bayley v. Bailey, 5 Cush. 245; Crippen v. Dexter, 13 Gray, 330. This statute has been held to apply to nuncupative wills. Slocomb v. Slocomb, 13 Allen, 38. It is better, perhaps, always to execute the will according to the law of the testator's domicile. Complications may arise in the case of the change of domicile after making a will. A citizen of South Carolina executed his will so as to be a valid bequest of personal property ac- cording to the law of that State, but not of New York. He subsequently established his domicile and died in New York. It was held that he died intestate in respect to personal property within the jurisdiction of New York. Moultrie v. Hunt, 23 N. Y. 394. If a person having made his will accord- ing to the law of his domicile changes his domicile, it is better to re-execute the will according to the laws of the last domicile, and perhaps rewrite it-. If an insane person of sufficient mental capacity to change his domicile in good faith removes to another State during proceedings for the appoint- ment of a guardian, and if his residence continues there until death, and is assented to by his guardian, he is such a resident of that State that its courts have jurisdiction of the original probate of his will. Talbot v. Chamberlain, 149 Mass. 57. 14 TESTAMENTARY FORMS A person may declare his domicile, as in the case of the will of Cecil John Rhodes, the commencement of which is as follows: I the Right Honourable Cecil John Rhodes of Cape Town in the Colony of the Cape of Good Hope hereby revoke all testamentary dispositions here- tofore made by me and declare this to be my last Will which I make this first day of July 1899. 1. I am a natural-born British subject and I now declare that I have adopted and acquired and hereby adopt and acquire and intend to retain Rhodesia as my domicile. II. Effect of a Will upon Property in other Jurisdictions. It is well for a person contemplating making a will to understand that every grant of administra- tion is confined to the territory of the government which grants it, and whatever operation is allowed to it in other States or countries is a mere matter of comity. Vaughn v. Northup, 15 Pet. 1, 5; Wright v. Gilbert, 51 Md. 146, 152. So if he dies intestate with personal property in foreign jurisdictions, the administration granted in the State of his domicile is the general administration. Harvey v. Richards, 1 Mason, 381. And the administration in the foreign jurisdiction is ancillary, the usual practice being for the administrator in the ancillary jurisdiction to remit the balance of the personal estate, after pay- ment of debts, to the administrator in the original jurisdiction; or, if the laws as to distribution are EFFECT OF WILL IN OTHER JURISDICTIONS 15 identical in both jurisdictions, not to remit it but to order distribution to the heirs. Harvey v. Rich- ards, ubi supra; Shannon v. Whitney, 109 Mass. 146. In some jurisdictions there are statutes providing that if administration is taken out in State A. on the estate of a person of another State, his estate in State A. shall, after payments of debts, be disposed of according to his will, if he leave any; otherwise his real property shall descend according to the laws of State A., and his personal property shall be disposed of according to the laws of his own State; that, after payment of debts in State A., the residue of the personalty may be distributed as already provided, or, in the discretion of the court, may be transmitted to the executor or administrator, if any, in the State of which the deceased was an inhabitant. There is also a provision as to the set- tlement of the estate where the deceased was insolvent. It is always well to remember that the descent, alienation, and transfer of real estate are con- tr6lled by the law of the jurisdiction in which it is situated. If a testator has real or personal property in a jurisdiction other than his own, the following matters deserve attention: 1. His attorney should ascertain whether the laws of that jurisdiction provide for the allowance of a foreign will. If so, those laws should be carefully examined. 16 TESTAMENTARY FORMS Often testators declare that their wills shall apply only to property in a certain jurisdiction. The following are from actual wills : I declare that I expressly limit the application of this will to estates real and personal within the United States of America. I declare that this my last will and testament shall not extend to my property owned by me in Eng- land or elsewhere in the United Kingdom of Great Britain and Ireland or to any property owned by me at Cannes or elsewhere in France as I have already disposed of all my property in France by a separate will executed some years ago according to the laws of the Republic of France and, as I propose to dispose of all my property in England by a separate will of even date herewith according to the laws of England, and I hereby declare that the revocation hereinafter expressed of former wills shall not extend to my said French will, or my said English will, I hereby give, devise etc. 2. All tying up of property or restraint upon its alienation in the foreign jurisdiction, whether the property is real or personal, and especially when it is real, is dangerous. The author knows of three cases which caused great embarrassment, the first where unproductive real estate in the foreign juris- diction was given specifically to a minor child of the testator, it being the child's only property and means of support, and the law of that jurisdiction EFFECT OF WILL IN OTHER JURISDICTIONS 17 imposed restraint on the sale of a minor's real estate; secondly, where a pecuniary legacy to a person who had not been heard from for many years was charged upon productive realty in a distant city, thus clouding the title; and, thirdly, where valuable realty was given in trust, which trust was valid in the jurisdiction of the testator but void where the realty was located, because the trust was in violation of the rule against perpetuities, the law in that jurisdiction being different from that which prevailed where the testator resided. If a charitable bequest is made to an institution or corporation in another State, which institution or corporation is, not qualified to take it, it may be necessary for the Legislature of that State to pro- vide for the administration of the trust. Fellows v. Miner, 119 Mass. 541. 3. It is advisable to look into the law of the foreign jurisdiction as to releasing executors and guardians and trustees, if it is safe to create a trust, from giving a surety or sureties on their official bonds. Powers of sale and all provisions designed to facilitate the settlement of the estate should be carefully drawn. 4. It may be advisable to execute the will con- formably to the law of the foreign jurisdiction as well as that of the testator's domicile, although the statutes of the foreign jurisdiction may provide for the allowance of a foreign will if made conformably to the law of the testator's domicile. See above, p. 15. 18 TESTAMENTARY FORMS 5. In every case of a power to appoint by a will or document executed in another jurisdiction where the property is located, the will of the person to execute the power should, for safety, conform both in its provisions and its execution to the laws of the foreign jurisdiction as well as to those of his own. See Sewall v. Wilmer, 132 Mass. 131; Story, Conflict of Laws, § 473 a. See p. 68. 6. Sometimes testators limit the appointment of executors in point of place, as, for example, by mak- ing A. executor for the property in the testator's domicile, and B. for the property in New York, and C. for the property in Illinois. While such a limitation may be advisable in an exceptional case, the objections to it in most eases are many and obvious. See Sherman v. Page, 85 N. Y. 123; Hunter v. Bryson, 5 Gill & J. 483; Hill v. Tucker, 13 How. 458. See p. 309. 7. Finally, submit the will when finished to a competent attorney in the foreign jurisdiction and adopt his suggestions, if any, before execution, pro- vided they do not conflict with the laws of the testator's domicile, and execute the will according to the laws of both jurisdictions. 8. Many treaties of this country with other powers provide that the citizens and subjects of either may dispose of both personal and real estate within the jurisdiction of the other. The following extracts from treaties may be found in "Treaties, Conventions, etc., 1776- 1909": effect of "will in other jurisdictions 19 Austria-Hungary By the Treaty of 1829 it is provided as follows: article XI The Citizens or Subjects of each Party shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation, or otherwise; and their representatives, being citi- zens or subjects of the other Party, shall succeed to their personal goods, whether by testament or ab intestato, and may take possession thereof, either by themselves or by others acting for them, and dispose of the same at their will, paying such dues, taxes, or charges only, as the inhabitants of the country wherein the said goods are Shall be subject to pay in like cases. And in case of the absence of the representative, such care shall be taken of the said goods as would be taken of the goods of a native in like case, until the lawful owner may take meas- ures for receiving them. And if any question should arise among several claimants, to which of them said goods belong, the same shall be decided finally by the laws and judges of the land wherein the said goods are. But this article shall not derogate in any manner from the force of laws already published, or hereafter to be published, by His Majesty the Emperor of Austria, to prevent the emigration of his Subjects. By the Treaty of 1848 it is further provided: 20 TESTAMENTARY FORMS ARTICLE I The citizens or subjects of the contracting Parties shall have power to dispose of their personal prop- erty within the States of the other, by testament, donation, or otherwise; and their heirs, legatees and donees, being citizens or subjects of the other contracting Party, shall succeed to their personal property, and may take possession thereof, either by themselves or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the inhabitants of the country where the said property lies, shall be liable to pay in like cases. ARTICLE II Where, on the death of any person holding real property, or property not personal, within the Territories of one Party, such real property would, by the laws of the land, descend on a citizen or sub- ject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of two years to sell the same; which term may be reasonably prolonged according to circumstances; and to withdraw the proceeds thereof, without molestation, and exempt from any other charges than those which may be imposed in like cases upon the inhabitants of the country from which such proceeds may be withdrawn. EFFECT OF WILL IN OTHER JURISDICTIONS 21 ARTICLE III In case of the absence of the heirs, the same care shall be taken, provisionally, of such real or personal property, as would be taken in a like case of property belonging to the natives of the country, until the lawful owner, or the person who has a right to sell the same according to Article II, may take measures to receive or dispose of the inheritance. Bavaria {German Empire) By the Treaty of 1845 it is provided as follows: ARTICLE II Where, on the death of any person holding real property within the territories of one Party, such real property would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged accord- ing to circumstances, and to withdraw the proceeds thereof, without molestation, and exempt from all duties of detraction. ARTICLE III The citizens or subjects of each of the contracting parties shall have power to dispose of their (real 22 TESTAMENTARY FORMS and) personal property within the States of the other, by testament, donation, or otherwise; and their heirs, legatees, and donees, being citizens or subjects of the other contracting Party, shall suc- ceed to their said (real and) personal property, and may take possession thereof, either by themselves, or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the inhabitants of the country where the said property lies shall be liable to pay in like cases. ARTICLE IV In case of the absence of the heirs, the same care shall be taken provisionally, of such real or personal property as would be taken in a like case of property belonging to the natives of the country, until the lawful owner, or the person who has the right to sell the same according to Article II, may take measures to receive or dispose of the inheritance. ARTICLE v If any dispute should arise between different claimants to the same inheritance, they shall be decided in the last resort according to the laws, and by the judges of the country where the prop- erty is situated. effect of will in other jurisdictions 23 Bolivia By the Treaty of 1858 it is provided: ARTICLE XII The citizens of each of the contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by sale, donation, testament, or otherwise, and their representatives, being citizens of the other party, shall succeed to their said personal goods, whether by testament, or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such duties only as the inhabitants of the country where such goods are, shall be subject to pay in like cases. And if in the case of real estate, the said heirs would be prevented from entering into the possession of the inheritance on account of their character of aliens, there shall be granted to them the longest period allowed by the law, to dispose of the same as they may think proper, and to withdraw the proceeds without molestation, nor any other charges than those which are imposed by the laws of the country. Brazil By the Treaty of 1828 it is provided: ARTICLE XI The citizens or subjects of each of the contracting parties shall have power to dispose of their personal 24 TESTAMENTARY FORMS goods within the jurisdiction of the other, by sale, donation, testament or Otherwise, and their represent- atives, being citizens or subjects of the other party, shall succeed to the said personal goods whether by testament, or ab intestate, and they may take pos- session thereof, either by themselves, or others act- ing for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country, wherein said goods are shall be subject to pay in like cases; and if in the case of real estate, the said heirs would be prevented from entering into the possession of the inheritance, on account of their character of aliens, there shall be granted to them the term of three years, to dispose of the same, as they may think proper, and to withdraw the pro- ceeds without molestation, nor any other charges than those which are imposed by the laws of the country. Brunswick and Lunebtjrg (German Empire) By the Treaty of 1854 it is provided: ARTICLE I The citizens of each one of the high contracting parties shall have power to dispose of their personal property, within the jurisdiction of the other, sub- ject to the laws of the State or country, where the domicile is, or the property is found, either by tes- EFFECT OF WILL IN OTHER JURISDICTIONS 25 party, shall inherit all such personal estates, whether by testament or ab intestato, and they may take possession of the same, either personally or by attorney, and dispose of them as they may think proper, paying to the respective governments no other charges than those to which the inhabitants of the country in which the said property shall be found would be liable in a similar case; and, in the absence of such heir, or heirs, the same care shall be taken of the property that would be taken in the like case, for the preservation of the property of a citizen of the same country, until the lawful pro- prietor shall have had time to take measures for possessing himself of the same; and in case any dispute should arise between claimants to the same succession, as to the property thereof, the question shall be decided according to the laws, and by the judges, of the country in which the property is situated. Colombia By the Treaty of 1846 it is provided: ARTICLE XII The citizens of each of the contracting parties shall have power to dispose of their personal goods or real estate within the jurisdiction of the other, by sale, donation, testament, or otherwise; and their representatives being citizens of the other party, shall succeed to their said personal goods or real estate, whether by testament or ab intestato and 26 TESTAMENTARY FORMS they may take possession thereof, either by them- selves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country, wherein said goods are, shall be subject to pay in like cases. France By the Treaty of 1853 it is provided: ARTICLE VII In all the States of the Union whose existing laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously or for value received, by donation, testament or otherwise, just as those citizens themselves; and in no case shall they be subjected to taxes on transfer, inheritance, or any others different from those paid by the latter, or to taxes which shall not be equally imposed. As to the States of the Union by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring this right. EFFECT OF WILL IN OTHER JURISDICTIONS 27 to possession and inheritance, the Government of France accords to the citizens of the United States the same rights within its territory in respect to real and personal property and to inheritance, as are enjoyed there by its own citizens. Great Britain By the Treaty of 1899 it is provided: article i Where, on the death of any person holding real property (or property not personal), within the territories of one of the Contracting Parties, such real property would, by the laws of the land, pass to a citizen or subject of the other, were he not dis- qualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if cir- cumstances render it necessary, and to withdraw the proceeds thereof, without restraint or interfer- ence, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the citizens or subjects of the country from which such pro- ceeds may be drawn. ARTICLE II The citizens or subjects of each of the Contract- ing Parties shall have full power to dispose of their 28 TESTAMENTARY FORMS personal property within the territories of the other, by testament, donation, or otherwise; and their heirs, legatees, and donees, being citizens or sub- jects of the other Contracting Party, whether resident or non-resident, shall succeed to their said personal property, and may take possession thereof either by themselves or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the citizens or subjects of the country where the property lies shall be liable to pay in like cases. ARTICLE III In case of the death of any citizen of the United States of America in the United Kingdom of Great Britain and Ireland, or of any subject of Her Bri- tannic Majesty in the United States, without hav- ing in the country of his decease any known heirs or testamentary executors by him appointed, the competent local authorities shall at once inform the nearest consular officer of the nation to which the de- ceased person belonged of the circumstance, in order that the necessary information may be immediately forwarded to persons interested. The said consular officer shall have the right to appear personally or by delegate in all proceedings on behalf of the absent heirs or creditors, until they are otherwise represented. EFFECT OF WILL IN OTHER JURISDICTIONS 29 ARTICLE IV The stipulations of the present Convention shall not be applicable to any of the Colonies or foreign possessions of Her Britannic Majesty unless notice to that effect shall have been given, on behalf of any such Colony or foreign possession by Her Britannic Majesty's Representative at Washington to the United States Secretary of State, within one year from the date of the exchange of the ratifica- tions of the present Convention. It is understood that under the provisions of this Article, Her, Majesty can in the same manner give notice of adhesion on behalf of any British Protec- torate or sphere of influence, or on behalf of the Island of Cyprus, in virtue of the Convention of the 4th of June, 1878, between Great Britain and Turkey. The provisions of this Convention shall extend and apply to any territory or territories pertaining to or occupied and governed by the United States beyond the seas, only upon notice to that effect being given by the Representative of the United States at London, by direction of the treaty making power of the United States. ARTICLE v In all that concerns the right of disposing of every kind of property, real or personal, citizens or sub- jects of each of the High Contracting Parties shall 30 TESTAMENTARY FORMS in the Dominions of the other enjoy the rights which are or may be accorded to the citizens or subjects of the most favored nation. ARTICLE VI The present Convention shall come into effect ten days after the day upon which the ratifications are exchanged, and shall remain in force for ten years after such exchange. In case neither of the High Contracting Parties shall have given notice to the other, twelve months before the expiration of the said period of ten years, of the intention to terminate the present Convention, it shall remain in force until the expiration of one year from the day on which either of the High Contracting Parties shall have given such notice. The United States or Her Britannic Majesty shall also have the right separately to terminate the present Convention at any time on giving twelve months' notice to that effect in regard to any Brit- ish Colony, foreign possession, or dependency, as specified in Article IV, which may have acceded thereto. ARTICLE VII The present Convention shall be duly ratified by the President of the United States, by and with the approval of the Senate thereof, and by Her Bri- tannic Majesty, and the ratifications shall be ex- EFFECT OF WILL IN OTHER JURISDICTIONS 31 aries, have signed this Treaty and have hereunto affixed our seals. Done in duplicate at Washington, the second day of March, one thousand eight hundred and ninety- nine. John Hay [seal.] Pauncefote [seal.] [Note by the Department of State] The following British colonies and possessions have acceded to the Convention between the United States and Great Britain of March 2, 1899, relating to the tenure and disposition of real and personal property: Cape Fiji Jamaica Bahamas Trinidad Barbados Newfoundland New Zealand Leeward Islands Northern Nigeria South Nigeria St. Vincent St. Lucia Falkland Islands St. Helena Sierra Leone Gambia Labuan Mauritius Gold Coast Colony South Rhodesia Australia Cyprus Ceylon Hongkong Straits Settlements British Honduras Grenada North Borneo British Guiana Bermuda Lagos British New Guinea India, including the Native States Transvaal Orange River Colony Basutoland and Bechu- analand protectorates Guatemala By the Treaty of 1901, Articles I, II, and III are identical with Articles I, II, and III of the Treaty with Great Britain; and Article IV is identical with the first paragraph of Article VI of the Treaty with Great Britain. 32 testamentary forms Hanseatic Republics (Incorporated into the North German Union, July 1, 1867) By the Treaty of 1827 it is provided: ARTICLE VII The Citizens of each of the contracting parties shall have power to dispose of their personal goods, within the jurisdiction of the other, by sale, dona- tion, testament, or otherwise; and their representa- tives, being citizens of the other party, shall succeed to their personal goods, whether by testament or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein said goods are shall be subject to pay in like cases; and if, in the case of real estate, the said heirs would be prevented from entering into the possession of the inheritance, on account of their character of aliens, there shall be granted to them the term of three years to dispose of the same, as they may think proper, and to withdraw the proceeds with- out molestation, and exempt from all duties of detraction, on the part of the Government of the respective States. effect of will in other jurisdictions 33 Hesse (North German Confederation) By the Treaty of 1844, provision is made almost identical with that in the case of Bavaria. Honduras By the Treaty of 1864 it is provided as follows: ARTICLE VIII In whatever relates to the police of the ports, the lading and unlading of ships, the safety of the merchandise, goods, and effects, the succession to personal estates by will or otherwise, and the dis- posal of personal property of every sort and denomi- nation, by sale, donation, exchange, testament, or in any other manner whatsoever, as also the adminis- tration of justice, the citizens of the two high con- tracting parties shall reciprocally enjoy the same privileges, liberties and rights as native citizens, and they shall not be charged in any of these re- spects, with any higher imposts or duties than those which are paid or may be paid by native citizens; submitting of course to the local laws and regula- tions of each country respectively. If any citizen of either of the two high contract- ing parties shall die without will or testament in any of the territories of the other, the Consul- General or Consul of the nation to which the de- 34 TESTAMENTARY FORMS ceased belonged, or the representative of such Consul-General or Consul in his absence, shall have the right to nominate curators to take charge of the property of the deceased so far as the laws of the country will permit, for the benefit of , the lawful heirs and creditors of the deceased, giving proper notice of such nomination to the authorities of the country. Italy By the Treaty of 1871 it is provided as follows: ARTICLE XXII The citizens of each of the contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by sale, dona- tion, testament or otherwise, and their representa- tives, being citizens of the other party, shall succeed to their personal goods, whether by testament or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein such goods are shall be subject to pay in like cases. As for the case of real estate, the citizens and subjects of the two contracting parties shall be treated on the footing of the most favored nation. effect of will in other jurisdictions 35 Japan By the Treaty of 1894 it is provided as follows: ARTICLE I In whatever relates to rights of residence and travel; to the possession of goods and effects of any kind; to the succession- to personal estate, by will or otherwise, and the disposal of property of any sort and in any manner whatsoever which they may law- fully acquire, the citizens or subjects of each con- tracting party shall enjoy in the territories of the other the same privileges, liberties, and rights, and shall be subject to no higher imposts or charges in these respects than native citizens or subjects or citizens or subjects of the most favored nation. Kongo By the Treaty of 1891 it is provided as follows: ARTICLE II In all that concerns the acquisition, succession, possession and alienation of property, real and personal, the citizens and inhabitants of each of the high contracting parties shall enjoy in the terri- tories of the other all the rights which the respective laws accord or shall accord in those territories to the citizens and inhabitants of the most favored nation. 36 testamentary forms Mecklenbtjrg-Schwerin (North German Union) By the Treaty of 1847 it is provided as follows: article x The citizens or subjects of each party shall have power to dispose of their personal property within the jurisdiction of the other, by sale, donation, testament or otherwise. Their personal representatives being citizens or subjects of the other contracting party, shall suc- ceed to their said personal property, whether by testament or ab intestato. They may take posses- sion thereof, either by themselves or by others acting for them, at their will, and dispose of the same, paying such duty only as the inhabitants of the country wherein the said personal property is situated shall be subject to pay in like cases. In the case of the absence of the personal representa- tives, the same care shall be taken of the said prop- erty as would be taken of a property of a native in like case, until the lawful owner may take measures for receiving it. If any question should arise among several claim- ants to which of them the said property belongs, the same shall be finally decided by the laws and judges of the country wherein it is situated. EFFECT OF WILL IN OTHER JURISDICTIONS 37 estate, would by the laws of the land descend on a citizen or subject of the other were he not disquali- fied by alienage, such citizen or subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation, and exempt from all duties of detraction on the part of the Government of the respective States. Morocco By the Treaty of 1836 it is provided: article xxii If an American citizen shall die in our country and no will shall appear, the Consul shall take pos- session of his effects; and if there shall be no Consul, the effects shall be deposited in the hands of some person worthy of trust, until the party shall appear who has a right to demand them; but if the heir to the person deceased be present, the property shall be delivered to him without interruption; and if a will shall appear, the property shall descend agree- ably to that will, as soon as the Consul shall declare the validity thereof. Ottoman Empire A protocol was proclaimed by the President of the United States, October 29, 1874, as to the right to hold real estate in Turkey. The law of the Otto- man Empire provides as follows: 38 TESTAMENTARY FORMS ARTICLE IV Foreigners have the privilege to dispose, by dona- tion or by testament, of that real estate of which such disposition is permitted by law. As to that real estate of which they may not have disposed or of which the law does not permit them to dispose by gift or testament, its succession shall be governed in accordance with Ottoman law. Paraguay By the Treaty of 1859 it is provided as follows: ARTICLE X In whatever relates to the police of the ports, the lading or unlading of ships, the warehousing and safety of merchandise, goods and effects, the suc- cession to personal estates by will or otherwise, and the disposal of personal property of every sort and denomination, by sale, donation, exchange or testa- ment, or in any other manner whatsoever, as also with regard to the administration of justice, the citizens of each contracting party shall enjoy in the territories of the other, the same privileges, liberties and rights as native citizens, and shall not be charged, in any of these respects, with any other or higher imposts or duties than those, which are or may be paid by native citizens, subject always to the local EFFECT OF WILL IN OTHER JURISDICTIONS 39 contracting parties dying without will or testament in the territory of the other contracting party, the Consul General, Consul or Vice Consul of the nation to which the deceased may belong, or, in his absence, the Representative of such Consul General, Consul or Vice Consul, shall, so far as the laws of each country will permit, take charge of the property which the deceased may have left, for the benefit of his lawful heirs and creditors, until an executor or adminis- trator be named by the said Consul General, Consul or Vice Consul, or his Representative. Russia By the Treaty of 1832 it is provided as follows: article x The citizens and subjects of each of the high contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation, or otherwise, and their representatives, being citizens or subjects of the other party, shall succeed to their said personal goods, whether by testament or ab intestato, and may take possession thereof, either by themselves, or by others acting for them, and dispose of the same, at will, paying to the profit of the respective Govern- ments, such dues only as the inhabitants of the country wherein the said goods are, shall be subject to pay in like cases. And in case of the absence of the representatives, such care shall be taken of the 40 TESTAMENTARY FORMS said goods, as would be taken of the goods of a native of the same country, in like case, until the lawful owner may take measures for receiving them. And if a question should arise among several claim- ants, as to which of them said goods belong, the same shall be decided finally by the laws and judges of the land wherein the said goods are. And where, on the death of any person holding real estate, within the territories of one of the high contracting parties, such real estate would by the laws of the land, descend on a citizen or subject of the other party, who by reason of alienage may be incapable of holding it, he shall be allowed the time fixed by the laws of the country, and in case the laws of the country, actually in force may not have fixed any such time, he shall then be allowed a reasonable time to sell such real estate and to withdraw and export the proceeds without molestation, and with- out paying to the profit of the respective Govern- ments, any other dues than those to which the inhabitants of the country wherein said real estate is situated, shall be subject to pay, in like cases. But this Article shall not derogate, in any manner, from the force of the laws already published, or which may hereafter be published by His Majesty the Emperor of all the Russias to prevent the emigration of his subjects. effect of will in other jurisdictions 41 Saxony {German Empire) By the Treaty of 1845 it is provided as follows: ARTICLE II Where, on the death of any person holding real property within the territories of one party, such real property would, by the laws of the land, de- scend on a citizen or subject of the other, were he not disqualified by alienage, — or where such real property has been devised by last will and testa- ment to such citizen or subject, he shall be allowed a term of two years from the death of such person, which term may be reasonably prolonged according to circumstances, — to sell the same and to with- draw the proceeds thereof without molestation, and exempt from all duties of detraction on the part of the Government of the respective states. ARTICLE III * The citizens or subjects of each of the contracting parties shall have power to dispose of their personal property within the states of the other, by testa- ment, donation or otherwise, and their heirs, being citizens or subjects of the other contracting party, shall succeed to their said personal property, whether by testament, or ab intestate, and may take pos- session thereof, either by themselves or by others acting for them, and dispose of the same at their 42 TESTAMENTARY FORMS pleasure, paying such duties only as the inhabitants of the country, where the said property lies, shall be liable to pay in like cases. Articles IV and V are almost identical with the same articles in the case of Bavaria. Servia By the Treaty of 1881 it is provided as follows: ARTICLE II In all that concerns the right of acquiring, or possessing or disposing of every kind of property, real or personal, citizens of the United States in Serbia and Serbian subjects in the United States, shall enjoy the rights which the respective laws grant or shall grant in each of these States to the subjects of the most favored nation. Within these limits, and under the same conditions as the subjects of the most favored nation, they shall be at liberty to acquire and dispose of such prop- erty, whether by purchase, sale, donation, exchange, marriage contract, testament, inheritance, or in any other manner whatever, without being subject to any taxes, imposts, or charges whatever other or higher than those which are or shall be levied on natives or on the subjects of the most favored State. They shall likewise be at liberty to export freely EFFECT OF WILL IN OTHER JURISDICTIONS 43 any other or higher duties than those payable under similar circumstances by natives or by subjects of the most favored State. Spain By the Treaty of 1902 it is provided as follows: ARTICLE III Where, on the death of any person holding real property (or property not personal), within the territories of one of the contracting parties, such real property would, by the laws of the land, pass to a citizen or subject of the other, were he not dis- qualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if cir- cumstances render it necessary, and to withdraw the proceeds thereof, without restraint or interfer- ence, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the citizens or subjects of the country from which such proceeds may be drawn. The citizens or subjects of each of the contracting parties shall have full power to dispose of their personal property within the territories of the other, by testament, donation, or otherwise; and their heirs, legatees, and donees, being citizens or sub- jects of the other contracting party, whether resi- 44 TESTAMENTARY FORMS dent or non-resident, shall succeed to their said personal property, and may take possession thereof either by themselves or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the citizens or subjects of the country where the property lies, shall be liable to pay in like cases. In the event that the United States should grant to the citizens or subjects of a Third Power the right to possess and preserve real estate in all the States, territories and dominions of the Union, Spanish subjects shall enjoy the same rights; and, in that case only, reciprocally, the citizens of the United States shall enjoy the same rights in Spanish Dominions. Sweden and Norway By the Treaty of 1783 it is provided as follows: ARTICLE VI The subjects of the contracting parties in the respective States may freely dispose of their goods and effects, either by testament, donation, or other- wise in favour of such persons as they think proper; and their heirs, in whatever place they shall reside, shall receive the succession even ab intestato, either in person or by their attorney, without having oc- casion to take out letters of naturalization. These EFFECT OF WILL IN OTHER JURISDICTIONS 45 dwelling, shall be desirous of removing from the place of their abode, shall be exempted from all duty, called "droit de'detraction " on the part of the govern- ment of the two States, respectively. But it is at the same time agreed that nothing contained in this article shall in any manner derogate from the ordinances published in Sweden against emigrations or which may hereafter be published, which shall remain in full force and vigor. The United States on their part or any of them, shall be at liberty to make, respecting this matter, such laws as they think proper. Switzerland By the Treaty of 1850 it is provided as follows: article v The citizens of each one of the contracting parties shall have power to dispose of their personal prop- erty, within the jurisdiction of the other, by sale, testament, donation or in any other manner; and their heirs, whether by testament or ab intestato, or their successors, being citizens of the other party, shall succeed to the said property or inherit it, and they may take possession thereof, either by them- selves or by others acting for them; they may dis- pose of the same as they may think proper, paying no other charges than those to which the inhabitants of the country wherein the said property is situated shall be liable to pay in a similar case. In the absence 46 TESTAMENTARY FORMS of such heir, heirs, or other successors, the same care shall be taken by the authorities for the preservation of the property, that would be taken for the preser- vation of the property of a native of the same country, until the lawful proprietor shall have had time to take measures for possessing himself of the same. The foregoing provisions shall be applicable to real estate situated within the States of the Ameri- can Union, or within the Cantons of the Swiss Con- federation, in which foreigners shall be entitled to . hold or inherit real estate. But in case real estate, situated within the terri- tories of one of the contracting parties, should fall to a citizen of the other party, who, on account of his being an alien, could not be permitted to hold such property in the State or in the Canton in which it may be situated, there shall be accorded to the said heir or other successor such term as the laws of State or Canton will permit to sell such property; he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty and without paying to the Government any other charges than those in a similar case would be paid by an inhabitant of the country in which the real estate may be situated. ARTICLE VI EFFECT OF WILL IN OTHER JURISDICTIONS 47 property shall belong, shall be decided according to the laws and by the judges of the country in which the property is situated. WURTTEMBERG {German Empire) Articles II to IV inclusive of the Treaty of 1844 are identical with the same articles in the case of Bavaria. Article VI is as follows: All the stipulations of the present convention shall be obligatory in respect to property already inherited or bequeathed, but not yet withdrawn from the country where the same is situated at the signa- ture of this convention. CHAPTER III WHO MAY MAKE A WILL Eveey person of required age and sound mind may make a will. This required age depends upon Statutes, which must be strictly followed. In some jurisdictions very young people may make a will, and in others no one under twenty-one is allowed to execute the document. The attorney should be vigilant and cautious as to all matters relative to fraud, undue influence, mistake, and soundness of mind. On presenting for probate a will, properly executed and attested, the questions which naturally arise are, " Was the testator at the time of execution of sound mind ? Was the instrument executed under fraud or undue influence ? Did the testator execute the will under- standingly, or, in other words, was there no mis- take?" In Whitney v. Twombly, 136 Mass. 145, 146, the Judge's charge to the jury was adopted by the Court as accurate and sufficient, and, as it may apply in most jurisdictions, it is given entire. "Soundness of mind, such as will enable a person, under the statute, to make a will, has relation to the business to be transacted, namely, the disposition WHO MAY MAKE A WILL 49 sound with reference to whatever is involved in this transaction; that is to say, she must have been able to understand, and carry in her mind, in a general way, the nature and situation of her property, and her relations to those persons who are about her; to those who would naturally have some claim to her remembrance; to those persons in whom, and those things in which, she has been mostly interested. She must have been capable of understanding these things, and the nature of the act she was doing, and the relation in which she stood to the objects of her bounty, and to those who ought to be in her mind on such an occasion, and free from any delusion which was the effect of disease, and which would or might lead her to dispose of her property other- wise than she would have done if she had known and understood correctly what she was doing. All the testimony, covering the whole later portion of her life, — as to her relations and degree of intimacy with her brothers and sisters and nephews and nieces; as to what she said and what she did; as to her peculiarities, if you find that she had any; as to her disposition and temperament, her griefs and bereavements, her attacks of sickness, whatever you may find them to have been, her habits and manners; as to what you may find that she was not able to do, and what she was able to do, — may be considered so far as they will aid you in determining her condi- tion of mind on January 2, 1877. Age is not of itself a disqualification, but it excites vigilance to see if it is accompanied with incapacity. Disease is not itself 50 TESTAMENTARY FORMS a disqualification, but all infirmities awaken caution to see if mental capacity is impaired or gone." It is not proposed to enlarge upon this subject in a book of this nature, but the following quotation from Remsen on Wills, p. 379, presents an excellent summary : "The questions raised on the issue of testator's mental capacity frequently involve the considera- tion of one or more of the following: idiocy, lunacy, lucid intervals, monomania, delusions, hallucina- tions, eccentricity, impairment of memory, use of drugs or liquors, delirium, epileptic fits, old age, feebleness, blindness, inability to hear, speak, or express ideas, religious beliefs, superstition, moral depravity, and the like." In the majority of cases where an attorney is called upon to draw a will, he is acquainted with the testator and knows whether he has sufficient testa- mentary capacity and is free from undue influence. In the minority of cases he should be extremely cautious, and the circumstances are likely to be such as to determine Whether it is prudent or not to draw the instrument. Aliens may nearly everywhere transmit their per- sonal property. 2 Kent Com. 62, 63. In many jurisdictions they are authorized by statute to transmit their real estate. But privileges conferred WHO MAY MAKE A WILL 51 the act of Congress, he is not entitled in any other State to any other privileges than those which the laws of that State allow to aliens. 2 Kent Com. 70, 71. A single man may generally in all jurisdictions dispose of his property by will without restraint, the only objection being that which heirs or next of kin may offer to the probate of the will on the grounds of undue influence or mental incapacity. v A married man may dispose of his property by will. But there are generally restraints as to children and the issue of a deceased child, and as to his wife. I. As to Children and the Issue of a Deceased Child. The rule prevalent in many places is that if the testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate which they would have taken if he had died intestate, unless provided for by the testator in his lifetime or unless the omission was intentional and not occasioned by accident or mistake. Safety, therefore, demands that a testator should in explicit language express his intention as to all his living children and the issue of any deceased child. This may be done by giving the child or issue of a deceased child a legacy of only a nominal amount. But this is not always necessary. It is sufficient in many jurisdictions if it appear by the will that the testator had not forgotten the child. The following are offered as forms: 52 TESTAMENTARY FORMS Mention of Children and Issue of Deceased Children. I give to my only living children A. B. and C. D. and to my grandson E. F., the only child of my de- ceased son, G. H. the sum of five dollars each. I give to my only living children A. B. and C. D., the sum of five dollars each and make no further provision for them in this will as I am confident that their mother will provide for their support and education. I give my son A. B. the sum of five dollars, and I make no further provision for him in this will, as the money which I have already given him and expended for him is equivalent to the share of my estate which he would inherit if I should die intestate. I mention the names of my only children A. B., C. D. and E. F. to show that I have not forgotten them and I purposely give them no legacies in this will. I purposely exclude from any interest in my estate under this will my daughter A. B., and my sons, C. D. and E. F. and also any other child or children that may be born to me before or after my decease. I purposely exclude from any interest in my estate mv onlv living child A. B. and C. D., the onlv livine WHO MAY MAKE A WILL 53 Another form may be found on p. 499. Sometimes testators insert a provision like one of the following: After-born Children. I declare and direct that any child or children hereafter born to me shall share in my estate equally with the children named as legatees in this will. I declare and direct that any child or children hereafter born to me shall share in my estate equally with the children named as legatees in this will; that is to say, having given the residuum of my estate to my five children to be equally divided among them, I now declare and direct that any child or children born to me after the execution of this will shall share in said residuum equally with said five children. Frequently a testator inserts a statement giving a reason for a distinction or difference in the treat- ment of children or grandchildren. Inequalities in the Treatment of Children and Grandchildren. The inequalities in this will between the devises and legacies to my daughter A. B. and my sons, C. D., and E. F., are not due to differences in the affection and esteem I entertain for them, but to the fact that my daughter is so situated by mar- riage that she does not need the income required by 54 TESTAMENTARY FORMS my sons for the support of their families. I trust* that she will appreciate the distinction and be en- tirely satisfied with the provisions made for her. I make no provision in this will for my son, A. B., because I have already given him property equal to the amount he would take by inheritance, if I left no will. The distinction in this will shown by my giving my daughter, A. B., just double the amount which I give my son, C. D., is not due to any difference of affection, but to the fact thai; I have already ex- pended a great deal of money in my son's behalf, but have done nothing for my daughter beyond the ordinary expenditures of a father for education and support. The reason for giving my grandchildren A. B. and C. D. less than I have given my other grand- children is due to the fact that I did for their father E. F. during his life far more than for any one of my other children. Other forms may be found on pp. 505, 562, 569. II. As to Wife. The provisions as to ante-nuptial contracts or marriage settlements are largely statutory and cover a verv wide field. To draw a will intfillio-entlv tJiA WHO MAY MAKE A WILL 55 if the testator has entered into one. Reference has been made to trust deeds, ante, p. 1. As to ante- nuptial contracts see p. 121. In several States, like Arizona, California, Loui- siana, New Mexico, Texas, and Washington there is a law as to community property which applies to that owned by the husband and wife. See 2 Under- bill on WiUs, § 750; Remsen on Wills, 64. The statutes and decisions of the jurisdiction must, of course, be followed. The following are taken from wills probated in California: All the property, real, personal and mixed, of which I may die possessed, is the common property of my wife and myself, the same having been ac- quired since our marriage, and upon my death, she surviving, she is entitled, in addition to the devises herein contained, to the undivided one-half of all thereof. I hereby declare that all of my property and estate has been acquired since my marriage with my be- loved wife, A. B. and is community property of my- self and my said wife. In many jurisdictions a husband or wife has rights in the estate of the other after death, which the sur- vivor may elect to take despite the terms of a will. In some States both husband and wife may directly waive the provisions of the other's will. But such 56 TESTAMENTARY FORMS waiver often works confusion among the other pro- visions of the will, especially if the estate is devised and bequeathed in any way out of the ordinary. The rights referred to are those of a wife to dower, of a husband to curtesy, and, frequently also in the case of a wife, a distributive interest, such as thirds, allowances, rights of succession, and widow's award. These rights pertain more to the wife than to the husband, and, if there is in the will no well-worded provision for the wife in lieu of them, she may in many places recover something in addition to what has been given her by the will. The com- mon course is to put a clear provision in the will, and it is also advisable generally to give the wife as large an interest in her husband's estate as she would be entitled to by law, if there were no will. The following forms, largely taken from duly proved wills, may be of some help to the practitioner: In Lieu of Dower and Widow's Rights. I make this provision for my wife in lieu of dower and widow's rights under the laws of this State. I give my wife one-third of all my real and personal estate in lieu of dower and rights fc of succession. The provision made in this will for my wife is in lieu of dower, thirds and any other interest she may WHO MAY MAKE A WILL 57 The provision made herein for my wife is in lieu of all her statutory or other rights or claims of any kind to my estate or any part thereof. The bequests and devises herein made to my said wife are intended, and are hereby declared, to be in lieu of dower and all other interest she may have in and to my estate. The provisions of this will for my wife are in- tended to be in lieu of dower, widow's award, and all other provisions for the widow made by the laws of this State or of the several States where any of my estate real or personal, may be situated. The provisions for my wife in this will are in lieu of dower and of all and any claims and demands of any kind that she may or can have against my estate. The provisions for my wife in this will are in lieu of her dower and in bar of her distributive share of my estate, her year's allowance and all other rights given her by statute or otherwise in my real and personal estate. The following is from a New York will: The provisions herein for my wife are in lieu and bar of any claim of dower or other interest on her part in my estate, and of any and all moneys which 58 TESTAMENTARY FORMS shall or may come to her upon any insurance policy or policies on my life, all of which insurance moneys I direct that she shall turn into my estate, and the same shall be deemed part thereof. Forms similar to the above may be found on pp. 512, 576, 593. A married woman may dispose of her property by will. The disabilities imposed by the law of coverture upon married women have been largely removed, and in many States the married woman is as free as her husband to dispose of her property by will. It is well, however, carefully to examine the statutes and decisions of the jurisdiction, as the old rule that she may dispose of property settled upon her to her sole and separate use, but not her general estate, may in a few cases obtain. There are also statutes in many places which forbid the cutting off of the husband without his consent. Attention is called to the remarks just preceding as to the rights of a married man to make a will, as most of the obliga- tions are likewise imposed upon a married woman. CHAPTER IV WHAT PROPERTY MAY OR MAY NOT BE BEQUEATHED OR DEVISED I. After-acquired Property. A simple bequest of'all a man's personal estate operates as well upon that acquired after, as upon that held at, the date of the will. "Should a man bequeath all his estate in the public funds, all his bank and insurance stock, or all his farming stock and utensils, it would embrace all held at the time of his decease, whether held at the date of his will or acquired afterwards. But if it were, all shares which I now own in such a bank, or all cattle and horses now on my farm, it would describe specific shares and particular cattle and horses, and could not extend to others." Wait v. Belding, 24 Pick. 129, 136. See Kimball v. Ellison, 128 Mass. 41; Briggs v. Briggs, 69 Iowa, 617. The same rule now applies to real property, as statutes pretty generally provide that an estate, right, or interest in land acquired by a testator after the making of his will shall pass thereby in like manner as if possessed by him at the time when he made his will, unless a different intention mani- festly and clearly appears by the will. See Hill v. Bacon, 106 Mass. 578; Doe v. Wynne, 23 Miss. 251. 59 60 TESTAMENTARY FORMS The next question is the language necessary to express the intention to pass after-acquired real estate. It is probable that general words are suffi- cient without specific reference to after-acquired realty. While a residuary clause as commonly drawn may be all that is necessary, yet testators frequently specifically mention this species of property. A form may be found on p. 565. II. Contingent Remainders, Executory Devises, etc., Vested Interests. These interests in most States pass by will. "The executory interests which are not trans- missible are only those which are limited to a person not in being or not yet ascertained, or to a person when he shall sustain a particular character, arrive at a given age, or fulfil a certain condition." Rem- sen on Wills, 178. In many jurisdictions there are now statutes which provide that if a contingent re- mainder, executory devise, or other estate in ex- pectancy is so granted or limited to a person that in case of his death before the happening of the con- tingency the estate would descend to his heirs in fee simple, he may, before the happening of the con- tingency, sell, assign, or devise the land subject to the contingency. In such jurisdictions all contingent, like vested, interests are descendible, transmissible, and assignable. All vested interests, of course, pass bv will, but BEQUEATHABLE OB DEVISABLE PROPERTY 61 to note that an actual corporeal seizin, or a right to such seizin, in the husband during the coverture is indispensable to entitle his widow to dower. Hence if it is the testator's intention to give his wife an interest in such remainder equivalent to dower, he should express that intention in his will. Wilmarth v. Bridges, 113 Mass. 407. The same rule applies to curtesy. Webster v. Ellsworth, 147 Mass. 602. III. Devising or Bequeathing Property which the Testator does not Own. This is the doctrine of election. In many cases it may be advisable for an attorney to call the attention of the testator to this doctrine. "The doctrine of election as applied to the law of wills simply means that he who takes under a will must conform to all its provisions." 2 Underhill on Wills, § 726. "If the testator should devise an estate belonging to his son, or heir at law, to a third person, and should in the same will bequeath to his son, or heir at law, a legacy of one hundred thousand dollars, etc., an implied or constructive election is raised. The son or heir must relinquish his own estate or the bequest under the will." Wilbanks v. Wilbanks, 18 111. 17, 21. See Brown v. Brown, 42 Minn. 270; Whiting's Appeal, 67 Conn. 379, 389; Gorham v. Dodge, 122 111. 528, 535; Hyde v. Baldwin, 17 Pick. 303, 308: As to election in case of a bequest of the proceeds of an insurance policy, see 2 Underhill on Wills, § 752. This doctrine of election often arises where a 62 TESTAMENTARY FORMS husband or wife is dissatisfied with the provision made in the other's will and elects to waive the will and take under statutory provisions. It seems that if "a testator has money or other property in his hands belonging to others, whether in trust or otherwise, and it has no ear-mark, and is not distinguishable from the mass of his own prop- erty," he can virtually bequeath it, because it falls within the description of assets, and the party must come in as a general creditor. Johnson v. Ames, 11 Pick. 172, 181; Bank of Troy v. Stanton, 116 Mass. 435, 439. See also O'Brien v. New England Trust Co., 183 Mass. 186. All trust funds in a testator's possession should be kept separate from his own estate, so that upon his decease his executor can pass them over to a new trustee. Often a testator has in his possession the property of others, which he holds for convenience and where no trust deed or other instrument has been signed. Forms like the following may be inserted in his will : Property of Others in Testator's Possession. Whereas A. B. of etc. placed in my possession and custody on the 9th day of April, 1909, the following described bonds [full description including numbers] to hold in a fiduciary capacity, the same to be re- turned to the said A. B. on the happening of a certain BEQUEATHABLE OR DEVISABLE PROPERTY 63 tody at the time of my decease, I direct my said executor to turn over the same to the said A. B. or his legal representative, taking a sufficient receipt therefor, and I hereby particularly disclaim any interest in and title to said bonds and declare them to be the absolute property of said A. B. I have long had in my possession the separate estate of my wife, which amounts to about ninety thousand dollars and is invested in the following described securities [full description]. I hereby ac- knowledge and confirm my wife's right and title to all the above described property; and, as it is prob- able that with my wife's consent, I may dispose of some of the above securities and reinvest the pro- ceeds in other property, I direct my executor to turn over and transfer to my said wife all the above securities or those subsequently purchased as for the amount of her separate estate in my hands and possession. IV. Trust Deeds and Declarations of Trust. Reference has already been made to these methods of transferring property. See p. 1. If the law of the jurisdiction does not permit such conveyances, or if they are inartificially drawn so that there is no com- pleted gift, the property is regarded as assets of the testator's estate. Similar cases frequently arise when one deposits his own money in a savings bank in his own name, as trustee for another, in order to evade the provisions of law and the by-laws of the corpora- 64 TESTAMENTARY FORMS tion which limit the amount of deposits from any- one person. The attorney should ascertain from the testator whether he has entered into any trusts such as those alluded to. It is generally said that the creation of a trust to take the place of a will is advisable only in rare cases. However, it often happens that a testator desires to recognize the service of an individual with- out proclaiming it in the form of a legacy, and without the knowledge of any one except the trustee or trus- tees and the remainderman. This may be done by a trust deed providing for the investment of the principal only in unregistered (and preferably non- taxable) bonds, the payment to the settlor of the proceeds of the coupons for life and for the termina- tion of the trust upon his death by the delivery of the bonds, discharged of all trust, to the remainder- man. Of course upon the termination of the trust there may be something due to the State in jurisdic- tions where inheritances are taxed. Such trust deeds should be resorted to to subserve only a proper purpose. They should be carefully and not clumsily drawn. It is suggested that the executors of the will be not named as trustees. The following form is offered: Declaration of Trust. This is to certify that I, A. B., of etc., have this BEQUEATHABLE OR DEVISABLE PROPERTY 65 of the Western & Eastern Co., each of the denomina- tion of One Thousand Dollars, the same to be held by the said C. D., or his successors, in trust upon the following terms and conditions. He or his suc- cessor in trust is to cut off the coupons of said bonds when due, cash them and pay over the proceeds to me less ten per cent thereof for services. I do not apprehend that the value of said bonds will be im- paired during the thirty years which are to elapse before the date fixed for their redemption, but if for any reason it is deemed best to dispose of said bonds, I authorize and empower the said C. D. or his suc- cessor in trust, to sell them and invest the proceeds in other tax exempt bonds suitable for trustees to invest in. Neither the original nor substituted bonds are to be registered, as I desire only invest- ments to be made which are capable of manual de- livery. Upon my death the trust is to cease and the bonds, or in other words the entire principal consti- tuting this trust, are to be delivered by the said CD. or his successor to E. F., discharged of all trust. C. D. will sign his name to an acceptance of this trust. If he dies before me or for any reason feels obliged to resign as trustee, then I name G. H. as his successor as trustee and confer upon him all the powers conferred above upon C. D. In such event G. H. will sign his name to an acceptance of this trust. And it is understood that both C. D. and G. H. are to take their authority from this docu- ment and are not to apply to any probate or other court to be appointed trustees. 66 TESTAMENTARY FORMS If the said E. F. should die before me then this trust is to terminate at once and the said C. D. or his successor G. H. is to return and deliver to me the bonds, that is the entire principal of the trust, dis- charged of all trust. I desire to make clear to C. D. and G. H. that my purpose in creating this trust is to bestow a bene- faction privately and I hope that the method adopted may never be disclosed. Witness my hand and seal this day of A. D. 1910. A. B. [L. S.] I, C. D., hereby accept the above trust and stipu- late faithfully to carry out the provisions thereof. CD. [Date.] Y. Gifts Mortis Causa. Much of the law on this subject is, perhaps, un- fortunate; but in a few words an attorney may acquaint his client with the trouble likely to arise from this species of gift of personal property, if all the prerequisites are not complied with. It may be the duty of an executor to test the validity of the gift; hence the probability of legal expenses should be presented to the testator. VI. Good-will. BEQTJEATHABLE OR DEVISABLE PROPERTY 67 "If a man establishes a business and makes it valuable by his skill and attention, the good-will of that business is recognized by the law as property." Peabody v. Norfolk, 98 Mass. 452, 457. In England the "good-will" is held to be a valu- able and tangible thing in connection with the busi- ness itself. Wedderburn v. Wedderburn, 22 Beav. 84, 104; Blake v. Shaw, Johns. Ch. 732. The bequest of the good-will of a business of a partnership, of which the testator was a member, is a matter easy of adjustment when the business is sold and a part of the purchase money is attributable to the good-will. Smith v. Everett, 27 Beav. 446. But not where the executors have assigned the testa- tor's interest to the surviving partner. Robertson v. Quiddington, 28 Beav. 529, 535. It has been held that a man has a property in a trade secret, "which a court of chancery will protect against one who, in violation of contract and breach of confidence, undertakes to apply it to his own use, or to disclose it to third persons." And if the testa- tor dies while the suit is pending, his executors suc- ceed to his rights. Peabody v. Norfolk, 98 Mass. 452, 458, 461. Whether a bequest of a testator's interest in a business or in the good-will of a business passes, — capital, undrawn profits, stock in trade, etc., — seems to depend to some extent on the nature of the busi- ness and on the other provisions of the will. Ap- parently it would not pass a debt due to the testator from the partnership. But it will pass a share in the 68 TESTAMENTARY FORMS business which the testator has contracted to pur- chase. 2 Jarman on Wills, 1311. For form, see. p. 502. VII. Powers of Appointment. Powers of appointment are common, especially in the case of trust estates. For safety a power of appointment should be exercised conformably to the provisions of the instru- ment creating it. If the power to appoint is limited to a particular class or certain persons, children, rela- tives, etc., the power should be strictly exercised^ Austin v. Oakes, 117 N. Y. 577; Faloon v. Flannery, 74 Minn. 38. If the domicile of the person upon whom the power is conferred is not that of the testator creating the power, care should be taken to exercise the power so that no conflict of jurisdiction may arise. See Sewall v. Wilmer, 132 Mass. 131; Cotting v. De Sartiges, 17 R. I. 668. In many States there are statutory provisions as to the execution of powers of appointment, and these should be examined and literally followed. See Remsen on Wills, 297, 298. The common-law rule that a devise or bequest of all of a testator's property, without reference to the power of appointment, is not a sufficient execution thereof has been changed by decisions as well as by statutes in many jurisdictions. Perhaps nearly everywhere a general devise and bequest of all the BEQUEATHABLE OR DEVISABLE PROPERTY 69 is a sufficient execution. See Amory v. Meredith, 7 Allen, 397. However, reference to the power is always advisable. A widow had a life estate with a contingent power to revoke the testator's devise over of the remainder, in case the devisees or any of them "should not be obedient to her during her natural life." She failed to exercise the power by any affirm- ative decision or declaration. It was held that no interest passed by a gift in her own will of all the rest and residue of her estate. Garman v. Glass, 197 Pa. St. 101. If real estate subject to a power of appointment is located in a State where the words "heirs" is neces- sary to confer a fee, it is advisable to execute the power to the person entitled and to his heirs and assigns forever. If the power is conferred upon a married woman, there may be statutory or other restraints as to its execution. Sometimes it is provided that the will upon which the power is conferred shall be drawn and executed according to the laws of the jurisdiction of the donor of the power. It is well to remember that in many jurisdictions the execution of the power makes the property ap- pointed part of the testator's assets, and "subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees." Clapp v. Ingraham, 126 Mass. 200, 202. The following are offered as forms: 70 TESTAMENTARY FORMS Appointment by Life Tenant of Income for Use of his Widow. Whereas by the sixteenth article of his last will and testament, dated, etc., and proved, etc., my father A. B. created a trust of One Hundred Thousand Dollars, giving me the net income thereof for life, and provided that upon my decease the trust should terminate and the principal should go as therein ordered, unless I should direct by my own last will and testament that the trust should continue and the net income thereof be paid to my present wife, during her widowhood, now, in execution of the above power of appointment, I direct and hereby notify the trustees under my said father's will that said trust shall continue during the widowhood of my present wife and upon her ceasing to be my widow or upon her decease, she not having married, the provisions of my said father's will as to the termina- tion of the trust are to take effect. Appointment by Beneficiary of Principal of Trust. Whereas by bis last will dated, etc., and proved, etc., A. B. created a trust for my benefit and provided that upon its termination by my death the capital should go to such person or persons as, by my last will, made conformably to the laws of the State of , I might direct and appoint, now, there- fore, I give, devise and bequeath the capital of said trust to mv da,uerht,fir C D. to havfi and t,o TinlH +.r> BEQUEATHABLE OR DEVISABLE PROPERTY 71 Appointment by Beneficiary of Sum or its Equivalent in Possession of Trust Company. I direct my said executor to receive from the Equity Trust Company of, etc., the sum of Five Thousand Dollars and all interest and accumulations thereon, or the real estate, stocks, notes, bonds and mortgages, in lieu of said sum with interest and accumulations, which by the terms of a contract in writing between said Company and A. B., trustee, executed the first day of November one thousand eight hundred and ninety-eight, the said Company agreed to assign, transfer and pay over to my executors or .adminis- trators in sixty days after proof of my decease; and out of the money or other property so received from said Company, I direct my said executor to keep for his own use, the sum of Five Hundred Dollars; and to assign, transfer, and pay over all the remainder of the money, or other property received from said Company, after deducting said sum for his own use, to my children and the issue of any deceased child or children by right of representation in equal shares. Appointment by Beneficiary of Principal of Trust Fund. Whereas by the tenth clause of the last will of etc., which will is dated, etc., and was duly proved, etc., One Hundred Thousand Dollars was given to trus- tees to pay the net income thereof to me during my life, and it was further provided that the trust was 72 TESTAMENTARY FORMS to terminate upon my decease and that the entire principal thereof, discharged of all trust, was to go in the manner and method that I might point out and indicate in and by any will or other instrument under my hand and seal existing at the time of my decease, now, theTefore, I give and bequeath said principal sum, whether the same be One Hundred Thousand Dollars more or less to A. B., to be hers absolutely. Appointment by Beneficiary of Principal of Trust Fund. Under the ninth clause of my father's will, dated etc., and duly proved, etc., One Million Dollars was given in trust, one fourth of the net income thereof to be paid to me during my life and upon my death the trust to terminate as to one fourth of the princi- pal, and the same to go, discharged of all trust, to any person or persons, corporation or corporations, societies or associations that I might name and ap- point in and by my last will and testament. Exer- cising the power thus given by my father's will, I give and bequeath one half of said one fourth of said principal, be said principal One million dollars, more or less, to my wife [name] and the other half thereof to my children A. B., C. D., E. F., and G. H. to be equally divided among them, the issue of a deceased child to take its parent's share, per stirpes and not per capita. BEQTTEATHABLE OR DEVISABLE PROPERTY 73 Refusal to Execute Power. Whereas by the third article of his last will and testament, dated, etc., and duly proved, etc., my father A. B. gave the residue and remainder of his estate in trust and provided that the trustees should pay me the net income thereof for life and that at my decease said residue and remainder should be equally divided, discharged of all trust, among my children living at the time of my decease, the issue of a deceased child to take the parent's share by right of representation; and whereas my said father further provided by said will that if I was dissatisfied with said proposed division, the said residue and remainder should go, discharged of all trust, as I might by my last will and testament name, declare and appoint, now, therefore, I declare myself en- tirely satisfied with the aforesaid provisions of my said father's will, and desire and direct that the provisions thereof shall in all respects be complied with and carried into effect; and I decline to exer- cise the power of appointment therein conferred upon me. Appointment by Residuary Clause. All the rest, residue and remainder of my property, both real and personal, of which I shall die seized and possessed or to which I shall be entitled at the time of my decease, including any property over which I shall possess any power of appointment by will, I give, devise and bequeath to, etc. 74 TESTAMENTARY FORMS Appointment Limited to Descendants, etc. Whereas by the last will of A. B., dated, etc., and proved, etc., the rest, residue and remainder of his estate was given in, trust to pay the net income thereof to me for life, and it was further provided that upon my decease the trust was to terminate and said rest, residue and remainder was to go, dis- charged of all trust, to and among such of my descendants and in such shares or portions as I might by my last will and testament direct, deter- mine and appoint, now, therefore, in conformity therewith and in execution of said power of appoint- ment, I give, devise and bequeath said rest, residue and remainder to my son, C. D., and my grand- daughter E. F., the only surviving child of my daughter G. H., to be equally divided between them, to have and to hold to their respective heirs and assigns forever. Appointment by Beneficiary of Principal of Trust Created by him. Having executed an instrument of trust dated, etc., whereby I conveyed all my estate, consisting of personal property, to A. B. as trustee to pay me the net income thereof during life, and, upon my decease, to convey the same, discharged of all trust, "to such person or persons as I shall in my writing under my hand and seal name and appoint to receive the same, and in default of such appoint- BEQTJEATHABLE OR DEVISABLE PROPERTY 75 said power of appointment and hereby give and bequeath all the above estate to C. D. of etc. Appointment by Life Tenant of Vested Remainder. Whereas by the will of A. B., dated, etc., and proved etc., I was given a life interest in the follow- ing described real estate [description] and it was further provided in said will that the fee in said above described real estate should go and descend upon my decease to any person or persons I might name and appoint in and by any will or other instru- ment under seal duly executed by me according to law, now, therefore, I give, devise and bequeath said above described real estate to C. D., to have and to hold to him and his heirs and assigns forever. Appointment in Case of Limited Power. Whereas by the last will of A. B. dated, etc., and proved, etc., I was given for life the rents and profits of the following described real estate [description] and it was further provided in said will that the fee in said above described real estate should go and descend upon my decease to such of my two nephews and three nieces, the children of my brother C. D., and in such shares or proportions as I might order, direct and appoint in and by my last will and testa- ment duly executed by me according to law, now, therefore, in execution of said power, I give, devise and bequeath said above described real estate to my nephews E. F., and G. H., and my nieces I. J. 76 TESTAMENTARY POEMS and K. L., as tenants in common to have and to bold to them and their respective heirs and assigns forever. I exclude my niece M. N. from any share in the estate at her own request as she feels that she is amply provided for in pecuniary matters. Another form is given on p. 575. Many years ago a testator gave the rest, residue, and remainder of a large estate to a son for life, with authority to appoint the same after his death. This was done in a will of elaborate provisions. Copies of both wills may be found in Remsen on Wills, 432 et seq. and 450 et seq. See also pages 485, 540. VIII. Rights as Fellow or Patron. Often a testator desires to bequeath his interest as fellow or patron of some institution or museum. Forms like the following are suggested: I give and bequeath to A. B. all my right, title and interest as Fellow in Perpetuity of the Phidian Museum in the city of San Francisco, and constitute him my successor therein. I give and bequeath to my son C. D. all my right, title and interest in and to the Humanitarian Institution in the city of New York, as patron or fellow, including all powers and privileges incident thereto. BEQUEATHABLE OR DEVISABLE PROPERTY 77 IX. Renewals and Extensions of Copyrights. The renewal and extension shall be by the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's execu- tors, or in the absence of a will, his next of kin. 35 U. S. Stat, at Large, 1075, §§ 23, 24. X. Policies of Insurance. All policies of insurance on the life of the testator, including those issued by beneficiary associations, and all accident policies, should be carefully ex- amined by the attorney before the will is executed. If the proceeds of policies which fall into a testator's estate are not given specifically they will, of course, pass under the residuary clause. Fox v. Senter, 83 Me. 295. In some jurisdictions statutes declare that policies expressed to be for the benefit of the widow and child of the assured or of some other person than the assured shall not pass to his executor or administrator. And this would probably be the law without such statute. In the Matter of Smith, 46 Misc. (N. Y.) 210, 215, it appeared that the testator in his will recited his assets, consisting almost entirely of fife and accident insurance, and the court said, "The proceeds of such insurance are as much the subject of testamentary disposition as the proceeds of regular life insurance made pay- able to the estate." 78 TESTAMENTARY FORMS XI. Personal Chattels in the Nature of Heirlooms. While there is considerable law on this subject in England there is little or none in this country. If a testator desires that some personal chattel or article of domestic value shall remain in the family for a considerable period, or shall be enjoyed in succession by friends or relatives, the best method is to attach to the bequest a wish or instruction as in the follow- ing forms: I give my son my cane with the gold head upon which is engraved my name and the date, 1848, to be his absolutely. I trust, however, that he will bequeath the same to his oldest son, with the re- quest that the last-named will bequeath it to his oldest son and so on. I give my son, A. B. my gold watch, which was bequeathed to me by my father. I desire my said son to dispose of the same in such manner, if pos- sible, that it may be held in the family during the succeeding generation, but I impose no restrictions of any nature. The following form, taken from the will of a tes- tatrix domiciled in Rhode Island, is probably too elaborate and problematical for ordinary purposes: I bequeath my diamond necklace to my son A. B., his executors, administrators and assigns upon BEQTJEATHABLE OE DEVISABLE PROPERTY 79 trust during the life of my eldest grand-daughter C. D. to permit the same to be used and enjoyed by her; and from and after her death upon such trusts as shall as nearly as the rules of law and equity will permit, correspond with limitations of freehold estate, unaffected by the statute of said State of Rhode Island, now embodied in section 2 of chapter 182 of its Public Statutes, to the effect following, that is to say: To the use of the first and other daughters of my said grand-daughter successively, according to priority of birth, in tail female; with remainder to like uses in favor of my second and every other grand-daughter successively, according to priority of birth, for life, and their respective first and other daughters suc- cessively in tail female with remainder to like uses in favor of the first and other daughters of my said son respectively, according to priority of birth, in tail female respectively; with remainder to the use of my own right heirs. But I declare that said necklace shall be subject to an executory limitation over, on the death under the age of twenty-one years of any person who under the limitations afore- said of real estate unaffected by the statute afore- said would be tenant in tail female thereof by purchase, to and in favor of the person who would as aforesaid be entitled under the subsequent limi- tations according to the tenor of the same limita- tions; and the person for the time being entitled to said necklace shall be permitted to have the personal use and enjoyment thereof. And my said trustee 80 TESTAMENTAEY FORMS his executors or administrators or other the trustee under these trusts for any time being may at any time, or from time to time, upon the request in writing of any one entitled for the time being to the use and enjoyment of said necklace, have the setting of the same altered, but not to sell or otherwise dispose of any of the stones comprising the same. XII. Survival of Actions. Much legislation has been occasioned by con- tracts failing to make clear whether a right of action does or does not survive. Questions also arise as to the survival of actions of tort and of those which relate to real property. "Without doubt the general rule is that, in the absence of express words, the parties to a contract intend to bind their personal representatives as well as themselves, even although the contract may re- quire years for its performance, as in the case of an ordinary promissory note, whether payable by in- stalments or otherwise, or in the case of an agree- ment to buy, receive, and pay for certain property at stated times (Drummond v. Crane, 159 Mass. 577), or to build a house or a ship, or to guarantee payment of certain dividends on stocks. Kernochan v. Murray, 111 N. Y. 306; Drummond v. Crane, ubi supra. On the other hand, a contract may be of such a nature as to admit of only a personal performance, or as to imply that it is to be operative only during the existence of a certain state of affairs, although not 30 expressed in terms, and in such case the contract BEQUEATHABLE OR DEVISABLE PROPERTY 81 will be considered dissolved by death or disability, which, makes the personal performance impossible, or which destroys the existence of such a state of affairs. A familiar illustration of such a contract is an agreement to paint a picture or write a book. Kernochan v. Murray, 111 N. Y. 306." Brown v. Cushman, 173 Mass. 368, 370. It is advisable for an attorney to question the testator as to his outstanding obligations, for in many cases, if it appears that a right of action does not survive, the testator may desire to modify his existing contracts. In nearly all States there are statutes providing for the survival of certain actions. XIII. Testator's Body, Monuments, Tombstones, Burial Lots, and Cemetery Corporations. "The right of a person to provide by will for the disposition of his body has been generally recog- nized." Pierce v. Proprietors, 10 R. I. 227, 239. "It would be a waste of time to cite authorities to show that a person by will can determine absolutely what disposition shall be made of his remains." Scott v. Riley, 16 Phila. 106, 108. Despite the above cases there are decisions to the contrary and much litigation as to the rights of possession and burial, disinterment, damages for mutilation, right of re- moval, etc. See 75 Am. St. Reps. 424, note. If a person desires to leave any particular direc- tions as to the disposition of his body by burial or cremation, it is best to put them in a paper to be 82 TESTAMENTARY FORMS opened immediately after death and not merely in the will, as the will is generally read after the burial. Forms like the following may be used: Disposition of Testator's Body. I have left a memorandum in writing with my executor stating that I desire that my body shall be cremated. I now direct my said executor or his successor in order to defray the expenses of such cremation to expend a sum not to exceed five hun- dred dollars. I have left with my executors a written request that my remains be placed for the time being in a receiving tomb. As soon as convenient I direct that they be buried in my lot [description] in the Grove St. Cemetery. In many States a burial lot and a tombstone have not been regarded as properly a part of the funeral sxpenses, and statutes have been passed to the effect that a burial lot and a tombstone may be allowed by the court as part of the funeral expenses of a tes- tator. The better way is to make provision in the will. There are liberal statutory provisions' in many jurisdictions as to cemetery lots and their care and preservation, and an executor or administrator is authorized to pay to a cemetery corporation or to the local or municipal authorities a reasonable imount for the perpetual care and preservation of BEQUEATHABLE OR DEVISABLE PROPERTY 83 the testate's or intestate's burial lot. Local laws should be consulted and faithfully followed.. "A testamentary disposition either of land, or money for the purchase of land, for the establishment or the support of a public cemetery in which all persons, upon compliance with the conditions prescribed, shall have the right of interment, is valid as for a public and charitable purpose. A very different question arises, and one which is not altogether easy of proper solution, in the case of a gift in perpetuity to provide for the purchase of a burial plot for the tes- tator alone, or for the permanent care of one already owned by him, or for the purchase and care of a family burial plot, or for the erection of a monument to the memory of the testator. The gift for a public cemetery is one that is calculated to confer a benefit upon the whole public or upon a certain large though indefinite class of the public. Every char- acteristic of a public charity is present. It is intended to supply a public necessity and to aid in preserving the public health by furnishing a proper and con- venient place of sepulture for the dead. And as the interment of the departed with appropriate cere- monies constitutes a part of every description of religious faith practised in civilized communities, and is one of the most prominent religious rites which is adhered to in civilized lands, it may be said, with reason, that the supplying and dedication of public cemeteries and burial grounds are proper examples of religious or pious Uses. But a gift for a 'private burial ground for the exclusive use of the 84 TESTAMENTARY FORMS family of the testator, or a provision for a -private grave or a private family plot, stands upon a wholly different footing. The cases are irreconcilably in- harmonious as to the legality of such gifts. The English decisions, while admitting the validity of bequests in perpetuity for public cemeteries, deny the validity of such gifts for private burying grounds or for private monuments, reasoning that a trust to build a private monument or to keep one in repair is not a trust for a public charitable purpose, but solely for some private purpose of the testator. Bence a gift of money in trust to provide a tomb for the testator, to purchase a private burial plot for aim or for his family, or to keep and maintain his monument or his tomb in good condition, where the trust is to endure for a longer period than is permitted by the rule of perpetuities, is invalid. The building and repair of a private monument are matters strictly individual and personal to the de- ceased or to the surviving members of his family, which in no way confer any benefit upon the public generally. They cannot be regarded as a valid charitable purpose." 2 Underhill on Wills, § 823. The following are offered as forms: Cemetery Lots, Monuments, Gravestones, etc. It is my earnest hope that my lot numbered 95 and the tomb thereon in the Rural Cemetery in Wardville shall continue to be the place of inter- ment for my immediate family and my descendants, but I impose no obligation or trust relative thereto. BEQUEATHABLE OE DEVISABLE PROPERTY 85 I direct that my lot numbered 104 in the Jackton Cemetery shall be the burial place solely of my own remains and of those of my wife and children and that no other person or persons shall be entitled to interment therein. I direct my executors to erect over my remains in my lot No. 32 in the Evergreen Cemetery a suit- able stone inscribed with my name and the dates of my birth and death. I desire to state for the in- formation of my executors that I was born on the ninth day of August, 1847. I authorize my said executors to expend for the above grave stone a sum not exceeding two hundred dollars. I direct my executor to erect in my burial lot a suitable monument to my memory and expend therefor a sum not exceeding five hundred dollars. I direct my executor to place a suitable tomb- stone at my grave, not to exceed two hundred dollars in value, and to pay the proper board or municipal authorities an equal sum, the net income of which shall be expended for the perpetual care and pres- ervation of my burial lot. I direct my executors to expend for a tombstone at my grave a sum not to exceed five hundred dollars. It is my wish that my lot, No. 68, in Wild- wood Cemetery shall be the burial place of my children, their wives, husbands and descendants. 86 TESTAMENTARY FORMS I authorize and direct my said executors to pay to the authorities invested by law with power to re- ceive the same the sum of one thousand dollars Tor the perpetual care and preservation of said lot and I desire that the income of this sum shall be ex- pended not merely for the adornment of the lot and for the keeping of it in orderly condition, but for the protection and repair of all tombstones and monuments therein. I have deposited a sum of money with the proper authorities to provide for the perpetual care of my burial plot and tomb in Walton Cemetery. I desire that said plot shall continue to be the place of in- terment for my family and descendants. I authorize and empower my executors to expend a sum of money not exceeding one thousand dollars in the adornment of my burial lot numbered 317 in Woodlawn Cemetery; and I give the Cemetery Asso- ciation five hundred dollars to apply the income thereof for the perpetual care and maintenance of said lot and all monuments, memorials and grave- stones therein. I give my brother A. B. a right of interment in said lot for himself and family. I give and bequeath to my son A. B. the sum of one thousand dollars and request him to spend from time to time such parts thereof and the interest therefrom as he may deem advisable in the preserva- tion and adornment of my burial plot in Laketown BEQUEATHABLE OR DEVISABLE PROPERTY 87 Cemetery and the care of the graves of myself and those of my family who may be interred therein. If at the time of his decease there remains in his possession any part of the above bequest, I suggest that he leave it to one of his children with the re- quest that it be expended by him in a manner similar to that indicated above. I have already made provision for the perpetual preservation of my burial plot numbered 98 in the Oakland Cemetery. I particularly specify and direct that the only persons entitled to interment therein are my wife, myself, my children and their husbands or wives and their descendants. In some of the forms just given the intention of the testator as to the use of the burial lot is stated. Other similar forms are as follows: I desire that my lot No. 96 in the Evergreen Cemetery be reserved for the interment of my own family and descendants. I do not require that my lot No. 96 in the Ever- green Cemetery shall be reserved for the use and burial of my own family, but my children may per- mit the interment therein of any of my or their collateral kin. I direct that my brother A. B. and my sister C. D. shall have the right to use my burial lot No. 88 TESTAMENTARY FORMS 96 in the Evergreen Cemetery for the interment of the members of their own immediate families. A form as to monument and burial lot may be found on p. 571. XIV. Residence of the Testator as a Home for the Family. Testators frequently provide that the home shall be maintained for the benefit of the entire family. If the children are young and unmarried and the home is given to the wife and mother, she will, of course, maintain it for the general benefit, and it is probable that few embarrassments will arise. To maintain a home as an occasional resort for the adult members of the testator's family, most of whom have families of their own, is a more difficult problem. Jealousies and jars are likely to arise. The affectionate wishes of a father and grandfather are likely to be disregarded by children and grand- children and their wives and husbands; and in most cases recourse to the courts is not desirable, both on account of publicity and the improbability of satis- factory relief. Provisions for an open house are generally found in the wills of wealthy testators, and in many cases they are merely the expression of wishes or requests. Frequently a testator resorts to a trust arrange- ment for keeping the residence open as a home for the family for a number of years. In one case a wealthy testator directed his executor to apply such part of the rents, issues, and profits of the estate as BEQUEATHABLE OR DEVISABLE PROPERTY 89 he should deem wise to defray the expenses of main- taining his residence as a home for his daughter and others for two years from the date of his death, at the expiration of which time the residence was to be- come a part of the residuary estate. In another case a testator directed that his homestead be retained as a home for his family as long at least as one of his children was willing to occupy it and keep it in good condition and make it a home where all his children might gather from time to time. To this end he authorized the trustees to lease the home- stead to such child as they might prefer, who would agree to the above conditions, free of rent, and to pay to such lessee, so long as he should comply with the above conditions, a certain sum per year for the payment of taxes, making repairs, and keeping the property in good condition. A testator devised to his executors his dwelling house, lands, buildings, and appurtenances "In Trust, to maintain the same as a homestead and permanent residence for my wife and my children during the life of my wife and also after the death of my wife so long as it shall appear to my executors, in view of the interests of my children and of my estate, practicable and desirable to so maintain the same." Provision was further made as to insurance, repairs, taxes, and assessments. This trust was sustained in Matter of Stewart, 88 N. Y. App. Div. 23. The following forms are largely based upon those in actual wills: 90 TESTAMENTARY FORMS Residence as a Home for Family. I have given my wife my homestead as above in the belief that she will make it a common home for all our children during their minority. I have given my wife my homestead as above in the expectation that it will be a common home for all our children during their minority or while they are unmarried after reaching majority. It is my special wish that my said wife will keep open the homestead devised to her above for the enjoyment and accommodation of all our children and grandchildren, who may desire from time to time to visit her. I give and devise to my wife, A. B., to have and to hold to her for and during the term of her natural life my homestead estate [description]. Upon the decease of my said wife, or if she shall die before me, then upon my decease, I give and devise said homestead estate to my children C. D., E. F., and G. H., and to their heirs and assigns forever, as joint tenants and not as tenants in common. It is my earnest hope and request that, if my wife shall survive me, during such survivorship and there- after said homestead estate may, as long as is deemed convenient and practicable, be used as a common home and resort for my said wife and for my said children and their families; but I impose no restraint, trust or obligation to this effect. BEQtTEATHABLE or devisable property 91 I authorize my trustees in their discretion to per- mit my wife and children and their families to use and occupy my city and country residences. Other forms may be found on pp. 513, 556, 591. XV. Real Estate Subject to Mortgage or Other In- cumbrance. If a testator gives a specific devise of land which is subject to mortgage or lien, he should be informed that in most jurisdictions the mortgage or lien is to be discharged out of his personal estate, unless he otherwise directs by his will. This rule applies to mortgages or hens "created by the testator or his ancestor, and is not to be extended to cases where the testator or ancestor purchased the estate sub- ject to the incumbrance, unless the testator or his ancestor had rendered himself personally liable therefor." Hewes v. Dehon, 3 Gray, 205, 208. See Underhill on Wills, §§ 384, 385. The rule just stated seems to apply in case of intestacy. See 2 Woerner's Law of Administration (2d ed.), § 494. In several States this rule has been changed by statute. The clearest language should be used as to the testator's intention, whether the incumbrance is or is not to be borne by the devisee. It is well to bear in mind that in some jurisdictions other realty than that specifically devised may be called upon to con- tribute its share towards the payment of incum- brances, if the personalty be insufficient or the testator has not definitely expressed his intention. 92 TESTAMENTARY FORMS The following illustration discloses a peril which can be avoided by a proper provision in a will. We will suppose that a man is possessed of four hun- dred thousand dollars of personalty and realty to the amount of eight hundred thousand dollars. He is living with his second wife, between whom and the children by his first wife there is no friendship. He desires that the second wife shall be amply pro- vided for, and he believes that the law of the juris- diction which gives her the right of dower in the realty which is one-third for life and one-third of the personalty absolutely, makes such provision. He either makes no will or provides by will that his prop- erty shall pass in the same way as if he had died intestate. We will assume that his realty has mort- gages put on by himself to the amount of four hun- dred thousand dollars and that they are his only debts. Upon his decease the four hundred thousand dollars of personal property would be applied to the payment of the mortgages, so that the entire estate would consist of eight hundred thousand dollars of realty. In this the interest of the widow would only be a third for life. If a will should provide that the mortgages be not paid out of the person- alty, the widow would be entitled to one-third of the realty for life, subject to the mortgages, and to one- third of the four hundred thousand dollars of per- sonal property absolutely. The following forms are believed to cover most eases which are likely to arise: BEQUEATHABLE OR DEVISABLE PROPERTY 93 Mortgage to be Paid out of Personalty without Re- course to Realty. I give and devise to A. B., and to his heirs and assigns forever the following described real estate [description]. If at the time of my decease there is any mortgage thereon, I will and direct that my personal estate remaining after all my other debts have been paid shall be applied to the payment of said mortgage; but, if the personal estate so remain- ing be not sufficient for the purpose, the said A. B. shall take the devise with so much of the burden of incumbrance as remains unpaid; and in no event shall other realty be resorted to to discharge said unpaid burden of incumbrance. Mortgage not to be Paid out of Personalty. I give and devise to A. B. the lot of land situated in etc., on the northeast corner of Brideway and Ballton Streets, to have and to hold to him and to his heirs and assigns forever. A more particular description of the premises is as follows [descrip- tion]. There is at present a mortgage on the above described premises given by me to the Workwell Savings Bank for twenty thousand dollars, dated etc., recorded, etc., and payable etc., with interest at the rate of 5 per cent per annum. If at the time of my decease, said mortgage or any part thereof is unpaid and undischarged, I will and direct that the said A. B. shall take the above devise subject to said mortgage or any part thereof unpaid and 94 TESTAMENTARY FORMS undischarged and shall not be entitled to have the same paid out of my personal estate. Mortgage or Lien, if any, to be Paid out of Per- sonalty. I give and devise my homestead residence num- aered 92 on Drover Street in, etc., to my son A. B. m have and to hold to him and his heirs and assigns 'orever. A correct description of the premises is as 'ollows: [description]. While said premises are at present unincumbered, if at the time of my de- 3ease there is any mortgage upon the same or they ire subject to any lien, I will, declare and direct ;hat said mortgage or lien, including interest and ill legal charges, if any there be, shall be paid and iischarged out of my personal estate. While I am nformed that such is the law without the expression )y me of the above intention, yet I have made that ntention manifest so that my said son and the other egatees and devisees under this will may understand ny wish and purpose. Mortgages or Liens not to be Paid out of Personalty. If at the time of my decease any of the specific le vises given by this will are subject to mortgages >r liens of any kind, I declare and direct that the levisees shall not be entitled to have the mortgages >r liens paid out of my personal estate but shall ake the devises subject to such mortgages or iens. BEQTJEATHABLE OR DEVISABLE PROPERTY 95 Mortgages or Liens to be Paid out of Personalty without Recourse to Realty. I give and devise my homestead residence num- bered 85 on Winthrop Street in, etc., to my daughter, A. B., to have and to hold to her and her heirs and assigns forever. The following is an accurate de- scription of the premises [description]. There is at present a mortgage on the above described premises given by me to the Equity Savings Bank for Five Thousand Dollars dated, etc., recorded etc., and pay- able etc., with interest at the rate of 6 per cent per annum. If at the time of my decease said mortgage or any part thereof is undischarged, I direct that the same be paid and discharged out of my personal estate remaining after all my other debts and the pecuniary legacies given by this will have been paid and discharged; and, if my personal estate so remain- ing be not sufficient for the purpose, I direct that the said A. B. shall take the devise subject to so much of the incumbrance as remains unpaid and shall in no event have recourse to other realty to discharge the same. Incumbered Property, both Real and Personal, to Bear the Burden of all Charges. As to mortgages, charges, liens or other incum- brances existing at my death on the devises and bequests of real, leasehold and personal ^ estate, hereinbefore made, it is my purpose and I hereby direct that every devisee and legatee shall take and 96 TESTAMENTARY FORMS receive said real, leasehold or personal estate so devised or bequeathed, subject to such mortgages, charges, hens, or incumbrances, and shall assume the payment, performance or satisfaction thereof; and that in no event shall either my other real or per- sonal estate be resorted to to pay, perform or satisfy the same. Another form may be found on p. 502. XVI. Personal Estate Subject to Incumbrance. "Where a testator has pledged property to secure a debt (and I am not aware that it makes any differ- ence whether he is personally liable or not person- ally liable for the debt), then as a rule (although there may be exceptions to that rule, as to most others) the legatee has a right to have the specific legacy redeemed out of the testator's general per- sonal estate." Bothamley v. Sherson, L. R. 20 Eq. 304, 314. As to property specifically "bequeathed, the general rule is that, in the absence of any ex- pressed intention to the contrary, such property is to be exonerated and relieved from all incum- brances placed upon it by the testator. Richard- son v. Hall, 124 Mass. 228. This rule should be applied to this bequest, and the administrator should pay the debt for which this bank stock is pledged, and transfer to the widow's guardian the stock free from incumbrance." Johnson v. Goss, 128 Mass. 433, 435. Few cases of specific bequests al- BEQUEATHABLE OR DEVISABLE PROPERTY 97 however, to call the attention of the testator to the above rule in case he proposes to give personal prop- erty specifically. The question as to the legatee's liability for calls on subscriptions to stock is a more common one. It is stated in Armstrong v. Burnet, 20 Beav. 424, that where the interest of the testator in the subject matter which he professes to bequeath is complete, or where it is so treated and considered by him and by all persons connected with it, the future calls fall on the legatees and not on the general personal estate. But where further payments are required to make perfect the interest which the testator pro- fesses specifically to bequeath, then the general per- sonal estate is applicable for that purpose. See Addams v. Ferick, 26 Beav. 384. "A general bequest of all the testator's stock in a given railroad company must be construed as in- cluding that which is only in part paid for, as well as that which has been fully paid and certified." Emery v. Wason, 107 Mass. 507, 509. In this case, where the testator died before the day when the remain- ing instalment was due, it was held that the ex- ecutors were justified in paying the same, when it became due, from the general funds of the estate. The following forms may be of service in excep- tional cases: Incumbrances upon Personal Property. I give and bequeath unto my friend, A. B., as a specific legacy, three one-thousand dollar first- 98 TESTAMENTARY FORMS mortgage bonds of the Middleton Central Railroad, numbered 1617, 1623 and 3002 respectively; and if, at the time of my decease, any one or more of said bonds is pledged for any obligation or debt contracted by me, the said A. B. shall take said bonds subject to such incumbrance thereon, and shall not be en- titled to have said obligation or debt paid out of my personal estate. I give and bequeath to A. B. the one hundred shares of the capital stock of the Newburgh Manu- facturing Company now standing in my name, the certificate being numbered 804. The Company hav- ing recently voted to increase its capital stock to an amount equal to its present capital, I have sub- scribed to the one hundred shares extra to which I am entitled and have paid the first instalment con- formably to the vote of the Company. If at the time of my decease I have not fully paid the amount required to complete the purchase of said one hundred extra shares, I order and direct that the said A. B. shall take this bequest, subject to the outstanding and unpaid call, calls, assessment or assessments and shall himself pay the same in order to be entitled to this legacy. Another form is given on p. 515. Sometimes testators give directions to their exec- utors relative to subscriptions for charitable objects as in the following forms: BEQUEATHABLE OB DEVISABLE PROPERTY 99 . Subscriptions for Charitable Objects. It is my custom to subscribe amounts of money for various objects of a religious, charitable, philan- thropic, and educational nature. It is my desire and purpose that all such promises shall be faithfully fulfilled; and I authorize and direct my executors to pay and discharge from the funds of my estate all such obligations and promises existing at the time of my decease. If at the time of my decease there are unpaid sub- scriptions made by me to churches, schools, colleges, or hospitals, or to any other objects of a religious, charitable or educational nature, I direct my execu- tors to pay all such subscriptions, and also, in every case where I have been in the habit of assisting by a yearly allowance needy people and students ob- taining an education, to pay the unpaid balance of such year's allowance. XVII. Joint Real and Personal Property. Several States have by statute done away with the law as to survivorship amOng joint tenants. Where the common law obtains, however, a devise or bequest by a joint tenant of real or personal es- tate is void, in the event of the testator dying in the lifetime of his co-proprietor, whose title by surviv- orship takes precedence of the claim of the devisee or legatee. 1 Jarman on Wills, 66. See Wilkins v. Young, 144 Ind. 1. 100 TESTAMENTARY FORMS Sometimes a testator inserts a provision in his will directing his executors to make partition among the devisees who take as tenants in common, or to enter into any partition they may deem just, of real estate held in common by the testator and others. Such provisions are rarely advisable. The following are offered as forms: Provisions as to Partition. I authorize and empower my executors to make partition of my real estate given to devisees under this will as tenants in common, and to this end my said executors are to fix the values, determine the parcels or allotments, make, execute and deliver all proper deeds or other instruments; and all expenses incurred shall be paid out of my estate. Partition in each case shall be agreed upon, by the entire board of executors and shall be conclusive upon all devisees under this will. If a majority of the persons to whom any particu- lar real estate is devised in common by this will shall, at any time before the expiration of two years from the proving of the same, request my executors in writing to set apart their shares in said real estate in severalty, said executors shall proceed so to do and the expenses thereof shall be charged to the devisees in proportion to their interests in such real estate. Said executors shall record their finding or decree of partition with the said request attached thereto in the appropriate registry of deeds. BEQTJEATHABLE OR DEVISABLE PROPERTY 101 My executors are hereby authorized to enter into any partition they may deem just of real estate held in common by me and others, and to execute, deliver and receive all proper deeds or other instru- ments; and the partition when assented to and approved by said executors shall be binding on all devisees thereof under this will. Where husband and wife are joint owners of per- sonal property, the rule applies as to survivorship as in the case of their joint ownership of real estate as tenants by the entirety, and the survivor is re- garded as the owner and is not required to account for the property to the executor or administrator of the one dying. XVIII. Carrying on and Adjusting Testator's Partnership and other Business. Articles of copartnership frequently contain pro- visions as to liquidation in the event of the death of one of the partners. If there are no provisions it is competent for the representatives of a deceased partner " and the surviving partners to adjust and settle by agreement between themselves the part- nership affairs without an accounting or resort to legal proceedings. Such a settlement, in the absence of fraud, would be binding upon the parties to it, subject to be opened for the correction of errors or mistakes, in accordance with the practice and prin- ciples of courts of equity." Sage v. Woodin, 66 N. Y. 578, 581. "If an executor engages in business, either 102 TESTAMENTARY FORMS as a sole trader or in a partnership, with the testa- tor's assets, though he does it as executor, and not for his individual benefit, he will be personally liable for the debts incurred in the business, and this although he does so in compliance with directions in the testator's will, or in conformity with articles of partnership to which the testator was a party which provide, as articles of partnership sometimes provide, that on the death of a partner his executor or personal representatives shall be admitted into the firm." Wild v. Davenport, 48 N. J. Law, 129, 136. See Lucas v. Williams, 3 Giff. 150. But if the executor is empowered by the will to carry on the business, he may indemnify himself for the payment of debts out of the property lawfully embarked in the trade. Laible v. Ferry, 32 N. J. Eq. 791. "An executor cannot subject the estate in his hands for administration to some new liability, either by his contract, or by his wrongful act." Matter of Van Slooten v. Dodge, 145 N. Y. 327, 332. "The estate cannot be held liable for a tort committed by an administrator or executor." Sterrett v. Barker, 119 Cal. 492, 494. It may be well to insert a clause re- leasing the executor from all liability or indemnify- ing him for any losses personally sustained. One way is to authorize the executor to carry on the business, provided all parties interested under bhe will give their consent. See Poole v. Munday, 103 Mass. 74. And even then it seems advisable to authorize its being carried on only so far as is neces- sary to complete the testator's contracts and prose- BEQUEATHABLE OR DEVISABLE PROPERTY 103 cute his undertakings. 3 Williams on Executors, 1794 et seq. See Murphy v. Walker, 131 Mass. 341. A will containing directions as to carrying on the testator's business may be found in Bacon v. Pomeroy, 104 Mass. 577, 580. "A power, simpliciter, to carry on the testator's trade, or to continue his business in a firm of which he was a partner, without anything more, will be construed as an authority simply to carry on the trade or business with the fund already invested in it at the time of the testator's death, and to subject that fund only to the hazards of the trade and not the general assets of the estate." Willis v. Sharp, 113 N. Y. 586, 590. "In the recent case of Smith v. Ayres (101 U. S. 320), the legal principle lying at the foundation of the first of these grounds of relief was fully discussed and determined. . It was there held that a testator might authorize the continuance of a partnership, in which he was engaged at the time of his death, without subjecting any more of his property to the vicissitudes of the business than what was then em- barked in it, and that, unless he had expressly placed the whole, or some other part of his estate, under the operation of the partnership, it would not be pre- sumed that he had so intended. See also Burwell v. Mandeville's Executor, 2 How. 560; Ex parte Gar- land, 10 Ves. Jr. 109. In the case before us the tes- tator declares, in express terms, that his capital and interest in said concern shall be continued therein, and shall be chargeable for its debts and liabilities; 104 TESTAMENTARY FORMS but his other property shall not be so chargeable." Jones v. Walker, 103 U. S. 444, 445. It has been held that a stipulation in partnership articles, that in case of the death of either partner the survivor might carry on the business for a year, for the mutual benefit of both partners, did not, in the case of the death of one of them, justify the allowance against his insolvent estate of a debt contracted by the sur- vivor within the year, with one who had notice of the death. Stanwood v. Owen, 14 Gray, 195. If it is deemed advisable to give executors power to carry on the testator's business, the authority should be full, but limited to as brief a period as is consistent with settling the estate and more partic- ularly adjusting special interests. It is apparent that it would be folly to give executors and trustees unlimited powers. It frequently happens that a partnership is of such a nature that it is desirable to continue it after the decease of one of the partners, without any conflict between the survivors and the executor of the de- ceased partner as to the price to be paid by them for the deceased partner's interest. Accordingly, a provision is inserted in the articles of copartnership, that on the death of one of the partners the survivor or survivors shall have the privilege of taking the deceased partner's interest at a certain price there stated and agreed upon. Although this stipulation is undoubtedly binding upon the deceased partner's representatives, yet it is usual for him to refer in his will to the partnership agreement, and to confer BEQUEATHABLE OB DEVISABLE PROPERTY 105 upon his executor or executors every power neces- sary to carry out the agreement as if he were living. See p. 506. Some of the following forms are partly framed on articles taken from actual wills: General Instructions as to carrying on Testator's Business. I authorize and empower my executors to con- tinue any business in which I am engaged at the time of my decease for a period long enough to settle, adjust and liquidate the same; and to this end I clothe them with all power and authority in the premises, including that of renewing promissory notes. Directions to Executors to continue Testator's Inter- est in Partnership, Liquidate Same and Enter into New Partnership and Dispose of Interest in Either Partner- ship or Incorporate the Same. If at the time of my decease the co-partnership of K. & Co., of which I am at present the senior partner, shall be in existence I authorize and empower my said executors and their successors to continue my interest therein conformably to the provisions of the articles of co-partnership entered into by the mem- bers of the existing firm on the [date]. If it is deemed advisable to liquidate said partnership and enter into a new one, then I authorize and empower my said executors and their successors to execute proper 106 TESTAMENTARY FORMS articles of co-partnership with the members of the old firm or so many of them as propose to become partners of the new one, and to this end I authorize and empower my said executors and their succes- sors to contribute to the new firm all my assets and property in the old one as determined by the liquida- tion aforesaid; and I further authorize and empower them to dispose of, sell- and transfer my interest in either of said partnerships on such terms and in such manner as they may deem best, conformably to the provisions of the co-partnership articles. If it is deemed best at any time to turn either of said partner- ships into a corporation, I confer upon my said exec- utors and their successors full power and authority to sign and execute all papers, documents and agree- ments, necessary and proper in that particular and to exchange my interest in either of said part- nerships, in whole or in part, for shares in such corporation. Part of Residuum Consisting of Partnership to Remain in Partnership for a Period not to Exceed Ten Years. All the rest, residue and remainder of my property, both real and personal, of which I shall die seized and possessed and to which I shall be entitled at the time of my decease, and wherever the same may be situated, I give, devise and bequeath to A. B. and to his heirs and assigns forever, but with this restriction, however, that so much of said rest, BEQUEATHABLE OR DEVISABLE PROPERTY 107 in the business conducted under the firm name of C. D. & Co., shall remain in said firm or partner- ship for a period not exceeding ten years from the day of my death. I direct that my said residuary legatee and devisee shall in no event become a member of said firm; but, as I have the fullest con- fidence in my co-partners, I desire them to continue said partnership so long as in their judgment they shall see fit so to do, not exceeding said ten years from the day of my death. And I direct my said co-partners annually to pay the said A. B. one-half the net profits upon his interest in the business during the preceding year and retain the other half in the business. Testator's Capital to Remain Two Years in. Business for Benefit of Copartners. Having every confidence in my co-partners who are associated with me under the firm name of D. E. & Co., I propose the following method of adjusting our relations, so that they may not be forced to liquidate the affairs of the firm directly after my decease. If the surviving members of the firm so desire and so elect by a notice in writing served on my executors within thirty days from the date of the probate of this will, my said executors may allow my capital account to remain in said firm for a period of two years from the date of my decease, when the whole amount thereof shall be paid by said surviving partners to my said executors. The above proposition is contingent upon the under- 108 TESTAMENTARY FORMS standing and agreement that my estate is not to be held liable for any debts contracted by said sur- viving partners during said two years, as my death constitutes an absolute dissolution of the said co-partnership. The above proposition is also contingent upon said surviving partners executing to my said execu- tors within said thirty days a stipulation in writing releasing and holding my estate harmless from any and all losses during the said two years and also agreeing to pay my said executors interest at the rate of five per cent per annum, upon the amount of my capital account remaining in said firm during said period, it being understood that my said estate is to have no share in the profits of the business during said period. Executors Directed to Keep Estate in Partnership for a Period of Five Years. I authorize and empower my executors to keep and continue in the business of the partnership of which I am a member and which is conducted under the name of C. Y. & B., for a period not exceeding five years from the probate of this will, any portion of my estate that may be invested in said partner- ship at the time of my decease. I release my said executors from all risk incurred and losses sustained by said partnership during said period, as the same are to be borne by my estate. BEQTJEATHABLE OR DEVISABLE PROPERTY 109 Testator's Business to be Continued according to Articles of Copartnership. I long have been and am now a member of the co-partnership of J. K. & Co., according to the articles of which it is provided that the co-partnership shall be continued after my decease for a period not exceeding three years. I authorize, empower and direct my executors to carry out the provisions of said articles as to so continuing the co-partnership by co-operating with ' the surviving partners in carrying on the business thereof until the expiration of the period provided for. I authorize, empower and direct my said executors either before or at the end of the period referred to to dispose of, sell and transfer to my surviving partners all my right, title and interest in and to the assets, property, business and profits of the said co-partnership at such price as shall seem to them just and satisfactory and either for cash or upon credit. The fact that one of my co-partners is also one of the executors of this will shall not be taken against him, but he shall be as free to act in both capacities in all dealings with my interest in the co-partnership whether in manage- ment or in purchase and sale of the same, as if he were an outside and disinterested party. Provisions as to Loans by Testator to his Incor- porated Business. Four years ago the business transacted by me under the name of B. W. was incorporated as the 110 TESTAMENTARY FORMS "B. W. Company, Incorporated." At present there is a contract subsisting between the said Company and myself relative to large sums of money loaned by me to said Company and to the continuance of such loans. If at the time of my decease said con- tract is still valid and binding or if any other con- tract of a similar nature is existing, then I authorize and direct my executors to enter into any stipula- tion and arrangement with said Company which they may deem suitable and best providing for the retention for a limited and reasonable period by the Company of said loans so that it may avoid embar- rassment in paying them. But said stipulation and arrangement is to apply (a) only to money loaned by me to the Company at the time of my decease, (b) It is not to apply to accrued or accumulated profits, and (c) It is not to create but is absolutely to avoid any partnership between said Company and my said executors or my estate at large; and no other property of mine than the funds so loaned to the Company is to incur any risk or liability whatever. Executors Authorized to Wind up Testator's Business. I authorize and empower my executors to liqui- date, close and wind up my partnership business, conducted under the name of A. B. & Co., as fully as I am authorized and empowered so to do in and by the articles of co-partnership. I trust that they will exercise good judgment and sound discretion to the end that all unnecessary losses may be avoided. BEQtTEATHABLE OR DEVISABLE PROPERTY 111 Directions as to Incorporating Business. As my entire interest and property in the firm of A. & B. falls by the provisions of this will into the residuum, I suggest to my residuary legatees and to my co-partner, B., that they turn the plant, property and business of the co-partnership into a corporation as soon as is feasible after my decease. I have purposely made my said co-partner B. the executor of this will for the reason that, on account of his knowledge of the business, he may facilitate the incorporation thereof. Authority to Carry Out Agreement in Copartner- ship Articles as to Disposition of Testator's Interest in Copartnership. Whereas by my articles of copartnership, dated the third day of October, 1908, I covenanted and agreed with my partner A. B. that if said partner- ship existed at the time of my decease, my executrix should offer to him my entire interest in said part- nership at a price agreed upon and set forth in said articles of copartnership, as will more particularly appear by reference thereto, now I hereby request and direct my said executrix to carry out said agreement in every particular as soon as can be conveniently done after she receives her testamen- tary letters, and to that end I confer upon her, as said executrix, every power and authority which I should possess if living. 112 TESTAMENTARY FORMS Completion of Contracts. As radical changes are contemplated in the affairs of the A. B. C. Co., of which I am the largest share- holder, now, if such changes shall not have been effected at the time of my decease, I confer upon my executor full power and authority to carry out and complete any contract or contracts that I, as a shareholder, may have entered into relative to such changes and any further contract or contracts that may be deemed desirable and necessary, hereby giv- ing my said executor full discretion in the premises. XIX. Authority given Executors to Sign, Indorse, etc., Commercial Paper. To give executors authority to sign and indorse notes is, of course, an unusual and dangerous ex- pedient. Such power, however, may be properly conferred in a few cases; and the following are offered as forms: Signing, Indorsing, etc., Commercial Paper. I hereby authorize and empower my executors (wife and son) to make, sign, accept or indorse promissory notes, bills of exchange and commercial paper in general, if they deem it necessary in the settlement of my affairs, the same to be as binding and obligatory upon my estate as if made, signed, accepted or indorsed by me in my lifetime. I sug- gest that such obligations made by my executors run in the name of my estate and that they be BEQUEATHABLE OR DEVISABLE PROPERTY 113 signed as follows: "The estate of A. B., by C. D., E. F., executors." Whereas my business relations with M. N. are such as to necessitate the hiring of money by the indorsement of his notes, now, if at the time of my decease, I am liable as indorser upon any promissory notes signed by him, I authorize and empower my executor to indorse in the name of my estate promis- sory notes given in renewal of the same; such new notes to be limited in payment to a period not exceeding two years from the day of my decease. Whereas I am liable as an indorser on a promis- sory note of A. B. for Five Thousand Dollars, dated etc., payable etc., and now held by the Wayside National Bank of etc., now, if at the time of my decease said note or any renewal thereof indorsed by me for the same or a less amount and by whom ever held be in existence and a charge against my estate, then I authorize and empower my executor in his discretion, to indorse a renewal note or renewal notes, for the same or a less amount, such new note or notes to be limited in payment to a period not to exceed two years from the day of my decease. Another form may be found on p. 561. XX. Pews. Many testators provide for the disposition of the family pew. The attorney should ascertain whether 114 TESTAMENTARY FORMS the pew is a part of the realty or is made personal estate by statutory provision. Again, many religious societies have by-laws or regulations as to the assign- ment and conveyance of pews, and these should be carefully examined before the will is drawn. See 34 Cyc. of Law and Procedure, 1174 et seq. XXI. Opera Box. Wealthy testators frequently dispose of their opera boxes. The local law should be examined to ascertain whether the opera box is personal property or is regarded as real estate; and attention should also be given to rules, regulations, by-laws, etc., if any. XXII. Dumb Animals. It is not uncommon for a humane testator to make provision as to the care, custody, etc., of his dumb animals. Forms like the following may be of service: I give my old horse John and all my cats and dogs to my friend A. B., and request him to dispose of them in such way as he may deem best. I give him a legacy of five hundred dollars and request him to use the same or any part thereof in caring for said animals or in depriving them of life, but I impose no restrictions, as said legacy is to be the absolute property of A. B. Whatever cats and dogs I may possess at the time of my decease I give and bequeath to the Society BEQUEATHABLE OR DEVISABLE PROPERTY 115 for the Prevention of Cruelty to Animals of etc.; and I authorize the manager or managers of said society to give the animals away or to deprive them of life, as he or they may deem best. I give the said society the sum of fifty dollars to pay the ex- penses incurred in the temporary care of said animals, or in depriving them of life, the balance not so ex- pended to be retained by said society for its general purposes. I give to the Society for the Prevention of Cruelty to Animals of etc. all the living creatures I possess at the date of my decease to be disposed of in the most humane manner by sale or otherwise. XXIII. Manuscripts, Papers, Letters, etc. Frequently testators give special instructions as to manuscripts, letters, etc., as in the following forms: Manuscripts, Papers, Letters, etc. I give all my manuscripts, family and business letters and unpublished papers to my son, A. B., to dispose of as he may deem best. I give all my manuscripts, papers, documents and letters to my son A. B. to be his absolutely; but I trust that he will make use of them ac- cording to wishes I have already made known to him. 116 TESTAMENTARY FORMS After my executors have completely settled my estate and are ready to present their final account to the court, then I desire and direct them to de- stroy all my manuscripts, letters and unpublished papers. I appoint A. B. my literary executor and bequeath to him all my manuscripts, papers, documents and letters. I request him to prepare and publish my "Life and Letters" in an edition of three thousand copies and take out the copyright of the same in the name of my wife C. D. I direct the executors of this will to allow the said A. B. a sum not to exceed Five Thousand Dollars for the expenses of said publication; and I also give the said A. B. a legacy of Five Thousand Dollars to be paid to him upon the publication of the book in compensation for his services. The said A. B. as literary executor ig to give no bond or security of any kind; he is to be subject to no restraint, interference or dictation from any source; and, while I desire him to consult from time to time with my wife as to matters per- taining to the production of the volume, his acts and doings in the premises are not to be called in question by any one. XXIV. Various Bequests, Devises, and Provisions. In many jurisdictions estates tail and estates of homestead cannot be devised. So a beneficial devise or legacy to a subscribing witness or to the husband or wife of such witness is often declared to BEQUEATHABLE OR DEVISABLE PROPERTY 117 be void, unless the other subscribing witnesses constitute the requisite number. " It is very familiar law that a devise to the heirs of one living is void. Nemo est haeres viventis. Shep. Touchst. 415 ; 6 Cruise Dig. tit. 38, c. 10, § 37." Otis v. Prince, 10 Gray, 581, 582. "It is a well settled rule of real property, that a limitation to an heir in a devise is void, and that the heir cannot be a purchaser; Co. Lit. 22 b; or, to state the rule more fully, if a man devises by his will his land to his heir at law and his heirs, in such case the devise, as such, is void, and the heir will take by descent and not by purchase, for the reason that the title by descent is the worthier and better title, by taking away the entry of those who might have a right to the land. Powell on Devises, 427, 430; 6 Cruise, Greenl. ed., 151; 1 Jarman on Wills, 67. And it makes no difference as to the opera- tion of this rule that the land comes to the heir charged with payment of annuities or legacies, nor that the testator devises the land to one for life, remainder to his heir at law in fee, in which latter case the heir is in, on the termination of the life estate, by descent and not by purchase. So, too, it has been held, that the limitation to the heir, by devise in fee, after an estate tail, or the ingrafting of an executory devise, or the carving out of a con- tingent interest, or the limiting of the reversion in fee, or the alternate fee, to the heir at law, will not break the descent, and that when the estate devolves to the heir, he takes by descent and not by purchase. Powell on Devises, 427, 430; Uarman 118 TESTAMENTARY FORMS on Wills, 67; Fearne's Post. Works, 128, 229; 1 Eden, 462 note; Doe v. Timins, 1 B. & Aid. 530; Manbridge v. Plummer, 2 Myl. & K. 93." Ellis v. Page, 7 Cush. 161, 163. If a testator desires to give his property in the way in which it would pass by descent if he made no will, he may use a form like the following: I hereby declare that I dispose of all the property, real and personal, of which I shall die seized and possessed and to which I shall be entitled at the time of my decease, and wherever the same may be situated, in exactly the same manner as the same would descend according to law, as if no will were made by me, that is, according to the statutes which provide for the distribution of intestate estates, both real and personal. I constitute and appoint A. B. the executor of this will. I request that he be exempt from giving a surety or sureties upon his official bond, and I authorize and empower him to sell, as such executor, both real and personal estate by private sale or by public auction, and convey the same by such deeds or other instruments as may be legal and proper. Sometimes a testator inserts in his will a pro- vision to the effect that a certain conveyance of real estate made by him during his life is confirmed, as, "I hereby ratify and confirm a certain conveyance to A. made by me by deed dated, etc., and recorded, etc." BEQUEATHABLE OR DEVISABLE PROPERTY 119 As to illegal gifts it is a general rule that a gift over, if the original gift shall be declared void, is valid. Sometimes provision is made for the sale of the property and the payment of the proceeds to the legatee. Sometimes also it is provided that if one provision in the will is declared void, other pro- visions shall not be affected thereby, although per- haps such precautions are unnecessary. The following are offered as forms: I give and devise to the Wanderers' Asylum of etc., in fee simple, the lot of land and the houses situated thereftn, located on the north-east corner of E. and F. streets in the city of, etc., and bounded and described as follows [description]. If for any reason said Asylum is not permitted by law to take and hold the above-mentioned devise, then I author- ize and empower my executors to sell the same by public auction or by private sale, either for cash or on credit or partly on cash and partly on credit, and exe- cute and deliver such deeds or other instruments of conveyance as may be necessary to pass a valid title; and the net proceeds of such sale I direct my executors to turn over to the trustees or other authorities of said Asylum constituted by law to receive them. I give and devise all my real estate situated in, etc., to the Wingwood Hospital of etc., and, if for any reason this devise shall be declared by any com- petent tribunal to be void, then I give and devise all 120 TESTAMENTARY FORMS said real estate to etc. The following is an accurate description of said real estate [description]. „. If any provision in this will for any legatee shall prove to be invalid and void, I expressly declare that such invalidity shall in no wise affect, control or impair any other provision or provisions of this in- strument or of any codicil hereto. If any devises, bequests, provisions or directions in this will shall fail and become invalid for any reason, I declare and direct that no other provision or part of this will shall be affected, impaired or invalidated thereby. It is advisable that all bequests should be definite and certain. Sometimes a testator gives a certain person a legacy, which, added to the property that person already possesses, will make a certain amount. Such a provision is too uncertain and in- definite, yet it sometimes appears, as in the fol- lowing form: I give A. B. a sum of money, which, when added to the property she already possesses, will amount to twenty thousand dollars. A will frequently contains. a direction to the exec- utor to purchase some memorial or token of remem- brance for a friend of the testator. Forms like the following may be used: BEQUEATHABLE OR DEVISABLE PROPERTY 121 I give my friends A. B. and C. D. each one hundred dollars as a token of kindly remembrance, and I trust that each will purchase with the same some memorial object which will serve as a reminder of my regard and esteem. I give my executor the sum of two hundred dollars and I direct him to purchase therewith two objects or articles, which he may deem suitable for the purpose, and present them to my friends A. B. and C. D., which I desire them to keep as tokens of my esteem and remembrance. Ante-nuptial agreements are not uncommon. It is not proposed to treat this subject at length here, but the following simple form and confirmatory provision in the will are offered. Ante-nuptial Agreement. Whereas, A. B., of etc., and C. D., of etc. desire, in the contemplation of marriage with each other, to effect an ante-nuptial agreement conformably to law, now, therefore, they mutually covenant and agree that upon the solemnization of said marriage: 1. The said CD. shall hold in her own name and right and have the entire disposition of all the estate, real and personal, she shall possess at the time of the marriage and also such other estate, real and personal, as she may thereafter in any way ac- quire during marriage; and she may dispose of all of the same by her last will to any legatee or legatees, 122 TESTAMENTARY FORMS devisee or devisees she may select, other than the said A. B., and, in default of such will, her entire estate, real and personal, shall descend according to the statutes then in force relative to the distribu- tion of intestate estates, to the exclusion, however, of the said A. B., who shall in no event take any part thereof as her heir or under any statutory provisions. 2. The said A. B. shall hold in his own name and right and have the entire disposition of all the estate, real and personal, he shall possess at the time of the marriage and also such other estate, real and per- sonal, as he may thereafter in any way acquire during marriage; and he may dispose of all of the same by his last will to any legatee or legatees, devisee or devisees he may select, other than the said C. D., and, in default of such will, his entire estate, real and personal, shall descend according to the statutes then in force relative to the distribution of intestate estates, to the exclusion, however, of the said CD., who shall in no event take any part thereof as his heir or under any statutory provisions. 3. The said C. D. shall during coverture, at her husband's request, and, after his decease, if she sur- vives him, at the request of his executors, admin- istrators, devisees, or heirs, relinquish by deed dower in any and all his real estate and all her rights therein under the homestead exemption laws, if any; and she shall receive no compensation for such relinquishment. 4. The said A. B. shall during coverture, at his BEQUEATHABLE OR DEVISABLE PROPERTY 123 wife's request, and, after her decease, if he survives her, at the request of her executors, administrators, devisees, or heirs, relinquish by deed curtesy in any and all her real estate; and he shall receive no com- pensation for such relinquishment. 5. This agreement shall be and is a bar both in law and equity to any claim A. B., if he survives C. D., may make to any part of her realty and per- sonalty and to any claim C. D., if she survives A. B., may make to any part of his realty and personalty. In testimony whereof, etc. A. B. CD. [Acknowledgment.] Provision to be Inserted in Will. Whereas by an ante-nuptial agreement dated, etc., I relinquished all my interest in the estate of my wife, C. D., [my husband, A. B.] and she [he] re- linquished all her [his] interest in mine, I now ratify said ante-nuptial agreement in every particular and declare that in no event is this will to be so con- strued as to make her [him] a devisee or legatee hereunder. Often the ante-nuptial contract provides for the giving up by the wife of all interest in both the real and personal estate of the husband in consideration of a certain sum to be paid to her after his death. In the husband's will should appear a provision like the following: 124 TESTAMENTARY FORMS I direct my executors as soon as may be after my decease to pay to my wife, C. D., the sum of fifty thousand dollars in performance of the ante-nuptial contract made between us on the tenth day of etc., in lieu of dower and all rights whatever in my real and personal estate. CHAPTER V WHO MAY BE A DEVISEE OR LEGATEE It is understood as a general rule that any person is capable of being a legatee, excepting such as are expressly forbidden. 1 Williams on Executors, 799. In most jurisdictions a married woman is now ca- pable of taking, holding, managing, and disposing of property by will or otherwise as if she were a feme sole. But forms like the following are still common both in the case of married and unmarried women: Sole and Separate Use. I give my daughter A. B. the sum of ten thousand dollars which is to be paid to her upon her separate receipt. The separate receipts of my daughters, A. B., C. D. and E. F. for the legacies given them herein shall be sufficient without any act or assent of their husbands; and said legacies are intended and declared to be for the sole and separate use and enjoyment of said daughters without any interference or control of said husbands. Every interest or estate given in this will to any female, married or unmarried, shall be for her sep- 125 126 TESTAMENTARY FORMS arate use, independently of any other person or persons. All moneys payable under this will to or for the benefit of any female shall be for her sole and sep- arate use and free from the control and interference of her husband or any other person. Aliens may take personal property by bequest, and in most places they may take real estate by devise. See Extracts from Treaties, ante, p. 18 et seq. See also Remsen on Wills, 109. Great care should be taken never to give legacies or devises to subscribing witnesses or to the wives or husbands of subscribing witnesses. In some juris- dictions there are statutes on the subject, but, if the attorney sees to it that only disinterested people witness the will, no question can be raised. In many cases gifts to unincorporated societies are void for uncertainty of the beneficiary. In some States where charitable trusts have not been abol- ished, it has been held that the members of the society may be treated as trustees and the specified charity be upheld; but gifts to unincorporated societies hav- ing definite objects have sometimes been held void for uncertainty. See Rood on Wills, § 439. In nearly all States corporations seem to be un- restricted. In a few States they are disqualified unless specially authorized to take. In many juris- dictions the amount of property which a corporation may hold is fixed by statute. For a case where a WHO MAY BE A DEVISEE OR LEGATEE 127 corporation was authorized by statute to hold prop- erty of double the amount allowed by its charter, in order to take a legacy under a will, see Baker v. Clarke, 110 Mass. 88. In drawing a will, in which the testator is to make corporations devisees or legatees, the attorney should be familiar with local statutes. If the testator proposes to make a devise or legacy to a corporation in a jurisdiction other than his own, it is particularly incumbent upon the attorney to ascertain the law of that jurisdiction on the subject. Municipal corporations are generally capable of taking bequests and devises. Vidal v. Girard, 2 How. 127; Girard v. Philadelphia, 7 "Wall. 1; Lovell v. Charlestown, 66 N. H. 584; Higginson v. Turner, 171 Mass. 586; Christy v. Commissioners, 41 Ohio St. 711; Bedford v. Bedford, 99 Ky. 273; Hayward v. Davidson, 41 Ind. 212; McDonogh v. Murdoch, 15 How. 367. The United States may be a devisee or legatee. Dickson v. United States, 125 Mass. 311, 315. As to the law in New York, however, see United States v. Fox, 94 U. S. 315. CHAPTER VI FORM OF WILLS "The law has not made requisite, to the validity of a will, that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inarti- ficial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and, if this appear to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded." 1 Jar- man on Wills, 19. Statutes generally provide that the will must be in writing, and that this may include printing, engraving, lithographing, and any other mode of representing words and letters. While the most in- formal and artificial documents may be probated as wills, if duly executed, it must be remembered that the probate of a will simply establishes its due exe- cution by the testator. Great care should be given to chirography, punctu- ation, the arrangement of paragraphs, etc.; and the will should be written with uniformity, as the court will in some cases look at an original will with a view of deriving, from the form, character, or man- 128 FORM OP WILIS 129 ner of writing, or from what otherwise appears thereon, aid in determining the meaning or construc- tion of the will. See Oppenheim v. Henry, 9 Hare, 802, n.; Philips v. Chamberlaine, 4 Vesey, 51, 56; Compton v. Bloxham, 2 Coll. (Chan.) 201, 203. "Punctuation may perhaps be resorted to when no other means can be found of solving an ambiguity; but not in cases where no real ambiguity exists, except what punctuation itself creates." Arcu- larius v. Sweet, 25 Barb. 403, 406. "Punctuation is never controlling. The intention is always to be ascertained exclusively from the words employed by the testator, viewed in the light afforded by the con- text. The punctuation or the lack of punctuation is not material and may be omitted or supplied by the court." 1 Underhill on Wills, § 369. In the important case of Sears v. Hardy, 120 Mass. 524, 527, "It appeared by a facsimile of the will, which was before the court, that each paragraph began at the very beginning of a line; that the word 'town' came to the end of the last line on the third page; and that the word 'And' began the first line of the fourth page. At the argument it was in dispute whether the word 'And' began a new paragraph or not." In some jurisdictions if a will duly executed in- corporates in itself by reference any outside docu- ment or paper, such outside document or paper so referred to, if in existence at the time of the execu- tion of the will and clearly identified as the document or paper referred to therein, takes effect as part of 130 TESTAMENTARY FORMS the will. Young's Estate, 123 Cal. 337; Newton v. Seaman's Society, 130 Mass. 91; Baker's Appeal, 107 Pa. St. 381. This is a loose and unsatisfactory- method. Of course, there are cases where it is natural and proper to refer to book charges against legatees. See p. 256. In this connection it should be stated that precatory words, should be avoided, and that no language which might be construed to create a secret trust should be used. See Amherst College v. Bitch, 151 N. Y. 282. A will provided as follows: "I give to my wife, A. C. P., all the rest of my estate, what- ever the same may be, to be at her sole use and dis- posal. My said wife is fully acquainted with my reasons for this disposal of my estate, and will by her own last testament do what is right and just to my children and their natural heirs." The Court said: "The last words do not create a trust, but state the motive for not doing so. They express the tes- tator's confidence that his wife will do what is just of her own motion, as a reason why he leaves the property to her unfettered disposition." Sturgis v. Paine, 146 Mass. 354, 365. It frequently happens that a testator makes an absolute disposition of property with the request that the legatee will comply with certain specified wishes in relation thereto. As such forms of expres- sion are often construed to create trusts, etc., it would seem to be safer for a testator to draw up writ- ten instructions entirely distinct from the will. The paper containing them may be mentioned in the will, but not so as to be made a part thereof. FORM OF WILLS 131 The following forms may be used in certain cases: Pecuniary Legacy. I give my friend A. B. the sum of Five Hundred Dollars and I request him to expend the said sum in conformity to instructions contained in a certain paper signed by me, which will be found in the envelope with this will at the time of my decease. These instructions are not to be regarded as in any sense a part of this will or as obligatory upon the said A. B. but I feel sure that he will carry them out in good faith as I desire. I direct my said executor to pay the said sum of Five Hundred Dollars to the said A. B. and to take his personal receipt for the same, and thereupon my said executor shall be re- leased from all responsibility therefor, as the said Five Hundred Dollars is given to said A. B. abso- lutely in his own right and name. Instructions as to Disposition of Pecuniary Legacy. To my friend A. B. Whereas by my last will and testament, dated, etc., I gave my friend A. B. the sum of Five Hun- dred Dollars to be his absolutely, stating, however, that I desired him to expend the same according to instructions contained in a certain paper to be found in the same envelope with my will at the time of my decease. Now, therefore, I request the said A. B. to expend the said Five Hundred Dollars for the education of his daughter C. D., in such 132 TESTAMENTARY FORMS way as he may deem best for her welfare and im- provement, and if the said C. D. shall die before the expenditure of all or any part thereof as directed, I desire the said A. B. to keep the same as a mark of my personal esteem. In the event of the death of the said A. B. before all of the Five Hundred Dollars has been expended as above directed, I trust that the said A. B. will leave a will providing for the expenditure upon the education of the said C. D. of such unused balance. Legacy of Porringer. I give the silver porringer upon which appear the initials A. V. W. and the date, 1763, and which has been in our family for many years to my son B. W., to be his absolutely. My executor will find in the envelope which contains this will a writing signed by me and addressed to the said B. W., in which writ- ing I request him to dispose of this porringer in a certain way after his decease; but the said writing is not to be regarded as a part of this will or in any sense obligatory upon the said B. W. Writing containing Request as to Porringer. To my son, B. W. I have given you by my will the silver porringer which I value so highly and now desire you to dis- pose of the same at the time of your decease in accordance with the following request. I am sen- sible of the inconvenience and, perhaps, danger of imposing a trust upon personal effects and hence FORM OF WILLS 133 have resorted to what I believe to be a simple and satisfactory method of transmission. I trust that you will select some male member of the family in the next generation, that is, one of my grandchil- dren, as the donee and recipient of the porringer upon your decease. I suggest that you give him the porringer by will to be his absolutely and that you leave a writing similar to this, separate from your will, addressed to him and containing suggestions as to his giving the porringer, at the time of his de- cease, to some male member of the family in the next generation after him. Pecuniary Legacy. I give my friend A. B. the sum of one thousand dollars, and, while the bequest is to be his abso- lutely, I trust he will dispose of the same conform- ably to a request in writing which I have already drawn up and which will be found among my papers at the time of my decease. This writing is to be regarded as in no sense a part of this will or as legally obligatory upon the said A. B. I feel confi- dent, however, that he will faithfully carry out my wishes contained therein. Writing. To my friend, A. B. I have given you by my will a legacy of one thou- sand dollars in the belief that you will dispose of the same conformably to the request I have already made to you verbally, which request I now repeat. I desire 134 TESTAMENTARY FORMS this money to go to my nephew C. D. provided his habits at the expiration of five years from the prov- ing of my will are satisfactory to you. I have entire confidence in your integrity and judgment. I sug- gest that you withhold from the said C. D. all knowledge of this paper until the said five years have elapsed, and that then, if in your opinion his character is established and his habits are satis- factory, you pay over said one thousand dollars, with any increase and accumulations, to the said C. D. to be his absolutely. I suggest that when this sum is paid over to you by my executor you invest the same in a safe bond or deposit the same in a Savings Bank. If at the end of the said five years you conclude that the said C. D.'s habits and character are such as not to justify the payment to him of the one thousand dollars and increase and accumulations, if any, I desire you to tell him just what he has lost by his bad conduct and perversity. You may then dispose of the one thousand dollars and increase and accumulations, if any, in any way you see fit, keeping it yourself or giving it to charitable and religious institutions. If you should die before the expiration of the said five years with- out leaving a will containing a provision authoriz- ing your executor or some other person to carry out my request relative to the subject, embarrassment and possible litigation might result. Let me sug- gest, therefore, if you make your will, to provide therein for the execution of my wishes as expressed above. FOKM OF WILLS 135 Bequests of Papers, Documents, etc. I give and bequeath to my friend A. B. to be his absolutely all my papers, writings, documents and memoranda, meaning thereby all my original pro- ductions, and I desire him to dispose of the same as requested by me in a letter of instructions which will be found at the time of my decease in the en- velope which contains this will. This letter of in- structions is not to be regarded as a part of this will and the carrying out of its provisions is to be in no sense obligatory upon the said A. B. Letter of Instructions. To my friend, A. B. I have given you by will all my papers, writings, documents and memoranda and you are to regard yourself as the absolute owner thereof. However, I request you to dispose of the same conformably to verbal requests, hitherto made by me, which re- quests I now repeat. I desire you to destroy all of those papers, writings, documents and memoranda which you regard of no value, and to give the rest to any historical or antiquarian society which may regard them as of value and which may care td re- ceive them. Devise of Homestead. I give and devise to my son A. B. the homestead in which I now reside, to have and to hold to him and his heirs and assigns forever. The following is an 136 TESTAMENTARY FORMS accurate description of said homestead [description]. I have left with this will for my said son, A. B., a memorandum in writing, in which I request him to devise said homestead in his own will in a certain way; but such memorandum is in no sense a part of this will nor are its provisions in any way obligatory upon the said A. B. Memorandum as to Homestead. To my son, A. B. I have given you by will the homestead, which has been in our family for over a hundred years. I confess that I take pride in the fact and I trust that it may be retained in the family for many years to come. I hope that you will not sell the same, but that you will devise it to your only son, with the view of keeping it in the family as long as possible. Pecuniary Legacy. I give my brother, A. B., the sum of Twenty Thousand Dollars to be his absolutely, and I desire him to dispose of the same conformably to a re- quest stated in a memorandum addressed to him, which will be found among my papers at the time of my decease. But said memorandum is not to be regarded as a part of this will, and the request therein is in no sense to impose any legal obligation upon him. FORM OF WILLS 137 Request as to Disposition of Pecuniary Legacy. To my brother, A. B. I have given you by will Twenty Thousand Dollars to be yours absolutely. I trust, however, that you will apply the same to promote the philan- thropic work in which we have been so long jointly interested. I impose no trust or obligation of any nature but leave you entirely free. Often counsel or wishes, which have no legal effect, may be expressed, as in the following provi- sion taken from an English will recently admitted to probate: I hereby enjoin my dearly beloved daughter and my son-in-law to observe the advice here set down for their benefit: Be saving; take very little risk and do not lend money, for my experience in this respect has been unfortunate. Rather give what you can afford and let it go at that. For other forms see pp. 500, 547, 553, 556. There is no fixed form for the commencement of a will; it should, however, be brief. An intent de- clared in the preamble of a will, for instance, "de- sirous of disposing of all my estate," may have the effect to construe a doubtful devise in the clause to carry a fee, which would otherwise carry an estate for fife only, and leave a remainder. Quincy v. Rogers, 9 Cush. 291, 295. 138 TESTAMENTARY FORMS The following are common forms : Know all men by These Presents, That I, A. B., of etc., being of sound and disposing mind and memory, do make this my last will and testament, revoking all wills and codicils by me at any time heretofore made. Know All Men by These Presents, that I, A. B., of etc., do make this my last will and testament. This is the last will and testament of me, A. B. of etc. I, A. B., of, etc., do make, publish and declare the following as and for my last will and testament. Be it remembered that I, A. B., of, etc., do make this my last will and testament, intending hereby to dispose of all the property over which I shall at my decease have a right of disposition, by appointment, will, or otherwise. I, A. B., of, etc., hereby revoke all testamentary dispositions heretofore made by me and declare this to be my last will which I make this tenth day of, etc. In the Name of God, Amen; I, A. B., of, etc., being of sound and disposing mind and memory, and mindful of the uncertainty of life, do make, publish and declare this to be my last will and testa- ment, in manner following, that is to say: CHAPTER VII DIFFERENT KINDS OF WILLS While a will may be in nearly any form, it is de- sirable that all wills should be carefully prepared and duly executed according to law. Holographic Wills. "A holographic will is one entirely written, dated and signed by the hand of the deceased." Under- bill on Wills, § 9. These wills are allowed in many States, and there are relative to them numerous statutes, which should be faithfully followed. See Remsen on Wills, 19. Nuncupative Wills. 'Nuncupative wills are those generally made by soldiers in actual military service or by mariners at sea, and relate to personal property. There are in many jurisdictions statutes on the subject, but wills of this nature are rare. Mutual and Joint Wills. "The doctrine of the principal text-writers seems to be that, when a fair and definite agreement has been entered into between two persons to make 139 140 TESTAMENTARY FORMS mutual wills, and such wills have been duly exe- cuted, neither can revoke his will without giving notice to the other of such revocation." 4 Am. Law Review, 658, and cases cited. A. made an oral promise to make a will of all his property, real and personal, in favor of B., who, in consideration thereof, agreed to make a similar will in favor of A., and made one accordingly. It was held to be a contract for the sale of lands, within the Statute of Frauds. In this case the personal estate was of minor importance, and the agreement in respect to it was not divisible from that relating to the real estate. Gould v. Mansfield, 103 Mass. 408. A joint will differs from a mutual will in this, that it is a single instrument made by two persons, and intended by them to operate as the will of both. See Schumaker v. Schmidt, 44 Ala. 454, 467. Both mutual and joint wills are not advisable. The result desired may often be effected by A. making a will giving all his property to B., and by B. making a will giving all his property to A. Then on the death of one the survivor will destroy his own will. Conditional Wills. "There are two points to be settled before a will can be rejected from probate on the ground that it is a conditional will, and that the condition has failed: first, whether the intention of the testator is to make the validity of the will dependent upon DIFFERENT KINDS OF WILLS 141 the condition, or merely to state the circumstances and inducements which lead him to make a testa- mentary provision; and, secondly, if the language clearly imports a condition, whether it applies to and affects the whole will, or only some parts of it." Damon v. Damon, 8 Allen, 192, 194. In this case the testator commenced his will thus: "I, A. B., being about to go to Cuba, and knowing the danger of voyages do make this as my last will and testament, in manner and form following : first, if by any casualty or otherwise I should lose my life during this voyage, I give and bequeath to my wife," etc., and afterwards gave independent bequests, and spoke of the instrument as his last will and testament. He made the voyage, returned, and afterwards died; it was held that the will should be admitted to probate. A devise to A., in consideration of the testator being taken good care of and well treated by A. for the remainder of the testator's life, is not a devise on condition. The maintenance of the testator is the consideration inducing him to make the will, and failure of the consideration will not defeat the will. Martin v. Martin, 131 Mass. 547. In Goods of Smith, L. It. 1 Prob. & D. 717, it ap- peared that the codicil provided, "I give my wife the option of adding this codicil to my will or not, as she may think proper or necessary." It was held that as the wife elected not to avail herself of its provisions, it ought not to be included in the probate. 142 TESTAMENTARY FORMS Concurrent Wills. Concurrent wills are those which dispose of one's property in different jurisdictions. See Underhill on Wills, § 284. Forms like the following may be inserted in wills: I expressly declare that this will applies only to my property, real and personal, situated within the United States and the territorial jurisdiction of the United States. I have already executed a will of my property in Great Britain, and I hereby declare that neither this will nor any provision herein shall be or shall be construed to be a revocation of my British will. I hereby declare that this will shall apply exclu- sively to my property, both real and personal, located in the territory and within the jurisdiction of the United States and shall in no event extend and apply to my property within the limits and jurisdiction of France. I have already disposed of all my property in France by a will duly executed according to the laws of that country, and I now declare that neither this will nor the revocation hereinafter expressed of former wills shall in any way extend to or affect my said French will. For questions as to the lex rei sitae, see p. 16. DIFFEKENT KINDS OF WILLS 143 Agreement to Make a Will. It sometimes happens that a party for a certain consideration agrees to make a will in favor of some other party. Such a stipulation for the disposition of one's property at the time of one's decease is held to be binding. Howe v. Watson, 179 Mass. 30. If the consideration is proper and the agreement is proved, specific performance is the general remedy. In some places it is provided by statute that an agreement to make a will must be in writing, and must be signed by the party whose estate it is sought to charge. Such agreements are to be dep- recated, and it is well said relative to a contract claimed to have been entered into with a person to be enforced after his death, to the detriment of those who would otherwise be entitled to the estate, "Contracts of the character in question have be- come so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them, and in enforcing them, when established, by specific performance. Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises. They are the natural resort of unscrupulous persons who wish to despoil the estates of decedents." Hamlin v. Stevens, 177 N. Y. 39, 47. Codicils. A codicil is an addition to a will and, if there are no words of revocation, revokes the will only in 144 TESTAMENTARY FORMS the precise degree in which it is inconsistent there- with. And it is a -prima facie rule of construction that an additional legacy, given by a codicil, is attended with the same incidents and qualities as the original legacy. Tilden v. Tilden, 13 Gray, 103, 108. The will and codicil are to be construed to- gether. ■Newcomb v. Webster, 113 N. Y. 191. Questions as to cumulative and substitutional gifts frequently arise in the case of codicils. If a testator proposes to make in his codicil a gift in addition to or in place of the one named in the will, he should state his intention clearly. The following are simple forms: Cumulative and Substitutional Gifts. Whereas in and by my last will and testament I gave A. B. a legacy of five thousand dollars, I now give him a second legacy of five thousand dollars, making ten thousand dollars in all. I give A. B. a legacy of three thousand dollars, which is in lieu of the legacy of two thousand dollars given him by the second article of my will dated, etc. All legacies in this codicil are in addition to the legacies given the same legatees in my will dated, etc. In other words the legacies in this codicil are addi- tional and not substitutional. When the codicil embraces a simple provision not materially affecting the will, no question is likely to DIFFERENT KINDS OF WILLS 145 arise; but the fondness of testators for codicils affecting the whole scheme of the will should not be encouraged. It is always safer to rewrite the whole will. For embarrassing questions which grew out of a will with seven separate codicils see Rich- ardson v. Hall, 124 Mass. 228; s. c. 127 Mass. 64. If, however, the codicil has been determined upon, the following points may be of service : Although in all cases of successive bequests in a will it should clearly appear whether they are in- tended to be by way of substitution or cumulative, yet still greater caution is necessary when they are given by different instruments. In such case the second is to be treated as additional to the first, in the absence of a different intention. Wainwright v. Tuckerman, 120 Mass. 232. See forms just above. The codicil should either be written upon the same piece of paper with the will, or, if on a separate piece, the two should be securely annexed. There is thus less difficulty in settling the points, should they arise, concerning reference to and identity of the other instrument. In the Goods of Terrible, 1 Sw. & Tr. 140; Allen v. Maddock, 11 Moo. P. C. C. 427. So also there is less probability of one being destroyed, defaced, or lost without the other. Even then the codicil should be made so prominent as not to escape attention. Waters v. Stickney, 12 Allen, 1. Care should be exercised in appointing in the codicil trustees, executors, etc., in the place of, or in addition to, those named in the will. In the Goods of Bailey, L. R. 1 P. & D. 628. In such cases, 146 TESTAMENTARY FORMS if the language used is not clear, nice points may arise as to the execution of powers of sale. See Pratt v. Rice, 7 Cush. 209. The greatest care is especially necessary in attempt- ing to modify or revoke a legacy given by the will. "The word 'will' does not cover or embrace the codicil where anything appears to show that it was not intended to do so." Sloane v. Stevens, 107 N. Y. 122, 127. The commencement of a codicil may be simple, as in the following form: Know all men by these presents, That I, A. B., of, etc., do make this codicil to the instrument dated, etc., and heretofore made public and declared by me as and for my last will and testament; and I do hereby confirm and ratify said last will and testa- ment in all its provisions save as changed by this codicil. Another form is given on p. 508. CHAPTER VIII DESCRIPTION OF REAL ESTATE — FEE-SIMPLE— FEE- TAIL— JOINT TENANCY — TENANCY BY THE EN- TIRETY AND TENANCY IN COMMON— ESTATE FOR LIFE OR FOR YEARS. Description of Real Estate. Accuracy of description is always desirable. Words of locality are apt to give rise to ambiguity; and also words of occupancy, as well as general names for parcels of real estate. In all cases of gifts by words of general description they should not be limited by subsequent attempts at particular de- scription, unless such appears to be the intention of the testator. In most jurisdictions it is competent to identify by parol the subject matter of the grant. While, therefore, reasonable certainty in the de- scription of real estate is all that is necessary, yet enough care should be taken to leave no doubt as to the testator's intention. An examination of the authorities shows great carelessness in devising small parcels of real estate, especially homesteads. In many cases the devises are very indefinite, and it is often difficult to deter- mine what land is intended to be included in the devise. In country districts the barn is often located across the street from the homestead. If 147 148 TESTAMENTARY FORMS the intent is to include it in the devise, that intent should be clearly stated. Mortgages are frequent, and, if they are to be assumed by the devisees, that intent should be clearly expressed. See p. 91. Where lands are situated in another jurisdiction, they should be so described from the deed that no question may arise as to locality or identity. Fee-Simple. While the word "give" generally applies as well to real as to personal estate, yet in giving real estate by will the proper word to use is "devise;" but "bequeath" may be used for "devise," and the term "residuary legatee" may pass the residuum of an estate, both real and personal. Evans v. Crosbie, 15 Sim. 600; Davenport v. Coltman, 9 M. & W. 481. A partial intestacy is not favored. Generally a devise is construed to convey all the estate the testator could lawfully devise in the land mentioned, unless it clearly appears by the will that he intended to convey a less estate. Hence the word "heirs" is no longer necessary in most States to give a fee. But as the testator may own lands situated in a jurisdiction where the word "heirs" is indispensable for that purpose, it is well to insert it, especially in the residuary clause. The reports abound in cases where the courts have had difficulty in determining whether it was the testator's intention that the devisee should take for life or in fee. These cases often arise where the FEE-SIMPLE 149 devise is for life with power to sell, which is often held to render void any limitation over; so that the first taker has an absolute fee. This is a favorite mode of devise among testators of small means, especially farmers. It originates in a desire to protect the widow, to whom the homestead is devised for the term of her natural life, with power to sell the same, if necessary, for her support, with gift over to children or others of whatever remains at the time of her decease. A few well-chosen words, clearly expressing the testator's intention as to whether the devise is of a life estate or a fee, may avoid much trouble and embarrassment. A form like the following is probably free from all ambiguity: I give and devise to my wife, A. B., and to her heirs and assigns forever the estate upon which we now reside, a particular description of which is as follows [description]. I declare and direct that my said wife shall have the absolute control and owner- ship of the said estate and to this end she may sell the same or any part of the same during her life, as she may see fit, and the purchaser shall take all the right, title and interest therein that she is capable of conveying. If at the time of my said wife's decease, said estate or any part thereof has not been conveyed by her she may devise the same by will, as she may deem best, and the devisee shall take all the right, title and interest therein that she is capable of conveying or devising. If, at the time of the decease of my 150 TESTAMENTARY FORMS said wife, said estate or any part thereof has not been conveyed or devised by will by her, then I give and devise the same not so conveyed or devised to my daughter, C. D., and to her heirs and assigns forever. But I particularly will and declare that my said daughter, C. D. is to have no interest in or control of said estate or any part thereof, except in the event of my said wife, A. B. failing to convey or devise as aforesaid, as it is my purpose that my wife's conveyance or devise is to give the grantee or devisee a full and complete title, free from the inter- ference or interest of my said daughter. This work is written upon the assumption that the testator will dispose of his entire estate, so that no questions will arise as to fixtures as between the heir and executor. Similar questions, however, may arise as between the executor and the devisee of a tenant in fee. "There seems no doubt but that if, from the nature or condition of the property devised, it is apparent that the intention was that the fixtures should go along with the freehold to the devisee, they will pass to him, although they are of such a sort that the executor might have been entitled to them as against the heir." 1 Williams on Executors, 740. See Wood v. Gaynon, 1 Ambl. 395. However, if there are any articles in the nature of fixtures so annexed to the freehold as to make it doubtful whether they are personal or real estate, the intention should appear as to whether they shall FEE-SIMPLE 151 go to the devisee of the estate, or be regarded as personal property to go to some specified legatee, or fall into the residue of the estate. The following may be used as a form in some cases: I give and devise to my brother, A. B., the house No. 63, on Exeter Street, in said Chicago, to have and to hold to him and his heirs and assigns forever, a more particular description of the premises being as follows [description]. And I hereby include in this devise all fixtures of every name and descrip- tion, including doors, window blinds, shutters, and gas fixtures, even though capable of being removed without the slightest damage to the premises and also mirrors, wardrobes, and all other articles of furniture, whether large or small, provided they are fastened to walls or floors, however lightly and insecurely. I am thus particular about this devise, as I have hereinbefore given the portable furniture in the house to another legatee. A devise to A. and his heirs and assigns forever, and "in case of his decease" to B. and his heirs and assigns forever, gives A. an estate in fee, if he sur- vives the testator, as the words "in case of the decease" are held to mean death within the life- time of the testator. Abbott v. Middleton, 7 H. L. Cas. 68, 102; Briggs v. Shaw, 9 Allen, 516. In regard to real estate subject to mortgage, it is provided in some jurisdictions that when a testator, 152 TESTAMENTARY FORMS being a mortgagee of real property or an assignee of such mortgagee, dies without having foreclosed the right of redemption, the mortgaged property and the debt secured thereby shall be personal assets in the hands of his executor or aclministrator, and shall be administered and accounted for as such; and the executor or administrator shall have the same rights of entry and of action under said mortgage as the mortgagee or his assignee. On the other hand, as we have already seen, where the real estate devised is subject to a mortgage made by the testator, the mortgage will be paid out of the testator's personal estate, in the absence of a different intention expressed in the will. See p. 91. Land is often devised charged by the terms of the will with the payment of money to a third person. Generally, in such case, the devisee takes an abso- lute estate and not one upon condition. Examples are devising real estate to A. on his paying a certain sum to B. out of the estate, or the expenses of the education of C, or giving D. his support out of the estate. This method is fre- quently resorted to in the case of small estates. It is obvious that so to charge the payment of money upon land in another jurisdiction than that of the testator may lead to trouble. See p. 16. "It is said in Hawkins on Wills, 294, that 'if legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge on the residuary real as well FEE-SIMPLE 153 as the personal estate.' This rule is founded on the decisions in Greville v. Browne, 7 H. L. Cas. 689, 696, 697; Francis v. Clemow, Kay, 435; Harris v. Watkins, Kay, 438; Wheeler v. Howell, 3 Kay & Johns. 198, 203; Cole v. Turner, 4 Russ. 376; and earlier English cases." Thayer v. Finnegan, 134 Mass. 62, 64. Perhaps devises of this nature are not often ad- visable; but if the testator desires so to charge a devise, he should bear in mind that generally the devisee by accepting the devise is personally bound for the payment of the sums charged. Amherst College v. Smith, 134 Mass. 543, 546; Loder v. Hat- field, 71 N. Y. 92. Also that the land being likewise charged with the payment of the sums and legacies, a purchaser of the land must see to the application of the purchase money, whenever the sums and legacies are distinctly mentioned in the will. Am- herst College v. Smith, supra; but not when the land is charged with the payment of debts and lega- cies generally. Gardner v. Gardner, 3 Mason, 218. When real estate is so charged with the payment of money, either in fixed sums or in annuities, pro- vision is made by statute in some States for the sale thereof, and the appointment of a trustee or the purchase of annuities. The following forms, based on actual provisions in wills, are not* commendable: Charges on Real Estate, etc. I give, devise and bequeath all the property and estate, both real and personal, of which I shall die 154 TESTAMENTARY FORMS seized and possessed and to which I may be entitled at the time of my decease and wherever the same may be situated unto my wife A. B. and to her heirs and assigns forever; and I direct that if my son C. D. attains the age of twenty-one years he shall receive from the estate so given to my wife the sum of Twenty Thousand Dollars, and, if he attains the age of thirty years, he shall receive from said estate another sum of Twenty Thousand Dollars. While these provisions are after the nature of charges on the above devise and legacy to my wife, yet they are not to be regarded as a bar to the distribution of the entire estate to her and she shall have full power, notwithstanding the above provisions for my said son, to use, transfer, exchange, sell, mortgage and reinvest the entire estate given her above as her absolute property. If my personal property shall prove insufficient to pay the pecuniary legacies given in this will or in any codicil hereto, whether such legacies are given absolutely to the legatees or in trust, then I direct that the balance or deficit shall be a charge upon my real estate. Fee-Tail. Estates in fee-tail are now known in only a few jurisdictions, having been pretty generally abolished by statute. Where the estate exists it is doubtful if a testator can deprive it of its essential incident of being liable to be barred by the simple convey- FEE-TAIL 155 ance in fee of the tenant in tail and of being liable for the payment of his debts. The same words, which, applied to real estate, will create an estate tail, when applied to personal prop- erty, will give an absolute interest. Albee v. Car- penter, 12 Cush. 382. A devise to one and his issue, whether there are or are not issue of the devisee living at the date of the will or at any other period, creates an estate tail. 2 Jarman on Wills, 329. So also a devise to one and the heirs of his body; or to one and his children, he having no children at the time, it being equivalent to him and his issue. See Remsen on Wills, 151. In some States it is now provided by statute that in a limitation of real or personal property by in- struments in writing the words "die without issue," or "die without leaving issue," or "have no issue," or "die without heirs of the body," or other words importing either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall, unless a contrary intention appears by the instrument, mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an in- definite failure of his issue. The rule in Shelley's Case has been abolished by statute in most jurisdictions. As to base and con- ditional fees, see 2 Kent Com. 10, 15. 156 TESTAMENTARY FORMS Joint Tenancy, Tenancy by the Entirety, and Tenancy in Common. "It becomes important to determine whether the beneficiaries take as joint tenants or as tenants in common, and if in common whether as individuals or as a class. If they take as joint tenants, whether as individuals or as a class, the rule of survivorship peculiar to estates in joint tenancy gives all to the survivors in any case. But if the gift is to the in- dividuals as tenants in common, and one dies before the testator, or afterwards before the gift vests, and the statutes to avoid lapse do not save it to his heirs or representatives, it does not go to the sur- viving donees, but to the residuary legatees if per- sonalty, to the heirs of the testator if land. On the other hand, if the donees take as a class, though as tenants in common, and one dies under such cir- cumstances, no part of the gift fails, but the sur- vivors take the whole. When the persons to take are named, and there is no other sufficient designa- tion of them, they must of necessity take as individ- uals, and it is not material that they do not in fact constitute a class. On the other hand, if the persons to take can be ascertained only by inquiring who answer a general description, there being no other sufficient designation of them, they necessarily take as a class, and those who take take all." Rood on Wills, § 479. A gift to a husband and wife concur- rently is regarded at common law as conferring an estate by the entirety, so that on the death of either the survivor succeeds to the whole estate. This is JOINT TENANCY 157 now quite generally modified by statute and is the law in only a few jurisdictions. In some States it is provided by statute that a conveyance or devise of land to two or more persons, or to husband and wife, except a mortgage or a de- vise or conveyance in trust, shall create an estate in common and not in joint tenancy, unless it is ex- pressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy. Whatever may have sometimes been held in regard to certain common-law convey- ances, it has ever been considered a settled rule in the construction of a will that where a testator gives to two or more property real or personal, "equally to be divided," or "share and share alike," or "in equal shares," or other equivalent expressions indi- cating an intent that the objects of his bounty shall have their respective shares of the entire thing granted, this shall be deemed a tenancy in common, and not a joint tenancy, unless there be other ex- press provisions, showing a clear intention on the part of the testator that they shall take as joint tenants, or that the survivor shall take the whole. Bac. Abr., Joint Tenants, F. Two corporations "cannot be joint tenants. If they jointly own land, they are tenants in common of the same." 1 Wash- burn, Real Property (5th ed.), 676. "By the rule of the common law, as settled in many cases, when 158 TESTAMENTARY FORMS a legacy is given to two or more persons, and there are no words of severance of the interests, the lega- tees will take as joint tenants, unless from the whole will a contrary intention is indicated." Tillinghast v. Cook, 9 Met. 143, 146. Estates in joint tenancy are not frequent, the chief characteristic being survivorship. Hence there is neither dower nor curtesy in such estates, and the interest cannot pass by will unless the testator sur- vive his co-proprietor. Estates in common are fre- quent and are productive of friction and litigation. The disposition of co-owners to disagree is aggravated by questions relating to use and occupation, rent, ac- counting, taxes, repairs and improvements, incum- brances, attachments and levying executions, waste, crops and profits, dower and curtesy, etc. Parti- tion is expensive and frequently unsatisfactory, and additional difficulties are often imposed by the death of a co-tenant and the taking of his place by his heirs or devisees. If these matters are brought to the attention of a testator, not only in the case of a specific devise but in the case of the residue given to more than one devisee, he may see fit to make provision so as to avoid any owning in common. As to powers of sale given to trustees as joint ten- ants, see p. 336. As to the duties of trustees in con- veying real estate to remaindermen as tenants in common, see p. 440. ESTATE FOR LIFE OR FOR YEARS 159 Estate for Life or for Years. As to Real Estate. In most jurisdictions the rule in Shelley's Case is abolished, and it is provided that if land is granted or devised to a person, and after his death to his heirs in fee, however the grant or devise is expressed, an estate for life only shall vest in such first taker and a remainder in fee-simple in his heirs. See p. 155. As already seen, it is sometimes difficult to deter- mine whether a power of sale given to a life tenant renders any limitation over void. See p. 148. If it is intended in such case that the first taker shall have power to mortgage as well as sell, such inten- tion should clearly appear. In many places by statute a life tenant may be taxed as the owner of land. Often it may be well to bring to the attention of a testator the fact that damages may be assessed to the property of life tenant and remainderman in case of laying out and discontinuance of ways. In some jurisdictions a life tenant is authorized to re- move fixtures. While a testator may provide that debts and legacies shall be charged upon a life estate, or that charges may be made upon rents, yet such provisions are plainly not advisable. See Fearing v. Swift, 97 Mass. 413; Nudd v. Powers, 136 Mass. 273. Testators sometimes empower life tenants to make leases, and there are statutory provisions upon the 160 TESTAMENTARY POEMS subject in some States. It is evident that the exe- cution of such a power is a delicate matter and is only\advisable in special cases. The following is offered as a form: I hereby authorize and empower every life tenant under this will to lease the premises devised to him for life or any part thereof for the term of five years or any less period from the date of the lease, irrespec- tive of any consent of the remaindermen, each lease to provide for the payment of rent to the tenant for life and after his decease, if he dies before the ter- mination of the lease, then to the remaindermen, and to contain reasonable covenants, among others, for the removal of improvements by or the payment for the same to the lessees, provided the rent is duly paid. As to Personal Property. While personal property may be given to one for life with remainder to another absolutely, yet it is a fixed rule of law that personal property cannot be given to one in tail with remainder over. A bequest of the use of money to one for life and then over is a gift of the interest only, and not an absolute gift of the principal. Field v. Hitchcock, 17 Pick. 182. Where one is given for his life the use of things which are necessarily consumed by their use, the gift is absolute and the limitation over is void. Merrill v. Emery, 10 Pick. 507, 512. It is a general rule that words which give a fee in ESTATE FOR LIFE OR FOR YEARS 161 real estate will give an absolute property in personal estate. Ordinarily, an unqualified gift of the use, income, and improvement of personal estate vests an abso- lute interest. Hatch v. Bassett, 52 N. Y. 359; Chase v. Chase, 132 Mass. 473. "The doctrine is well settled, that if a legacy is given generally, but subject to a limitation over upon a subsequent event, the divesting contingency will not prevent the legatee from receiving his legacy at the end of the year from the testator's death. Se- curity is required in such cases only when it is shown to the court that there is danger that the property will be wasted, secreted, or removed by the first taker. Homer v. Shelton, 2 Met. 194; Fawkes v. Gray, 18 Ves. 131; 2 Williams on Executors, 1192." Fiske v. Cobb, 6 Gray, 144, 146. The above method is not one to be encouraged; and it is evident that if it is the intention of the testator that the first taker should not have the possession of the property, provision should be made for a trustee. The following form, taken from an actual will, is of the kind to be avoided: I give to my daughter, A. B., for and during her natural life, the possession, control, management, use, income and profits of the securities and bonds men- tioned and described [in a schedule] so that she shall be entitled to receive and apply to her own use, during her natural life only, the entire income of the said securities and bonds, and I direct that my said 162 TESTAMENTARY FORMS daughter shall not be required to give any inventory thereof, nor any security for the safe keeping or pres- ervation of the same. Upon the death of my said daughter, leaving issue her surviving, I give and bequeath the said securities and bonds, or any se- curities or property, into which the same may have been converted, unto such issue, if more than one, share and share alike, the issue of any deceased child to take per stirpes and not per capita. To give a life interest in a residue or .in the testa- tor's entire estate without creating a trust and ap- pointing a trustee is not as a rule advisable. For example, a provision like the following is extremely unwise: I give and devise to A. B. all the rest, residue and remainder of my estate, both real and personal and wherever the same may be situated, to have and to hold the same for and during the term of his natural life and upon his decease to C. D. to have and to hold the same to him and his heirs and assigns forever. CHAPTER IX CONDITIONS PRECEDENT AND SUBSEQUENT— VESTED AND CONTINGENT REMAINDERS— EXECUTORY DE- VISES AND PERPETUITIES Conditions Precedent and Subsequent. There are many decisions upon conditions and the results are often far from satisfactory. Some form of conditional limitation is generally preferable, al- though it is to be noted that the rule against per- petuities does not apply to a right of entry for a breach of condition subsequent. Sugd. Vend. (14th ed.) 596; Cowell v. Springs Co., 100 U. S. 55. "No precise form of words is necessary, in order to create conditions in wills; any expression disclos- ing the intention will have that effect." 2 Jarman on Wills, 841. Nevertheless apt language should be used. "Different words are required for the creation of a condition and a limitation respectively. The use of the following words in a will or deed make a condition: Upon condition; -provided always; so that; that if it happen; and the following words if used in a will, will create a condition, though not if they occurred in a deed: that he shall do; on his doing; with that intention; to the effect; for the purpose. Proper words of limitation are: while; so long as; until; pro- vided that; so that; as long as; wheresoever; as far as; 163 164 TESTAMENTARY FORMS up to; so long. We thus see that, while acts generally form the essence of a condition, time generally forms that of a limitation; and the exact difference between these terms is well expressed by saying that the for- mer is damnum datum, whereas the latter is merely lucrum cessans." Flood on Wills, 448. "If the lan- guage of the particular clause, or of the whole will, shows that the act on which the estate depends must be performed before the estate can vest, the condi- tion is of course precedent; and unless it be performed the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent." Marshall, C. J., in Finlay v. King, 3 Pet. 346, 375. A provision that upon a breach of the condition the property shall revert to the testator's estate, creates a condition simply; but if it is further pro- vided that it shall be disposed of under the will as if no original devise upon condition had been made, a conditional limitation is created. Society for Pro- moting Education v. Attorney-General, 135 Mass. 285, 287, 288. Generally, when a condition precedent becomes impossible to be performed, even though there be no default or laches on the part of the devisee himself, the devise fails. 2 Jarman on Wills, 12. "If the condition subsequent be possible at the time of making it, and becomes afterwards impos- sible to be complied with, either by the act of God, CONDITIONS PRECEDENT AND SUBSEQUENT 165 or of the law, or of the grantor; or if it be impossible at the time of making it, or against law, the estate of the grantee, being once vested, is not thereby devested, but becomes absolute." 4 Kent Com. 130. A condition precedent must be performed within a reasonable time, when no time is fixed for its per- formance, it being dependent upon the will of the legatee. Drew v. Wakefield, 54 Me. 291. And the same rule applies to a condition subsequent. Ross v. Tremain, 2 Met. 295. "Every condition to defeat an estate must be construed strictly." Hadley v. Hadley Manfg. Co., 4 Gray, 140, 145. "There is a further distinction in the nature of estates on con- dition, and those created by conditional limitation, which it may be material to notice. Where an estate in fee is created on condition, the entire interest does not pass out of the grantor by the same instru- ment or conveyance. All that remains, after the gift or grant takes effect, continues in the grantor, and goes to his heirs. This is the right of entry, as we have already seen, which, from the nature of the grant, is reserved to the grantor and his heirs only, and which gives them the right to enter as of their old estate, upon the breach of the condition. This possibility of reverter, as it is termed, arises in the grantor or devisor immediately on the creation of the conditional estate. It is otherwise where the estate in fee is limited over to a third person in case of a breach of the condition. Then the entire estate, by the same instrument, passes out of the grantor or 166 TESTAMENTARY FORMS devisor. The first estate vests immediately, but the expectant interest does not take effect until the hap- pening of the contingency upon which it was limited to arise. But both owe their existence to the same grant or gift; they are created uno flatu; and being an ultimate disposition of the entire fee, as well after as before the breach of the condition, there is nothing i left in the grantor or devisor or his heirs. The right or possibility of reverter, which, on the creation of an estate in fee on condition merely, would remain in him, is given over by the limitation which is to take effect on the breach of the condition." Brattle Square Church v. Grant, 3 Gray, 142, 147. It is not intended to treat the subject of condi- tions at length but to call attention to some of the important points and subjects. 1. Payment of Legacies. Where the time of payment is postponed, the testator should clearly indicate whether the legacy is to vest immediately upon his decease, or whether time is to be annexed to the substance of the gift, as a condition precedent. In most cases, perhaps, it would be better to create an absolute trust; but if the testator does not prefer to do this, he should make the matter of vesting so clear that no question may arise as to the disposition of the legacy, if the legatee dies before the arrival of the time when the legacy is to be paid to him. If the legatee dies before that time and the provisions of the will are not clear, the question often is whether CONDITIONS PRECEDENT AND SUBSEQUENT 167 the legacy falls into the residuum of the testator's estate or is so vested as to pass to the legatee's administrator or executor. The following are offered as forms: Payment of Legacies on Condition. I give to my son A. B. the sum of ten thousand dollars, to be paid to him at the time of my decease, if he shall then have arrived at the age of twenty-one years; if he shall not then be twenty-one years old, the same to be paid to him when he shall attain that age. I also give to him the sum of ten thousand dollars to be paid to him when he shall attain the age of twenty-five years and a further sum of ten thousand dollars, to be paid to him when he shall attain the age of thirty years. I particularly declare that all the above legacies are to vest in my said son at the time of my death and that only the time of payment is postponed until he shall reach the ages respectively prescribed. I give to my son A. B. the sum of five thousand dollars to be paid to him when he is twenty-five years of age. This legacy is to vest in the said A. B. at the time of my decease. I give to A. B. a legacy of five thousand dollars to be paid to him when he' arrives at the age of twenty-one. If he die before that time, then this legacy of five thousand dollars shall fall into and become a part of my residuary estate. 168 TESTAMENTAET FOKMS In the above cases it would probably be the duty of the executor to retain the money and finally pay it over as directed. Sometimes conditions as to approval are imposed, as in the following forms : Conditions as to Approval. I give my nephew A. B., the sum of one thousand dollars to be safely invested and paid to him with interest upon his attaining the age of twenty-five years, provided that my executor regards him at that time as worthy to receive the same. Otherwise I direct my said executor to pay the said sum with interest to the Little Wanderers' Home of, etc. I give my grandson A. B. the sum of Five Thou- sand Dollars to be prudently invested by my exec- utor and paid by him with accrued interest to the said A. B., on his reaching the age of thirty years, provided that his father, my son C. D., shall in his discretion, approve in writing of such payment at that time. If he does not so approve in writing at that time, then I direct my said executor to pay said Five Thousand Dollars with accrued interest to E. F., the sister of C. D. to be hers absolutely. Courts favor the vesting of legacies; but if a testator really intends that a devise shall be upon condition precedent, as, for example, a devise to a son upon condition precedent that he attain to the age of thirty years, provision should be made as CONDITIONS PRECEDENT AND SUBSEQUENT 169 to the disposition of rents and profits between the death of the testator and the vesting of the estate; and also as to the preservation of the estate in case the devisee die before attaining the required age. "Whilst estates remain contingent, those in whom they are at a future time to be vested, have no in- terest in the estates, or the rents and profits of such estates. Such estates must descend to the heir, if they are not given to any person to hold until the events happen, on which they are to become vested. . . . Testators who create contingent estates often forget to make any provision for the preservation of their estates, and for the disposition of the rents and profits in the intermediate period, between their deaths and the vesting of their estates. In such cases, the estates descend to the heirs, who, know- ing that they are to enjoy them only for a short period, and that they have obtained the possession of them from the inattention of, and not from the bounty of the testator, or from the mistake of the professional man who drew the will, will make the most that they can of them during the time that they remain theirs, regardless of any injury that the estates may suffer from their conduct." Duffield v. Duffield, 3 Bligh, n. s. 260, 330. In such case it is advisable to provide for an intermediate estate for years or to create a trust. If such a devise without a trustee is determined upon, forms like the following may be used: 170 TESTAMENTARY FORMS Devises without a Trustee. I give and devise the lot of land of about one acre upon the north east corner of A. and B. streets in the city of etc., and the house located on said lot to my son C. D. upon his attaining the age of twenty- one years. I intend this as an absolute devise to him and his heirs and assigns forever. If he be under twenty-one years of age at the time of my decease then I give my brother E. F. the use and improvement of said house and lot until my said son attains his majority, with the privilege of rent- ing or occupying the same, as he may deem best, provided that during his ownership he keeps the premises reasonably insured for his benefit and that of my said son A. B. as their interests may appear, and pays all taxes and similar assessments and makes good all depreciation. I give and devise my farm of sixty acres and the buildings thereon to my son A. B. upon his reach- ing the age of thirty years. Said farm is located in the town of etc., and is bounded and described as follows [description]. It is my intention that the title to said farm shall vest absolutely in my said son A. B. and I hereby give and devise the same to him and his heirs and assigns forever. If he be under thirty years of age at the time of my decease, then I give his mother C. D. the use and improve- ment of said farm until he arrives at said age of thirty years, with the privilege of occupying the house and cultivating and running the farm. I CONDITIONS PRECEDENT AND SUBSEQUENT 171 desire her during that period to keep the buildings insured, pay all taxes and make good all deprecia- tion of the buildings. It is my hope and wish that my son may live with his mother and assist in the cultivation and management of the farm. 2. Devises Charged with the Payment of Legacies or the Expenses of One's Education. We have already seen that, if land is devised charged by the terms of the will with the payment of money to a third person, generally the devisee takes an absolute estate and not one upon condi- tion. See p. 152. Perhaps it is better in most cases where the testa- tor desires to provide for the education, mainte- nance and support of others, to create a trust. See p. 406. If, however, it is intended that the devise shall be upon condition subsequent, the language used should clearly express that intention. It is a general rule that if a testator creates a charge upon the devisee personally in respect of the estate de- vised, he takes it upon that condition, and becom- ing thus subject to the burden imposed, he acquires thereby, and without words of limitation, an estate of inheritance by necessary implication; and this on the principle that otherwise, what must legally be considered as having been intended as a benefit, might justly be changed into a positive disadvantage and loss. 4 Kent Com. 540; 6 Cruise Dig. tit. 38, c. 11, §§ 65 et seq. 172 testamentary forms 3. Legacy to an Executor or a Trustee. If the will contains a gift to an executor or trustee eo nomine, his qualifying and acting as such is an implied condition precedent to the gift. This is very important; for if the gift is intended as a mark of personal regard, to be paid to the ex- ecutor or trustee independently of his accepting and qualifying as such, that intention should be expressed. "The authorities cited fully sustain the position taken by the residuary legatees, that, when be- quests are made to individuals in the character of trustees or executors, and not as marks of personal regard only, the legacies are held to be given on an implied condition, namely, that the persons named clothe themselves with the character in respect of which the benefits were intended for them. It is also an established rule that bequests to individuals who are executors are considered prima facie to be given to them in that character; a presumption to be repelled by the nature of the legacies, or other circumstances arising in the will. Roper on Lega- cies, 780; Slaney v. Watney, Law Rep. 2 Eq. 418. It is so, even if the persons are described in the legacy as 'my good friends'; Read v. Devaynes, 3 Bro. Ch. 95; or if the legacy is given in the will among other legacies; Calvert v. Sebbon, 4 Beav. 222; or if it is given in a codicil naming the person as an individual, and not naming his office. Stack- pole v. Howell, 13 Ves. 417." Kirkland v. Narra- more, 105 Mass. 31, 32. CONDITIONS PRECEDENT AND SUBSEQUENT 173 The following forms are believed to cover most cases which are likely to arise: Legacies to Executors or Trustees. I give and bequeath to A. B. the executor of this will the sum of Ten Thousand Dollars as an expres- sion of friendship and esteem or in other words this legacy is to be paid to him in any event and is not dependent upon his qualifying as executor of this will in the probate court. He is to receive for his services as executor such compensation in addition to the legacy as the court may allow. I give to A. B. a legacy of Five Thousand Dollars to be paid to him only in the event of his qualifying as executor of this will. If he should die before his duties as executor are fully discharged, then the legacy, if not collected, shall be paid to his estate. He shall be entitled in addition to this legacy to such compensation for his services as executor as is usual and proper. I give A. B. and C. D., the executors of this will, each a legacy of Ten Thousand Dollars to be paid to them only in the event of their qualifying as ex- ecutors of this will and to be received by them in full satisfaction of all claims they may have against my estate for their services as executors. If either of them shall die before the estate is entirely settled, and the legacy has not been paid to him, then it shall be paid to his legal representatives; and the 174 TESTAMENTARY FORMS survivor shall continue to act as sole executor until my estate is settled. I give A. B., the trustee under this will, a legacy of Three Thousand Dollars, as a mark of my esteem, and this legacy is to be paid to him whether he does or does not qualify in the probate court as trustee. I give and bequeath the sum of Two Thousand Dollars to A. B., whom I have already appointed trustee under this will, and, as the trust estate is a small one and the trust will terminate in a few years, I give him this legacy only on the conditions that he qualifies as trustee and makes no charge for his services during the continuance of the trust. The legacies to executors and trustees named in this will are not dependent upon any condition, but are to be paid to them even if they should decline their trusts and fail to qualify either as executors or trustees in the Probate Court. Other forms are given on pp. 503, 513. 4. Restraint op Marriage. The origin and history of the common and canon law in respect to gifts in restraint of marriage are reviewed in Chapin v. Cooke, 73 Conn. 72. As a rule, a condition subsequent in a will in general re- straint of the marriage of a legatee is against public policy and is void. A gift by will of the testator's CONDITIONS PRECEDENT AND SUBSEQUENT 175 entire estate to bis wife "so long as she remains my widow" with no other disposition thereof in the event of her marrying again, was held not invalid as being in restraint of marriage in Knight v. Mahoney, 152 Mass. 523. "We are of the opinion, therefore, that the daughter's marriage without the consent of her mother, was a breach of the condition. The consent of the executor alone was not sufficient. The testator required the consent of both the mother and the executors." Hogan v. Curtin, 88 N. Y. 162, 170. As a rule, it is safer not to make the gift dependent upon an absolute condition, but to limit it over to another upon the marriage of the first taker. Stivers v. Gardner, 88 Iowa, 307; Bostick v. Blades, 59 Md. 231; Green v. Hewitt, 97 111. 113; Overton v. Lea, 108 Tenn. 505. The following forms may be used: Legacies and Devises Depending upon Marriage. I give and devise the farm upon which I reside in the town of, etc., to my wife, A. B., to be hers as long as she remains my widow. The said farm is described as follows [description]. In the event of the marriage of my said wife her ownership of said farm shall cease and I then give and devise the same to my brother, C. D. and to his heirs and assigns forever. I specifically declare that if any of my children shall marry without the written consent of the 176 TESTAMENTARY FORMS trustees under this will, or their successors, the in- terest of such child as beneficiary in any trust under this will shall cease, the trust shall terminate and the principal thereof shall go, discharged of all trust, to the person or persons entitled to the same on the death of such child unmarried or having married with the written consent of said trustees or their successors. It is my desire that my daughter A. B. shall marry only with the consent of C. D., her trustee. In the event of her so marrying, I authorize and direct him to pay to her before marriage from the capital of the estate held in trust for her the sum of Ten Thousand Dollars, with which to provide a marriage outfit and furnish any house she may select as a home; and such payment shall reduce the capital of the trust estate to the amount thereof. My said trustee shall not be required to see to the application of the money so paid to her or be held answerable in any way for the application thereof. If my said daughter shall marry without the consent of my said trustee, no advance or payment from the capital of the trust estate is to be made to her. It is my desire that my daughter A. B. shall marry only with the consent of C. D., her trustee. In the event of her so marrying, I authorize and direct him to purchase a dwelling-house, furniture and household effects from the principal of the trust and convey and transfer the same to the said CONDITIONS PKECEDENT AND SUBSEQUENT 177 A. B. and her heirs and assigns forever, expending for the purpose not exceeding Twenty Thousand Dollars; and the principal of the trust shall be re- duced to the amount so expended. While the de- cision of my said trustee as to the location, style and character of the house shall be conclusive, I trust that he will consult with my said daughter and as far as possible be governed by her wishes. Sometimes a sum of money is charged by a testator upon a devise as a marriage portion, subject to the condition of marrying with the consent of the dev- isee or some other person. Such a provision is not advisable as embarrassments may arise from incumbering the real estate. A better way is to give the amount to a third person in trust to pay it with accumulations to the beneficiary, if she marries with the trustee's approval, within a certain period, and, if she does not so marry, then to a remainder- man, discharged of all trust. As to marriage por- tion, see form on p. 552. 5. Restraint op Alienation. A condition in a devise that the devisee shall not alienate is void; so also a condition to restrain or prohibit the operation of an attachment and levy of execution. Turner v. Hallowell Sav. Inst., 76 Me. 527; Lovett v. Gillender, 35 N. Y. 617; Cush- ing v. Spalding, 164 Mass. 287, 290. This subject is fully and ably discussed in Gray's Restraints on 178 TESTAMENTARY FORMS Alienations, §§ 104-278. For alienation of income, see p. 395 et seq. 6. Conditions not to Dispute Wills. "The law relating to conditions in wills imposing forfeitures of benefits thereunder on those contest- ing the will is in a state of confusion in England and America." Rood on Wills, § 615. Of course, a con- dition imposed in a will that legatees who shall con- test it shall forfeit their legacies applies only to those who would be entitled to the property under the laws relating to the distribution of intestate estates or to those claiming under another will. In certain "cases the courts have held such provisions not effective to defeat the gift to one contesting the will, because there was no gift over to any one else on the violation of the provision, which is therefore to be treated as merely in terrorem ; which is a convenient expression invented by the courts to excuse them- selves from giving a reason for disregarding the plain directions of the testator. This evasion has been carried so far as to hold that a direction in the will that on the happening of the event the devise or bequest should become a part of the residue, is not a gift over to any one else." Rood on Wills, § 620. See 2 Thomas's Law of Estates Created by Will, 1117; Theobald's Law of Wills (7th ed.), 624. A gift over is, perhaps, generally advisable; and in the case of a residuary legatee a special provision should be inserted, because, if the residuary legatee CONDITIONS PRECEDENT AND SUBSEQUENT 179 contests the will and fails and the condition is held to be good and there is no gift over, the residuum becomes unbequeathed or undevised property. The following are offered as forms: Conditions not to Dispute Will. If any legatee under this will contests the probate thereof or, after it has been admitted to probate, interferes in any way, either by personal action or by court proceeding, with the executors or with the free exercise of their discretion in the settlement of my estate, then I revoke and declare void the legacy to such legatee, and the same shall fall into the re- siduum of my estate. If any person named as legatee, or cestui que trust in this will or in any codicil hereto shall oppose the probate of the same before the surrogate or in any other tribunal whatever or shall even initiate legal proceedings to set aside the same and after- wards discontinue such proceedings without a hear- ing, then I revoke the legacy, or other interest given herein, to such person and direct that the legacy so revoked shall go to my friend, A. B. to be his abso- lutely and that the income so withdrawn from the cestui que trust shall be equally divided among his co-beneficiaries. If any legatee under this will or any codicil hereto shall oppose the probate of such will or codicil or shall in the most indirect way contest or be con- 180 TESTAMENTARY FORMS cerned in contesting the same, then I revoke the legacy herein given to such legatee and give the same to the People's Hospital of, etc. If any legatee or devisee under this will except my wife (the residuary legatee and devisee) shall take legal steps to prevent the probate of this will or any codicil hereto or shall in any way be con- cerned in contesting the same, then I cut off such legatee or devisee from any share or interest in this will or any codicil hereto and order and direct that such legacy or devise so revoked shall fall into the residuum of my estate and go to my residuary legatee and devisee. If any person named as a legatee or beneficiary in this will or any codicil hereto objects to or opposes the probate of the same or takes action in any court to have the same set aside and annulled or, on re- quest of my executors, declines to sign any applica- tion to the proper tribunal for the allowance of this will or any codicil hereto, then I revoke and declare void the legacy, share or interest given to such legatee or beneficiary in this will or any codicil hereto and give such legacy, share or interest to A. B. of etc. If my son A. B. whose interest in this will is given in trust as hereinbefore provided shall oppose in any way and in any tribunal the probate of this will or shall question in any way or in any tribunal the validity of the said trust, then I revoke and cancel CONDITIONS PRECEDENT AND SUBSEQUENT 181 the same and bar the said A. B. from any interest whatever under this will or from any share of my property; and I give and bequeath the Fifty Thou- sand Dollars, which was to constitute the principal of said trust and over which the said A. B. was given a power of appointment, to my two other sons C. D. and E. F. to be equally divided between them to be theirs absolutely. I declare that, if any legatee or devisee under this will, except the residuary devisee and legatee, shall dispute the probate thereof or in other words shall endeavor to have this will declared void in any court for any reason whatever, the legacy or devise given herein to him or her shall itself be void and shall fall into the residue of my estate. I also de- clare that the commencement by any legatee or devisee of proceedings against the validity of this will shall be sufficient to cause such forfeiture of the legacy or devise, and that the legatee or devisee shall not be entitled to claim the same on the ground that he or she afterwards abandoned the proceedings and consented to the probate of the will. If my residuary devisee and legatee shall dispute the pro- bate of this will as above stated, I direct that the residuary devise and legacy to him shall be void, and I nominate and appoint A. B. my residuary devisee and legatee, etc. If any legatee or devisee under this will, except the residuary legatee and devisee, disputes the same 182 TESTAMENTARY FORMS by oppbsing its probate, either in the Probate Court or in any other Court, the legacy or devise given him or her herein shall be void and shall fall into the residue of my estate. If my residuary devisee and legatee shall dispute the probate of this will, as above stated, I direct that the residuary devise and legacy to him shall be void, and I nominate and appoint A. B. my residuary devisee and legatee, etc. If any legatee, devisee, cestui que trust or re- mainderman named and provided for in this will shall threaten to contest or shall actually contest the probate of the same or shall in any way question my motives and acts in preparing and executing this will, then such legatee, devisee, cestui que trust or remainderman shall forfeit all interest under this will and the legacy, devise or other provision made for him shall be void. In such case the legacy or devise shall fall into the residuum of my estate, the interest of the cestui que trust having ceased the trust shall terminate and the principal, discharged of all trust, shall be paid to those entitled thereto upon the termination of the trust as hereinbefore provided; and the interest of the remainderman being determined, the trust shall continue and only terminate at the period hereinbefore stated and provided for when the principal, discharged of all trust, shall fall into the residuum of my estate. The following is taken from the will of a well- known man: CONDITIONS PKECEDENT AND SUBSEQUENT 183 Although I have full confidence in the affection of my kindred, and believe that it would be the pleasure of each one of them to promote the objects, to which I have by this my last will and testament dedicated the greater portion of my fortune, yet, nevertheless, in the exercise of ordinary prudence, it is my duty to guard fully against the effects of any evil counsel or influence, which may seek to disturb any of the provisions of this my last will, therefore I do further direct, and declare, that if any person named in this my last will and testament, and to whom, or for whose use, I have made any devise, or bequest, or any person claiming through, under, or in trust for such person, shall, at any time, during the life of such person, or within twenty-one years after the death of the said person, dispute the validity of this my last will, or of any of the dispositions herein, or in any codicil hereto, contained, or shall at any time, during such period as aforesaid, refuse to con- firm this my will, or any codicil hereto so far as he, she, or they lawfully can, or to do such acts and things, as to him, her, or them can be reasonably demanded for giving full effect to all, or any of such dispositions or if any proceeding whatever, shall, at any time, during such period as aforesaid, be taken with the consent, or connivance of any such person, or persons, as aforesaid, by means, or in consequence of which, any estate, or interest could be in any way attainable by such person, or persons, as aforesaid, of larger extent, or value, than is or shall be by this my will, or any codicil hereto, given to the said 184 TESTAMENTARY FORMS person or persons, and such proceeding shall not be formally and at once disavowed, stayed, or resisted by the said person, or persons as aforesaid, to the full extent of his or their power and ability so to do, then and in such case, all the dispositions herein, or in any codicil hereto contained, in favor of the said person, or persons shall cease, and be void to all intents and purposes whatsoever, and are hereby revoked accordingly. [Gift over.] Other forms will be found on pp. 562, 584. 7. Conditions as to Residence. "A gift of property to one for a home, or with other doubtful expression, will not be treated as a condition, and the property is not forfeited by living elsewhere. When the provision is clearly a condi- tion the courts incline to give it as narrow a con- struction as possible. And a condition as to residence may be void on grounds of public policy, as if prop- erty should be given to a woman whose husband's business kept him in New York, on condition that she should reside only in Europe till death or divorce from her husband, it being evident that the purpose was to separate her from her husband. But any reasonable condition as to residence is generally held valid, and failure to perform the condition will defeat the estate, whether the gift is of realty or personalty, and whether the condition is precedent or subsequent. Whether the acts done amount to breach or performance is often a difficult question. CONDITIONS PRECEDENT AND SUBSEQUENT 185 In determining it the courts consider the purpose of the testator." Rood on Wills, § 626. Sometimes the condition is as to residence on a particular farm or in a particular house. Talbott v. Hamill, 151 Mo. 292; Casper v. Walker, 33 N. J. Eq. 35; Jenkins v. Merritt, 17 Fla. 304. And sometimes as to residence in a particular locality or country. Jenkins v. Horwitz, 92 Md. 34. Such restrictions as to resi- dence are generally not advisable, as the future is so uncertain. It is well to provide, however, if such condition is determined upon, that on breach of it the estate be given to another. In one case a testator provided that certain in- come should be paid to a granddaughter for life "provided she shall reside within the State of New York; but in case she shall not reside therein," then a certain part of said income was to be paid to her and the residue to another. In another case, after giving the use of a certain residence for ten years the testator provided, "It is my will and intention that the privilege of occu- pancy above mentioned, shall be personal to the said A. B., and shall not be assignable or transfer- able voluntarily, or by judicial or other sale, and that it shall extend only to the occupancy of said premises for the purposes above mentioned." 8. Gifts to Servants, Employees, etc: A legacy is frequently given on condition that the legatee is in the testator's employ at the time of his decease. White v. Massachusetts Institute, 171 Mass. 186 TESTAMENTARY FORMS 84, 97. The following are offered as forms, and a few forms are also given where no condition is attached. Gifts to Servants, Employees, etc. I give and bequeath to each servant or employee who may be at the time of my decease in my service in and about both my residence in the city of Chicago and my country estate in the town of Luneburg, the sum of Five Hundred Dollars. I give and bequeath to each servant who at the time of my decease may be in my employ at my residence in the city of Philadelphia, fifty dollars for each year that he or she shall have so been in my continuous employ prior to my decease. I mean and intend for these legacies to apply alike to house and out-door servants. I give A. B. who has been in my service for many years a legacy of One Thousand Dollars as a recogni- tion of faithful devotion to my interests. I give and bequeath to A. B., provided she is in my service at the time of my decease, the sum of One Thousand Dollars. I give and bequeath to A. B., who has been in my service for many years, the sum of One Thousand Dollars. This legacy is to be paid to her whether she be or be not in my service at the time of my decease. CONDITIONS PRECEDENT AND SUBSEQUENT 187 I give and bequeath to my executors the sum of Ten Thousand Dollars to be divided in such pro- portions as they may determine on the basis of length of service among the persons living at the time of my death and in my employ in and about my city residence and stable and my country seat, grounds and stables. I give and bequeath to each person who may be in my employ in my country-house at the time of my decease a sum equal to his or her salary for the year preceding that event. I give and bequeath to each person who may be in my employ in my country-house at the time of my decease and who has so been in my employ for a period of not less than five years previously thereto the sum of Two Thousand Dollars. In recognition of the faithful service of my book- keeper A. B., I give and bequeath to him the sum of Five Thousand Dollars; and, if he die before me, I give and bequeath the same to his wife, CD. If A. B. is in my employ at the time of my decease, I give him the sum of Five Hundred Dollars. If he dies before me while in my employ and leaves issue living at the time of my decease, then I give the said Five Hundred Dollars to such issue to be equally divided among them. 188 TESTAMENTARY FORMS I give my executors ten thousand dollars and request them to distribute it among those living at the time of my decease who shall have been em- ployed by me in my business for a continuous period of twenty years before my decease. I desire that the distribution shall not be equal but that those who have suffered from any misfortunes, such as illness, etc., or have been so situated that they have been unable to accumulate anything or have ac- cumulated very little shall receive larger shares than those who have been more fortunate and successful. My executors are to use their discretion in making the distribution, and their judgment is not to be questioned by any one and the distribution is to be absolutely binding upon my estate. I particularly exempt from participation in this division any employee who is named as a legatee in any other part of this will. 9. Various Conditions. If a legacy is given on condition that it shall not be paid unless the estate reaches a certain amount, it may be well to state that that amount shall be determined by the final account and that the ap- praisal shall give the fair market value of the assets. As to a devise "upon condition that no intoxicat- ing drinks shall ever be sold upon said premises by said devisees and legatees, and in case said condition is not kept or fulfilled, then said devises and bequests to revert," etc. See Nudd v. Powers, 136 Mass. 273, 274, 276. VESTED AND CONTINGENT REMAINDERS 189 Vested and Contingent Remainders. As the words "heirs," "children," etc., are such indefinite terms, an attorney when drawing a will should constantly bear in mind the leading rules of law relating to both contingent and vested re- mainders. An estate can be devised in remainder defeasible upon the happening of a condition subsequent, as, for example, a devise to a wife for life, and after her death to be equally divided among the testator's five children (named), and, provided any of the five die before the wife, then to be equally divided among the survivors. Blanchard v. Blanchard, 1 Allen, 223; McArthur v. Scott, 113 U. S. 340. See Phipps v. Ackers, 9 CI. & Fin. 583; Ackers v. Phipps, 3 CI. & Fin. 665; Phipps v. Williams, 5 Sim. 44. "When an estate is limited to take effect after an estate tail, the future or contingent interest, so limited, constitutes an estate in remainder, and does not take effect as an executory devise." Hall v. Priest, 6 Gray, 18, 20. "It is a settled rule of law, that a gift shall not be deemed to be an executory devise if it is capable of taking effect as a remainder; and it is equally well settled, that no remainder will be construed to be contingent which may, consistently with the inten- tion, be deemed vested." Blanchard v. Blanchard, supra, 225. The doctrine of acceleration is that "if there be a devise for life with remainder over, and the life 190 TESTAMENTARY FORMS estate be renounced or it be void, the remainder is good and takes effect immediately. Shelley's Case, 1 Co. 88 b, 101 a; Fuller v. Fuller, Cr. Eliz. 422, 423." Shreve v. Shreve, 176 Mass. 456, 458. A vested remainder may be created as follows: 1. A devise to A. for life, and then to one or more (definitely named) in fee. See Fay v. Sylvester, 2 Gray, 171, 174, 175, "The general rule is, that, where a will gives a life estate to one, with a devise over, either for life or in fee, to a definite class of persons, the presumption is that those take who constitute the class at the death of the testator, unless the will shows a different in- tention." Dorr v. Lovering, 147 Mass. 530, 534. 2. A devise to one for years or for life and then to the "children" of some other person than the testator, or to the testator's "grandchildren." The "children" or "grandchildren" living at the time of the testator's death will take vested re- mainders, subject, however, to open and let in "children" or "grandchildren" afterwards born. Ballard v. Ballard, 18 Pick. 41; Dole v. Keyes, 143 Mass. 237. See Cook v. Cook, 2 Vern. 545. A devise may be to one for his life, and at his death the remainder in fee to the testator's children, who will take vested remainders. Hill v. Bacon, 106 Mass. 578. 3. Where a bequest is made to one or more for life, and remainder to the testator's heirs, or heirs-at-law, or next of kin, or relations, or such persons as would take his estate by the rules of law, if he had died intestate. VESTED AND CONTINGENT REMAINDERS 191 In such cases the bequest is to those who are such heirs, next of kin, or relations at the time of his decease, "unless there are words indicating a clear intention that it shall go to those who may be his relations or next of kin at the time of the happening of the contingency upon which the estate is to be distributed." Childs v. Russell, 11 Met. 16, 23. See Bird v. Luckie, 8 Hare, 301 ; Jones v. Colbeck, 8 Ves. 38; Welch v. Brimmer, 169 Mass. 204, 212, and cases cited. "It is generally true that when prop- erty is given by will to one for life, with remainder to the testator's heirs-at-law, and the life tenant is only one of the heirs at the death of the testator, the life tenant is not excluded from taking a share of the remainder, unless there are clear expressions in the will to the contrary." Rotch v. Lovering, 169 Mass. 190, 200. "Whether, if the life tenant were the sole next of kin or heir of the testator when the will was made, and would continue-to be such if he survived the testator, and this were known to the testator, this fact alone would be sufficient to show that the testator did not intend to include him in a gift of the remainder to the heirs or next of kin of the testator, cannot be considered as free from doubt. See Lees v. Massey, 3 De Gex, F. & J. 113; 2 Jarm. Wills (Bige- low's ed.), 132, 141; Cusacky. Rood, 24 W. R. 391." Fargo v. Miller, 150 Mass. 225, 230. The following are common methods of creating a contingent remainder: 1. Where an estate is given to one for life, and then "to those of his children (or the testator's children) who 192 TESTAMENTABY FORMS shall be living at his death," or " to two for life, remainder to the survivor of them." The remainder must necessarily be contingent until the death of the first taker. Olney v. Hall, 21 Pick. 311; Holm v. Low, 4 Met. 190, 201. Where a will provided that property in the hands of trustees was to be by them paid over at a future date, discharged of all trust, to those persons who at that time would be the testator's legal representatives, that is, to those who would be entitled to succeed to personal estate in case of intestacy, it was held that a contingent and not a vested remainder was created. Eager v. Whitney, 163 Mass. 463. There are sometimes statutes to the effect that no expectant estate shall be defeated or barred by an alienation or other act of the owner of the precedent estate, nor by the destruction of such precedent estate by disseisin, forfeiture, surrender, or merger. 2. Where an estate is given to one for life, and then to his heirs. As a man has no heirs while living, the remainder is contingent until the death of the first taker, when it vests in those who are then his heirs-at-law. Put- nam v. Gleason, 99 Mass. 454. 3. Where, after an estate for life with a power to sell and convey in fee, if necessary for support and main- tenance, the remainder, if any, is given to another in fee. Taft v. Taft, 130 Mass. 461, 465, and cases cited. Provision is made in some jurisdictions as to the sale or mortgage of estates subject to remainders, executory devises, or powers of appointment, etc. EXECUTOKY DEVISES AND PERPETUITIES 193 Executory Devises and Perpetuities. "There are two kinds of executory devise: one, where an estate is devised to one, but upon some future event that estate is determined, and the estate thereupon is to go to another; the other, when the estate is limited to commence in futuro, contrary to the rules of common law. In the latter case the fee in the meantime remains in the heir of the devisor." Nightingale v. Burrell, 15 Pick. 104, 111. "One of the distinguishing features of an execu- tory devise is its indestructibility by the first taker." Hence where, a testator gave to his grandchildren the power to make a will and dispose of the estates already given over to his heirs, if they should arrive at the age of thirty years at the time when they were to receive the property from the trustees, it was held that such power of disposition was inconsistent with and defeated the gift over. Sears v. Russell, 8 Gray, 86, 100. "A perpetuity is a future limitation, whether ex- ecutory or by way of remainder, and of either real or personal property, which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests; and which is not de- structible by the persons for the time being entitled to the property subject to the future limitation, except with the concurrence of the individual in- terested under that limitation." Lewis on the Law of Perpetuity, 164. 194 TESTAMENTARY FORMS The questions which arise in relation to perpetu- ities are perplexing and often difficult of solution. The attorney is referred to the masterly exposition of the subject in Gray's Rule against Perpetuities. Sometimes statutes provide that conditions or re- strictions, unlimited as to time, by which the title or use of real property is affected shall be limited to a certain number of years after the date of the deed or other instrument, or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable, or religious purposes. If the testator insists on deferring the vesting or enjoyment of property to a remote or even a semi- remote period, the attorney must carefully examine the law of the testator's jurisdiction, as both ad- judications and statutes have so modified the original law of perpetuities. For convenience, the more important considera- tions are arranged as follows: 1. The general rule stated. All limitations by way of executory devise are void "which may not take effect within the term of a life or lives in being at the death of the testator, and twenty-one years afterwards, as a term in gross, or, in case of a child en ventre sa mere, twenty-one years and nine months. 4 Kent Com. 267; 1 Jar- man on Wills, 221 ; 4 Cruise Dig. tit. 32, c. 24, § 18." Brattle Square Church v. Grant, 3 Gray, 142, 152. An agreement that each of the parties has an estate in land to be held for an indefinite period, and that no part is to be sold without the consent of both, EXECUTORY DEVISES AND PERPETUITIES 195 violates the rule against perpetuities and is void. In re Rosher, 26 Ch. D. 801; In re Dugdale, 38 Ch. D. 176; Winsor v. Mills, 157 Mass. 362. A trust for the convenience of an unincorporated association in renting and selling land, under which the land is held for no other purpose, and where the income is not accumulated but is distributed as it accrues, and where the land is to be sold free of trusts at the will of the association, and where the whole equitable interest in the trust is at every moment vested absolutely in those who at that moment are shareholders, and never can become vested in any other persons save by act of the abso- lute owners or by operation of law upon their prop- erty, and not by force of any limitation contained in the deed of trust, the equitable interests so vested being also constantly vendible by their several owners without let or hindrance, as well as subject to their debts and passing like other property upon death by virtue not of the deed of trust but of the general laws governing the disposition of the prop- erty of decedents, withdraws no property from commerce, and is not void either under the rule against perpetuities or as creating an illegal re- straint upon alienation. Howe v. Morse, 174 Mass. 491. A gift of the residue "to E., to be distributed by her among descendants, children, and grandchil- dren, according to her discretion," does not violate the rule against perpetuities. Woodbridge v. Wins- low, 170 Mass. 388. 196 TESTAMENTARY FORMS It is not sufficient that the limitation "be capable of taking effect within the prescribed period: it must be so framed as ex necessitate to take effect, if at all, within that time." Brattle Square Church v. Grant, ubi supra, p. 153. The rule at common law is well stated in Remsen on Wills, 193, 194. The following will illustrate the violation of the rule: Where the limitation is made to take effect when the estate should cease to be used for a certain pur- pose. Brattle Square Church v. Grant, ubi supra, p. 155. Where the devise was to a daughter for life, and upon her death to her children in fee, but if the children or either of them should die without issue, in the lifetime of any husband of any daughter, then to the heirs of the testator. Although at the time of the testator's death the daughter might have a husband living, she might, in the event of his death, contract a second marriage and have issue by a husband who was not born at the time of the death of the testator; and so the devise over might by possi- bility not take effect during a life in being at the testator's death and more than twenty-one years thereafter. But should the devise to the heirs of the testator be made to depend upon the children or either of them dying without issue, in the life- time of any husband of the daughter, living at the testator's death, it would be good because limited over upon an event which must occur within the EXECUTORY DEVISES AND PERPETUITIES 197 allowed period, that is, a life in being at the testator's death. See Sears v. Russell, 8 Gray, 86, 98, 99, Where an estate was given "in equal parts to and amongst my nephews and nieces" (children of his deceased sisters), "the portion coming to my nieces to be held in trust for them during the term of twenty-five years from the day of my death, the in- come to be payable to their individual order only; and on the death of each female cestui que trust her portion of the income shall be payable to her chil- dren or child; should she leave any, otherwise to the remaining cestuis que trust during said term of twenty-five years. At the expiration of said term of twenty-five years, the capital of this trust fund shall be paid to my said nieces, and to the children or child of any of them who shall then be deceased, the children or child of a deceased niece of mine taking the parent's share. Should any of my said nieces die, leaving no children or child surviving at expiration of said term of twenty-five years, her share shall go in equal parts to any surviving nieces or niece of mine, and to the child or children of any one who shall have previously died, such child or children last mentioned taking the parent's share." "It is true that it might happen that neither of the nieces would die within four years of the death of the testator, so that, in fact, the postponement of the vesting of the estate in her children would not ex- ceed her life and twenty-one years added; but it is equally true that all of the nieces might die within four years of the testator's death, and thus the 198 TESTAMENTARY FORMS period of postponement exceed the legal" limit." So, likewise, "the executory devises to the surviv- ing nieces or niece or their children, in case one or more of the nieces should die within the term, leaving no children," as well as "the executory be- quest of the income, in case of the death of a niece within the term of twenty-five years," are void for remoteness. Sears v. Putnam, 102 Mass. 5, 6, 8. "The rule governs both legal and equitable in- terests, and interests in both realty and personalty." Gray's Rule against Perpetuities (2d ed.), § 202, and Chap. VIII. It is to be noted that the common law has been radically changed in many States not only as to lives in being but in other particulars. Hence a draftsman cannot safely draw a will which defers the vesting of property without consulting the local law. "The statutes of New York and some other States provide that the absolute power of aliena- tion is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Under such statute it is held in New York that there are but two ways in which this suspension may be accomplished: (1) by the crea- tion of a trust which vests the estate in trustees, and (2) by the creation of future estates vesting upon the occurrence of some future and contingent event. "In the case of a possible conflict of laws, it should be noted that the validity of a gift of per- EXECUTORY DEVISES AND PERPETUITIES 199 sonal property depends partly on the law of the testator's domicile, partly on the law of the lega- tee's domicile, and possibly on the law of another jurisdiction where the trust is to be administered. Thus, the consideration of the laws of all three jurisdictions may become necessary. In the case of real estate the laws of its situs must also be con- sidered. An equitable conversion of real estate may sometimes avoid the operation of the Rule against Perpetuities. Professor Gray says: 'The view now generally adopted in America is that the decision of the question must depend upon whether there is an immediate absolute equitable conversion of the real estate. If the deed or will directs such immediate absolute conversion into personalty, then the settlement or devise is valid, but if there is no such direction for immediate absolute conversion, the devise or settlement is invalid.'" Remsen on Wills, 200. 2. So far as the operation of this rule is concerned, the will speaks from the time of the death of the testator, and not from the date of its execution. "The rule that the question of remoteness is to be determined from the time of the testator's death, and not of his will, is now settled." Gray's Rule 'against Perpetuities (2d ed.), § 231. As where property is given in trust, the income to be paid to the testator's son during his life, and at his decease to his widow and children, if any, during their lives; and upon the death of the son, widow, and children the principal to go to soine one 200 TESTAMENTARY FORMS else. If the son dies unmarried and childless before the testator, the gift over at the testator's decease takes effect, and the objection of remoteness is thus removed. Hosea v . Jacobs, 98 Mass. 65, 67. 3. "The rule regards not the possession, but the title or absolute right If that vest within the prescribed period, the rule is satisfied." As where property is given in trust, the income to be paid to the testator's daughter during life, and, after her death, to her husband, if living, during his life; and upon the daughter's decease, her husband having already deceased, or upon his decease, he having survived her, the entire principal to go to those of the daughter's children living at the time of her decease. The testator, we will suppose, dies immediately after making his will, his daughter then being one year old. She afterwards marries a person not in being at the time of the testator's decease, and such person proves to be the survivor of the marriage. But the rule against perpetui- ties is not violated, because the husband's interest, "although contingent during the life of his wife, becomes vested at her death, and the limitation over to the children is not at all dependent upon such life interest; but itself also becomes vested absolutely at the same time." Loring v. Blake, 98 Mass. 253, 259-261. See Gray's Rule against Perpetuities (2d ed.), § 232. So it would seem, in all cases where a trust estate created either by deed or will is not inalienable, although it is not limited to terminate within the EXECUTORY DEVISES AND PERPETUITIES 201 prescribed period; the reason being that, at any time after the termination of the lives in being, the trustee and cestui que trust may alienate the estate by a joint conveyance. Harlow v. Cowdrey, 109 Mass. 183, 184. 4. Alternative contingencies. If a testator "gives the estate over on one con- tingency which must happen, if at all, within the limit of the rule, and that contingency does happen, the validity of the distinct gift over in that event will not be affected by the consideration that upon a different contingency, which might or might not happen within the lawful limit, he makes a dis- position of his estate which would be void for re- moteness. The authorities upon this point are conclusive. Longhead v. Phelps, 2 W. Bl. 704. Sug- den and Preston, arguendo, in Beard v. Westcott, 5 B. & Aid. 809, 813, 814; Minter v. Wraith, 13 Sim. 52; Evers v. Challis, 7 H. L. Cas. 531; Armstrong v. Armstrong, 14 B. Monr. 333; 1 Jarman on Wills, 244; Lewis on Perp. c. 21; 2 Spence on Eq. 125, 126." As where the income of a trust estate is given to the testator's son for life, and upon his death, leaving no children surviving, the principal is given over to a charity; but, if such son leaves children surviving, the income to be paid to them during their lives, and the principal then to go to the charity. It is plain that in the first case the be- quest over to the charity is good, and in the second too remote. But if the contingency upon which the bequest is valid should hereafter occur, namely, 202 TESTAMENTARY FORMS the death of the son leaving no children surviving, the gift will take effect immediately. Jackson v. Phillips, 14 Allen, 539, 572, 573. 5. "Where a' devise is given to a class of persons answering a given description, and any member of that class may possibly have to be ascertained at a period ex- ceeding the limits allowed by law, the whole devise is void." Hills v. Simonds, 125 Mass. 536, 539. But where the income of a trust estate was given to the testator's two sons for life, and then the estate was to be divided among his nephews and nieces during their lives, and "after their decease the principal to be equally divided among their children or their legal representatives," it was held to be equivalent to several and distinct devises to different classes, and therefore good as to the chil- dren of such nephews and nieces as were living at the testator's death, but not as to the children of after-born nephews and nieces. Hills v. Simonds, ubi supra. 6. Directions to accumulate the income. "At common law, the power of controlling the rents and profits was coextensive with the power to dispose of the estate which produced them, the limit of the accumulation of annual income was the same as the limit of the creation of future estates, and the enjoyment of the profits could not be suspended for a longer period than the full power of alienating the estate itself. Thellusson v. Woodford, 4 Ves. 227; s. c. 11 Ves. 112." Odell v. Odell, 10 Allen, 1, 5. In the present "state of the authorities, and in EXECUTORY DEVISES AND PERPETUITIES 203 the absence of any legislation upon the subject, we are not prepared to say that accumulation for a charitable purpose can in no case be allowed for a fixed period of more than twenty-one years, or for a contingent period beyond a life or lives in being and twenty-one years afterward." Odell v. Odell, ubi supra, p. 12. A gift which vests within the required period is good, although accompanied by a void direction for accumulation. Odell v. Odell, ubi supra, pp. 13, 14. But in all cases of bequests to trustees to invest and accumulate, if the provisions relative to the disposition of the principal and income of the fund are void, then the directions to invest and accumu- late, being auxiliary thereto, are also void. Fosdick v. Fosdick, 6 Allen, 41, 48. The question as to the accumulation of incomes, interest, profits, and rents is often a perplexing one. Questions arise as to whether such accumulation applies to royalties on ore to be mined and to coal and oil taken on leases. See Palms v. Palms, 68 Mich. 355; Appeal of Stoughton, 88 Pa. St. 198. In some jurisdictions there are statutes on the sub- ject and also on accumulations for the benefit of minors. See Hascoll v. King, 162 N. Y. 134; Ed- ward's Estate, 190 Pa. St. 177; Goldtree v. Thomp- son, 79 Cal. 613; Toms v. Williams, 41 Mich. 552. It should be ascertained whether accumulations from realty and personalty are by statutory regula- tions put upon the same basis. See 1 Perry on Trusts 204 TESTAMENTARY FORMS (6th ed.), § 393 et seq. Statutes and decisions should be examined to see if, when the prescribed period is exceeded, the trust is void or invalid as to the excess. "Where there are no statutes regulating accumu- lations, a direction to accumulate a fund for a charity, for a term beyond the common-law limit, does not vitiate the gift for the charity, although no limit has been determined by courts during which an accumulation for a charity may be per- mitted. It is probable that courts would take care that no extraordinary or extravagant term for ac- cumulation should be allowed for a future and prospective good. But where there are statutes against accumulations, charities will be governed by the same rules unless they are specially excepted." 1 Perry on Trusts (6th ed.), § 399. 7. A definite term of years, not exceeding twenty- one, may be fixed for the future vesting of an estate, without any reference to any life or lives. See Odell v. Odell, ubi supra, pp. 12, 14; Thorndike v. Loring, 15 Gray, 391 ; Sears v. Putnam, 102 Mass. 5. 8. The application of the rule to public charities. "A public or charitable trust may be perpetual in its duration." Jackson v. Phillips, 14 Allen, 539, 550. "As it is established for objects of public, general, and lasting benefit, it is allowed by the law to be as permanent as any human institution can be, and courts will readily infer an intention in the donor that it should be perpetual." Odell v. Odell, ubi supra, p. 6. EXECUTORY DEVISES AND PERPETUITIES 205" "If a devise in fee for the benefit of a charity- is accompanied by an executory devise over to in- dividuals upon the happening of a contingency which may possibly not occur within the time prescribed by the rule against perpetuities, the devise over is void, for the reason that until the contingency happens it cannot be ascertained in whom the title will be." Odell v. Odell, ubi supra, p. 7; Wells v. Heath, 10 Gray, 17, 25, 26. See Stone v. Framing- ham, 109 Mass. 303. "If the gift is made in the first instance to an in- dividual, and then over, upon a contingency which may not happen within the prescribed limit, to a charity, the gift to the charity is void, not because the charity could not take at the remote period, but because it tends to create a perpetuity in the individual, who is the first taker, by making the estate inalienable by him beyond the period allowed by law." Odell v. Odell, ubi supra, p. 7. " But a gift may be made in trust for a charity not existing at the date of the gift, and the beginning of whose existence is uncertain, or which is to take effect upon a contingency which may possibly not happen within a life or lives in being and twenty-one years afterwards, provided there is no gift of the property meanwhile to or for the benefit of any in- dividual or any private corporation." Odell v. Odell, p. 7. See Gray's Rule against Perpetuities (2d ed.), § 589 et sea. A bequest to provide a fund for the permanent care of a private tomb or burial-place has been held 206 TESTAMENTARY FORMS to create a perpetuity for a use not charitable. Bates v. Bates, 134 Mass. 110, 114. But see Gray's Rule against Perpetuities (2d ed.), §§ 311, 311 a. But it has been also held in Massachusetts that a trust to keep a burial lot and monument always in good order is, under the statutes, a good perpetual trust. Morse v. Natick, 176 Mass. 510, 513. It is well to bear in mind that if the charitable objects fail at a subsequent time, however remote, a resulting trust for the benefit of the testator and his heirs will arise. Easterbrooks v. Tillinghast, 5 Gray, 17, 21. But "no neglect, misapplication of funds, or other breach of trust will give a right to the heirs-at-law to call upon a court of equity to declare a resulting trust for themselves." Sander- son v. White, 18 Pick. 328, 334. 9. The application of the rule to conditions sub- sequent. The rule does not apply to conditions subsequent, because "a right of entry for the breach of the condition is reserved to the grantor or devisor and his heirs, and may be released by him or them at any time." Tobey v. Moore, 130 Mass. 448, 450. In Gray's Restraints on Alienation, § 42, n., the learned author says: "There is no reason in the history of the law, or in its principles, why the rule against perpetuities should not be applied to con- ditions. The reason sometimes given for applying it to an executory devise and not to a condition, that the former cannot be released, while the latter EXECUTORY DEVISES AND PERPETUITIES 207 can be, is unsound, for an executory devise to A. and his heirs may always be released by A., and yet is unquestionably within the rule. "The practical inconvenience of not applying the rule to conditions is great, especially in America, where all a man's children are his heirs, and where, in a generation after his death, his heirs may be half a hundred or more in number, and scattered all over the continent." 10. The application of the rule in the case of the exercise of a power of appointment given by a will. It has been held in England that where a grand- daughter, under the power which the original testator by his will gave to her, might have given a power to appoint to children born after his death in violation of the rule against perpetuities, the power was valid if the appointment was kept within proper limits. Slark v. Dakyns, 10 Ch. App. 35. For a case where a power was given to the testa- tor's wife to select the objects, and to direct and appoint the proportions of the testator's estate to be conveyed, assigned, and delivered to and among the testator's children, etc., and it was held that the same was fully executed by the wife's will, see Loring v. Blake, 98 Mass. 253, 261-266. A. bequeathed stock to B. for life, with remainder to such persons as B. should by will appoint. B. by a general bequest appointed the stock to her daughter C. for life, with remainder to C.'s children who should attain twenty-one or marry. Held, that the gift to the children of C was void for remoteness. 208 TESTAMENTARY FORMS In re Powell's Trusts, 39 L. J. Ch. n. s. 188. See Theobald's Law of Wills (7th ed.), 605, 610. 11. The disposition of the property when the limita- tion over is void. In such case "the estate becomes vested in the first taker, discharged of the condition or limitation over, according to the terms in which it was granted or devised; if for life, then it takes effect as a life estate; if in fee, then as a fee-simple absolute. 1 Jarman on Wills, 200, 783; Lewis on Perp. 657; 2 Bl. Com. 156; 4 Kent Com. 130; Co. Lit. 206 c, 206 6, 223 a." Brattle Square Church v. Grant, 3 Gray, 142, 156. So where the limitation over of the fee to the heirs-at-law of the children of the testator's daughter was void, the daughter and children being successively entitled to the income of the estate, it was held that the effect of such invalid- ity was not to defeat the prior life estates to such children. Lovering v. Worthington, 106 Mass. 86, 88. In many cases the devise being void, the gift by the residuary clause takes effect, and the residuary legatees become entitled to distribution. See Thorn- dike v. Loring, 15 Gray, 391, 398. Lovering v. Lover- ing, 129 Mass. 97, 100; Hall v. Hall, 123 Mass. 120. As to the effect of interest being too remote, see Gray's Rule against Perpetuities (2d ed.), § 247 et seq. CHAPTER X DESCRIPTION OF LEGATEES AND LEGACIES Description of Legatees. "It has long been settled that when in a will the name or description of a legatee is erroneous, the legacy shall not fail of effect if it can be ascertained beyond reasonable doubt, by legal evidence, whom the testator intended to name or describe. And this intention may be ascertained either by the context of the will or by parol evidence, as to all material facts relating to the person who claims the legacy, and to the circumstances of the testator and of his family and affairs. 1 Roper on Leg. (2d Amer. ed.) 164 et seq.; 2 Williams on Executors (4th Amer. ed.), 164 et seq.; Wigram on Wills (3d ed.), 51 etseq." Thayer v. Boston, 15 Gray, 347, 348. The attorney should see that the name of the legatee is absolutely correct, not only in the case of individuals, but in that of associations, organizations, societies, and corporations. Sometimes a testator provides that certain persons or the issue of a particular marriage shall be excluded from taking under the will. Forms like the following are often used: 209 210 TESTAMENTARY FORMS Exclusion of Certain Persons. I give and bequeath to my son A. B. the sum of Ten Thousand Dollars; and, if he should die be- fore me, then I give and bequeath the same to his issue living at the time of my decease other than his issue by his present wife. In default of such issue the said Ten Thousand Dollars shall fall into the residuum of my estate. I give and bequeath to my daughter A. B. the sum of Five Thousand Dollars; and, if she should die before me, then I give and bequeath the same to such issue of hers living at the time of my decease as she may have by some husband other than her present husband. In default of such issue the said Five Thousand Dollars shall fall into the residuum of my estate. The description of legatees by other words than proper names, such as "children," "heirs," etc., is a constant source of difficulty and embarrassment. "The leading principle is that where a bequest is immediate to 'children' in a class, children in ex- istence at the death of the testator, and these alone, are entitled." 1 Williams on Executors (10th Eng. ed.), 844. But children en ventre sa mere come within the rule, because "a child is to be considered in esse at a period commencing nine months previously to its birth, and where there is not evidence to rebut the presumption, it is conclusive." "Generally a child will be considered in being from conception to DESCRIPTION OP LEGATEES 211 the time of its birth, in all cases where it will be for the benefit of such child to be so considered." Hall v. Hancock, 15 Pick. 255, 257. Sometimes statutes declare that posthumous children shall be consid- ered as living at the death of their parent. "When a devise or bequest is made direct to wife and children, in the absence of clear language indicating a gift to them as a body or a class, it should be held that they take individually as tenants in common and that their interest does not depend upon sur- vivorship." Matter of Russell, 168 N. Y. 169, 176. "The immediate lawful descendants of the person named take under a gift to his children. His grand- children, stepchildren, adopted children, and illegiti- mate children, do not take unless it appears by the context of the will, or by the extrinsic circumstances that they were intended to take, as if there were no other children." Rood on Wills, § 442. "Nephews and nieces mean prima facie the children of broth- ers and sisters, including those of the half-blood." Theobald on Wills (7th ed.), 316. "In legal contemplation, a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number. (1 Jarman on Wills [5th ed.], 269.) Here the number of persons was certain at the time of the gift, the share each was to receive was also certain, was in no way dependent for its amount upon the 212 TESTAMENTARY FORMS number who should survive, and, hence, this case is not within the principle invoked." Matter of Kimberly, 150 N. Y. 90, 93. The testator should make his intention clear as to survivorship and as to descendants of a deceased member of the class. "A number of persons are popularly said to form a class when they can be designated by some general name, as ' children,' ' grandchildren,' ' nephews '; but in legal language the question whether a gift is one to a class depends not upon these considerations, but upon the mode of gift itself, namely, that it is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons." 1 Jarman on Wills, 336. If the names of legatees are given the gift is generally held to be to them as individ- uals. "Where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence be- fore the period of distribution." 2 Jarman on Wills (6th Am. ed.), 1011. "Where there is no gift, by a direction to pay and divide at a future time or on a given event, the vest- ing will be postponed until the time appointed for the division or the happening of the specified event; DESCRIPTION OP LEGATEES 213 unless a contrary intent can be collected from the whole will. "And where legacies are given to a class, all are deemed to be comprehended who answer the de- scription at the time the legacy is payable, so that where the legacy is payable at a future time, those who come into being intermediate the death of the testator and the time of payment, and answer the description, take as independent objects." Kil- patrick v. Barron, 125 N. Y. 751, 754. "Where the period of distribution is postponed until the attainment of a given age by the children, the gift will apply to those who are living at the death of the testator, and who come into existence before the first child attains that age, i. e. the period when the fund becomes distributable in respect of any one object, or member of the class. And the result is the same where the expression is ' all the children.' " 2 Jarman on Wills (6th Am. ed.), 1015. If children born after the first child attains the given age are to be included, appropriate language should be used. As to a plurality of persons, if a gift is made, say of fifty thousand dollars, to children, grandchildren, issue, etc., collectively, and not of that amount to each, the intention should clearly appear. De Nottebeck v. Astor, 13 N. Y. 98. A form like the following may be used: I give to my five grandchildren, the children of my daughter A. B., the sum of fifty thousand 214 TESTAMENTARY FORMS dollars collectively to be equally divided among them, that is, each grandchild to receive one fifth of said fifty thousand dollars. In all cases of gifts to youngest or oldest sons, etc., it should be clearly stated in the will whether is meant the youngest or oldest son living at the time of making the will, or at the death of the testator, or at some future time. 1 Williams on Executors (10th Eng. ed.), 849. "The presumption that, as a will speaks from the death of the testator, it refers to the state of things then existing, must yield when the will manifests the testator's intention to refer to the state of things existing at the time of making it." Where the devise was to "the surviving children, not knowing all their names, of my late sister A., they living in the State of Maine, to be divided equally between them all," it was held that the language of the gift showed that the testatrix would have given it to them by name if she had known what their names were, and must have the same effect as if she had; and that the clause, "they living in the State of Maine," was added by way of description of the children then living, and not to limit the gift to those who might happen to live in that State at the time of the death of the testatrix. Morse v. Mason, 11 Allen, 36. "When the taking effect of the gift is postponed beyond the time of the testator's death, then those who come within the description, before the period DESCRIPTION OF LEGATEES 215 or event upon which the gift is to take effect, or the distribution is to be made, will ordinarily be in- cluded as within the probable intention of the testator." Worcester v. Worcester, 101 Mass. 128, 132. A legacy "to the children of my deceased brothers and sisters" of "all the rest of said stock or securi- ties, to be divided among them as provided in the statutes of the Commonwealth in such cases made and provided," was held to mean a division accord- ing to the statute of distributions. Paine, Petr., 176 Mass. 242. "Heirs" may be construed to mean "children." Haley v. Boston, 108 Mass. 576, 579. "Issue" may be limited to "children." Sibley v. Perry, 7 Ves. 522; Pruen v. Osborne, 11 Sim. 132. In many jurisdictions brothers and sisters include half brothers and sisters. "Prima facie the word 'cousin' means first cousin, and not a first cousin once or more times removed; still less does it mean a second or third cousin, which might go on indefinitely." Stevenson v. Abingdon, 31 Beav. 305, 308. "Those only who have either the same great-grandfather or the same great-grandmother are second cousins to each other." Bridgnorth v. Collins, 15 Sim. 538, 541. A testator gave one third of his property to his first cousins and two thirds to his second cousins. At his death he left first cousins, second cousins, and children and grandchildren of first cousins. It was held that the term "second cousins" did not include 216 TESTAMENTARY FORMS children or grandchildren of first cousins. In re Parker, 17 Ch. D. 262. Many nice points arise as to adopted children. Their rights are almost entirely statutory. The draftsman should examine local statutes to see if they provide that adopted children take under a gift to "children" or "issue"; whether adoption acts as a revocation of a prior will; whether it has the same effect as the birth of a child; and whether by adoption a person loses his right to inherit from his natural parents or kindred. The draftsman should inquire of the testator as to adopted children, and, if there are any, make careful provision rela- tive thereto. Wills often contain provisions like the following: Issue and Children. The words "issue" and "children," whenever used in this will, are intended to mean issue and children by birth and blood and not by adoption. Whenever the words "child," "children," and "issue" occur in this will they shall be taken to mean child, children, and issue both by blood and adoption. Illegitimate children generally inherit from their mother. Statutes sometimes provide that an illegiti- mate child shall be heir of his mother and of any maternal ancestor, and that the lawful issue of an DESCRIPTION OF LEGATEES 217 illegitimate person shall represent such person, and take by descent any estate which such person would have taken if living; also that if an illegitimate child dies intestate, and without issue who may lawfully inherit his estate, such estate shall descend to his mother, or, if she is not living, to the persons who would have been entitled thereto by inheritance through his mother if he had been a legitimate child; also that an illegitimate child whose parents have intermarried, and whose father has acknowledged him as his child, shall be considered legitimate. It has been held that an illegitimate son must be re- garded within the meaning of a will as the "heir by blood" of his mother. Hayden v. Barrett, 172 Mass. 472. This subject may demand the attention of attorneys in drawing wills. In a general sense the word "issue" is regarded as equivalent to descendants. Underhill on Wills, § 669; but is often limited to children. 2 Jarman on Wills (6th Am. ed.), 949. "Thus, if the devise or bequest be to the children of A. living at a given period, with a direction that the issue of any child dying before that period shall take their parent's share, the gift to issue is confined to grandchildren of A. And the rule is the same if the gift be to the children of A. living at a given period, and the issue of such as shall be then dead, such issue to take their parent's share; although the gift to issue is distinct from the direction as to taking the share of the parent." Hawkins on Wills (2d Am. ed.), 218 TESTAMENTARY FORMS 88. Issue generally take per capita unless a different intention is expressed. "By a gift either to the children of several persons, or to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation, the objects of the gift take per capita and not per stirpes (by right of representation); and therefore in the latter case each child of the second person takes a share equal to the share of the first person." But "this mode of construction will yield to a very faint glimpse of a different intention in the context." Balcom v. Haynes, 14 Allen, 204, 205. "The court are of opinion, that, according to the established rule of law, a devise to ' heirs,' whether it be to one's own heirs, or to the heirs of a third person, designates not only the persons who are to take, but also the manner and proportions in which they are to take; and that, when there are no words to control the presumption of the will of the testator, the law presumes his intention to be, that they shall take as heirs would take by the rule of descent. . . . 1 Roper on Leg. (1st Amer. ed.) 126; 2 Jarman on Wills, 46. Such presumption, however, will easily be controlled, by any words in the will, indicating a different intention of the testator; as if, after a devise to 'heirs,' it be added, 'in equal shares,' or 'share and share alike,' or 'to them and each of them,' or 'equally to be divided,' or any equivalent words, intimating an equal division, then they will DESCRIPTION OF LEGATEES 219 take per capita, each in his own right. But when there are no such words, the presumption is, that the testator referred to the familiar law of descents and distributions, to regulate the distribution of his bequest." Daggett v. Slack, 8 Met. 450, 453, 454. In Massachusetts a statute provides "Inheritance or succession by right of representation is the taking by the descendants of a deceased heir of the same share or right in the estate of another person as their parent would have taken if living. Posthumous children shall be considered as living at the death of their parent." Rev. Laws, c. 133, § 6. "Under gifts to a class the members of that class take per capita. Where a gift is to the children of several persons, they take per capita, not per stirpes. The same rule applies where the gift is made to one person and the children of another; so, also, if the gift is to two or more persons and their children, or to a class and their children. All persons coming within such description, whether parents or children, take equally per capita, but slight evidences of a contrary intention would seem sufficient to produce a different result." Remsen on Wills, 95. See Ferrer v. Pyne, 81 N. Y. 281. In Tucker's Manual of Wills (2d ed.), 113-115, will be found many Massa- chusetts cases on this subject. The attorney should call this matter to the attention of the testator, and where the words " children," " heirs," etc., are used it should clearly appear in the will whether they are 220 TESTAMENTARY FORMS to take per capita or per stirpes, that is, by right of representation. "It remains to determine who shall take under the gift to 'the heirs of my children.' It is contended in behalf of the widow of the deceased son, that these words should be read in a double sense, so as to mean the heirs-at-law in relation to the real estate, and those persons who would be entitled under the statute of distributions in relation to the personal estate; as was done in Keay v. Boulton, 25 Ch. D. 212, and Wingfield v. Wingfield, 9 Ch. D. 658. No general rule can be stated under which all the deci- sions can be classified. But in general, where there is a gift to a person or his heirs, the word 'heirs' denotes succession or substitution; the gift being primarily to the person named, or, if he is dead, then to his heirs in his place. In such cases, it has often been held that the word 'heirs' should be con- strued to mean the persons who would legally suc- ceed to the property according to its nature or quality; and that the heirs-at-law would take the real estate, and the next of kin or persons entitled to inherit personalty would take the personal estate. Such were the cases amongst others, of Keay v. Boulton and Wingfield v. Wingfield, above cited, of Vaux v. Henderson, 1 Jac. & W. 388, and of Doody v. Higgins, 9 Hare, App. xxxii. But where the gift is directly to the heirs of a person, as a substantive gift to them of something which their ancestor was in no event to take, this element of succession or substitution is wanting, and the heirs take as the DESCRIPTION OP LEGATEES 221 persons designated in the instrument to take in their own right; and in such cases the courts have usually held that the word 'heirs' must receive the meaning which it bears at common law, as the persons en- titled to succeed to real estate in case of intestacy. De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524; Forster v. Sierra, 4 Ves. 766; Swaine v. Burton, 15 Ves. 365; Mounsey v. Blamire, 4 Russ. 384. This distinction was recognized in this State in Clarke v . Cordis, 4 Allen, 466, 480, where the court, in speak- ing of the word ' heirs ' as used in the will then under consideration, said: 'It was not intended to denote succession, that is, to vest the estate in the legatees as successors of or substitutes for the sons of the testator, so that they would take the same estate in nature and quality as that which would have come to them by descent. They are to take by force of the will as purchasers. The word is used to designate the persons who are to take the real and personal estate as independent objects of the gift. It is therefore to be interpreted as a mere term of description of a class of persons who . . are to take the estate." Fabens v. Fabens, 141 Mass. 395, 399, 400. If it is the testator's intention that those who are his "heirs-at-law" at the time of the decease of the life tenant are to take the estate discharged of all trust, appropriate language should be used, such as "Those who are my heirs-at-law at the time of the decease of the life tenant and not those who are my heirs-at-law at the time of my own decease." 222 TESTAMENTAET FOEMS The words "heirs and assigns" in a legacy are generally words of limitation. Brysqn v. Holbrook, 159 Mass. 280. The meaning of the word "heirs" in a bequest of personal property "must be governed by the intent of the testator; and if his intent ap- pears to be to designate those who are strictly his heirs in the primary sense of the term, and not dis- tributees, it must be so construed." Sweet v. Dut- ton, 109 Mass. 589, 591. "The words 'next of kin' are limited in legal meaning, as in common use, to blood relations, and do not include a husband or a wife, unless accom- panied by other words clearly manifesting a purpose to extend their significance; and the mere addition of a reference to the statute of distributions is not sufficient. Withy v. Mangles, 4 Beav. 358; 10 CI. & Fin. 215; 2 Jarman on Wills (3d Eng. ed.) 96." Haraden v. Larrabee, 113 Mass. 430, 431. But see Pinkham v. Blair, 57 N. H. 226. "Much divergence of opinion existed in the early cases as to the construction of the words 'next of kin.' If the testator, in a gift to the next of kin, refers expressly or by implication to the statute of distribution, he will be "conclusively presumed to mean, by next of kin, those persons only who take personal property under that statute. On the other hand, where the gift is simply to the next of kin, without any reference to the statute, the rule now is that the testator means his nearest relations. He means those persons who are most nearly related to DESCRIPTION OF LEGATEES 223 him by consanguinity. Thus, suppose a testator shall leave him surviving two brothers, and the children of another brother who is deceased. The question arises, who are to take under these cir- cumstances as next of kin? The rule of the civil law is employed in determining who are the next of kin, and this law traces descent from the testator as the -propositus, and not from the common ancestor. The brothers are equally related to the testator in the first degree, the nephews and nieces in the second; and the former take as nearest of kin, where no reference is made to the statute, while the latter are excluded. "Where several persons answer to the description 'next of kin,' and are related to the testator or other propositus in equal degrees, they take, at common law, as joint tenants. This was so decided where a gift to the next of kin was construed to go to the father and the children of the testator, who were his next of kin at the civil law. As a conse- quence of this rule of construction, by which the term 'next of kin' simpliciter is not regarded as synonymous with distributees under the statute of distribution, all who are equally related to a common propositus will take, though some of them could not take under the statute. Thus, where the testa- mentary provision is for the next of kin simply, and the propositus has died leaving a father, a mother and also a child, all of whom are of course related to him in equal degrees of consanguinity, they will share equally; though, under the statute, the child 224 TESTAMENTARY FORMS would have taken all as a sole distributee." Under- bill on Wills, § 626. That the term next of kin ordinarily includes ances- tors as well as descendants in the same degree of con- sanguinity, see 2 Jarman on Wills (6th Am. ed.), 954. "A devise or bequest to 'next of kin/ ' next of kin according to the statute,' etc., means the next of kin at the death of the person whose next of kin are spoken of. Gundry v. Pinniger, 1 D. M. & G. 502; Bird v. Luckie, 8 Hare, 301; Bullock v. Downes, 9 H. L. C. 1. "Thus if the gift be to A. for life, and after his decease to the next of kin of the testator, the persons to take as next of kin are to be ascertained at the death of the testator, and not at the death of A. "And the rule applies, although the tenant for life be the sole next of kin, or one of the next of kin, at the death of the testator and at the date of the will. Thus, if the gift be to A. for life, and after his decease to the next of kin of the testator, and A. is the sole next of kin at the death, A. takes the property abso- lutely. Holloway v. Holloway, 5 Ves. 399; Ware v. Rowland, 2 Phill. 635; Lee v. Lee, 1 Dr. & Sm. 85; Wharton v. Barker, 4 K. & J. 498." Hawkins on Wills (2d ed.), 99, 100. "A gift to 'descendants' receives a construction answering to the obvious sense of the term; namely, as comprising issue of every degree." 2 Jarman on Wills (6th Am. ed.), 943. The word "descendants" in a will includes none but lineal heirs, in the absence of any intention ex- DESCRIPTION OF LEGATEES 225 pressed in the will to extend its meaning. Baker v. Baker, 8 Gray, 101, 119. "The word 'descendant' according to its accurate, lexicographical and legal meaning, designates the issue of a deceased person, and does not describe the child of a parent who is still living. The word is the correlative of ancestor." Hillen v. Iselin, 144 N. Y. 365, 374. As to descendants taking per capita under gift to descendants equally, see 2 Jarman on Wills, 945. The intent should be expressed by using the phrases per stirpes or per capita. The use of the word "family" in a will should be avoided, if possible; but if used, care should be taken to make the intention clear. " The meaning of the word 'family' is always to be gathered from the whole will, read in the light of the circumstances sur- rounding its execution. It is a word of very flexible meaning, depending upon the intention of the testa- tor. It is often difficult to determine what persons he intends to be included under the term. "The word has several ordinary, and, we may say, primary meanings. It may mean those who live under the same roof with the paterfamilias; that is, his household, his wife, children and servants. This is not its ordinary meaning as used in wills. It may also mean a man's wife and children, and this is a very common meaning in wills. Again, the word is often used, particularly where a person, whose family is spoken of, has no wife or children, to indicate his or her brothers and sisters, or his 226 TESTAMENTARY FORMS statutory next of kin; and sometimes, in a very- wide sense, to indicate the family stock; that is, those persons of the same name who are descended from a common though remote ancestor. "Under some circumstances a gift of personal property to the family of the testator, or to the family of some other person, may be void for un- certainty as to whom the testator intends. Thus, where the testator gave a remainder in personal property to be divided among her daughters and 'their husbands and families,' where the gifts were 'to T. H. forever, hoping he will continue them in the family,' where the gift was one-half to the family of the testator's wife and one-half to his brothers' and sisters' family equally to be divided, the gift is void for uncertainty. The cases in which a provision for a family has been held void for uncer- tainty are not numerous, and the courts, in modern times particularly, strain after a construction which will make a gift to a family effectual." 2 Underhill on Wills, § 585. "The testator directed a house to be purchased, at a cost not exceeding one thousand dollars, to be held in trust for the benefit of A. D. during his life, and to be conveyed to his family at his death. The gift in remainder to 'his family' did not lapse by his death in the lifetime of the testator. 'His" family,' in the absence of words manifesting a different intention, must be taken to mean his widow and child; Bowditch v. Andrew, 8 Allen, 339, 342; and not to include his stepson." Bates v. Dewson, 128 Mass. 334, 335. DESCBIPTTON OF LEGATEES 227 The use of the words "relations" or "relatives" is not to be encouraged. "No person can regularly answer the description of 'relations' but those who are akin to the testator by blood; and, consequently, relations by marriage are not included in a bequest to 'relations' generally. A wife, therefore, cannot regularly claim under a bequest to her husband's relations, nor a husband as a relation to his wife." 2 Williams on Executors, 397. "As it [relations] is employed in wills it is construed to mean those per- sons who would, by virtue of the statute, take the personal property of an intestate as his next of kin." 2 Underhill on Wills, § 589. See also §§ 590-594. The ordinary meaning of the words "legal repre- sentatives" is executors and administrators. In re Best's Trusts, L. R. 18 Eq. 686; Cox v. Curwen, 118 Mass. 198. But "legal representatives" may refer to heirs or to others who represent rights by succession under a conveyance. Thayer v. Pressey, 175 Mass. 225, 236; Olney v. Lovering, 167 Mass. 446, 448. The words "survivors" or "survivor" should not be used without a definite expression of the testator's intention. It should clearly appear whether "sur- vivorship" at the testator's death or at some sub- sequent period of distribution is referred to. As to "survivorship" in the case of contingent remainders see p. 192. As to the doctrine of "accru- ing shares," and as to whether "survivors" includes "others," see pp. 436 et seq. 228 TESTAMENTARY FORMS It is always better, in using the terms "husband," "wife," etc., to mention the "wife" or " husband" by name; otherwise the term, in either case, may apply to the individual who answers the description at the date of the will. As to a man or woman taking a legacy by the name of "husband" or "wife," although merely a reputed and not a lawful "husband" or "wife," see 2 Williams on Executors (Am. ed.), 1015; Hardy v. Smith, 136 Mass. 328; Pastene v. Bonine, 166 Mass. 85; Miller v. Miller, 79 Hun, 197. The words "executors and administrators" should be used with care. "A gift to A., and in case of his death to his executors or administrators, will go to A.'s executors in the event of his death before the testator." Theobald on Wills (7th ed.), 347. "It is clear that a bequest to A. and his executors, or to A. and his representatives, gives A. the absolute interest, the additional words being merely words of limitation. ... So, too, a gift to A. for life and then to his executors or administrators, or to his personal representatives, gives A. the absolute in- terest." Theobald on Wills (7th ed.), 476. Description of Legacies. The rule laid down as to accuracy of description of real estate (p. 146) is of equal importance in the case of personal property. "My property," "my estate," "my whole estate," are terms which, in their ordinary import, carry both DESCRIPTION OF LEGACIES 229 real and personal property. Chapman v. Chick, 81 Me. 109, 117; Laing v. Barbour, 119 Mass. 523, 525. One will may adopt the provisions of another will as to a legacy, without reciting at length the pro- visions in regard to it. Dexter v. Harvard College, 176 Mass. 192, 198. Nevertheless great care should be taken in the description and in the expression of intention. In the above case the will contained two provisions in point, the first, a bequest to the presi- dent and fellows of Harvard College, to be held on the same terms as the residue of the testatrix's brother's estate, and the second, a bequest of the residue of her estate, "to be added to and disposed of as part of and in the same manner as the per- manent fund and bequest of fifty thousand dollars made and given by my brother Calvin Ellis, by his last will." In most cases it is advisable to dispose directly of wearing apparel, watches, jewelry, etc. A gift in a will of a homestead, "with the household furni- ture, silver ware, musical instruments, books, pic- tures, horses, carriages, sleighs, harnesses, etc., used in connection therewith," was held not to in- clude a watch and chain. Woodcock v. Woodcock, 152 Mass. 353. A form like the following may be used in most cases: I give my wearing apparel, watches, jewelry and other personal effects of a similar nature to my wife A. B. While the same are to be hers absolutely I 230 TESTAMENTARY FORMS trust she will reserve whatever articles she may de- sire as keepsakes and distribute the rest among our children as in her judgment she may deem best. As the term "household furniture" is susceptible of a very liberal construction of intention, a testator should be explicit in the expression of intention in bequeathing all household effects. "A bequest of household goods and furniture, unexplained, in- cludes everything that is usually enjoyed with the house — carpets, stoves, china, silver ware, bedding, table linen, etc., and would not include books in the library, stock in trade, nor jewelry or other articles of personal use and ornaments. Kitchen supplies, such as wines, spices, vegetables, etc., do not pass under a bequest of furniture." Rood on Wills, § 498. If the testator desires to include in the bequest personal property out of the house, such as horses, carriages, farming tools, etc., they should be care- fully mentioned. \ Where the bequest of the furniture, plate, etc., as, for example, to the testator's wife or family, accompanies the devise of the house in which they were used, all the usual contents of the house will be included. Richardson v. Hall, 124 Mass. 228, 237. But where they are given to one, and the house to another, they should be definitely described. In such case a conflict may easily arise as to those household effects which partake of the nature of fixtures. See p. 150. The following are offered as forms: DESCRIPTION OF LEGACIES 231 Furniture, etc. I give and bequeath to etc. all the furniture in my residence, No. 92 Wadlaw Street, at the time of my decease, including my library, paintings, pic- tures, statuary, plate, bric-a-brac, carpets, chairs of every description, beds, bedding, bookcases, linen, silver, china, crockery, wines, cooking utensils, consumable stores and all other portable articles of either use or ornament; and all my horses, bicycles, automobiles, carriages and their appurtenances, liv- eries, harnesses, farming stock, supplies, tools, hay and grain and all other articles of use or orna- ment that may be in or about my stable at the time of my decease. I give and bequeath to etc., all the furniture, useful and ornamental, and all consumable stores in my residence on Myrtle Street at the time of my decease, and all my horses, bicycles, automobiles, carriages and appurtenances, farming tools and im- plements and all other objects ornamental or use- ful that may be in my stable and on and about my premises at the time of my decease. I give and bequeath to, etc., all and singular the household goods and furniture, stable appurte- nances and equipments and the" garden and agri- cultural paraphernalia pertaining and belonging to my city and country establishments at the time of my decease, including books, bookcases, plate, sil- ver, china, statuary, pictures, paintings, consum- 232 TESTAMENTARY FORMS able and domestic stores and all other household articles, horses, bicycles, automobiles, carriages and all their appurtenances, stable and farm utensils, furniture, tools, implements and machin- ery, wagons, etc. I give and bequeath to etc., all the furniture in my residence, etc., including all articles and objects whether useful or ornamental, all the horses and carriages, and their appurtenances, equipments and belongings and all other personal property in and about my stable adjacent to my said residence, the conservatories, hot-houses and garden appurte- nances upon the premises and all the tools, imple- ments, etc., pertaining thereto. I give and bequeath to my wife A. B. and my three daughters C. D., E. F. and G. H. all my articles of household furniture, books, pictures, plate, jewelry, wearing apparel, watches etc., and I request them to make such division of the same as may be most satisfactory to them. Other forms may be found on pp. 512, 514. Sometimes a testator (more often a testatrix) after giving away most of the furniture, provides unwisely but from the best of motives, that friends may select from the remaining articles whatever they desire as mementos or keepsakes. It is ob- vious that such a provision is likely to give rise to discontent and perhaps quarrels. However, in the DESCRIPTION OF LEGACIES 233 case of immediate relatives provisions like the fol- lowing may sometimes be advisable: I give all my household furniture of every kind and description to my wife A. B., to be hers abso- lutely with the exception that I authorize my sister C. D. and my brother E. F. to select the picture or painting or other work of art that he or she par- ticularly prizes to be his or hers absolutely; and I direct my executors to deliver to the said C. D. and E. F. the picture, painting or other work of art so selected and take receipts therefor. Great care should be used as to all bequests of "goods," "effects," "articles," "chattels," or other personal property described as at a particular place or locality. See Williams on Executors (10th Eng. ed.), 927. For example, it is unwise to give a legatee "all the personal property in my house at the time of my decease," meaning household furniture, silver, personal effects, etc., because, if there be other per- sonal property in the house at that time, such as certificates of stock, a question may arise as to whether they are included in the legacy. The danger of describing personal property by location is set forth in Rood on Wills, § 517. A gift in a will of "my chest and its contents," among which is an unrecorded and undelivered deed of land executed by the testator to the devisee in consideration of "love and affection," does not operate as a devise of the land. Parrott v. Avery, 234 TESTAMENTARY FORMS 159 Mass. 594. A bequest of an interest in a factory was held to be in the shares of which the interest consisted. Johnson v. Goss, 128 Mass. 433, 436. The word "money" is frequently used in wills, but it is a term to be avoided. Generally the word means money in the real sense and bank deposits. It may be so used as to mean demands payable in money. The term should be avoided, as in many cases where the gift is of money on hand or on de- posit in bank, the testator may spend or invest the money before his death. "By a gift or bequest of money, notes of hand, and other securities for the payment of money will not pass, unless it appears by the will that it was the intention of the testator to bequeath them." Morton v. Perry, 1 Met. 446, 448. The word "moneys" does not include real estate. Parker v. Iasigi, 138 Mass. 416, 423. If a reading of the whole will produces a convic- tion that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court must supply the defect by implication, and so mould the language of the testator as to carry into effect, as far as pos- sible, the intention which it is of opinion that he has in the whole will sufficiently declared. Ferson v. Dodge, 23 Pick. 287; Towns v. Wentworth, 11 Moore P. C. 526; Abbott v. Middleton, 7 H. L. Cas. 68; Greenwood v. Greenwood, 5 Ch. D. 954. CHAPTER XI SFECIFIG LEGACIES, ADEMPTION, EXONERATION ABATEMENT, AND CONTRIBUTION "Courts do not incline to construe legacies to be specific, and will not do so unless such be the clear intention of the testator. Kirby v. Potter, 4 Ves. 748; Attorney General v. Parkin, Ambl. 566; Briggs v. Hosford, 22 Pick. 288; Boardman v. Boardman, 4 Allen, 179." Wilcox v. Wilcox, 13 Allen, 252, 256. Hence the intention of the testator in reference to the thing bequeathed must be clear. It is well es- tablished that the law favors general, rather than specific legacies, and the courts lean towards the former and against the latter. If "the bequest is of a sum of money, or of shares of stock, without further description or reference, and which may be satisfied by the delivery to the legatee of any stock of the kind designated, such a legacy is general." Kunkel v. Macgill, 56 Md. 120, 122. The bequest of the whole of the testator's stock in a particular bank is specific. Foote, Apt., 22 Pick. 299. The word "my" in reference to stock or shares is generally admitted to be sufficient to make a bequest specific. But the doctrine of aug- mentation of a specific legacy should be borne in 235 236 TESTAMENTARY FORMS mind; for a gift of "my" stock may include all the stock of the particular description belong- ing to the testator at his death. See Theobald's Law of Wills (7th ed.), 150; In re Martin, 25 R. I. 1. The bequest of a sum due upon a mortgage of particular premises or upon a certain note described is specific. So also the proceeds of a certain mort- gage, or all the money due on the bond of A. B., or all the money standing to the testator's credit in a particular bank. So, also, a particular security described. So, also, a mortgage deed, note, and debt. See Farnum v. Bascom, 122 Mass. 282; Towle v. Swasey, 106 Mass. 100. "A bequest is not the less specific because it includes numerous arti- cles. A bequest of all the horses which the testator may own, of all his plate, of all the books in his library, or of all the horses, cattle, and farming tools on a particular farm or farms, is specific." Tomlinson v. Bury, 145 Mass. 346, 348. But a pecuniary legacy is generally regarded as general. Perkins v. Mathes, 49 N. H. 107, 114; Mathis v. Mathis, 18 N. J. Law, 59. The devise of a farm or any definite parcel of real estate is specific. Humes v. Wood, 8 Pick. 478. So, also, the use and improvement of a certain lot of land for the term of one's natural life, as well as the remainder after the termination of such fife. Far- num v. Bascom, vM supra, p. 286. A residuary legacy is not specific, and the Eng- lish rule that residuary devises of real estate are SPECIFIC LEGACIES 237 specific probably never obtained in most American jurisdictions. Forms like the following may be used: Specific Legacies. I give and bequeath to A. B. my ten shares in the People's National Bank of, etc., certificate num- bered 1417, meaning and intending the same as a specific legacy. I give and bequeath to A. B. ten of the first mort- gage bonds of the Agricultural R. R. Co. issued in 1911 and redeemable in 1941. Said bonds are num- bered 1017, 1018, 1042, 1065, 1157, 1159, 1187, 1305, 1322 and 1367. Each of them is of the denomina- tion of one thousand dollars; and this bequest is intended as a specific one. I give and bequeath to my friend A. B. two hundred shares of the capital stock of the Silver Manufacturing Company standing in my name and represented by certificate numbered 643, dated, etc. I mean and intend this legacy as a specific one, but, if it should appear at the time of my decease that I have disposed of said shares, then in lieu thereof I give and bequeath to said A. B. the sum of twenty thousand dollars. I give and bequeath to my friend, A. B. five $1,000 bonds of the Wellington Manufacturing Co. 238 TESTAMENTARY FORMS issued in 1904 and redeemable in 1920, said bonds being numbered 98, 142, 163, 207 and 225. I mean and intend the same as a specific bequest; and I de- clare and direct that, if at the time of my decease I am not the owner of any one or all of such bonds, then my executors shall from the general funds of my estate purchase a bond or bonds to make good the deficiency. Another form of specific legacy may be found on p. 515. The "ademption" of specific legacies is an im- portant consideration. If a specific legacy fail by the ademption or in- adequacy of its subject, the legatee will not be entitled to any recompense out of the general per- sonal estate. "A specific legacy of a chattel, or a particular debt, or parcel of stock, is held to be adeemed when the testator has collected the debt, or disposed of the chattel or stock in his lifetime, whatever may have been the intent or motive of the testator in so doing." Richards v. Humphreys, 15 Pick. 133, 135. See Kenaday v. Sinnott, 179 U. S. 606. In all cases of specific gifts the attorney should instruct the testator that if the thing or property bequeathed is sold or disposed of by the' testator before death, the ademption is complete and the legatee gets nothing unless the testator makes other provision for him in the will. , It should be noted that if a legacy is given gener- ADEMPTION 239 ally with reference to a particular fund, as a means of payment, it is demonstrative; and, if the fund fail, the legatee will be entitled to receive his legacy out of the general assets. "A demonstrative legacy is a bequest of a certain sum of money, stock or the like, payable out of a particular fund or security. ... A bequest of the sum of $1,500 payable out of the proceeds of a specified bond and mortgage, is a demonstrative legacy." Crawford v. McCarthy, 159 N. Y. 514, 519. In this case a bequest "I direct my daughter, out of the moneys belonging to me on deposit in her name, to pay my said son the sum of fifteen hundred dollars," without any general bequest to the son, was held a specific, and not a demonstrative legacy. The sale of real estate specifically devised operates as an ademption. Ward v. Ward, 15 Pick. 511, 524. Provision is made for ademption in two of the forms just given. The following are also offered as forms: Ademption. If at the time of my decease the stocks and bonds specifically bequeathed herein are not in my pos- session, then I direct my executors to make good such specific legacies by purchasing from the general funds of my estate stocks and bonds necessary to make up the deficiency; and, if they cannot pur- chase stocks and bonds of the same kind, then I authorize them to purchase those of a similar kind and of equal value. 240 TESTAMENTARY FORMS In case I shall part with any of the one hundred shares of the stock of the Equity Belting Co. spe- cifically bequeathed herein to my son A. B., then I direct my executors, as the shares of said company are closely held, not to endeavor to purchase any of the same but to turn over the shares on hand to the said A. B. and to make up the deficiency to him in money, estimating the stock disposed of at one hun- dred and fifty dollars a share. If at the time of my decease I shall not have in my possession a sufficient amount of each descrip- tion of bonds to fulfil the specific legacies given by this will, I direct my executors to purchase with the general funds of my estate the required amount of the kind of bonds lacking, or, if this is impossible, then bonds of a similar kind and of equal value and to apply the same to the carrying out and payment of said legacies. I give to A. B. five $1,000 first mortgage bonds of, etc., numbered 837 to 841 inclusive, and if, at the time of my decease, I am not in possession of any one or more of said bonds I give the said A. B. the sum of one thousand dollars in money for each of said bonds disposed of by me. I give A. B. three $1,000 first mortgage bonds of, etc., numbered 417, 418 and 460; and, if I do not have in my possession at the time of my decease any one or more of said bonds, I direct that the ADEMPTION 241 deficiency be made good with any sound and reliable bonds of equivalent value, which I hereby give and bequeath to the said A. B. Another important matter is that of "exoneration." Personal or real property specifically devised or bequeathed is to be exonerated from all incum- brances placed upon it by the testator, in the ab- sence of any expressed intention to the contrary. This subject is fully treated on pp. 91 et seq. "Specific legacies are considered as separated from the general estate, and appropriated at the time of the testator's death; and, consequently, from that period, whatever produce accrues upon them, and nothing more or less, belongs to the legatee." 2 Wil- liams on Executors (Am. ed.), 741. A specific legacy of a coupon bond carries with it an overdue negotiable coupon attached to it at the testator's death. Ogden v. Pattee, 149 Mass. 82. This decision is very broad, and it is doubtful whether it would be followed in all jurisdictions. Hence that no question in the case of bonds specifically bequeathed may be raised as to the apportionment of the proceeds of coupons which are the first to mature after the testator's decease, the testator's intention should appear. , The will of a wealthy testator contained the follow- ing provision: The interest upon all the bonds in this will be- queathed either to legatees or in trust shall be apportioned up to the date of my decease, and so 242 TESTAMENTARY FORMS much thereof as shall have accrued up to that date, though not then due or payable, shall when collected belong to my residuary legatee. A testator may desire to insert a provision some- thing like the following: I particularly direct in the case of the bonds spe- cifically bequeathed by this will to A. B., that there shall be no apportionment of the coupons thereon, either overdue and attached or which are the first to mature after, my decease, but that said coupons like all unmatured coupons upon said bonds shall go and belong absolutely to the said A. B. Another important matter is that of "abatement" in case of a deficiency of assets to pay debts and legacies. For convenience, the question of abate- ment will be considered in relation not only to specific but to other legatees and devisees. It is a general rule that the loss in the case of a deficiency of assets must be borne by general legacies before specific legacies and devises are resorted to; and then specific legacies and devises abate pro rata. See 1 Am. & Eng. Encyc. of Law (2d ed.), 56. If the residuum of an estate is of generous size and the testator's obligations are not large, the proba- bility of abatement of legacies is very slight. In the case of losses or depreciation of property after the making of the will, the testator should either re- ABATEMENT 243 write it or add a codicil, provided the will contains no provision as to abatement. An elaborate pro- vision in a will is not necessary, and each case must be determined by its own circumstances. However, forms may be used similar to the following: Abatement. If my estate shall prove insufficient to pay all the bequests herein given, then I direct that the be- quest to my said wife shall be first paid and that the other legacies shall abate proportionately. If my estate should diminish from depreciation or losses and should thus prove insufficient to pay all the legacies and devises in full, I direct that the pecuniary and specific legacies shall abate proportion- ately before resort is had to the specific devises. If my debts shall exhaust the residuary assets of my estate, then I direct that the legacy of Five Thousand Dollars to A. B. in the fifth article of this will and the specific legacy to C. D. of fifty shares of the capital stock of, etc., shall abate equally to the exoneration of the other legacies and devises. As I may encounter losses in business transactions and my estate may consequently be insufficient at the time of my decease to pay in full all the legacies herein given, I order and direct that in case of such deficiency of assets the pecuniary legacies each of Ten Thousand Dollars given in articles four, five 244 TESTAMENTAKY FORMS and six of this will to A. B., C. D., and E. F., shall abate proportionately. It is my will and I direct that the provisions in this will for my wife and children shall be entitled to preference; and, if my estate shall be insufficient to pay all the legacies in full, then the legacies herein given to my brothers, sisters, friends and servants shall abate ratably to the end that my wife and children shall enjoy the provisions made for them without any deduction or abatement. If my property shall prove insufficient to pay all the legacies given by this will, then I direct that the deficiency shall fall first upon the legacy of Five Thousand Dollars given by the ninth article of this will to the Waywood Academy; secondly upon the legacy of Ten Thousand Dollars given by the eleventh article of this will to my brother, L. M.; and thirdly upon the legacy of Fifteen Thousand Dollars given by the thirteenth article of this will to my friend, N. 0. If my estate shall not be sufficient to pay in full all the legacies given in this will, then I direct that the loss shall fall ratably upon the six pecuniary legacies herein given, irrespective of the amount of such legacies. To illustrate: if the amount of the deficiency is Twelve Thousand Dollars each pecu- niary legacy shall contribute two thousand dollars, or in other words shall abate to that amount. ABATEMENT 245 If my property proves insufficient to pay all the legacies herein given, then I direct that they shall abate as follows: first the pecuniary legacies shall contribute ratably to make up the deficiency; and, if all the pecuniary legacies are taken for that purpose, then the specific legacy of 100 shares of the Plympton Railroad Co. given to A. B. by the eighth article of this will shall be resorted to and the whole thereof taken, if necessary. The above legacy of bonds and shares of stock I do not intend as a specific, but as a general, one; and I declare that the said legacy shall be subject to abatement in the same manner as a general legacy would be. Another form will be found on p. 516. A legacy not "of money payable out of a particular fund, but of a distinct share of a fund with a pro- vision that such share should not amount to more than a certain sum" is specific. "It is contended, therefore, that it abated during the time that the rents out of which it was payable were being used under the trust which the testator had created for the benefit of creditors. As there is no claim except upon the fund specifically bequeathed, this deficit cannot be made a charge on the general estate. But where there is a legacy of a definite amount specifi- cally charged as an annuity upon the rents or income of a certain estate, if in any one year the estate, or share of it appropriated to the annuity, shall fail 246 TESTAMENTARY FORMS to produce the amount, the arrearages of the annuity are chargeable upon the subsequent income re- ceived, so that, if more shall be produced than is required for the current payments, it may be applied to their liquidation. Graves v. Hicks, 11 Sim. 536, 555; Booth v. Coulton, L. R. 5 Ch. 684; Taylor v. Taylor, L. R. 17 Eq. 324; Nuddw. Powers, 136 Mass. 273. The same principle should be applied even where the testator sets aside during his lifetime, for a temporary purpose, the income he has already bequeathed, although the arrearage thus created is by his own act, and not by a failure in the income- producing capacity of the property. By charging an annuity upon the income of specific property, he has shown an intent that the annuitant shall receive it whenever it can be realized therefrom, even if in the form of arrears. Even if the effect of his act is to apply for a time the income elsewhere, the origi- nal intent remains." Bradlee v. Andrews, 137 Mass. 50, 57. If a testator directs his executors to pay off all mortgages on real estate specifically devised by him and then convey it to the devisee, the executors are to pay the whole of the mortgage and not merely such proportional part of it as they pay of the pecuniary legacies, in view of the necessary abate- ment of them. Porter v. Howe, 173 Mass. 521, 526. In this case the contention that the payment of legacies under the first eleven items of the will was erroneous, on the ground that the estate was in- sufficient to pay the legacies in full, and that these ABATEMENT 247 should abate proportionally with the others, was held to be unsound, pp. 524, 525. It was also held that the reference in the last item of the will to the fact that "certain of the legacies and bequests named above are limited to be paid after certain events, as recited" related not to the question of abatement of legacies, but partly to the distinction between legacies payable before the death of a legatee and those payable afterwards, pp. 528, 529. "In order to give a preference to some over others of general pecuniary legatees, the expression of the intention of the testator so to do must be clear and conclusive." p. 527. The father of a testator left a large sum, the income to go to the testator for life, and gave him a power of disposition over the corpus by will. The testator after directing by the fourth clause of his will that if his own residue was insufficient, this fund should be used to make good any deficiencies in certain charitable legacies of his mother, by the fifth clause of his will ap- pointed a fund "or so much thereof as may remain after the foregoing provisions of my will shall have been satisfied, in equal shares to " two institutions named. There were no deficiencies to be made good under the fourth clause, the appointment was not modified by the codicils, and the second codicil stated that it was not intended to dispose of any property over which the testator had a power of appointment. It was held that if the estate of the testator was insufficient to pay the legacies given in the second codicil, the fund in question was not 248 TESTAMENTARY FORMS to abate proportionately. White v. Massachusetts Institute, 171 Mass. 84, 95, 96. It was held in Johnson v. Home for Aged Men, 152 Mass. 89, that there was no intention of the testator to prefer a trust fund over a specific devise, or to give any priority thereto. "Specific legacies are not to be abated on account of general legacies, unless the latter are made a charge thereon. Nor is the devise of a specified parcel of real estate to be charged with the formation of particular funds subsequently pro- vided for in a will, unless the intent so to charge the property devised clearly appears." Same case, p. 93. The words "further" and "then" in the phrase "Further my said executors and trustees shall then pay over the following gifts and bequests, namely," etc., "have repeatedly been held not to import a preference." Porter v. Howe, 173 Mass. 521, 528. "When there is a deficiency after the payment of debts, expenses, and specific legacies, the loss shall be borne entirely by those pecuniary legacies which are in their nature general. ... As between legacies which are in their nature mere bounties, the presump- tion of intended equality will prevail, unless there is unequivocal evidence to the contrary; and no priorty will be allowed where the expressions of the will are ambiguous." Towle v. Swasey, 106 Mass. 100, 104. In the abatement of pecuniary legacies there is no legal difference between legacies to in- dividuals and legacies to public charities; nor does relationship furnish any test, although all such facts ABATEMENT 249 may be considered in determining the intention of the testator. Porter v. Howe, 173 Mass. 521, 527. Specific and demonstrative legacies abate after the pecuniary legacies just named above. 2 Williams on Executors (7th Am. ed.), 676, 677. "If a legacy is specific and is appropriated to the payment of debts, the legatee (if the general or residuary legacies are not sufficient) is entitled to contribution from the holders of other specific legacies. Farnum v. Bascom, 122 Mass. 282." Tomlinson v. Bury, 145 Mass. 346. But where recourse is had to specific devises and bequests in order to meet the debts, there is no preference of the real to the personal estate, but they must bear the burden proportion- ally. Farnum v. Bascom, 122 Mass. 282, 287, 288. See Hubbell v. Hubbell, 9 Pick. 561; Ellis v. Page, 7 Cush. 161, 163. Legacies founded on a valuable consideration, as in the case of a widow who accepts a legacy in lieu of dower, are generally the last to abate. Hubbard v. Hubbard, 6 Met. 50; Pollard v. Pollard, 1 Allen, 490; Towle v. Swasey, 106 Mass. 100, 105, 106; Welch v. Adams, 152 Mass. 74, 79; Gruver v. Wood, 174 Mass. 540. And the same principle would seem to apply in case of a husband who consents to his wife's will, in which she gives him a life interest in certain real estate, although not an exact equivalent to the right relinquished. Far- num v. Bascom, 122 Mass. 282, 288, 289. But the fact of near relationship or dependence, or of the meritorious character of the legatee, is not enough to justify a preference. Richardson v. Hall, 124 250 TESTAMENTARY FORMS Mass. 228, 233. See also Towle v. Swasey, ubi supra, p. 108. If a testator by will gives a pecuniary legacy to his widow, and she accepts it, a specific bequest of personal property, and, if that is insufficient, a specific devise of land, to other beneficiaries, must abate in favor of the legacy to the widow, if the abatement of the general legacies is insufficient for the purpose. Borden v. Jenks, 140 Mass. 562. In some places there are statutes providing for contribution when an estate is taken from a devisee for the widow's dower or for the tenancy by the curtesy of the husband, and also for contribution in case of posthumous or omitted children. A perfect form of will is that which makes no mention of pecuniary legacies, but gives the entire estate in shares. Hence no questions as to priority of payment of legacies can arise. The following are offered as forms: Estate given in Shares. I direct that all the property of which I shall die seized and possessed and to which I shall be entitled at the time of my decease, wherever the same may be situated, shall be divided into five equal shares. Then I give, devise, and bequeath two of said shares, that is, two fifths of my entire estate, to my brother A., and to his heirs and assigns forever; two of said shares, that is, two fifths of my entire estate, to my brother B., and to his heirs and assigns forever, and one of said shares, that is, one fifth of my entire estate, to my friend C, and to his heirs and assigns forever. CONTRIBUTION 251 I give, devise and bequeath to my wife A. B. and to her heirs and assigns forever the sum of one hundred thousand dollars, which I estimate as exactly one third in value of my estate, both real and personal, at the present time; and all the rest, residue and remainder of my estate, both real and personal, of which I shall die seized and possessed and to which I may be entitled at the time of my decease, I give, devise and bequeath to my two children A. B., and C. D., and to their heirs and assigns forever, to be equally divided between them. All the rest, residue and remainder of my property, both real and personal, of which I shall die seized and possessed and to which I may be entitled at the time of my decease, and wherever the same may be situated, I direct my said executor to divide into nine equal shares or parts; and I give, devise and bequeath three of said shares or parts, being three ninths or one third of said rest, residue and remainder to my wife A. B. to have and to hold to her and her heirs and assigns forever and to each of my children, C. D., E. F., G. H., I. J., K. L., and M. N., one of said shares or parts, being for each one ninth of said rest, residue and remainder, to have and to hold to them and their heirs and assigns respectively forever. The advantages and the desirability of giving property in shares cannot be too strongly urged. A testator's wishes may be completely thwarted by events occurring subsequent to the execution of the 252 TESTAMENTARY FORMS will, if instead of bequeathing and devising his property in shares, he gives a large pecuniary legacy or legacies and the balance of his estate to a residuary legatee or legatees. For example, a testator is worth six hundred thousand dollars. He is living with a second wife, and all his children, four in number, are by the first wife. He gives his living wife by will a pecuniary legacy of two hundred thousand dollars, just one third of his property, and the four children the rest, residue, and remainder. At the time of his death his property, by reverses and depreciation due to commercial causes, has shrunk to two hun- dred thousand dollars. This the wife takes and the children get nothing. If the wife had been given two sixths and the children each one sixth of the estate, they would all have borne the shrinkage ratably. Other forms are given on pp. 542, 560, 566, 574. CHAPTER XII LEGACY TO DEBTOR OR CREDITOR OF THE TESTATOR 1. Legacy to a Debtor. "The mere fact of a pecuniary legacy to one who is indebted to the testator raises no presumption of an intention by the testator to forgive the debt, in addition to the legacy." Rood on Wills, § 735. It is provided by statute in some jurisdictions that a debt due to the estate of a deceased person from a legatee or distributee of such estate shall be set off against and deducted from the legacy to such legatee or from the distributive share of such dis- tributee; and the probate court shall hear and de- termine the validity and amount of any such debt, and may make all necessary or proper decrees and orders to effect such set-off or deduction; but the provision of this statute shall not prejudice any remedy of an executor or administrator for the re- covery of such debt nor affect the liability of the legatee or distributee for the excess of his indebted- ness over the amount of his share in or claim upon the estate to which he is indebted. It has been held that if the debt is barred by the statute of limitations at the time of the testator's 253 254 TESTAMENTAEY FORMS death, it cannot be deducted from the legacy, un- less that intention appears by the will. Allen v. Edwards, 136 Mass. 138. The testator's purpose should clearly appear, as it has been held that his intention may be implied from some other part of the will or may be proved by extrinsic evidence. See Sloane v. Stevens, 107 N. Y. 122. Forms like the following may be used: I give A. B. a legacy of ten thousand dollars and I expressly declare that all debts of every name and description now due me and that hereafter may be due me from said A. B. at the time of my decease are hereby forgiven and cancelled. I give A. B. a legacy of ten thousand dollars and I expressly declare that it is not my intention to forgive and cancel any claim or claims I may have against him at the time of my decease. Another form is given on p. 515. Testators frequently provide for cancelling debts, as in the following forms: Legacy in Case of Joint Obligation. Whereas I have in my possession the joint obliga- tion to the amount of forty thousand dollars of my four children, A. B. C. and D., and, whereas I de- sire to release my son D. from all liability thereon, but apprehend that, if I do so by this will, I may LEGACY TO A DEBTOR 255 legally release my other children as well, now, therefore, I hereby give the said D. a legacy of ten thousand dollars, which will be sufficient to enable him to discharge his share of the obligation. Cancellation of Debts not Exceeding One Hundred Dollars each. It has been my custom to lend small sums of money to relatives and friends in indigent circum- stances and in most cases to take no written obliga- tion therefor. Many of these claims are now out- lawed, but, whether outlawed or not, I direct my executors to cancel all of them which I may have and hold against any persons whatever at the time of my decease, this release and cancellation, how- ever, to apply only to claims each of one hundred dollars or less, exclusive of interest paid or unpaid. Cancellation of Debts not Exceeding Five Hundred Dollars each. If at the time of my decease I hold any claims of any nature whatever, each of which shall be five hundred dollars or less, against any person or persons whatever, evidenced by mortgages, notes, book accounts or in any other manner, then I au- thorize and empower my executors to release and cancel all of such claims, giving the debtor in each case such acquittance, release or discharge as may be legal and proper. In determining whether a claim amounts to five hundred dollars, interest 256 TESTAMENTARY FORMS thereon is not to be reckoned, but is to be entirely disregarded. Release of Tenant from Paying Rent. I give and devise to my son A. B. and to his heirs and assigns forever the lot and house thereon situated in, etc., and bounded and described as follows [de- scription]. These premises have been enjoyed and the house thereon has been occupied by my said son for many years; and I now direct that in the settle- ment of my estate he shall be released, and I do hereby release him, from the payment of all rent, taxes, repairs, insurance and any other charges accruing and chargeable during his use and occu- pancy of said premises previous to my decease. Release of General Indebtedness of Daughter. My daughter, A. B., being at present indebted to me on various loans to her, upon which she has given me certain security, I now declare that it is my will and intention and I hereby direct that all such loans existing at the time of my decease, in- cluding interest due thereon, shall be discharged and cancelled; and I direct my executors to deliver and give up to her not only the evidence of such loans so discharged and cancelled, but also all secu- rities or other things of value that may be held by me to secure the same. A testator may by will direct that certain gifts made by him to, or debts due him by note or book LEGACY TO A DEBTOK 257 account, etc., from his children or others, as, for ex- ample, a daughter's husband, be regarded as ad- vancements; and they thus become so, to all intents and purposes, not by force of the provisions qi statutes, which pertain to advancements made by intestates, or by virtue of their original character, but simply by the will of the testator. Bacon v. Gassett, 13 Allen, 334; Langdon v. Astor, 16 N. Y. 9. And such claims cannot be barred by the statute of limitations, so that the testator has no right to them as advancements or as debts. "In distribut- ing his own property among his children, and deciding what shall be a just and equal portion for a child, he may treat any sum which he has paid to a child as a debt or advancement to be deducted from his share. It is in the nature of a charge to be satisfied out of the portion, and must be met before the legatee is entitled to the legacy. A testator may not only make his own debts due from the legatee a charge, but debts due from another. It is not unusual to charge a daughter's share with her hus- band's debts to the testator. In Poole v. Poole, L. R. 7 Ch. 17, a testator directed that certain ad- vances should be deducted from a daughter's share, and also, if at the period for distribution she should be indebted to either of her brothers and sisters, his trustees should be empowered to deduct such debts from her portion. She had borrowed money from them both before and after the date of the will, and most of the debts had been barred by the statute 258 TESTAMENTARY FORMS before the distribution. And it was held that they should be deducted; but as the testator had put his own debt on the footing of an advancement, the jnference was that he intended to put the claims of the brothers and sisters on the same footing, as ad- vancements and not as debts, and interest was not allowed. See Rose v. Gould, 15Beav. 189; Courtenay v. Williams, 3 Hare, 539." Cummings v. Bramhall, 120 Mass. 552, 561. Where a testator directed that "legal debts" should be deducted from each child's portion, it was held that only debts were meant which. can be en- forced in a court of law. Rogers v. Daniell, 8 Allen, 343. Deductions from portions given in trust must be from the principal, and not from the income. Tread- well v. Cordis, 5 Gray, 341. The question whether executors have the right to charge interest, after the death of the testator, upon advancements depends upon the intention of the testator, to be gathered from the will. Taylor v. Taylor, 145 Mass. 239. In this case it was held that the executor was not entitled to charge legatees with interest after the testator's decease. In Nichols v. Coffin, 4 Allen, 27, 39, it was held that as some of the several notes referred to were made payable with interest, and others not, the division of the estate should be made as of the day of the testator's death. As to a bequest in trust, the trustee to pay to the beneficiaries such sum or sums as he "may consider reasonable and proper as an advance or marriage LEGACY TO A DEBTOR 259 portion from the said principal sum or its accumula- tions," see Croft, Petr., 162 Mass. 22, 27. An ex- amination of the original papers in this case shows that the will contained this clause, "Whereas I have heretofore procured sundry stocks to be transferred severally to my children which are charged to them in my books, and were and are intended as advance- ments to them; Now therefore I direct that in the settlement of my estate the shares so severally charged to my children or any stocks which may be substituted by me for those originally issued to them shall be charged to them severally and re- spectively at such sum or sums as they may be worth at my decease, by an appraisement then to be made." In Nichols v. Coffin, 4 Allen, 27, it was held among other things that certain notes given to the testator by several of his children, each of which was expressed on its face to be "in part payment of what I may inherit on my father's decease, and to be charged to me/' were to be deducted from the amount of the shares set apart for their benefit respectively. The following suggestions are offered: The testator should be told to take a promissory note in every case of a loan, and that the rate of in- terest should be expressed therein. The will should also state whether interest is to cease with the testa- tor's death or continue till the settlement of the estate and the payment of legacies. It is better to charge the advancement on a regular pecuniary legacy than on a trust, a life estate, or a remainder. 260 TESTAMENTARY FORMS Of course, a legatee may deny the note or book charge; and while the testator's intention will un- doubtedly prevail, it may be well in some cases to state in the will that neither notes nor book accounts are to be questioned. Often at the end of the in- ventory of an estate will appear words like these: "There is an entry in the testator's ledger of an in- debtedness to him of $5,000, from A. B., who denies the same, and this entry is made here so as not to waive any rights"; or, "The following are claimed by A. B., by transfer from the testator, but the ex- ecutor relinquishes none of his rights thereto." The following forms may be of service: Advances. I have made various advances of money and of securities to my children and to the issue of my children as appear by charges on my books of ac- count, and I think it probable that I shall make further advances to them before my decease. I hereby declare and direct that all advances to said children and their issue as appear by charges upon my books at the time of my decease shall be de- ducted from the shares or amounts bequeathed to such children or issue herein, whether given abso- lutely or in trust for them, and that no interest shall be charged, reckoned or collected upon such advances. All advances to my children appearing by charges in my books of account at the time of my decease LEGACY TO A DEBTOK 261 shall be deducted from the amounts of all legacies to said children under this will or any codicil hereto. Whereas I have transferred certain real estate and made various gifts of money and securities to my children A. B., C. D., and E. F. during my life, and whereas I may make further transfers of real estate and gifts of money and securities to them, now, therefore, I order and direct that such trans- fers and gifts shall not be regarded as a part of my estate, and I discharge and release each and all of my said three children from all debts which they owe or may be construed to owe me at the time of my decease. Any advances or loans made by me to any legatee under this will or any codicil hereto, so far as said ad- vances or loans are unpaid at the time of my decease, are hereby cancelled, annulled and discharged. I order and direct that all gifts and advances to my children appearing as charges on my books at the time of my decease or evidenced by promissory notes or in any other way shall be regarded as a part of my estate. Interest shall be charged upon all such gifts and advances. I order and direct, if at the time of my decease I hold any promissory note or notes against any legatees under this will or have any claim or claims against any legatees as may appear by book balance 262 TESTAMENTARY FORMS upon my ledger or by any other charge upon my books of account, that all such notes and claims shall be regarded as a portion of my estate, and shall be deducted from the respective legacies given to such legatees by this will; and it is immaterial whether such notes or claims are barred by the stat- ute of limitations or not or whether the legatees have been discharged from the debts under the bank- rupt or insolvent laws of the United States or of any State. Interest upon all notes shall be at the rate specified therein and upon book accounts at the rate charged; and, if not so specified and charged, then simple interest at the rate of five per cent per annum shall be collected. Interest is not to cease at my death, but is to continue until my estate is settled and the legacies are paid. I order and direct that, if at the time of my de- cease I hold any claim or claims against A. B. the husband of my daughter C. D., said claim or claims shall be regarded as a portion of my estate and shall be deducted from the legacy hereinbefore given to my said daughter C. D. Interest upon said claim or claims shall be charged at the rate of five per cent per annum to the time when my estate is settled and legacies are paid. All sums of money due me at the time of my de- cease from any of my children whether the same be evidenced by promissory notes, book accounts or in any other way, shall not be enforced against said LEGACY TO A DEBTOR 263 children but shall be regarded as absolute and ir- revocable gifts, and any evidence of indebtedness signed by any children shall be cancelled and given up to them. Another form is given on p. 509. After making his will a testator often gives a legatee certain property which he intends as a satisfaction of the legacy in whole or in part. "If therefore a testator, after having made his will, con- taining a general bequest to a child or stranger, makes an advance, or does other acts, which can be shown by express proof, or reasonable presumption, to have been intended by the testator as a satisfac- tion, discharge or substitute for the. legacy given, it shall be deemed in law to be an ademption of the legacy. Hence it is, that when a father has given a child a legacy as a portion or provision for such child, and afterwards, upon the event of the mar- riage, or other similar occasion, makes an advance to such child, as and for a portion or provision, though to a smaller amount than the legacy, it shall be deemed a substitute for the provision contem- plated by the will, and thence as an ademption of the whole legacy. This is founded on the con- sideration, that the duty of a father to make a provision for his child is one of imperfect obliga- tion and voluntary, that his power of disposing is entire and uncontrolled, that he is the best and the sole judge of his ability in this respect, and of the amount which it is proper for him to appropriate to 264 TESTAMENTARY POEMS any one child, as such provision. The law pre- sumes, in the absence of other proof, that it was the intention of the father by the legacy to make such provision, that it was not his intention to make a double provision, that when after the will is exe- cuted, another provision is made for the same child, the original intent of making such provision by will is accomplished and completed, that the pur- pose of giving the legacy is satisfied, and of course concludes, that the legacy itself is adeemed. And if the subsequent portion or provision made in the lifetime of the testator, is less than the legacy, still it operates as an ademption of the whole legacy, not because a smaller sum can be a payment of a larger, but because it manifests the will and intent of the testator, who is the sole disposer of his own bounty, to reduce the amount of the provision, originally contemplated, when he made his will. Hartop v. Whitmore, 1 P. Wms. 681; Clarke v. Bur- goyne, 1 Dick. 353." Richards v. Humphreys, 15 Pick. 133, 136; Rood on Wills, § 715. See Hayward v. Loper, 147 111. 41 ; Security Co. v. Brinley, 49 Conn. 48. In some States statutes provide that advance- ments are not to be regarded as ademptions of general legacies, unless the intention is shown by the testator in writing. See Remsen on Wills, 310, 311. "Payment of a legacy provided for in a will made by the testator before the will takes effect by his death, is regarded as consistent with and carry- ing out the intention expressed in the will; but to apply a gift made before the execution of the will in LEGACY TO A DEBTOR 265 full or part satisfaction of a legacy given by the will necessarily varies the terms of the legacy, and allows the intention expressed in the will to be con- trolled by a different intention proved by parol. If a gift is made by a parent to a child, it may be presumed to be an advancement of a portion of the parent's estate which he has given to the child by will, or which the law may give if the parent dies intestate, but if after making such gift the parent by will fixes the portion of the child, the former gift cannot be taken as a part of the portion unless made so by the will. It cannot by possibility be an ademption of the legacy. If it can operate as a satisfaction of the legacy, it must be upon other grounds than the right of the testator to adeem a legacy. Paine v. Parsons, 14 Pick. 318; Richards v. Humphreys, 15 Pick. 133; Jones v. Richardson, 5 Met. 247, 253; Hartwell v. Rice, 1 Gray, 587, 594. See authorities collected in note to Chancey's case, 2 White & Tudor's Lead. Cas. in Eq. (4th Am. ed.) 782 et seq." Jaques v. Swasey, 153 Mass. 596, 597. "Where the payment made by the testator subse- quently to the execution of a will is equal to or exceeds the amount of the legacy, it will be deemed a satisfaction or an ademption thereof." Tanton v. Keller, 167 111. 129, 142. "We know of no authority which would justify a holding that a general legacy, which is payable out of a particular fund or in a specified manner, may not be satisfied in case the legatee receives the amount thereof from the testator in his lifetime out 266 TESTAMENTARY FORMS of the very fund devoted to the payment of the be- . quest, provided it clearly appears that the amount was given and received with the intention that it should work an ademption of the legacy." Roquet v. Eldridge, 118 Ind. 147, 151. "Where a parent makes a provision by will in favor of a child to whom he had previously secured a portion by marriage settlement or otherwise, the presumption is that such provision was intended as a satisfaction of the portion, and it will be held to be such in the absence of evidence proving the contrary. In such case a double portion will not be allowed unless it plainly appears that the testator so intended." 19 Am. & Eng. Encyc. of Law (2d ed.), 1246. "The re- execution of the will and codicils . . . can have no other effect than a republication. . . . They were the same instrument after, as before, the re-execution. That a republication will not revive a satisfied legacy is, I think, established by the authorities." Langdon v. Astor, 16 N. Y. 1, 57. The following forms may be of service : I direct and declare that any gifts and payments made by me after the execution of this will to any legatee herein or in any codicil hereto shall be in lieu of the legacy to such legatee if equal thereto or in excess thereof, and proportionately in lieu of the legacy, if less than the amount thereof. I give, devise and bequeath to the Wrightworth Hospital of, etc., for the uses and purposes for which LEGACY TO A CREDITOR 267 said Hospital was incorporated, the sum of one hundred thousand dollars. I declare and direct, however, that any sum or sums of money that I may hereafter give to said Hospital shall be regarded as so much advanced on account of this legacy, which shall be reduced accordingly by the amount or amounts of such payments. But no interest is to be charged thereon. 2. Legacy to a Creditor. Generally a legacy to one of the testator's creditors is regarded as a bounty and not as a payment of his debt, unless that intention plainly appears. Parker v. Coburn, 10 Allen, 82, 84. But "a legacy, exactly corresponding in amount and time of payment to an existing debt of the testator to the legatee, and given by a will which contains no provision indicat- ing a different intention, is to be presumed to be in satisfaction of the debt, and not in addition thereto." Allen n. Merwin, 121 Mass. 378, 380. "The legatee is entitled to both the legacy and the debt, if the legacy is in any way less favorable than the debt, though more favorable in other respects. The legatee is entitled to both, if the legacy is for a less amount, not as soon payable, contingent, or uncertain in amount like a residue, or if of a different nature, not directly to the creditor, or given before the debt was contracted, or before it became liquidated. If the will requires the executor to pay the testator's debts the operation of the rule is avoided." Rood on Wills, § 740. 268 TESTAMENTARY FORMS "A direction by the testator that his debts and legacies should be paid, is sufficient to rebut the presumption that a debt is satisfied by a legacy." Hawkins on Wills, (2d Am. ed.), 299. The testator should make his intention clear in the will. A form may be found on p. 516. CHAPTER XIII PAYMENT OF AND INTEREST UPON LEGACIES For convenience we consider here the payment of debts. In most jurisdictions statutes provide that an executor or administrator is not liable to an action by a creditor for a certain period after giving bond and receiving his testamentary letter or letter of administration. In many cases this period is fixed as a year, and it is provided that there is an excep- tion in the case of a demand which would not be affected by the insolvency of the estate or if the action is brought after the estate has been repre- sented insolvent, for the purpose of ascertaining a contested claim. Demands which would not be affected by the insolvency of an estate are in most cases those like funeral expenses, etc. Statutes also frequently provide that if an executor or ad- ministrator does not have notice within a certain time (generally a year) of demands which would authorize him to represent the estate insolvent, he may, after that time, pay the debts without being liable for payments made before notice of the de- mand; and if he pays, before notice of the demand of any other creditor, the whole of the estate, he shall not be required to represent the estate insolvent, 269 270 TESTAMENTARY FORMS but in an action may prove payments. So also provision is sometimes made as to extent of liability if residue is insufficient to meet new claims. So statutes often provide that if it appears upon settle- ment of the account that the whole estate has been exhausted in paying the charges of administration and debts entitled to a preference over common creditors, such settlement shall be a bar, although the estate has not been represented insolvent. As an executor or administrator is generally only justified in paying legal demands, a testator may, in some cases, desire to make provision as to a de- mand not enforceable against his estate. A testator may desire to give special instructions as to the payment of his debts, perhaps in the nature of a warning to defer payments until the time arrives when the executor may be sued. This subject of debts is also treated on p. 329 et seq. A testator may desire to know something of the law as to the limitation of actions by creditors. It is sometimes provided that an executor or adminis- trator shall not answer to an action by a creditor not commenced within a certain period. Statutes often provide as to extension of time for creditor's actions by receipt of new assets, and also for a creditor whose right of action accrues after the two years. So also provision is often made to the effect that if a person entitled to bring or liable to an action dies before the expiration of the time limited or within a certain PAYMENT OP AND INTEREST UPON LEGACIES 271 number of days after the expiration of that time, and the cause of action by law survives, the action may be commenced by the executor or administrator at any time within the period within which the deceased might have brought the action or within a certain time after his giving bond for the discharge of his trust and against the executor or administrator in accordance with the statutory limitations of actions against the executor or aclministrator by creditors of the deceased. So also there are frequently statutes as to liability of heirs, devisees, legatees, etc., after the estate has been settled by the executor, etc. In nearly all jurisdictions there are ample statutes in regard to the payment of legacies and the settle- ment of estates. These often provide that if money ordered by a decree of court to be paid over remains for six months or more unclaimed, the executor, administrator, guardian, or trustee may deposit it in a savings bank or invest it in certain stocks for the person entitled thereto. So they also often provide that if the residence of a legatee or of a person entitled to a portion of a trust fund under an order of distribution is unknown, or if he is a minor without a legal guardian, the court may order that the legacy or the share of the trust fund be deposited in bank or otherwise invested. Iri Massa- chusetts there is the following statute (Rev. Laws, c. 136, §3): "A decree allowing a will or adjudicating the intestacy of the estate of a deceased person in any court in this commonwealth having jurisdiction 272 TESTAMENTARY FORMS thereof, shall after two years from the rendition of such decree, or if proceedings for a reversal thereof are had, after two years from the establishment of such decree, be final and conclusive in favor of purchasers for value, in good faith, without notice of any adverse claim, of any property, real or per- sonal, from devisees, legatees, heirs, executors, ad- ministrators, or guardians; and in favor of executors, administrators, trustees, and guardians, who have settled their accounts in due form and have in good faith disposed of the assets of the estate in accordance with law; and also in favor of persons who have in good faith made payments to executors, administra- tors, trustees, or guardians. If a subsequent decree reverses or qualifies the decree so originally rendered, heirs, devisees, legatees, and distributees shall be liable to a subsequent executor, administrator, or other person found entitled thereto, for any pro- ceeds or assets of the estate received by them under the former decree, and in such case proceeds of real property shall be treated as real property. The provisions of this section shall not make an adjudica- tion of the fact of death conclusive." There are statutes in most jurisdictions to the effect that if the court finds that a partial distribu- tion of the personal property of an estate in process of settlement therein can, without detriment to such estate, be made to the persons entitled thereto, the court may, subject to the rights of creditors and after notice, order such partial distribution to be made. PAYMENT OP AND INTEKEST UPON LEGACIES 273 As to the time when legacies are payable it is stated in 2 Williams on Executors (Am. ed.), 1239, that "the period fixed by the civil law for that pur- pose, which our courts have also prescribed, and which is analogous to the Statute of Distribu- tions ... is a year from the testator's death, dur- ing which it is presumed that the executor may fully inform himself of the state of the property." "It has been generally assumed that no action would lie until after the expiration of one year. By the civil law, executors have the period of one year from the death of the testator to pay legacies, and the same period in conformity therewith has been adopted by the courts of Chancery. Bac. Ab. Legacy, K. Smell v. Dee, 2 Salk., 415. In Marsh v. Hague, 1 Edw. Ch. 174, it is said that, as a general rule, legacies are pay- able in one year." Brooks v. Lynde, 7 Allen, 64, 67. In some States the matter is determined by stat- utes. If the testator is to make provision in his will, his intention should be clearly expressed, and such expressions as "as soon as convenient" should be avoided. Griggs v. Veghte, 47 N. J. Eq. 179, 187. It has been held that the statute of limitations is no defence to an action for a legacy, so long as the executors hold the assets of the estate. Kent v. Dunham, 106 Mass. 586, 591. "Upon a person's leaving his usual home and place of residence for temporary purposes of business or pleasure, and not being heard of, or known to be living, for the term of seven years, the presumption of life then ceases, and that of his death arises. But this presumption 274 TESTAMENTARY FORMS may be rebutted by counter evidence, or by a con- flicting presumption. And in Prudential Assur. Co. v. Edmonds, 2 App. Cas. 487, 509, it was stated by Lord Blackburn to be 'necessary, in order to raise the presumption, that there should have been an inquiry and search made for the man among those who, if he was alive, would be likely to hear of him.' " Stockbridge, Petr., 145 Mass. 517, 519. While statutes referred to above make certain provisions as to unclaimed legacies, yet if the person to be named as legatee has not been heard of or from for some time, it may be well to make provision in the will as to payment of the legacy. Forms like the following may be used: Absent Legatees. I give my friend A. B., who has not been heard from for many years, a legacy of five thousand dol- lars provided he appears and claims the same within two years after the proving of this will. If he does not appear and claim the legacy at the expira- tion of said two years, then I give the said legacy, which shall not bear interest, to my residuary legatee. I give A. B., whose whereabouts are unknown, a legacy of one thousand dollars. If he does not appear and claim the legacy at the expiration of two years from the proving of this will, then I direct my executor to deposit the same without any interest thereon in the People's Savings Bank of, etc., and, PAYMENT OP AND INTEREST UPON LEGACIES 275 if he does not appear at the expiration of five years from the date of said deposit and claim the same with the interest thereon then due, I give said de- posit with the interest thereon to etc. I give and bequeath one bond of the Albany Central Railroad of the denomination of one thou- sand dollars and numbered 837 to A. B., who has not been heard of for the last ten years. If he does not appear at the expiration of two years from the proving of this will, and claim the above legacy, then I direct my executor to retain said bond for two years longer, cashing the coupons as they mature. If at the expiration of said two years, which will be four years from the proving of this will, the said A. B. does not appear and claim said bond and the proceeds of the coupons, then I give said bond and proceeds to, etc. I give X. Y. the sum of five thousand dollars to be paid to him just two years and six months from the date of the probate of this will without any in- terest thereon during said two years and six months; and as the said X. Y. has not been heard of or from for several years, I direct my said executor A. B., if the said X. Y. does not claim said five thousand dollars at the expiration of said two years and six months, to deposit the same in five different savings banks, the deposit in each bank to be one thousand dollars, and to stand in the name of "A. B. executor of the will of C. D. in trust for X. Y." If after the 276 TESTAMENTARY FORMS expiration of said two years and six months and at or before the expiration of five years from the probate of this will, the said X. Y. either personally or by agent or attorney makes demand for said deposits, the same, with all interest thereon, shall be paid to him or such agent or attorney; otherwise at the expiration of said five years to E. F., my residuary legatee. I direct my said executor to expend from the general funds of my estate a sum not to exceed two hundred dollars in payment of insertions in newspapers, in such parts of the world as he may think proper, asking for information relative to the said X. Y. At common law real estate was not liable for the payment of any legacy, unless there was some provision in the will to show a different intention. Such is the law, unless changed by statute. It is well for the attorney therefore to ascertain if such is the law of the testator's domicile, and, if so, to provide in the will that the payment of the general legacies be charged on the real estate. However, it is often said that a charge may be implied from a residuary clause disposing of the realty and personalty in one mass; from a devise to the executor directing him to pay legacies; from an intention to charge land with the payment of legacies from the fact of giving legacies to a large amount, if the testator then had and knew that he had insufficient property, out of which the payment could be made; from a specific bequest of all the testator's personalty to others; PAYMENT OP AND INTEREST UPON LEGACIES 277 and from the fact that the legatee is a child or grand- child of the testator and no provision is made for him except the legacy. See Rood on Wills, § 748 et seq. In some States there are statutes which provide that a legatee may recover his legacy in an action of law. Brooks v. Lynde, 7 Allen, 64. So also statutes sometimes provide that legacies due from or in the~ hands of an executor as such may be reached by gar- nishment or trustee process. "At common law the subject of paying legacies was fraught with hazard and danger, not always avoidable by the most prudent executor; but in America . . . executors and administrators may fully protect themselves from any liability to cred- itors by a simple compliance with the plain provi- sions of the statutes." 2 Woerner on American Law of Administration, § 451. "It is evident, however, that the retention of the estate for the whole, pe- riod of administration may be onerous and incon- venient, both to the executor or administrator and to the legatee or distributee; and where there is no other hindrance to a distribution but the possibility of claims being proved, the inconvenience may be obviated by providing for the payment of such debts in some other manner. To this end, the Eng- lish statute of distributions and the statutes of most of the United States enable distribution to be made upon the execution by the distributees of refunding bonds, with sufficient sureties, conditioned to refund 278 TESTAMENTABY FOEMS to the administrator so much of the assets received as may be necessary to pay debts and costs law- fully proved against the estate. The same principle is applicable to the payment of legacies; hence, a residuary legatee may compel the payment of a legacy upon giving a sufficient bond for the protec- tion of the executor, administrator, or any person interested, although it remains undecided as to one of the legatees whether he takes an estate or a power." 2 Woerner on American Law of Adminis- tration, § 560. A testator frequently puts a provision in his will directing his executor not to pay legacies until the period (usually two years) has elapsed from the probate of the will, within which creditors must begin actions against the esiate. As in many juris- dictions writs may be returnable at any return day within a certain period, say three months, after the date of the writ, and as the date of the writ is -prima facie the commencement of an action, though the date is only a day or two before the action would be barred by the statute of limitations, and though the writ is not served until several weeks after its date, it may be well to make the period in which legacies may be paid twenty-eight months or more from the probate of the will. See Gardner v. Web- ber, 17 Pick. 407. "A legatee or creditor ought not to be expected to receive payment of his legacy or debt in such instalments as the executor may, in his own discre : tion, see fit to apportion to him. The existence of PAYMENT OP AND INTEREST UPON LEGACIES 279 the power in the court to order partial payments, and its frequent exercise, do not indicate that the executors have any such power, but rather other- wise." Welch v. Adams, 152 Mass. 74, 85. The following forms relative to the payment of legacies may be of service: Payment of Legacies. It is my will and intention that my estate shall not be fully settled until three years have elapsed from the date of my decease. I direct my executors to pay all legacies given in this will at the expira- tion of said three years with the distinct under- standing that the legatees are to receive the exact amounts of their legacies without any interest thereon. I hereby declare and direct that my executors shall not pay any legacies given by this will until three years have elapsed from the date of my death; and no interest is to be paid upon any such legacies, including those which are specific, and it is my will that all dividends or interest upon specific legacies accruing during said three years shall fall into the residuum. I direct that all legacies given by this will shall be paid as soon as my executors can legally do so, with interest at the rate of five per cent per annum, to be reckoned from the day of my death to the time of payment. 280 TESTAMENTARY FORMS My executors are hereby authorized to pay, in their discretion, at any time before the expiration of two years from the date of the issuing of letters testamentary to them, the legacies given in this will, but the legatees are to receive no interest on their legacies. All the legacies given herein shall be paid in two years from the date of the proving of this will — the pecuniary legacies with interest at the rate of five per cent per annum and the specific legacies of stock and bonds with an amount equal to the dividends collected and coupons cashed by my executors. I direct that all the legacies given herein shall be paid as soon as may be after my decease, with inter- est at the rate of six per cent per annum, from the date of my decease until the day of payment. I direct that the legatees of either specific or pecuniary legacies, and the devisees of specific de- vises under this will, shall not be entitled in the one case to the legacies and in the other to the devises until three years shall have elapsed from the proving of this will. All rents, produce, interest, and income arising from said legacies and devises during said three years shall fall into the residue of my estate, and the legatees and devisees shall receive their legacies and devises at the expiration of said three years, without any rent, produce, income, or interest PAYMENT OP AND INTEREST UPON LEGACIES 281 thereon. I have hereinbefore by the "sixth" article of this will given A. B. a specific bequest of certain bonds, and by the "seventh" article C. D. a specific bequest of certain shares of stock. Whereas all coupons of said bonds due and payable, and all dividends on said shares paid, during said three years are, of course, as above directed, to fall into the residue, yet, that there may be no misunder- standing, I direct that if at the expiration of said three years any coupon or coupons on the bonds is nearly but not yet payable, it shall belong and be paid to A. B., and that if any dividend has been declared on the shares, but is not yet payable, it shall belong and be paid to C. D. All taxes due on specific devises during said three years shall of course be paid from the general funds of my estate. Other forms may be found on pp. 507, 561. Frequently a testator provides that pecuniary legacies shall be paid in property and not in money. This is a convenient way of payment, and is generally called distribution in kind. Often the method of determining the value of the securities or other assets is specifically prescribed. The following are offered as forms: Distribution in Kind. In paying the pecuniary legacies given by this will I do not require my executors to sell or realize on the property owned by me at the time of my 282 TESTAMENTARY POEMS decease; but I declare that a transfer and delivery to any legatee in kind of any property at its mar- ket value, shall be payment of such legacy and a full and complete protection and discharge to my executors. I authorize and empower my executors to dis- tribute in kind among the legatees under this will in payment of their legacies any stocks, bonds or other securities of my estate at valuations to be fixed by them in their unfettered discretion. In the payment of the pecuniary legacies given by this will I direct my executors to transfer and deliver to the legatees securities in which my personal estate is invested at their market value. If at the time of my decease my estate consists in great part of bonds, as it does at present, then I confer upon my executors full power and authority in their discretion to pay the bequests given in this will in bonds or partly in bonds and partly in money, the legatees in all cases to take such bonds at their market value. I hereby authorize and empower my executors, if they deem expedient, to pay all pecuniary bequests given in this will by the transfer to the legatees of assets and property of my estate other than money at such valuation as, in their honest judgment and discretion, they may deem just and fair. PAYMENT OF AND INTEREST UPON LEGACIES 283 I direct that the legacy in this will of Fifty Thousand Dollars to my son A. B. shall be paid in the stock of the Blank Company at its market value. In marshalling the assets to pay my debts and legacies my executors will use sound discretion and good judgment; and if, when the time for the pay- ment of the pecuniary legacies arrives, they have not sufficient cash with which to pay them, then I authorize and direct my executors to pay such pecuniary legacies in bonds or stock or both at a fair and reasonable valuation, to be determined by said executors, and their judgment and conclusion in the matter are not to be questioned by the legatees but are to be binding and final. Whereas in the settlement of my estate and the payment of the legacies it may be convenient for my executors and a saving of expense that my executors should not be required to reduce all my assets to cash, but that they should have the right to convey and transfer to any residuary or other legatee any bonds, stocks, notes, or other property constituting my es- tate, in payment of the bequest to such legatee, at such price and on such terms as may be agreed upon by my said executors and the legatee receiving said conveyance or transfer, I hereby authorize and em- power my said executors so to do; and I declare that any such conveyance and transfer and any contract and agreement in relation thereto, made by 284 TESTAMENTABY FORMS my said executors with any legatee, shall be valid and binding on my estate. Another form will be found on p. 562. "Difficulties used formerly to arise as to the cur- rency in which a legacy was to be paid. For instance, if a testator domiciled in Jamaica or Ireland gave a legacy of 1,0007., was the.legacy to be paid in the cur- rency of the domicile or in English currency? , It was settled that the currency of the domicile must prevail. Saunders v. Drake, 2 Atk. 466; Pierson v. s Garnet, 2 B. C. C. 39, 47; Malcolm v. Martin, 3 B. C. C. 50. "Such questions can no longer arise. But a some- what similar question may still create a difficulty. Suppose a testator gives a legacy of 10,000 rupees or 20,000 francs to a legatee in England, how is the value to be ascertained? Is the legacy to be paid at the rate of exchange of the day, at the value of the rupee or franc as bullion, at the current value, or how? In Cockerell v. Barber, 16 Ves. 461, where the testator was domiciled in India, it was held that the rupee was to be taken according to its current value without regard to the exchange or the expense of remittance, but the decision appears to leave a good many ques- tions open. See Manners v. Pearson & Son (1898), 1 Ch. 581." Theobald's Law of Wills (7th ed.), 845. A will duly executed in England, where the testa- tor resided and died, contained the following be- quest: "My property at Boston, North America, under the care of J. S., amounting by the last ac- count to eleven thousand five hundred pounds, I PAYMENT OP AND INTEBEST UPON LEGACIES 285 desire may be left under his control until it amounts to twenty thousand pounds, then the interest to be paid to A., and the principal to B. (son of A.), he having no children, then to his brothers in succession, on the demise of the father A., failing in male issue in the family of the said A., then the twenty thou- sand pounds to be divided among any female children the said A. may leave." J. S. was named in the will as executor and trustee and had previously pur- chased, in trust for the testator, land situated in Brighton, near Boston, and included its value in the account mentioned in said bequest. Held, that the testator's interest in this land was included in the bequest; that the property was to be held by the trustee until it amounted to twenty thousand pounds sterling, computed at $4.44 to the pound; and the income, after that, paid to A. for life, and the princi- pal held in trust until A.'s decease; and that the further limitations could not be determined until that time. Otis v. Coffin, 7 Gray, 511. An executor at the time of the enactment of statutes of the United States making treasury notes a legal tender for payment of debts was held not to be bound there- upon to convert money in his hands into coin, nor thereafter to require payment in coin of debts due to the estate; and was held not to be guilty of mal- administration in receiving and paying treasury notes as money in the execution of his trust, nor could he be required to account in coin for the assets. Jackson v. Chase, 98 Mass. 286. A will proved in Massachusetts, where the testator 286 TESTAMENTAKY POEMS had his domicile, directed trustees of his estate "to raise the sum of one hundred and fifty thousand francs, money of France, and to apply the same to the fulfilment of a certain marriage contract," made at Geneva in Switzerland, in which the testator, the father of the future wife, agreed to pay to her an annuity of six thousand francs, money of France, to cease at his death and "be then converted into a capital of one hundred and fifty thousand francs," which should "only be handed over to the future wifcor to her children against a sufficient mortgage, or any other equivalent guaranty, to be given by the future husband." After the death of the testator the husband executed an instrument at Vienna in Austria, renouncing all right in this fund, and de- claring it unnecessary for him to give security for a sum which he never received. Subsequently, at Cracow in Austria, where the husband and wife had their domicile at the time, an ecclesiastical court granted to her a decree of divorce from bed and board for life, for his criminal conduct, reserving to her and to their son "all the rights of property which according to the law of the land belong to an innocent wife and the children," and declaring that, "notwithstanding the decree of divorce for life, she remains at liberty to consent to five together with her husband in case he should bring sincere proofs" of reformation. By the law of Geneva and of Austria, a payment of the fund to her, without due security for its proper investment according to the marriage contract, would not discharge the trustees PAYMENT OP AND INTEREST UPON LEGACIES 287 from responsibility, notwithstanding the release of the husband and the divorce. Held, that the amount to be raised from the estate for the fund was such a sum, computed in treasury notes of the United States, as would purchase a hundred and fifty thousand francs deliverable here; and that the trustees should continue to hold the fund in trust for the benefit of the wife, until the further order of the court, with liberty to apply for further in- structions in event of the death of her, or of her husband, or other change of circumstances. Bow- ditch v. Soltyk, 99 Mass. 136. In many States there are now statutes providing for the taxation of legacies and distributive shares or of collateral legacies and successions. "There is no doubt that a testator possesses the general power to relieve the legatees from the payment of the tax by throwing it on the residue of the estate where it is sufficient to make payment, but an intention that a devise shall be free of the tax, as between the estate and the devisee, must clearly appear." Dos Passos on Inheritance Tax Law, § 64. It is always advisable to call the attention of the testator to the subject, for he may not wish to have the legatee bear the burden of the tax. On the other hand he may feel that the legatee should bear such burden. In the second case he may desire to express his intention as well as in the first, in order to show that the matter was brought to his notice. Forms like the following may be used : 288 TESTAMENTARY FORMS Legacy Taxes. In order that no question may arise as to my desire and intention, I declare that I am satisfied with the law, which provides that all legacy and succession taxes shall be paid out of the legacies themselves. The amount of the tax imposed by law upon all legacies and devises given by this will shall be paid from the general funds of my estate, so that the legacies and devises shall be received by the legatees and devisees in full as hereinbefore given without any deduction therefrom whatever. I declare and direct that the inheritance tax im- posed upon the legacy of ten thousand dollars given above to A. B. shall be paid out of and deducted from said*legacy of ten thousand dollars; but that the legacy of one thousand dollars given above to C. D. shall be paid to him in full, and that the inheritance tax imposed thereon shall be paid by my executor out of the general funds of my estate. I direct that all inheritance and other taxes shall be paid out of the general funds of my estate, and that all devises and legacies, general or specific, under this will shall be exempt from the payment thereof. I direct that all legacy and inheritance or other taxes shall be paid by my executors out of my general estate. PAYMENT OP AND INTEREST UPON LEGACIES 289 I direct that all legacies and annuities given herein shall be paid legatees and annuitants free from inheritance or other taxes. All legacy and inheritance taxes shall be paid out of the general funds of my estate, but taxes of every nature imposed upon trust estates herein created are to be paid from the income of such estates respectively. Questions often arise as to the payment of interest upon pecuniary legacies, because testators are not sufficiently explicit as to the expression of their intention. It is a general rule that interest is payable upon pecuniary legacies from the time when they are due and payable, because the interest follows as an accretion to the principal legacy, and does not de- pend upon demand or default. The rule in most jurisdictions is that legacies draw interest at the rate of six per cent per annum from one year from the death of the testator or from the date of the proving of the will. This is to-day in most juris- dictions a large rate of interest, and it is probable that, if the matter is brought to the attention of the testator, he may make some provision in his will. It is often stated that compound interest will not be collected on a legacy, if it does not appear that the failure to pay arose from the fault of the executor. "Where money is given by will for the mainte- nance and support of a minor child of the testator who has no other means of support, interest is 290 TESTAMENTARY FORMS allowed from the death of the testator; because in such case the presumption is that the testator in- tended that such support and maintenance should commence immediately after his decease. The same presumption exists when a legacy is given to a widow in lieu of dower, and no other means of support, during the first year after the death of the testator, are provided by the will. Williamson v. Williamson, 6 Paige, 298, 305." Pollard v. Pollard, 1 Allen, 490, 491. But a pecuniary legacy to the widow of the testator domiciled in New Hampshire when he died, given and accepted in lieu of dower, homestead rights, and a distributive share in the estate to be paid to her "as soon as convenient" after his death, and accompanied by a devise of productive real estate in Massachusetts, to the considerable income of which she became at once entitled, was held in Massachusetts not to bear in- terest until the end of one year from the death of the testator. Welch v. Adams, 152 Mass. 74, 78. Generally legacies payable at a certain time do not bear interest until that time arrives; and the exception in the case of legacies from a father to his minor child, for whose support he has made no other provision, does not apply when the mother is given for life the income of a greater portion of the property, with vested remainder to the children; because the testator may reasonably be presumed to have contemplated that the mother would, if indeed she was not bound to, support the children while under age; and because also the remainder PAYMENT OF AND INTEREST UPON LEGACIES 291 might, if necessary, be sold, and the proceeds ap- plied for their maintenance. Merritt v. Richardson, 14 Allen, 239. If an executor should pay a legacy within one year from the time of the testator's death, the residuary legatee might find fault on the ground that the interest for the first year should properly fall into the residuum. In some States it is provided by statute that if an annuity, or the use, rent, income, or interest of property, real or personal, is given by will, deed, or other instrument to or in trust for the benefit of a person for life or until the happening of a con- tingency, such person will be entitled to receive and enjoy the same from and after the decease of the testator, unless it is otherwise provided in such will or instrument. It has already been stated that "specific legacies are considered as separated from the general estate, and appropriated at the time of the testator's death; and, consequently, from that period, whatever pro- duce accrues upon them, and nothing more or less, belongs to the legatee." 2 Williams on Executors (Am. ed.), 741. See p. 241. The following are offered as forms relative to the testator's intention as to the payment of interest upon legacies: Interest upon Legacies. I direct that the pecuniary legacies herein given shall be paid two years and four months after the 292 TESTAMENTARY FORMS proving of this will and that no interest shall be paid thereon. I direct that the pecuniary legacies given by this will shall be paid two years after the proving of the same with interest upon said legacies at the rate of five per cent per annum. I direct that the pecuniary legacies herein given shall be paid in the discretion of my executor at any time within three years after my decease but that no interest shall be paid thereon. I direct that whenever the pecuniary legacies herein given are paid by my executor conformably to law, no interest shall be paid thereon. I direct that whenever the pecuniary legacies herein given are paid by my executor conformably to law, interest shall be paid thereon at the rate of five per cent per annum from the day of my decease. I give A. B. a legacy of one thousand dollars to be paid to him two years after my decease without any interest thereon. I give A. B. a legacy of one thousand dollars to be paid to him two years after my decease with in- terest thereon at the rate of five per cent per annum. CHAPTER XIV LAPSED DEVISES— RESIDUARY CLAUSE- REVOCATION "At common law, a legacy or a devise lapsed and became void, where a legatee or devisee failed to survive the testator." Matter of Wells, 113 N. Y. 396. So, if "there was no one in being, at the time the will was executed, to take it, and there is no pro- vision indicating a purpose to give it to the surviving husband or children of the supposed legatee, or any- other person." Twitty v. Martin, 30 N. C. 643, 646. "The rule as to lapsing of legacies applies as well to residuary legatees as to others." Shelton v. Had- lock, 62 Conn. 140, 142. "The general rule, pre- vailing in equity as at law, that if a legatee dies after the making of the will and before the death of the testator, the legacy lapses, is not affected by the insertion, after the name of the legatee, of the words 'his heirs, executors, administrators and assigns,' unless a declaration that the legacy shall not lapse is superadded; for those words, according to their uniform and well established interpreta- tion, only express the intention of the testator to pass the absolute property in the estate, real or per- sonal, to the legatee; 'heirs, executors and adminis- trators,' taking by representation only, cannot be 293 294 TESTAMENTARY FORMS entitled to anything to which the person whom they represent never had any title; and when the word 'assigns' is also used, any other construction would make the bequest inconsistent and uncertain, in- asmuch as 'assigns' could only be those to whom the legatee had conveyed in his lifetime, while 'heirs, executors and administrators' could only take by succession by reason of his death. Sibley v. Cook, 3 Atk. 572; Maybank v. Brooks, 1 Bro. Ch. 84; Gittings v. McDermott, 2 Myl. & K. 69; Shuttle- worth v. Greaves, 4 Myl. & Cr. 35; In re Porter's Trust, 4 Kay & Johns. 188; Ballard v. Ballard, 18 Pick. 41; Dickinson v. Purvis, 8 S. & R. 71; Wright v. Trustees of Methodist Episcopal Church, Hoffm. Ch. 202; Davis v. Taul, 6 Dana, 51. "In the cases of Gittings v. McDermott, Porter's Trust, and Wright v. Trustees of Methodist Epis- copal Church, the legacy was sustained solely be- cause it was in the disjunctive to the legatee named 'or his heirs'; and in Davis v. Taul, because the original legacy to him 'and his heirs' had been re- affirmed by a codicil made after his death, and showing upon its face that his death was known to the testator." Kimball v. Story, 108 Mass. 382, 384. A gift to a corporation will lapse by its dis- solution before the death of the testator. Merrill v. Hayden, 86 Me. 133. An advancement on ac- count of a legacy made in the legatee's lifetime will not prevent a lapse. Appeal of Trustees, 97 Pa. St. 187, 201. As to a legacy being a gift to the debtor of. what he owed the testator, see 94 Am. Dec. 158. LAPSED DEVISES 295 There are several exceptions to the above rule, and hence no lapse occurs. Where there is a devise or bequest to a plurality of persons as joint tenants, in order that there may be a lapse, all the objects must die in the testator's lifetime, otherwise any one or more of those existing when the will takes effect will be entitled to the en- tire property. 1 Jarman on Wills (6th Am. ed.), 310. But otherwise where the gift is to them as tenants in common. Lombard v. Boyden, 5 Allen, 249, 251, 253. If, of course, the gift is to tenants in common with the words "or to the survivors of them," there is no lapse. Where "the devise or bequest embraces a fluc- tuating class of persons, who, by the rules of con- struction, are to be ascertained at the death of the testator, or at a subsequent period, the decease of any of such persons during the testator's life will occasion no lapse or hiatus in the disposition, even though the devisees or legatees are made tenants in common, since members of the class antecedently dying are not actual objects of gift." 1 Jarman on Wills, 311. "Speaking generally, when a testamen- tary gift is made to a class of persons to take effect in possession immediately, those who constitute the class at the death of the testator, when the will becomes operative, take unless a different intent appears from the will, or from such extrinsic cir- cumstances as may be properly taken into account. Worcester v. Worcester, 101 Mass. 128, 132; Mer- riam v. Simonds, 121 Mass. 198, 202; Campbell v. 296 TESTAMENTARY FORMS Rawdon, 18 N. Y. 412; Baldwin v. Rogers, 3 DeG., M. & G. 649; 2 Redf. on Wills (4th ed.), § 44, par. 2." Howland v. Slade, 155 Mass. 415, 416. There seems to be an exception to this rule. "The au- thorities on this subject conclusively show that it is an established general rule of law, that when the parties to whom a' legacy is given are not described as a class, but by their individual names — though they may constitute a class — the death of any one of them, before the testator, causes a lapse of the legacy intended for the legatee so dying. Smith on Real and Personal Property, 810, 811." Workman v. Workman, 2 Allen, 472, 473. If the will provides for the substitution of one legatee for another, there will be no lapse. There are numerous statutory provisions designed to pre- vent lapse generally in the case of children, other descendants, and even other relatives. "In Iowa and Maryland the statutes entirely abolish lapse by death of the legatee, giving the property to his heirs or distributees. In several other States such lapse is abolished in all cases if the devisee or legatee left issue surviving the testator, the issue taking as the ancestor would have done had he survived. In the rest of the States, being all but nine, all gifts lapse on the death of the devisee or legatee before the death of the testator, as they would at common law, unless he was a relative of the testator, and left issue surviving. In a number of these States the statutes provide against lapse only as to gifts to testator's children, grandchildren, brothers and LAPSED DEVISES 297 sisters, or only gifts to his children or descendants; in Colorado and Illinois only gifts to children and grandchildren, and in South Carolina only gifts to children." Rood on Wills, § 673. For the preven- tion of lapse by the residuary clause, see p. 299. A common way of preventing a lapse is by gift over. "The rule does not extend to a legacy given over, after the death of the first legatee; for in such case the legatee in remainder is entitled to have it immediately. Such a limitation in remainder of a legacy, or of personal property, is clearly valid ac- cording to all the authorities. Toller on Executors (4th ed.), 333, 334, 394; 2 Pick. 472." Prescott v. Prescott, 7 Met. 141, 145. So also of legacies given over for any other cause specified by the testator. In gifts over great care should be taken in using the words "and" or "or." See Rood on Wills, § 682; 1 Underhill on Wills, § 333. Testators often express their intention as in the following forms: Lapsed Legacies. I give my son, A. B., a legacy of Twenty Thou- sand Dollars and I declare and direct that if my said son shall die before me leaving issue or de- scendants surviving him, such issue or descendants shall not be entitled to said legacy or to any part thereof but the same shall be and is revoked and shall fall into and form a part of my residuary estate. If any legatee named in this will, whether a rela- tive of mine or not, shall die before me leaving issue, 298 TESTAMENTARY FORMS him or her surviving, the legacy to such deceased parent shall go and be paid to such issue in equal portions; and if he or she shall leave no issue him or her surviving, such legacy shall sink into my residuary estate. If any legatee under this will shall die before me the legacy shall fall into and become a part of my residuary estate. If any legatee under this will shall die before me the legacy to him shall not lapse but shall be paid to his administrator or executor as the case may be. If any legacy given herein shall for any reason become void, I declare that the same shall fall into and become a part of my residuary estate. The following is taken from an actual will: Thirteenth. In the event of the lapse of the be- quest of the residuum of my estate as contained in subdivision "Twelfth" hereof, or in the event that said bequest should be by final judgment or decree of any court of competent jurisdiction held to be illegal or void, then and in that event I direct my said executors to pay over and deliver to the State of Colorado all of that portion of my estate in- cluded in the bequest of the residue and remainder thereof, which shall so lapse or be held to be illegal or void, to be appropriated and applied in such manner as the legislature of said State shall direct RESIDUARY CLAUSE 299 to the support of such charitable and benevolent institutions as are now supported at the expense of the State of Colorado. Residuary Clause. Too much cannot be said as to the advisability of using clear and apt language, if it is the testator's intention to devise and bequeath his entire prop- erty, both real and personal, by the residuary clause. Dole v. Johnson, 3 Allen, 364; Browne v. Cogswell, 5 Allen, 556. In nearly all jurisdictions a general residuary clause passes all void legacies and devises, all lapsed legacies and devises, "all that is not disposed of to others, including in this last class what is not legally disposed of so as to pass to the person intended as the object of the testator's bounty"; unless, of course, there is a different intention expressed in other parts of the will. Thayer v. Wellington, 9 Allen, 283, 295. Where the testator and his wife died at the same time in the wreck of a vessel, it was held that a legacy to her passed by the residuary clause. Batchelder, Petr., 147 Mass. 465. If there is noth- ing in a will to show an intention that anything should be paid to a legatee except the income of a fund for life, the fund upon his death falls into the residue. In re Morgan, [1893] 3 Ch. 322; Wynn v. Bartlett, 167 Mass. 292. Unless a residuary bequest is circumscribed by clear expressions and the title of the residuary legatee narrowed by words of unmis- takable import, it will, to prevent intestacy, be con- 300 TESTAMENTARY POEMS strued so as to perform the office intended, i. e., to dispose of all the residuary estate. Matter of Miner, 146 N. Y. 121. Where a testator by erasure revoked certain clauses in his will only, it was held that the property thereby covered passed under a general residuary clause. Bigelow v. Gillott, 123 Mass. 102. The residuary clause passes the reversion ex- pectant upon the determination of an estate tail. Steel v. Cook, 1 Met. 281. Also the .right or possi- bility of reverter, which, in the case of a gift on a valid condition, remains in the devisor. Hayden v. Stoughton, 5 Pick. 528; Brattle Square Church v. Grant, 3 Gray, 142, 159. Also the reversion of the land assigned to a widow in dower, in a case where the residue of all the testator's estate was devised after the widow shall have taken her thirds, there being no direct provision for her in the will. Yeo- mans v. Stevens, 2 Allen, 349. As to a residuary clause operating as an execution of a power of ap- pointment, see p. 68. In determining who shall have the residuum of an estate, it should be borne in mind that in most jurisdictions the general funds of the estate are first to be called upon to pay debts, legacies, and charges of administration; and, if personal estate is insuffi- cient for that purpose, the real estate is to be sold by the executor. See, however, p. '276. Property often increases or decreases in value be- tween the time of making the will and the testator's death, and a person should not be named as a re- RESIDUARY CLAUSE 301 siduary legatee, unless it is the testator's intention that that person shall receive the benefit of such increase, or bear the loss in case of decrease. For a case where there was a fourfold increase in the value of the property between the date of the will and the testator's death, see Warner v. Beach, 4 Gray, 162. If there are more residuary legatees than one, the testator's intention as to whether they shall take as joint tenants or tenants in common should be expressed; for, if they are tenants in common, as already seen (p. 295), the share of one who dies before the testator does not go to the survivors, but, if there is no gift over, is to be disposed of as undevised estate. See Barber v. Barber, 3 Myl. & Cr. 688; Lombard v. Boyden, 5 Allen, 249. If a testator by codicil revokes a bequest to one of several residuary legatees named in the will, he should, to avoid embarrassment, state in the codicil his intention as to the disposal of the legacy, so revoked. See Towne v. Weston, 132 Mass. 513. "We are of opinion that the provision in the third article of the will, that on the decease of any one of his surviving daughters leaving at the time of her death no lawful issue then living, the one hundred thousand dollars held in trust for her shall be 'paid over to my heirs-at-law as part of the residue of my estate, in the manner hereinafter directed concerning the same,' means that- such share shall be paid in to the residue to be distributed among the testator's heirs-at-law as a part of the residue; and that the 302 TESTAMENTARY FORMS same construction should be given to the last clause of the fourth article of the will, whereby on the de- cease of each of his sons leaving no issue then living (the provision concerning the son's widow having become operative), the trust fund of one hundred thousand dollars held for each son is to be paid over 'to my heirs-at-law, as hereinafter provided.'" Rotch v. Lovering, 169 Mass. 190, 198. The ne- cessity of clearly expressing an intention as to the disposition of the residue is shown in the case of a will which involved large interests. It was held that on reaching majority the testator's son was entitled, by way of resulting trust, to the residue. Sears v. Hardy, 120 Mass. 524, 539. It has already been stated that a life estate in the residue is not advisable without a trustee being named. See p. 162. Household furniture and per- sonal effects should not be made the subject of a trust but should be given outright. See p. 362. Questions relating to wasting investments fre- quently arise under the residuary clause. See p. 415 et seq. As to the advantages of giving an estate in shares, see p. 250. Full and complete residuary forms may be found on pp. 565, 588. Testators sometimes provide that certain prop- erty, generally real estate, be allotted to one of several residuary devisees,, as in the following form: I direct that in the division and distribution of my residuary estate the dwelling house located on REVOCATION 303 Webster Street and numbered 21 and the lot of land upon which the same is situated, shall be al- lotted to my son, A. B., as a part of his share of the residuum at a valuation of fourteen thousand dollars; and I authorize and direct my executors as evidence of such allotment and of title to give a quitclaim deed thereof to said A. B., two years after this will has been proved in the probate court. Another form may be found on p. 543. Revocation. A testator has, of course, the right to revoke his will, at any time he desires; and his will may also be revoked by operation of law. The common way of revocation by act of the testator is to burn, tear, cancel, or obliterate the will, or to have some person do so in the testator's presence and by his direction. If the will is executed in duplicate, and it is the intention to revoke it, both copies should be destroyed, although it has been held that the revocation of one would be the revocation of both. Crossman v. Crossman, 95 N. Y. 145. The destruction of a codicil has been held not to revoke a will. Malone v. Hobbs, 1 Rob. (Va.) 346, 381. "Destruction of a will does not revoke a codicil to it in so far as the codicil is capable of standing alone as an independent disposition, unless both were on the same paper or physically connected." Rood on Wills, § 346. But in some States there are statutes 304 TESTAMENTARY FORMS which declare that a revocation of a will revokes all the codicils. / It is generally said that the act of revocation must be done with intent to revoke, so that the presence of witnesses. in some cases may be advisable. In some States there are statutes as to witnessing the act of cancellation. "When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in the place of positive proof." Collyer v. Collyer, 110 N. Y. 481, 486. See Throck- morton v. Holt, 180 U. S. 552. It has been held that the cancellation of a will duly executed, containing a clause expressly revoking former wills, cannot revive a former will which has not been destroyed, in the absence of evidence to show that such was the intention of the testator. Pickens v. Davis, 134 Mass. 252, 256. In Williams v. Williams, 142 Mass. 515, 517, "there was proof satisfactory to the mind of the justice who heard the case, that the testator, in cancelling his last will, intended to revive the former one which he then left uncancelled, and his conclusion of fact was well warranted by the evidence." "The power to revoke a will includes the power to revoke any part of it." Hence the cancellation by the testator of certain clauses of his will, by drawing lines through them with the intention of revoking them, is a legal revocation of these clauses. Bigelow v. Gillott, 123 Mass. 102, 106; Wheeler v. Bent, 7 Pick. 61. REVOCATION 305 Reference should be made to the doctrine of "dependent relative revocation," in which it is held that "the act of cancelling, etc., being done with reference to another act, meant to be an effectual disposition, will be a revocation or not, according as the relative act be efficacious or not." 1 Williams on Executors (Am. ed.), 127; Theobald's Law of Wills (7th ed.), 42 et seq. Thus it is held that if a will be cancelled for the purpose of making a new will, the original will is not revoked if another will is not made. In the Goods of De Bode, 5 N. of C. 189; In the Goods of Eeles, 2 Sw. & T. 600. So also if the will, though made, is not effectual. Dancer v. Crabb, 3 P. & D. 98. Where a testator so entirely erased the name of a legatee that it was no longer apparent, and sub- stituted another name for it, the court received evidence as to what the original name was, and restored it to probate on being satisfied that the testator only revoked the first bequest on the sup- position that he had effectually substituted a new legatee. In the Goods of McCabe, 3 P. & D. 94. And it is held that, under the twenty-first section of the statute 1 Vict. c. 26, the court will not order a piece of paper pasted over a whole legacy to be removed; but if the amount of the legacy only is covered, the legatee's name being untouched, the court will regard the doctrine of "dependent relative revocation" as applicable, and will order the removal of the paper. In the Goods of Horsford, 3 P. & D. 211. 306 TESTAMENTARY FORMS A revocation is often implied by law by subse- quent changes in the condition or circumstances of the testator. "An entire revocation by implication of law is limited to a very small number of cases. The mar- riage of a feme sole is held to be a revocation of her previous will, or at least a suspension. ... In case of a man, a rule has been adopted from the civil law, after some struggle, but is now firmly established, that marriage and the birth of a child shall be held to be an entire revocation. . . . But where the facts on which such revocation is ordinarily implied have been contemplated and provided for in the will, no such presumption arises, and the will is not revoked." Warner v. Beach, 4 Gray, 162, 163. Accordingly, it was held in' the above case that the revocation of a will cannot be implied by law from the birth of a child to the testator contemplated in the will; the death of the testator's wife and of another child leaving issue; the insanity of the testator for forty years from soon after making the will till his death, and a fourfold increase in the value of his property during that period. The law upon this subject of the revocation of wills by marriage or by marriages and the birth of a child differs in different localities and there are numerous statutes upon the subject. The attorney should be familiar with the law of the testator's domicile, and should bring the same to the attention of the testator. In some jurisdictions it is provided by statute that the marriage of a person shall act as REVOCATION 307 a revocation of a will made by him previous to such marriage, unless it appears from the will that it was made in contemplation of such marriage, and that if the will is made in the exercise of a power of appoint- ment and the real and personal property subject to the appointment would not, without the appoint- ment, pass to the persons who would have been en- titled to it if it had been the estate and property of the testator making the appointment if he had died intestate, so much of the will as makes the appoint- ment shall not be revoked by the marriage. Of course, a will may be revoked by some other writing signed, attested, and subscribed in the same manner as a will. "If it can be proved that a later will was duly executed, attested, and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its con- tents cannot be obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to be set up in oppositon to the probate of the earlier will." Wallis v. Wallis, 114 Mass. 510, 512. A change of domicile may invalidate a will. Matter of Coburn, 9 Misc. (N. Y.) 437. This is a matter which it may be well to bring to the attention of a testator. It may be advisable to rewrite and re- execute the will. As to revocation by divorce and by adoption of a child, see Remsen on Wills, 371. CHAPTER XV EXECUTOR I. Who may be Executor. If no executor is appointed, there must be an administrator with the will annexed. A direction "that the estate should go immediately into the hands of legatees, or of one or more trustees, for particular purposes," would be void. Newcomb v. Williams, 9 Met. 525, 533, 534. It is not uncommon for a testator to make a will for the sole purpose of naming an executor, whom he directs to distribute his estate as it would have been distributed had he died intestate. A testator can thus provide, if the law permits, that his executor shall not be required to give bond or sureties upon his bond; while, if he died intestate, his administrator would in many jurisdictions be compelled to give such sureties. But it should be remembered that "a devise to an heir of the same estate in nature and quality as that to which he would be entitled by descent" is void, as the heir takes by descent and not by purchase. See p.117 . There are statutes in many States as to the lia- bility of an executor in his own wrong, and that he shall not be allowed to retain or deduct any part of 308 EXECUTOR 309 the personal estate taken by him except for funeral expenses or debts of the deceased, or other charges actually paid by him and which the rightful exec- utor or administrator might have been compelled to pay. However, after the death of a testator, it frequently happens that goods must be stored, animals fed and cared for, and perishable property disposed of. As in many jurisdictions the widow or next of kin, or both, are entitled to the administra- tion, the widow may well take charge of the property, and her agent acting in good faith would probably not be liable to an administrator afterwards ap- pointed. See Perkins v. Ladd, 114 Mass. 420, 422. A will which merely appoints an executor is valid; and this is so, even though the executor renounces probate. Sumner v. Crane, 155 Mass. 483, 484. Cases where partial probate of a will has been allowed "are cases where there has been either a partial legal incapacity on the part of the testator, or where there has been fraud or undue influence as to a specific clause in a will." Same case, p. 484. "A testator may appoint several persons as execu- tors in several degrees; as where he makes his wife executrix; but if she will not or cannot be executrix, then he makes his son executor; and if his son cannot or will not be executor, then he makes his brother; and so on." 1 Williams on Executors (Am. ed.), 196. The appointment of an executor may be qualified by limitations as in point of time, in point of place, and as to the subject-matter; and the appointment 310 TESTAMENTARY FORMS may be conditional. 1 Williams on Executors (Am. ed.), 199; Despard v. Churchill, 53 N. Y. 192. It has been held that a testator may, by his will, delegate the power of naming an executor to another. Hartnett v. Wandell, 60 N. Y. 346. But such power in some States is declared void by statute. A testator having appointed three persons by name, the survivors and survivor of them, his exec- utors, and having given the residue to them to pay the income to his sons for life, and after their de- cease the principal to their heirs, one executor hav- ing declined, the other two may execute the trusts. Treadwell v. Cordis, 5 Gray, 341, 359. The following may be executors: A minor. This is so in most jurisdictions; and it is frequently provided by statute that, if there are other executors of age, they may act till the minor reaches his majority. If he is the only executor, administration with the will annexed would prob- ably be granted during his minority. A single woman. This is so in most States, but in the event of her marriage her sureties would probably be entitled to be released from any further liability on her bond. A married woman. In most States she may bind herself and the estate which she represents without any act or assent on the part of her husband. Aliens and non-residents. "An alien may be an executor at common law. In some of the States of the Union, aliens are disqualified by statute from acting as executors, but the term 'alien' does not EXECUTOR 311 include a resident of another State, if he is a citizen of the United States, and, as a general rule, non- residence in the State where the will is admitted to probate is not a disqualification of the person named therein as executor, if he is a citizen of the United States." 11 Am. & Eng. Encyc. of Law (2d ed.), 753. In most States a non-resident would probably not be allowed to enter upon the duties of his trust until he had appointed an agent residing in the State upon whom papers could be served. The same rule would probably apply if the executor removes from the State; and if the agent should die or remove from the State, another appointment would have to be made. Unnamed executors. It is not uncommon for a testator to appoint an executor without naming him, as in forms given below. A creditor of the testator. "The fact that an ad- ministrator or an executor is a creditor of the estate which he represents does not prevent him from recovering the amount of his claim. The proper method for him to pursue in such a case is to credit himself with the amount in his account." Buckley v. Buckley, 157 Mass. 536, 537. A debtor of the testator. "It is not now necessary to consider the old rule, that a testator, by making a debtor his executor, released his debt. That rule has been qualified, to a great extent, in England, and has never been in force here. It is now under- stood, that when an executor or administrator was indebted to his testator or intestate, at the time of 312 TESTAMENTARY FORMS his decease, although the right of action cannot exist, because a man cannot sue himself, yet the debt is not considered as extinguished in any way, but rather to be accounted for as paid. In other words, the debt becomes, -prima facie, assets in the hands of the administrator or executor, to be ac- counted for and adjusted in probate account, as assets actually realized. Wankford v. Wankford, 1 Salk. 299; Cheetham v. Ward, 1 Bos. & Pul. 630; Freakley v. Fox, 9 Barn. & Cres. 130." Ipswich Co. v. Story, 5 Met. 310, 313. A partner of the testator. "It appears that the testator, Joseph Forward, and the executor, Joseph M. Forward, were partners at the time of the decease of the testator, and had been such for many years, and their copartnership concerns had never been settled. After the appointment of the executors, they undertook to examine the accounts, and to make a settlement of the partnership affairs. It is con- tended that this settlement is conclusive upon the legatees. But the court are of the opinion that the settlement was not binding upon the legatees. The decease of one partner dissolves the partnership, and its debts become the sole debts of the surviving partner. He should pay them, and settle his account in the Probate Court. When such account is ren- dered, all parties interested will have an opportunity to be heard in respect to it. The fact that there is a co-executor makes no difference, for if a balance is found due to the estate of the testator, it must still be settled in the Probate Court, because the co- EXECUTOR 313 executor cannot maintain an action to recover the balance." Forward v. Forward, 6 Allen, 494, 496. "As a general rule, where a surviving partner con- tinues to use the capital of a deceased partner in the business, the representatives of the latter, in the absence of any agreement to the contrary, have the election to demand either interest on the capital used or the profits earned by its use, the latter being accretions to the fund owned by them. There is, however, no inflexible rule governing all cases, but each case depends upon its own circumstances and equities." Robinson v. Simmons, 146 Mass. 167, 175. A trust company or other corporation. This is a statutory matter, and in most States such companies and corporations have liberal statutory powers as to acting as executors. In fine, it is a general rule that any one capable of making a will may be an executor; but it is sug- gested that it is well for a testator to consult with the person or persons he desires to name as executor or executors to see if they are willing to accept. Statutes often provide that the executor of an ex- ecutor shall not, as such, administer on the estate of the first testator, and that if one of several execu- tors does not accept, letters may be granted to the others. As to the appointment of executors, including minors and unnamed individuals, the following are offered as forms: 314 TESTAMENTARY FORMS Appointment of Executors. I constitute and appoint A. B. and C. D., or the survivor of them the executors of this will, and I release them from giving a surety or sureties upon their official bonds. I nominate and appoint my said wife A. B. and my friend C. D. the executrix and executor of this my last will and testament, and I exempt them from giving any security to the court such as official bonds or, if bonds be required by law, then I release them from giving a surety or sureties thereon. I appoint my sons, A. B., and C. D., the executors of this will and trust that they will consult with their mother on all important matters relating to the settle- ment of my estate. In case either of my executors dies or resigns, the surviving executor may name some suitable person to fill the vacancy, who, upon proper appointment by the Probate Court shall be clothed with all the powers of an executor originally ap- pointed herein. I release my executors and adminis- trators with the will annexed from giving a surety or sureties upon their official bonds. I nominate and appoint the mayor of the city of for the time being, at the time of my decease, and the President of the Board of Trade of the city of , for the time being, at the time of my decease, to be the executors of this will, and I release them EXECUTOR 315 from giving bonds or, if personal bonds are required, then I release them from giving sureties thereon. I nominate and appoint my wife A. B. and my friends C. D. and E. F. the executrix and executors of this will; and, if any of them dies, resigns or is incapable of acting from any cause, then I nominate and appoint G. H. in his or her place. I declare that none of those named above as executors shall be required to give an official bond. I nominate and appoint my wife A. B. executrix and my minor sons C. D. and E. F. the executors of this will, as soon as said sons shall respectively reach majority; and I release all said executors from giving a surety or sureties upon their official bonds. I nominate and appoint my son A. B. and my grandson C. D. the executors of this will, and, if at the time of my decease, the said C. D. is under twenty-one years of age, the said A. B. is to act as sole executor until C. D. reaches majority, when the said C. D. is to qualify and act as co-executor with the said A. B. I nominate A. B. as the executor of this will and release him from giving bonds; and if this will is proved in other jurisdictions, I direct, if I am capable of so doing, that he be released from giving bonds in such jurisdictions. 316 TESTAMENTARY FORMS I nominate and appoint the Equity Trust Com- pany of Boston, as the executor of this will. I nominate and appoint the Equity Trust Com- pany of New York and A. B., also of that city, the executors of this will; and I release the said A. B. from giving a surety or sureties upon his official bond. I appoint my wife A. B. the executrix of this will and release her from giving a surety or sureties upon her official bond; and, if at any time she feels that she requires the assistance of a co-executor, then I authorize the Judge of Probate to appoint as exec- utor with her any suitable person whom she may select. I name A. B. the executor of this will, and direct that any corporation authorized by law shall be the surety upon his bond and that the expense thereof shall be paid by my estate. I direct that the executors of and trustees under this will may give bonds with any surety company of recognized stability as surety and that the ex- pense thereof shall be charged to the general funds of my estate or to the income of the trust estate as the case may be. I constitute and appoint my oldest son at the time of my decease the executor of this will. EXECUTOR 317 I name and appoint as executor of this will the individual who shall be at the time of my decease the president of the Traders' National Bank of, etc. I constitute and appoint my wife A. B. the ex- ecutrix, and my son C. D. the executor of this will, and I also name as executor of this will any other son of mine who shall arrive at the age of twenty- five years before my decease and also any other son of mine who shall arrive at the age of twenty-five years after my decease. I release all executors under this will from giving a surety or sureties upon their official bonds. I direct that, if my wife marries again, she shall cease to be an executrix of this will. I constitute and appoint A. B. and C. D. the exec- utors of this will and I release them from giving bonds in qualifying in the jurisdiction of my domicile; and, if it is necessary for them to prove this will in any other State or country, I also release them from giving bonds or any security in such State or country, if it is in my power to do so. I constitute and appoint my wife A. B. the execu- trix, and my brother CD. the executor of this will; and, if my son E. F. reaches the age of twenty-one years before my estate is fully settled, I also con- stitute and appoint him an executor of this will with the two executors above named. I exempt all executors of this will from giving a surety or sureties upon their official bonds. 318 TESTAMENTARY POEMS In the case of large estates provision is sometimes made for the appointment of new executors or trustees during a long period. Such provisions are not generally advisable, as deaths, resignations, etc., are uncertain, and unforeseen events are likely to occur. The will of a wealthy man which was proved a few years ago contained an elaborate provision of nearly a thousand words. In most cases the selection may be left to the parties in interest, with the approval of the court. The last of the following forms is taken from an actual will: New Executors and Trustees. I direct that upon the death or resignation of any one of my three executors or trustees or his inability for any reason to perform the duties of the office, the other two shall appoint some suitable person in writing signed by them, upon the acceptance, acknowledgment and recording of which writing in the Registry of Deeds, the person so appointed shall be invested with all the powers and authority of an executor or trustee originally nominated under this will. Whenever any one of my three executors or trustees dies, resigns or becomes incapacitated, I direct that the other two shall appoint, under their hands and seals, another executor or trustee who shall be a suitable person for the position, and that thereupon there shall be vested in him all power and EXECUTOR 319 ( authority as if named and appointed executor or trustee by this will. I direct that like the other executors or trustees he shall be exempt from giving a surety or sureties upon his official bond. I further direct that the above appointment made in writing with the acceptance of the appointee indorsed thereon shall be duly filed or recorded as the law may be in the proper surrogate or probate office. When the number of my executors or trustees is reduced by the death, resignation or inability to act of any one of them, the surviving executors or trus- tees shall appoint a successor by such instrument as may be legal and proper and shall intrust the same to the custody and keeping of the proper official. In case of the death, resignation, refusal or inability to act of either of my two executors or trustees, the acting executor or trustee shall appoint by a written instrument a proper person as successor to the one so dying, resigning, or unable to act and he shall qualify as co-executor or co-trustee without giving sureties upon his official bond. Before such appoint- ment and qualification the acting executor or trus- tee shall have all the powers conferred herein on the two original executors or trustees jointly. When the number of my executors or trustees is reduced by the death, resignation or incapacity of any one thereof, then I direct the acting executors 320 TESTAMENTARY FORMS or trustees to apply at once to the proper tribunal to have a successor appointed conformably to law. If any of the executors named by me shall refuse to act, die, or be for any reason disqualified or dis- charged, and the number of executors be thereby reduced to less than three, I authorize and empower the two willing to act, surviving or remaining, if there be two, or the one willing to act, surviving or remaining, if, from any cause there should be but one before vacancies are filled, to fill such vacancy or vacancies in the number of three executors by nominating and appointing a suitable person or persons, said nomination and appointment to be made by an instrument of writing under seal, duly acknowledged and recorded and filed in the office of the Register of Wills in and for the County of, etc.; and the person or persons so nominated and appointed shall thereupon become an executor or executors with said executors or executor willing to act, surviving or remaining, with the same powers and authorities thenceforth as if herein expressly named by me, and the said person or persons may be quali- fied before said Register as such. And as often as a vacancy or vacancies shall occur, so as to reduce the number of executors to less than three, such vacancy or vacancies shall in like manner be filled by the executors or executor surviving or remain- ing, and this provision I intend shall apply whether such executors shall be acting as executors of this my said will, as trustees, or as testamentary guar- EXECUTOR 321 dians, so long as the necessity for them in any capacity shall continue. Other forms may be found on pp. 558, 588. II. Special Directions. 1. The Bond and Liability thereon. In some States the English rule obtains that an executor is not compelled to give bonds unless cir- cumstances require. In a few States a bond is necessary in any event to secure the payment of debts. In most jurisdictions, however, the executor must give bond with approved sureties unless re- leased by the terms of the will; and even then in some States the direction that he shall not be re- quired to give a bond means exemption from sureties, as his personal bond is still required. Probably where the law provides that the testator may release the executor from giving sureties, creditors and the guardians of minors would have a right to be heard and the court might require a bond with sufficient sureties. Statutes are silent as to whether the exemption shall apply solely to the executor named in the will. The reasonable inference is, that it is optional with the testator to include all executors, whether original or substituted. See form on p. 522. In most States surety and fidelity companies are authorized by law to act as sureties, and the expense is charged against the estate; and statutes generally provide 322 TESTAMENTARY FORMS that such companies are released from giving sureties. Various provisions as to releasing executors from giving sureties will be found in the forms just given above. In some States statutes permit an executor who is also residuary legatee to give bond with condition to pay all debts and legacies of the testator, and such amounts as may be allowed by the court to the widow and minor children, and no inventory or account is required. The danger in giving such bond is that the executor and residuary legatee is estopped to deny assets in any action to enforce the personal obligation assumed by him. "It is said that a bond to pay debts and legacies is taken almost as a matter of form, in the probate office, with very little regard to the state of the assets. If it be so, it is certainly a very rash practice, and one to be discountenanced." Jones v. Richardson, 5 Met. 247, 250. If the executor "has the slightest doubt that there is sufficient property to pay all debts and legacies, he should give bond in common form." Colwell v. Alger, 5 Gray, 67, 68. But now, if such a bond is given in a State which has an inheritance tax law, the authorities would require an inventory in order to assess the tax. See p. 287. Sometimes a testator directs his executor, when not named as residuary legatee, not to file an inven- tory or account. Such a direction in most jurisdic- tions would have no legal effect. See Fuller v. Wilbur, 170 Mass. 506, 507. It is to be noted as already stated that under inheritance tax laws an EXECUTOR 323 inventory is necessary in order to determine the amount of the property subject to tax. The following forms may be of service; but, if so, only in a few jurisdictions: I direct that no inventory of my estate shall be filed in the registry of probate. My executors will of course have an inventory taken for their own benefit and convenience in the management of my estate and the keeping of their accounts, which inventory shall always be open to the examination of all legatees and devisees under this will. My executors are released from either making or filing any list or inventory of my estate. I direct my executors to return no inventory of my estate or render any account thereof to the probate court. In most States two or more persons acting jointly as executors may give either separate or joint bonds. Generally in case of a joint bond, they are liable to the extent of the assets included in their inventory and which have come into their joint possession; but in the case of several bonds neither is liable for losses caused exclusively by the default of the other. Perhaps several bonds are always advisable because, in the event of the resignation of one executor in case of a joint bond, a new bond from the other executor or executors may be required. "A clause making a trustee liable for his wilful and intentional 324 TESTAMENTARY FORMS breaches of trust only is a common provision in trust instruments, and will be given effect by the courts. But this clause does not excuse a trustee who know- ingly or carelessly hazards the trust funds, and fails in his duty where reasonable inquiry would have made him safe." Loring's A Trustee's Handbook (3d ed.), 153. Where there are two executors in a will, each has a right to receive and hold the funds of the estate. Edmonds v. Crenshaw, 14 Pet. 166, 168. And each "is liable only for his own acts, and what he receives and applies, unless he joins in the direction and mis- application of the assets." Peter v. Beverly, 10 Pet. 532, 562. It is customary, when a testator desires to exempt an executor from liability for the default of his co- executor, to provide that he shall not be responsible for losses occurring without his own wilful default. The following are forms frequently used: Liability op Executors and Trustees. I declare that each executor and trustee of this will shall be liable for his own fraudulent acts or misconduct and shall in no event be responsible for the fraudulent wrong-doing of his co-executors and co-trustees unless a party thereto. My executors and trustees shall not be answerable for any loss, waste or depreciation of my estate while in their possession and under their control or for the fraudulent acts of each other. EXECUTOR 325 Each executor of and trustee under this will, whether original or substituted, shall only be liable for the losses which occur by his own fraudulent acts or neglect and not for the acts of the other executors or trustees in which he does not participate. The executors of and trustees under this will shall be accountable only for their own neglect, default and misfeasance and not for errors of judgment honestly exercised. Other forms are given on pp. 573, 588. 2. Charges of Administration. Compensation. In the United States executors are reimbursed for expenses and are allowed by statute or decision of court reasonable compensation for their services. If it is necessary to employ counsel, their charges are "reasonable expenses." Forward v. Forward, 6 Allen, 494, 497. It is common for testators to make provision in their wills as to the compensation of executors, but, if a legacy is given in lieu of compensation, the intention should be clearly stated. See p. 172. The following forms are believed to cover most cases of compensation: Compensation of Executors and Trustees. In regard to the compensation of my three exec- utors I direct that A. B. shall transact the business in the settlement of my estate, and that C. D. and 326 TESTAMENTARY FORMS E. F. shall act as advisers. The compensation shall be in proportion to the service of each. As my estate is in such condition that its settle- ment may impose exceptional burdens and labor upon my executors, I direct that they shall receive liberal remuneration. I direct that my executors shall receive fair com- pensation according to the services they severally render my estate. I direct that each of my said executors shall be allowed the sum of Five Thousand Dollars in full payment for his services in settling my estate; but, if he fails to serve until the estate is finally settled, then he shall receive the proper proportion of Five Thousand Dollars. I direct that the executors of and trustees under this will shall receive no compensation for their services. I direct that my executors shall receive in full as compensation for their services (the same to be equally divided among them) two and a half per cent upon the appraised value of personalty and all realty sold by them and five per cent upon all income collected by them while the estate is in their hands. It is evident that the settlement and management of my estate will largely devolve upon my friend A. B., and that my wife and son, the two other EXECUTOR 327 executors, will not be required to assume burdensome responsibilities. I request the Judge of Probate to allow the most liberal ' compensation, and I direct that the said A. B. shall receive two thirds or four sixths and my said wife and son each one sixth of the amount allowed, and that the same shall be in full for all their services as executors. Other forms may be found on pp. 559, 563, 579. In some jurisdictions a special administrator, if the will is contested, may be authorized to pay the expenses incurred by the executor. Forms like the following are sometimes used: Expenses of Contest. If any attempt shall be made to contest this will in the Probate Court or in any other tribunal and shall prove unsuccessful, then I order and direct that all the expenses incurred by my executors in resisting such attempt and in upholding the will shall be paid out of the general funds of my estate. I authorize and direct my executors, if any at- tempt is made to contest or dispute the probate of this will, to resist the same and pay all the expenses incurred out of the general funds of my estate; but none of the expenses of those contesting the will shall be so paid. Another form may be found on p. 585. 328 TESTAMENTARY FORMS 3. Directions that a Majority of Executors may Act. Differences often arise among executors and trustees, and the absence or disability of one or more may render action impossible. To obviate difficulty testators frequently give directions in their wills as in the following forms: Majority to Act. Differences among my executors or trustees rela- tive to actions and proceedings in the administra- tion and settlement of my estate may arise. I therefore order and direct that the opinion of a majority of them on all questions shall be decisive and final and that the acts of such majority shall be as binding and valid as if all my executors or trus- tees were parties thereto and had joined therein. If any differences among my executors or trustees as to the administration of my affairs and the settle- ment of my estate arise, I confer upon the majority of them full power and authority to act in the premises, and the decision and judgment of such majority shall be conclusive and valid, the same as if all the executors or trustees had joined therein. I direct that a majority of the executors or trustees of this will shall, in the event of conflict or differ- ences among them, exercise the powers conferred herein upon all of my executors or trustees; and this authority extends to any act or acts, necessary in the administration of my affairs and the settlement EXECUTOR 329 of my estate including the execution of all docu- ments, papers, contracts and instruments of every nature and description. All acts done, and all docu- ments, papers, contracts and instruments executed, by such majority either in person or by attorney in fact, shall be as effectual and binding as if done or executed by all of my executors or trustees. In the case of disagreement among my executors or trustees upon any matter relative to the manage- ment and settlement of my estate, the opinion of a majority of them shall prevail and shall be as valid and binding upon my estate as if all my executors or trustees had joined therein. The decision of a majority of my executors or trustees shall be conclusive upon all matters coming within the range of their functions and duties; and all conveyances, bills of sale, contracts or other documents executed by a majority of my executors or trustees shall be as binding upon my estate and as absolute a protection to those acquiring rights of property thereunder as if entered into and executed by all my executors or trustees. Another form is given on p. 563. 4. Just Debts and Funeral Expenses. "The preliminary direction to pay all the testa- tor's just debts adds nothing to the duty imposed upon all executors by law." Bacon v. Pomeroy, 104 330 TESTAMENTARY FORMS Mass. 577, 585. Unless the testator desires to make some extraordinary provision, there would seem to be no need of authorizing the executor to pay funeral expenses, as the law raises a promise on the part of the executor to pay them, so far as he has assets. Hapgood v. Houghton, 10 Pick. 154, 156. Expenses of funeral and last sickness are preferred charges in many States. It is often well to have a definite understanding with a housekeeper and with women whose services are supposed to pay for their board. In many cases estates have been compelled to pay bills which were really without merit. It has already been stated that it is advisable to provide as to a burial lot and tombstone and also as to their care and preservation. See pp. 81 et seq., where forms may be found. The debts of a testator are primarily payable out of personalty, and realty will be resorted to only after the personalty is exhausted. See pp. 269 et seq. Debts may,' of course, be charged by will upon realty, but such directions are unusual. See p. 159. Frequently testators insert explicit directions as to marshalling assets to pay debts, and also state- ments as to the amount and nature of their obliga- tions for the guidance of their executors, as in the forms given below. Every will should confer a power of sale upon the executors. See p. 333. The following forms may be used for the informa- tion of executors: executor 331 Debts op Testator. For the information of my executors I desire to say that at present I have no debts except those of a trifling nature incurred from time to time by the purchase of things for domestic use and consump- tion. I see no reason why at the time of my decease I should have any obligations except those of a similar kind. I now state for the guidance of my executors that I have never indorsed commercial paper for others or have become liable as surety on bonds or other stipulations or obligations, and that it is my inten- tion to have no debts at the time of my decease, except those few necessary ones of a domestic nature, which are incurred from day to day. My only debts at the present time are those of a trifling nature and a few outstanding notes as evi- denced on my ledger. And I say for the informa- tion of my executors that I do not intend to have at the time of my decease any obligations outstanding other than those of a similar kind. My debts at the present time are insignificant and I do not expect that they will be any larger at the time of my decease. I feel it advisable, how- ever, to state for the information of my executors that certain parties contend that they have claims to a large amount against me. These claims are absolutely without merit, and I desire and instruct 332 TESTAMENTARY FORMS my executors to resist them to the extent of the law. I have prepared a memorandum giving the history of these claims and a summary of the evi- dence which may be adduced to disprove them. This memorandum is addressed to my said ex- ecutors and will be found with my papers at the time of my decease. It is impossible for any claims to be presented against my estate, except those which spring from legitimate business transactions. I have never signed or indorsed accommodation paper or given my name in any way "for the use and benefit of a friend, nor do I propose to sign or indorse accom- modation paper or allow my name to be used in any way for another. The following form is taken from an actual will: I authorize whomsoever shall have the execution of this my will, to make what appears to him or them, upon any evidence he or they may think sufficient, a full, just and equitable settlement of all my ac- counts and affairs, and of all claims by or against me or my estate, and to pay over, transfer, deliver and convey, as he or they shall deem just and right, all such sums of money, personal property and real estate as according to my accounts, or any agree- ment, obligation, or memorandum of mine, or any other evidence which they may deem sufficient, appears to his or their satisfaction to belong or to be due to any person, notwithstanding that the EXECUTOR 333 apparent legal title is in me, and. that the legal evidence of such claims, or of the right of such per- sons, is wanting or imperfect. While it is customary not to resort to real estate for the payment of debts until the personalty has been exhausted, yet the condition of my assets may be such at the time of my decease, that my exec- utors may deem it best to sell some of my produc- tive real estate and pay my debts with the proceeds. I desire and direct my executors to use their judg- ment and discretion in the matter, and, if they deem it best to sell my real estate for the purpose indi- cated, ample power and authority so to do is here- inafter conferred upon them. While it is unusual to confer upon executors authority to borrow money, yet the condition of my property at the time of my decease may be such that ready money for the payment of debts may not be available. I hereby authorize and empower my executors, if in the exercise of their judgment they deem it advisable for the settlement of my estate, to borrow such sum or sums of money as they may deem best and secure payment thereof by mortgage or mortgages on my real estate or mortgage or pledge of my personal property. 5. Powers to Sell, Mortgage, Lease, etc. Powers given to executors and trustees are dis- cretionary or imperative, general, special, or par- 334 TESTAMENTARY FORMS ticular, and coupled or not coupled with an interest. In some States, as in New York, statutes define both general and special powers. Powers may be given for numerous purposes, but those conferred by will are more often to sell, lease, mortgage, par- tition, etc. It is to be noted that in many States the heirs or devisees of the testator are entitled to the rents and profits of his real estate until sold for the pay- ment of his debts, and that if the executor uses or occupies any part of the real estate he has to account for the income thereof. In all cases of powers of sale it is well for a testator to bear in mind the law of conversion of either real into personal or of personal into real estate. Where there are such directions embarrass- ing cases often arise, and the testator's intention should be clearly expressed. " It has long been the established rule where executors are clothed with the power and duty to sell a testator's real estate and distribute the pro- ceeds in the manner provided by the will that the real estate will be deemed converted into personalty." Underwood v. Curtis, 127 N. Y. 523, 532. On the other hand, another tribunal lays down the following rule: If either by the direction of the testator himself, or by operation of law, land devised as real estate is converted into money for the purpose of better in- vestment, or for any other purpose consistent with the design and purpose of the ultimate destination to EXECUTOR 335 which the real estate was appropriated, " the money is substituted for, and stands in the place of, the de- vised real estate, and shall go to the same persons and in the same proportions, and vest in possession and enjoyment at the same times and upon the same contingencies which would have affected the real estate had it remained specifically in real estate." Holland v. Cruft, 3 Gray, 162, 181. See Hovey v. Dary, 154 Mass. 7. "Wherever the intention of the testator is clear to convert real into personal estate, the law will regard it as converted to that extent at the death of the testator; and he who takes under the will takes it with the character which the will has im- pressed upon it." Hammond v. Putnam, 110 Mass. 232, 236. A testator may desire to insert one or the other of the following forms: Provision as to Conversion. I declare and will that all real estate sold by my executor conformably to the power of sale just con- ferred upon him shall be regarded as converted into personalty as of the time of my decease, and that the rents, profits, issues and income thereof from said time until the time of sale shall belong to and be a part of my personal estate. I declare and direct that in the event of the ex- ercise by my executors of the power of sale of real estate conferred upon them above, the proceeds of 336 TESTAMENTARY FOEMS such sale shall be used and applied in the same manner as the realty so sold and converted is here- inbefore directed to be used and applied. It is always well to insert in a will a provision con- ferring upon executors and trustees a full power of sale, and often as well a power to mortgage and lease. Many authorities suggest that it is wise to state the purpose for which the power of sale is given. If the power is given to the executors or trustees, as such, in their official capacity, and virtute officii, or to them as joint tenants, or to the survivors or survivor of them, it can be exercised so long as there is a single executor or trustee remaining. Gibbs v. Marsh, 2 Met. 243. An authority to an executor "to sell and make conveyance of my personal or real estate, either at public or private sale, as the proper and convenient settlement of the estate may require," empowers him to sell the real estate only for the payment of debts, legacies, and the charges of administration entering into the settlement of the estate in the Probate Court, and not to make partition or distribution among the devisees. . Allen v. Dean, 148 Mass. 594. As trusts are likely to be of long duration, the question which constantly arises is whether the power is given to new executors or trustees who may from time to time be substituted. The expres- sion "said trustees," when used after the power has been conferred, without words of enlargement or EXECUTOR 337 explanation, is generally regarded as having a re- strictive significance. Parker v. Sears, 117 Mass. 513, 524. Hence, where the intention is to give all the powers to the successors which are given to the original executors or trustees, it would seem to be advisable to pursue one of two methods: either to use the expressions "the trustees or trustee [exec- utors or executor] for the time being of my will, " or else employ the expressions "my trustees or trustee," "my executors or executor," and then add at the end of the will a clause to the effect that "my trustees or trustee," "my executors or execu- tor," shall include the trustees or trustee or the executors or executor for the time being, whether original or substituted. See forms on pp. 527, 535, 541. In many cases the power to sell is repeated so as to be made to apply to property derived from the proceeds of the first sale, and so on, although such authority is doubtless conferred by the first power. To give a power to sell for the payment of debts and legacies is generally all that is necessary in the case of executors; but the testator may desire to go fur- ther in the case of trustees, and give them power to sell not only personal but also real estate for the purpose of distributing the proceeds among the remainder-men at the termination of the trust. It is suggested that the exercise of this power as to realty may in some cases be made dependent upon the written consent under seal of the remaindermen, provided they are all over twenty-one years of age. 338 TESTAMENTARY FORMS To meet the old rule in equity that the purchaser or mortgagee of trust property must see that the money he pays or lends to the trustee is properly applied by him, a clause is generally inserted in most powers of sale to the effect that the purchaser shall not be required to see to the application of the purchase money. The same purpose is often subserved by providing that executors' and trustees' receipts shall exonerate the persons taking the same from all liability. It is said that the purchaser must look to the will (especially in the case of real estate) for the power of the executor; and, if the executor is fully authorized to sell and convey, the purchaser will be liable only when the purchase is fraudulent or collusive. See 1 Perry on Trusts, §224. When a testator makes a power of sale depend- ent upon the consent of one or more persons, it is well to require that such consent be in writing, > and also to provide that if one or more dies, or is for some other reason rendered incapable of acting, the consent of the survivors or survivor shall be sufficient. If a testator desires that his executor or trustee shall have power to mortgage his real estate, or ex- tend or renew any mortgage already subsisting thereon, power to that effect should be given in the will; for, as a general rule, a power to sell and con- vey does not confer a power to mortgage. 4 Kent Com. 331. EXECUTOR 339 The following forms are offered: Powers of Sale, Receipts, Application op Purchase Money. I hereby authorize and empower my said trustees to sell both real and personal estate, by public auction or by private sale, for such prices and upon such terms as they may judge best and to convey the same by proper deeds of conveyance and to in- vest the proceeds of any such sale or sales in real or personal estate, in both or either, as they may deem expedient, and again to sell, assign, convey and dis- pose of such real and personal estate as may be so purchased by them, by public auction or by private sale, and to convey the same by proper instruments of conveyance, and the proceeds to reinvest accord- ing to their discretion, and so from time to time to alter and change the investments as they may deem most advisable, always having regard to the security thereof and to the certainty of the income. In the case of all such sales for the purpose of making proper distribution and division among the re- mainder-men at the termination of the trust, I au- thorize my said trustees to exercise the above power as to personalty as they may deem best, but as to realty only upon the written consent under seal of all the remainder-men and only then provided all the remainder-men are over twenty-one years of age. I hereby authorize and empower my said execu- tors, if in the settlement of my estate they deem it 340 TESTAMENTARY FORMS advisable either for the payment of debts or of legacies or of both, to sell both real and personal estate by public auction or by private sale, for such prices and upon such terms as they may judge best, and to convey the same by such deeds and instru- ments of conveyance and transfer as may be neces- sary and proper. I give to a majority of the three executors of this will and to the survivors or survivor of them full power and authority, in the exercise of their dis- cretion as to time, manner and terms, to sell by public auction or by private sale, and to mortgage or lease both real and personal estate, of which I may die seized and possessed and which is not specifically devised and bequeathed herein, and exe- ute, acknowledge and deliver all deeds, mortgages or leases or other instruments that may be required; and in no case shall the purchaser or purchasers, the mortgagee or mortgagees, or the lessee or the lessees, be required to see to the application of the purchase money or rent. I authorize and empower my executor to sell by public auction or by private sale, or to mortgage, using his discretion in all cases as to time and terms, and to improve in any manner he may deem best, any or all of my personal or real estate, and I further authorize and empower him to invest and reinvest the proceeds in securities and other property suit- able and proper for executors and trustees to invest EXECUTOR 341 in. And to this end I also authorize him to execute aaad deliver such instruments of transfer or mortgage as may be necessary and proper; and no purchaser or mortgagee shall in any case be required to look to the application of the purchase money. I hereby authorize my executor to sell any or all of my real or personal estate by public auction or by private sale and convey the same by proper deeds of conveyance; and no purchaser shall be com- pelled to see to the application of the purchase money. If in the settlement of my estate my executor finds it expedient to change investments or if in the pay- ment of debts and legacies he finds it necessary to sell any property, then I give him, in his discretion, full power and authority to sell both real and per- sonal estate by public auction or by private sale and convey the same by such deeds or other instru- ments as may be necessary to convey a complete title; and no purchaser shall be required to see to the application of the purchase money. To facilitate the settlement of my estate or for any other proper purpose, my executor or his suc- cessor is hereby authorized and empowered to sell by public or private sale any real or personal estate, not specifically devised or bequeathed herein, and to execute and deliver such deed or deeds as may be requisite to vest the title absolutely in the purchaser 342 TESTAMENTARY FORMS or purchasers, who shall not be required to see to the application of the purchase money. The receipts of the executors and trustees of this will for any moneys paid and for any properties transferred to them shall be an absolute discharge to the person or persons paying or transferring the same and such person or persons shall not be re- quired to see to the application or be liable for the misapplication thereof. Special directions are sometimes given as to in- terests held in common, as in the following form: If in the exercise of the power of sale hereinbefore conferred upon them my executors deem it best to dispose of any interest in real estate which I may hold as a joint tenant or as tenant in common, I hereby authorize and empower said executors to sell and convey said interest, to the other joint tenants or tenants in common, at such price as they may deem reasonable, but, if it is impossible to agree upon a price, then I direct that the price may be fixed by arbitration — each side to appoint an arbitrator — and, if the two so appointed are unable to agree, they shall appoint a third; and the valuation fixed by the original two or a majority of the three, as the case may be, shall be obligatory and binding. Other forms of powers of sale are given on pp. 511, 522, 582, 586. Forms of receipts are given on pp. 512, 523, 530, 587. EXECUTOR 343 In the following forms authority is given executors to lease: Authority to Lease. I authorize and empower my executors to lease any and all of my real estate for terms not exceeding five years from the proving of my will with such covenants and provisions as may be proper and fitting. I give my executors full power and authority to lease all or any part of my real estate for a term or term of years which shall not exceed the period when my estate can be fully settled. It is often well to confer upon executors and trustees broad discretionary powers, as in the follow- ing forms: Discretionary Powers. The powers conferred in this will upon my execu- tors and trustees are to be exercised in their dis- cretion and are not to be regarded as imperative. The powers conferred upon my executors in this will to be exercised in their discretion are conferred alike upon any administrator or administrators with the will annexed. I declare and direct that the powers to be exercised, as hereinbefore provided, in the discretion of my 344 TESTAMENTARY FORMS executors and trustees, shall extend to and be exer- cised by the executors and trustees for the time being, whether original or substituted. The discretion hereinbefore given to my executors and trustees shall be exercised as fully and freely by them as I could exercise the same if living and shall extend to and include all executors and trustees, whether original or substituted. Wherever I have conferred upon my executors and trustees in this will power and authority to be exercised in their discretion, their judgment shall be conclusive and shall not be questioned or im- peached by any one. All the property and estate given by this will shall vest in the executors and trustees for the time!being, whether original or substituted; and all the powers, responsibilities, duties and discretion herein created are bestowed upon and shall" be exercised by my executors and trustees for the time being, whether named herein or hereafter appointed. Another form may be found on p. 551. 6. Executors and Trustees Purchasing Trust Prop- erty. No rule is better established than that which prohibits executors and trustees from purchasing trust property; yet permission so to do is sometimes EXECUTOR 345 given as in the following provisions taken from actual wills: Permission to Purchase Trust .Property. I authorize and empower either of my executors to purchase any portion of my estate, whether real or personal, notwithstanding the fact of his or her executorship, and, for the purpose of such purchase, I authorize and direct my other executors to fix the price in their absolute discretion and the same shall be binding for all purposes. Upon the sale of any of my real estate held in common with any other person, it is my will and I direct that such person shall be fully authorized and empowered to purchase and hold such real estate for his own account and benefit notwithstand- ing he may then be acting as an executor or trustee under this my will, and a conveyance to such executor or trustee individually of the real estate so purchased shall be deemed as absolute and effectual as though such person had not been named as an executor of or trustee under this my will or qualified as such. 7. Directions as to Insurance. While there are intimations that an executor, trustee, or guardian is not required to insure, yet a prudent one will always do so; and a provision in the will may be advisable. See Loring's A Trustee's Handbook (3d ed.), 148. 346 TESTAMENTARY FORMS The following are offered as forms: Insurance. I enjoin upon my executors and trustees the con- stant remembrance of their duties relative to insur- ing the buildings upon my real estate against loss by fire. I direct that said buildings be insured for an amount equal to at least three quarters of their real valuation, the premiums, in the case of my executors, to be paid out of the general funds of my estate, and, in the case of my trustees, out of the income of the trust property. I direct my executors and trustees to keep the buildings upon my real estate constantly insured against loss by fire in such sums or amounts as they may think advisable. I direct my executors, if any policies of insurance against loss by fire upon the buildings upon my real estate expire during the term of their executorship, to renew the same for such amounts as they may deem ample. I direct my executors and trustees to keep the buildings upon my real estate insured against loss by fire in amounts equal to their assessed valuation. Having always been my own underwriter and having never sustained a loss, I direct my executors in no event to insure the buildings upon my real EXECUTOR 347 estate against loss by fire; and in the event of any- such loss I release said executors from all liability therefor. I direct my said executor to insure for a period covering his official term of service all buildings be- longing to my estate, all other perishable property and ships at sea, if any, and to charge all premiums paid therefor to the general funds of my estate. I direct my said trustee [guardian] to keep all perishable property, such as buildings, well insured and to pay the premiums from income. If he invests trust funds in mortgages of real estate, he is, of course, excused from insuring, provided the mort- gagor insures for his benefit. I authorize and direct my executors and trustees to exercise their discretion in the matter of insuring the buildings upon my real estate against loss by fire. If they deem it best not to insure said build- ings or any of them, then I release them from any responsibility or liability by reason of any loss to my estate from such non-insurance. 8. Taxation of Estate of Deceased Person. During the two or three years in which the estate is in course of settlement the taxes may absorb a large part of the income. It may be that in some cases testators may desire to make special pro- visions. The payment of taxes upon inheritances is treated on p. 287. 348 TESTAMENTARY FORMS 9. Compromise and Arbitration. In some States liberal powers are conferred by statute upon probate and other courts to authorize executors, administrators, guardians, and trustees to adjust by arbitration or compromise any demands in favor of or against the estate. There are few decisions upon the subject, as a compromise neces- sarily prevents or terminates litigation. Testators frequently confer such authority by will, as in the following forms: Compromise and Arbitration. IFauthorize and empower my executors to com- promise all claims in favor of or against my estate existing at the time of my decease, in the same way as I could do if living. To this end I clothe my said executors with absolute, authority; and their judg- ments, findings, adjustments and settlements of all claims and controversies are to be final and binding upon my estate and are not to be called in question by any one. I authorize and empower my executors to com- promise any debt or debts due and owing to my estate by the receipt of cash or by allowing time or by accepting security, real or personal, therefor, and any debt, debts or demands against my estate by paying cash in settlement thereof; and in either case I authorize my said executors to adjust dif- ferences and disputes by submitting the same to arbitration. EXECUTOR 349 I authorize my executors to adjust and settle all claims in favor of or against my estate either by compromise or arbitration. I authorize and empower my executor to compro- mise all debts and demands due my estate as well as those held against my estate in the way and manner that may seem to him most suitable and expedient, and I release him from all responsibility for any loss which my estate may sustain by reason of his actions in the premises. I hereby declare and direct that the executors of, and the trustees under, this will shall have full power and authority to settle all disputes and con- troversies relative to and growing out of the estates in their hands without obtaining the indorsement or consent of any court or tribunal whatever. I confer upon my executors full power and author- ity to adjust and settle all controversies and differ- ences which may exist at the time of my decease or which may thereafter arise relative to my business, property, affairs and accounts, intending to include herein all claims against and in favor of my estate; and I authorize and empower my said executors to pay over, transfer and deliver, as they in their judgment shall deem right, all moneys and other personal property, which, according to my books of account or any stipulations or memoranda or any other evidence satisfactory to them, appear to be- 350 TESTAMENTARY FORMS long to any person or persons, notwithstanding the fact that such person or persons would be unable successfully to establish their claims in court. I authorize and empower my executors and trustees to settle and adjust by compromise or arbitration all demands and claims whether against or in favor of the estates in their possession and custody and to receive or pay out all moneys required therefor; and no person shall call in question the acts and doings of my said executors and trustees in the premises, but the same shall be conclusive and final. Whereas my relations with the C. Y. Co., of which I am one of the largest shareholders, are such that a difference may arise after my decease as to the disposal of my stock therein, now, therefore, I con- fer upon my executor full power and authority to compromise and settle any controversy that may arise relating thereto and dispose of such stock in any way which he may deem most advantageous, and he shall not be held liable for any loss sustained by my estate by reason of his actions in the premises. Another form may be found on p. 558. 10. Employment of Attorneys, Agents, Clerks, etc., Consultation with Others, Various Requests. A testator often expresses requests as to the em- ployment of an attorney by the executor, as to EXECUTOR 351 consulting with the testator's wife and as to the retention of old employees, etc., as in the following forms: Attorneys, Agents, Clerks, etc. I desire my executors to employ A. B. as their attorney and counsellor in the settlement of my estate. As A. B. has been my legal adviser for many years, I recommend that my executors and trustees employ him as their attorney in all legal matters relating to my estate. I particularly request my executors and trustees to employ A. B. as their counsellor and attorney, as his familiarity with my affairs will prove both to their advantage and that of my estate. I desire my executors to consult with my old friend and business associate A. B. about matters pertain- ing to the administration of my estate. While the said A. B. is not willing to assume the responsibilities of an executor, I am sure that he will be ready and willing at all times to afford my executors advice and suggestions. If at any time my executors and trustees are in doubt as to the administration of my estate, I trust that they will consult with my friend A. B. who, I am sure, will cheerfully render them any assistance in his power. 352 TESTAMENTARY FORMS I request my executors and trustees to retain in their service my faithful bookkeeper A. B., who has been in my employ for many years. My executors are authorized to employ in the settlement of my estate such agents, bookkeepers, and servants as they may see fit and give them ade- quate remuneration. I direct my executors to expend such sum as they may deem necessary for the services of clerks, bookkeepers, etc. to assist them in the settlement of my estate. I desire my executors to use ample funds for clerical, legal and other expenses; and to this end I authorize them to hire an office and employ clerks, bookkeepers, agents and attorneys as they may deem best, and pay all the expenses and charges thereof out of the funds of my estate. I desire my executors and trustees to employ as their attorney A. B., Esq., of the St. Louis bar, who has been my legal adviser for many years. If my executors find it necessary to employ a real estate broker in the settlement of my affairs, I trust that they will continue in that service my trusted friend A. B., of etc. I request my executors to consult with my wife in all matters pertaining to my estate and carry out her wishes, so far as practicable. EXECUTOK 353 As my holdings in the Waketon Manufacturing Company are large and as I have shared in the management and direction of the affairs of the Company since its organization, it is my wish that my executor, A. B. shall succeed me in the board of directors and shall be re-elected to the posi- tion at least so long as my estate is in process of settlement. As my interests in real estate in other jurisdictions than that of my domicile are considerable — espe- cially in the city of Chicago — I recommend to my executors to continue to employ my agent, A. B., who has so long managed said real estate in said city and remitted to me the rents thereof. If the said A. B. should decline to act or should die, then I authorize my said executors to employ any other competent person for the purposes aforesaid; and they may confer on said A. B. or any other person so employed by them such discretionary powers as they may see fit without any accountability on their part for the default or wrongdoing of such agent. I authorize my said executors to pay the said A. B. or any other person they may employ such compensation as they may deem proper. Other forms are found on pp. 563, 573. 11. Suggestion as to Keeping Records. If an estate is large and the interests are compli- cated, it may be well to insert in the will a recom- 354 , TESTAMENTARY FORMS mendation that the executors and trustees keep a record of every meeting held by them. Keeping Records. I recommend that my executors [trustees] keep a record of every meeting held by them. I suggest that one of them be selected to act as Clerk or Secretary, that at each meeting he enter in a book a brief statement of every agreement or proposed action and that, at the close of the meeting, each sign the entry or entries, having first carefully read the same. In this way the transaction of business may be facilitated, misunderstandings avoided, and a permanent record kept of the settlement of the estate [the administration of the trust]. I desire to call the attention of my executors and trustees to the necessity of system and method in the administration of their trusts. When several people are charged with joint responsibilities it is advisable that a record should be kept of all agree- ments and proposed undertakings; otherwise mis- understandings are likely to arise. I recommend that my executors provide themselves with a memo- randum book and that they keep therein a record of all, transactions. I suggest that at the close of every meeting of the executors they enter in the book a full statement of the business transacted, includ- ing any proposed undertaking, and that they affix their signatures to the statement, so that no oppor- tunity may be afforded for dispute or disagreement. EXECUTOR 355 I also suggest that they record in the memorandum book all transactions contemporaneously with their occurrence and that they also affix their signatures to the same. By pursuing the method suggested they will have a complete account of all the business transacted during the two years or more of their incumbency. I recommend that they pursue the same course as trustees, for while the volume of business to be transacted by them in that capacity will be less than that which will devolve upon them as executors, yet, as the trust will probably continue for many years, an accurate record of all business and pro- ceedings will prove of value and may prevent em- barrassments. Another form may be found on p. 563. 12. Delegation of Powers and Duties by Power of Attorney. Executors and trustees cannot delegate their powers and duties, unless expressly authorized so to do by will: The following are offered as forms: Power op Attorney by Executor or Trustee. I authorize each of my executors to give from time to time as occasion and convenience may require a revocable power of attorney duly executed to any one or more of his co-executors to act in his place and stead and to execute in his name as such execu- 356 TESTAMENTARY FORMS tor any instruments, documents, deeds or convey- ances which said executors are authorized by this will or by law to execute. I authorize each of my trustees to give from time to time as occasion and convenience may require a revocable power of attorney duly executed to any one or more of his co-trustees to act in his place and stead and to execute in his name as such trustee any instrument, document, deeds or conveyances, which said trustees are authorized by this will or by law to execute. I declare that any executor of or trustee under this will may authorize by an instrument under his hand and seal, duly executed and acknowledged, an attorney in fact to perform all the duties of the office of executor or trustee, including the execution of deeds and all other legal documents, and all acts done by such attorney shall be as legal and binding upon my estate as though done by the executor or trustee himself. Another form is given on p. 563. 13. Instructions as to Voting Shares. "An administrator or executor may vote on the stock of the deceased stockholder, even though such stock has not been transferred to the executor or administrator on the books of the company. Stock held jointly by three executors cannot be voted EXECUTOE 357 unless they all agree upon the vote. Where a will gives to one of three executors the power to vote the stock, and directs the other two executors to give him a proxy to that purpose, the court will order the proxy to be given, even though he intends to vote himself into office, and he may not be a good manager." 2 Cook on Corporations (6th ed.), § 612. In some States there are statutes declaring that executors, administrators, guardians, trustees, or persons in any other representative or fiduciary capacity may vote as stockholders upon stock held in such capacity. And there are also statutes providing that the estates in their hands shall be liable to no greater extent than the person interested in the trust fund would have been if living. Forms like the following may be serviceable: Voting Shares. I authorize and direct both the executors of and the trustees under this will to vote, at all corporate meetings, personally or by their proxies, the shares of any railways and other corporations belonging to my estate in their hands, custody and possession. I enjoin harmony on my said executors and trustees, so that they may always vote said shares as a unit. I authorize and empower my said wife and son as executors of this will to represent and vote, so long as their executorship continues, at all corporate meetings, the shares belonging to my estate in any and all corporations; and to this end I authorize 358 TESTAMENTARY FORMS and empower them to execute and deliver such, proxies as may be proper and necessary, and revoke the same at pleasure. Another form is given on p. 573. Sometimes testators make specific bequests of shares of stock with the request that the shares be voted in a certain way, as in the following form: I give to the Free Home for Foundlings of etc., my 1000 shares of the capital stock of the Circuit Railway Co., the certificate being numbered 917, and dated etc. I impose no restraint upon this bequest, as the title of said Home for Foundlings to said shares is to be absolute. I desire, however, the trustees or other competent authorities of said Home, so long as it is the owner of said shares, to vote the same at shareholders' meetings in favor of those policies which shall promote the usefulness of the company and which shall prevent its subor- dination to influences likely to affect unfavorably the value of its shares. 14. No Inventory or Accounting. Some testators direct that their executors shall file neither inventory nor account. There are few jurisdictions where such directions are of any value, yet the following form is from an actual will: No inventory, list or accounting shall be required of my executor in respect to my estate, and he is EXECUTOR 359 fully released from filing such inventory list or ac- counting; nor shall any bond be required in any State to qualify my executor to act as executor, trustee or guardian. A form like the following is sometimes used, but it is probably valueless in nearly all jurisdictions and is certainly not to be commended: I confer upon my executors absolute power and authority to pay all debts and carry out and execute all the provisions of this will without the direction, sanction, indorsement or intervention of any court of probate or other tribunal, empowering them to do all things in the premises as effectually as I might do if living. 15. Auditing Accounts and Examining Securities. As the duties of executors are discharged in most cases at the expiration of two years from the proving of the will, the insertion in it of a direction to the executors to permit the legatees under proper regu- lations to examine accounts and securities is not so urgent as in the case of trustees. If, however, a testator desires to insert such a direction, a form may be framed from those given on p. 389. CHAPTER XVI TRUST AND TRUSTEE — GUARDIAN TRUST AND TRUSTEE. I. Language and Subject-Matter. In many States there are statutory provisions as to the creation and limitation of trusts. Hence the attorney should consult the statutes of the tes- tator's domicile before drawing the will. That there are often good reasons for not creating a trust, see pp. 489 et seq. A trust may be advisable, however, — If a son is dissipated or incapable of managing his affairs. If a daughter has an untrustworthy husband. If the testator or testatrix, being the only sur- viving parent, leaves young children. This is espe- cially advisable if the mother, who is left a widow, is ignorant of affairs. If the testator desires to make a helpless relative or friend the object of his bounty. If the person to be benefited lives in another ju- risdiction; as a married woman, the laws of whose domicile restrict her in the enjoyment of property. Apt words should be used in creating a trust, and 360 TRUST AND TRUSTEE 361 all precatory language and words of recommenda- tion and confidence should be avoided. See Hess v. Singler, 114 Mass. 56, 59; Aldrich v. Aldrich, 172 Mass. 101, 103. When there is a plain intention to create a trust, it must be sufficiently defined so as to be carried into effect. A devise or bequest to A. "to distribute the same in such manner as in his discretion shall appear best calculated to carry out wishes which I have expressed to him or may express to him" is not advisable. See Olliffe v. Wells, 130 Mass. 221. A better way is to make the devise or bequest to A. an absolute one, with the wish that he will dispose of the same conformably to a written request which is to be in no sense a part of the will. The Statute of Uses, 27 Henry VIII, has been repealed in some States and is still in force in not a few. Hence in the last-named States the word ' ' use ' ' should be used understandingly. In one State it has been held, where a testator gave property to a party, in trust, for the benefit of his married daughter, "to her sole and separate use, and her heirs and as- signs forever," that the devise of a fee to the daughter created an equitable estate during coverture, and a legal estate afterward, the use being executed upon the termination of the trust. Richardson v. Stodder, 100 Mass. 528. While it is held, as a general rule, that every kind of property capable of assignment may be the sub- ject-matter of a trust, yet it would seem advisable 362 TESTAMENTARY FORMS in most cases to give household furniture and other property of that nature outright; and, as already seen, there can be no life interest in things necessarily consumed by their use. See p. 160. Property like household furniture, plate, etc., is sometimes given to one to divide among others. By an actual will household furniture, plate, etc., were given to a person with the provision that he "shall have an absolute discretion as to the mode of such division, and that any division made by him shall be final and conclusive in all respects, and that the shares of my younger sons in the said plate shall be deliv- ered to them when they shall respectively attain the age of twenty-one years." It is often difficult to determine whether the trust extends to and includes real, estate. Where trustees are directed to receive and apply profits of land for a limited time only, and there is no express limitation of their estate, they take a legal estate for that time, and no longer. As a matter of practice, this question frequently arises where the homestead is devised to a widow for life, and certain personal estate is given to trustees for her benefit. If for any cause it is deemed advis- able to sell the homestead, it is often difficult to determine, where the provisions in the will are not clear, whether a conveyance can be made without the trustees joining therein. If it is intended that the trustee shall take a fee, proper words of limitation should be used in the will; although a fee will be implied when the trust TRUST AND TRUSTEE 363 is of such a nature as to require a legal estate in the trustee, beyond that of an estate for his own life. "In this deed the word 'heirs' is not used, al- though almost every other word is found, which is usually adopted in a deed intended to convey an entire estate in fee. The general rule of law is, that both in a deed and in a will the word 'heirs' is necessary to vest a fee-simple in the devisee or grantee, being a natural person, though the rule is more flexible, and more readily relaxed, in a devise than in a deed. "But the rule itself is subject to several exceptions; and one as well established as the rule itself is, that when the conveyance is in trust, and the trusts are of such a nature that they do, or by possibility may, require a legal estate in the trustee, beyond that of an estate for his own life, then, without words of limitation in the conveyance to the trustee, he shall take a fee. . . . "The primary object of such a conveyance mani- festly is, to uphold trusts so created, and to secure to the respective objects of them the benefits in- tended; to. accomplish this purpose, the trustee must have a legal estate coextensive with the trusts; a life estate is insufficient, an estate in fee is neces- sary; and therefore the implication is a necessary one, that a fee was intended to be conveyed; and this intent the law will carry into effect, by holding the estate a fee. "The authorities upon this subject are numerous 364 TESTAMENTARY FORMS and decisive, and several of them so recent . . . that it is only necessary to state the principle and refer to them. Gibson v. Montfort, 1 Ves. Sen. 485; Oates v. Cooke, 3 Burr. 1684; Fisher v. Fields, 10 Johns. 495, 505; Newhall v. Wheeler, 7 Mass. 189, 198; Stearns v. Palmer, 10 Met. 32, 35; Gould v. Lamb, 11 Met. 84; Brooks v. Jones, lb. 191." Cleve- land v. Hallett, 6 Cush. 403, 407. It makes perhaps little difference that the prop- erty given in trust is without the limits of the testator's domicile, as it can easily be turned into available assets. But difficult questions may arise as to the power of the court when the trustee re- sides out of the testator's domicile. Sometimes a testator creates a trust of all that he shall leave over a certain amount, say $100,000. This is not advisable, for, if he should leave only a little over $100,000, a trust of a trifling amount would be created. Better fix the exact amount to be given in trust. Before giving the residue in trust, ascertain if there is realty in a jurisdiction which either forbids the creation of trusts or limits them in their operation. The rule is generally stated in the text-books, and is found in many adjudged cases, that no lapse of time is a bar to a direct trust; and it is undoubt- edly true, if taken with the proper qualifications. The possession of the trustee not being adverse to the cestui que trust, as between them there is no limitation of time, unless there is a clear repudia- TRUST AND TRUSTEE 365 tion of the trust, brought home to the party so as to require him to act as upon a clearly asserted ad- verse title. Baker v. Whiting, .3 Sumner, 475, 486; Kane v. Bloodgood, 7 Johns. Ch. 90. But where the trustee sells the trust estate to a purchaser for value, with warranty, and without any intimation in the deed of conveyance of a subsisting trust, and the vendee enters and occupies the estate, doing no act which recognizes in any manner the existence of the trust, and there is no fraud or concealment, and the cestui que trust is under no disability, the possession must be regarded as adverse both to the trustee and the cestui que trust; and the time which would bar the legal right is equally effectual to bar the equita- ble right. 2 Sugden on Vend. 610; Attorney Gen- eral v. Proprietors of Federal Street Meeting-House, 3 Gray, 1. II. The Trustee. 1. Who may be a Trustee. As nearly any one can take property in trust for others, the selection of a trustee is largely a matter of sound judgment and good sense. It often happens that the same person is both remainder-man and trustee. A common example is where one is given property in trust for the benefit of another of the same family, the principal to be his after the death of the cestui que trust. But this is an unwise provision, especially if the trustee is authorized to add a part or all of the income to the 366 TESTAMENTARY FORMS principal fund; because it will be to his advantage to increase the capital by withholding the income. See Williams v. Bradley, 3 Allen, 270, 281., It is obvious that in most cases the purposes of a trust can be best carried out when there is no relationship subsisting between the trustee and cestui que trust. Wilson v. Wilson, 145 Mass. 490. It is said in England that the worst breaches of trust are committed by those trustees who are nearly related to the cestui que trust. Wilding v. Bolder, 21 Beavan, 222. A testator may desire to insert in his will a pro- vision like the following: While I desire and will that there shall never be less than three trustees under this will, I also par- ticularly declare and order that only disinterested persons shall serve as trustees, and hence I exclude husbands, wives and all relatives of the benefici- aries and remainder-men. "It is one of the primary duties of a trustee to keep the funds of the trust separate from his private funds, and not, by mingling them together, to ex- pose the trust funds to the risks to which his own property may become liable. The appellant has vio- lated this duty, and by his own statement has done so deliberately and withholds information of his in- vestments from the cestuis que trust. He was ex- empted by the will from giving bonds, and they have therefore no security against loss through his TRUST AND TRUSTEE 367 malfeasance. The fact that he is their father and the son of the testator affords no ground of excuse or apology for his breach of trust." Sparhawk v. Sparhawk, 114 Mass. 356, 358. In most jurisdictions a married woman may be trustee, but infants cannot act until they reach majority. An alien may be trustee as to personalty, but not as to realty, unless he is authorized by law to hold it. A non-resident who is not an alien may be trustee, but he would probably have to appoint an agent in the jurisdiction of the trust estate. A city may act as trustee. Webb v. Neal, 5 Allen, 575. Trust companies are generally authorized by stat- ute to be trustees, but there is a disadvantage in the fact that beneficiaries and remainder-men do not feel freedom in consulting with corporations as they do with individuals. Savings banks are authorized in some States to receive money on deposit in trust for the purpose of setting out shade-trees in streets and parks, and improving the same; for purchasing land for parks, and improving the same; for maintaining ceme- teries or cemetery lots; for erecting and maintain- ing drinking-fountains in public places. So also cemetery corporations are authorized to hold funds in trust for their improvement or the care of lots. As to burial lots see p. 81. The inten- tion to name a person as trustee in his "official 368 TESTAMENTARY FOEMS capacity," as the mayor of a city, should be un- equivocally expressed. See Dunbar v. Soule, 129 Mass. 284. Many corporations have very liberal powers as to granting annuities on lives as well as" those in trust. In the case of an annuity on a life a large interest is allowed during the annuitant's life, es- pecially if at an advanced age, and at death the capital becomes absolutely the property of the company. Where the testator only desires to pro- vide for a child or other person during life, without remainder over, and the amount of the proposed bequest is small, it is often advisable to direct the executor to purchase such an annuity upon the life of the annuitant. A form like the following is suggested: I constitute and appoint my daughter A. B. the executrix of this will, release her from giving a surety or sureties upon her official bond and give her full power and authority to sell both real and personal estate by public auction or by private sale, and transfer and convey the same by deeds and other instruments sufficient to pass a valid title thereto. I give, devise and bequeath to my said daughter A. B. all my estate, both real and per- sonal, wherever the same may be situated and of whatever the same may consist, to have and to hold to her and her heirs and assigns forever. I em- phatically urge my said daughter after she has paid all my debts and has settled her account in the TRUST AND TRUSTEE 369 Probate Court to turn my entire estate, with the exception of personal effects, furniture, etc., into cash and expend the same in the purchase of an annuity from some sound, stable insurance com- pany. I mean by the purchase of an annuity the entering into a stipulation whereby she will part forever with the funds paid by her to such company in consideration of the company's paying her dur- ing life a certain sum per annum. Another form may be found on p. 443. If the testator by his will has not placed his property in trust with any other trustee than the executor, it is the province and duty of the latter in many jurisdictions to act as trustee. The better way is to positively appoint the same person both executor and trustee. In such case he must give bond in his capacity as trustee. Prior v. Talbot, 10 Cush. 1. "The fact that the same persons are executors and trustees enables the individuals clothed with this double character to act in the two capacities with more ease and safety than they otherwise could. As the funds are at all times under their own control, either in the one capacity or the other, then, under the rule that the law considers that paid which it requires to be paid, nothing remains for the executors and trustees to do but to keep accurate accounts, to charge and credit the one fund or the other, according to every possible con- tingency, with moneys received and debts and 370 TESTAMENTARY FORMS charges paid; and when the executorship account is closed, and the statute of limitations has taken effect, then the trust account will exhibit the trust fund, as directed to be formed by the will." Minot v. Amory, 2 Cush. 377, 385, 386. "The residence of the trustee and cestuis que trust out of the Commonwealth does not take away the power of this court to regulate and control the proper administration of trust estates which are created by wills made by citizens of this State, and which have been proved and established in the courts of this Commonwealth. The legal existence of the trust takes effect and validity from the proof of the will, and the right of the trustee to receive the trust fund is derived from the decree of the Probate Court." Chase v. Chase, 2 Allen, 101, 104. As to a non-resident trustee, see Loring's A Trustee's Handbook (3d ed.), 18 and 192. A trustee may be liable as stockholder. The residence of the trustee and the cestui que trust in some cases would determine the taxation of personal property held in trust. 2. The Bond and Liability Thereon. Reference may be had to notes above on the ex- ecutor's bond and liability thereon. See pp. 321 et seq. As to releasing trustees from giving sure- ties, see forms on pp. 3 14 et seq. Forms are also given in Appendix I. TEUST AND TBUSTEE 371 3. The Compensation of Trustees. Much which has been said about the compensa- tion of executors applies to trustees. See pp. 325 et seq. In some States five per cent upon the gross amount of income collected is allowed, and the trustee is also allowed from one to two and a half per cent (according to the duration of the trust) upon the gross amount of the principal conveyed by him to the remainder-men upon the termination of the trust. A testator may desire to give special directions, as in the following forms: Compensation of Trustees. I direct that my trustees shall receive in full as compensation for their services five per cent upon the gross amount of income collected by them, and, upon the termination of the trust, such percentage of the gross amount of the principal as the court may deem just and fair, provided the trustees and those entitled to the principal, discharged of the trust, are not able to agree thereon. I direct that my trustees shall receive fair com- pensation according to the services rendered by them. When the same person is both guardian and trustee it is probable that he would not be allowed 372 TESTAMENTARY FORMS to charge full compensation in both capacities for the same service. When a lawyer, acting as trustee, has occasion to perform professional services in behalf of his jtrust, his charges should be carefully scrutinized in order to determine their reasonableness or the propriety of the service. The testator may express his wishes as in the fol- lowing forms: I direct that my trustee shall receive liberal com- pensation for his labors, and such amount in addi- tion thereto for professional services as is just and reasonable. I direct that my trustee shall be well paid as such, but shall receive no compensation for any services he may render the estate as attorney. Other forms are given on pp. 325-327. In specially providing in his will as to the com- pensation of the guardian or trustee, it is advisable for the testator, in giving a legacy, to show the intention as to whether the same is given as a mark of personal regard, or only on condition that the guardian or trustee shall qualify as such. See p. 172. A trustee may make a valid agreement with his cestui que trust as to the amount he shall receive for his services, provided the cestui que trust is sui juris TRUST AND TRUSTEE 373 and competent to act, and no fraud is practised upon or undue advantage taken of him. Bowker v. Pierce, 130 Mass. 262. 4. The Number and Appointment of Trustees to Fill Vacancies. In regard to the number of trustees, it should be noted that if there are more than one, and one dies or becomes incapable of acting, the court should appoint a co-trustee to act with the survivor or sur- vivors, provided that the will is silent on the sub- ject. The property generally vests in the survivor, or in one trustee appointed in the place of two, until another is appointed by the court. Dixon v. Homer, 12 Cush. 41. Ample provision is made by statute in nearly all jurisdictions for the appointment of a trustee in the place of one who dies, resigns, etc., and for the vesting of the trust estate in him on his giving bond. And as the proceedings in the Probate Court are simple and comparatively inexpensive, it would seem to be better in most cases not to provide in the will for the appointment of new trustees, but to leave the matter to the court. But if the testator directs that the judge of probate shall approve of the appointment of a trustee, to be made by per- sons designated by his will, the person occupying the office of judge of probate will act under author- ity conferred upon him by the will, and not as a court or judicial officer; and notice to the parties in 374 TESTAMENTARY FORMS interest will not be required. Shaw v. Paine, 12 Allen, 293. As to the advisability of a provision for relin- quishment of and for filling vacancies in the case of a public charity, see p. 455. Notwithstanding what has just been said, it is declared by many writers that where the trust is to continue for any length of time the will should con- tain provisions for the relinquishment of the trust by the trustees and for filling vacancies occasioned thereby. There will be found in 1 Perry on Trusts, § 288, n., a power for the appointment of new trustees, which is approved by both Mr. Lewin and Mr. Hill. The following forms are largely taken from actual wills. It has already been said that statutes gener- ally provide for the vesting of the trust estate in the new trustee, but it can do no harm to insert in the form that upon the appointment of such new trustee the title to the trust estate shall vest in him jointly with the acting trustees, and no conveyance or conveyances shall be necessary. Filling Vacancies, etc. Each of said trustees shall have the right to nomi- nate and appoint his successor by last will, and such successor shall have the same powers as his appointer. I authorize and empower the persons hereinafter named as executors and executrix of this will, or a majority of such of them as shall from time to time TRUST AND TRUSTEE 375 be living, by an instrument in writing executed under their hands and seals and acknowledged in like manner as a deed to be recorded, to revoke the appointment of trustee of any or all of the trusts in and by this will created, and to appoint any person, or persons, resident or non-resident of this State including any foreign or domestic corporation hav- ing power by its charter to execute trusts, to be trustee of any of said trusts in respect to which such power of revocation shall be exercised and from time to time such appointments to revoke, and again a new trustee or trustees to appoint. But the power to appoint new trustees hereby given shall not be construed to authorize the appointment of any of the persons named in this will as executors or executrix to be such new trustee. Whenever the number of the trustees of a trust created by this my will shall, by death, resignation, incapacity or any other cause be less than three, I authorize the remaining trustee or trustees by deed to appoint a new trustee or trustees so as to keep the number at not less than three, and to execute such instruments as may be necessary to vest the trust estate in the new trustee or trustees jointly with the remaining trustee or trustees. I declare that any vacancy or vacancies occurring in any trusteeship under my will by death in my lifetime or afterwards, disclaimer, resignation, resi- dence abroad, refusal to act, or incapacity may be 376 TESTAMENTARY FORMS supplied by the trustee or trustees for the time being, including any retiring or disclaiming trustee or trustees, if willing to act, or, if there be no trustee willing to act, by the acting executors or adminis- trators of the person who shall have last died in the trust, or, if there be no such person, by my acting executors or administrators, every such appoint- ment to be made by any attested writing, and it shall not be necessary to supply all the vacancies at the same time; nevertheless it is my desire that so far as may be consistent with convenience there be always two trustees of my will; and I declare that every instrument purporting to be made in pur- suance of the foregoing power, and not appearing on the face of it to be invalid, shall, though not so made, be valid for all purposes, and that every trustee appointed under this power shall imme- diately have all the powers of a trustee, although the trust property be not then vested in him, and that the trustees or trustee for the time being of my will may exercise any power or discretion hereby given to the trustees herein named. In all cases where trustees are appointed in this will, if any of said trustees shall after my death die, or be unwilling to accept or to execute the trust conferred upon them, or at any time shall desire to retire from the office, it shall be lawful, when other direction or appointment is not herein made, for the competent acting trustees or trustee in each of such trusts respectively, to substitute by writing TRUST AND TRUSTEE 377 any persons or person in whom, either alone or, as the case may be, jointly with any surviving or con- tinuing trustees or trustee, the trust estate and trust powers shall forthwith vest. In the event that any of the trustees appointed under this my will shall die before the said trusts be fully executed, or desire to renounce the trust or become disqualified from acting as such trustee, I authorize and empower the surviving or remaining trustees or trustee, should they deem it advisable and for the best interests of my estate, by suitable in- strument, executed by them jointly if there be more than one and duly acknowledged, appoint a- suitable person to become a trustee in the place of him or her so dying, renouncing or becoming disqualified, and said newly appointed trustee shall become associated in or succeed to the said trusts in like manner and with the same powers as if originally named for that purpose in this my will. I desire that the number of trustees for the execution of the trust provided herein shall not be less than three (3); and whenever the number of said trustees shall be reduced to two (2) by death, resignation, unwillingness to serve, or other dis- qualification, it shall be lawful for the remaining trustees or trustee for the time being to substitute by an instrument in writing any person or persons in whom jointly, with any surviving and continuing trustees or trustee, my trust estate shall vest or by 378 TESTAMENTARY FORMS proper assurances be vested, and in case any trustee so appointed shall not be a beneficiary, sharing in the distribution under the trust hereby created, the trustees making such appointment may direct a reasonable compensation to be paid to any such new trustee for services rendered in such trust, and a corporation lawfully authorized to execute such trust may be one of said trustees. In the event that the said A. B. shall cease to be a trustee under my will, then it is my will and I direct that within ninety (90) days after such vacancy shall occur, the vacancy in the trusteeship so occur- ring shall be filled by an appointment made by the remaining trustees or trustee under my will by an instrument in writing appointing a successor in trust, in whom, jointly with the surviving and continuing trustees or trustee, the trust estate shall vest or by proper assurances be vested. And in case any trustee so appointed shall not be a beneficiary sharing in the distribution under the trust hereby created, the trustees making such appointment may direct a reasonable compensation to be paid to any such new trustee for services rendered in such trust. And in like manner any vacancy occurring thereafter in the trusteeship held by the said A. B. shall be filled from time to time, so that there shall at all times be a successor in trust to the said A. B. during the continuance of the trust under my said will. Provided, however, that the first successor in trust to the said A. B. shall be C. D. of the city of, TRUST AND TRUSTEE 379 etc., if he shall be living and willing to accept said trust. Each of my daughters may select as trustee for herself and her children under the foregoing provi- sions either my son J. L., or the Equity Trust Com- pany of, etc., but should either of my daughters for any reason fail to declare her preference, then I ap- point my son J. L., to be the trustee for the one so failing and for her children. I declare that if any one or more of the trustees hereby constituted shall die in my lifetime or if any one or more of them or of the trustees or trustee appointed as hereinafter provided shall after my death die or be abroad elsewhere than in America for twelve calendar months consecutively or desire to be discharged or refuse or become incapable to act so that the number of acting trustees shall be reduced below three, then and in every such case the surviving or continuing trustees or trustee for the time being (and for this purpose every refusing or retiring trustee shall if willing to act in the execu- tion of this power be considered a continuing trustee) or the acting executors or executor administrators or administrator of the last surviving and continuing trustee shall appoint a new trustee or new trustees in the place of the trustee or trustees. so dying or being abroad or desiring to be discharged or refusing or becoming incapable to act as aforesaid. And upon every or any such appointment as aforesaid the 380 TESTAMENTARY FORMS number of trustees may be augmented or reduced and if so augmented may be again reduced below three, my will being that there shall always be at least three acting trustees of this my will and upon every such appointment the trust property shall if and so far as the nature of the property or circum- stances shall require or admit be transferred so that the same may be vested in the trustees for the time being, and every trustee so appointed as aforesaid may as well before as after such transfer of the said trust property act or assist in the execution of the trusts and powers of this my will as fully and effectu- ally as if I had hereby constituted him a trustee. I declare and direct that the number of trustees under the trusts created by this will shall always be three, but the two continuing trustees shall have authority to execute all the powers and discharge all the duties relative to said trusts until a new trustee is appointed; and every such new trustee shall have the rights, powers, discretions and author- ity of an original trustee. If my said son at his death shall be the sole con- tinuing trustee under said trusts it shall be lawful for him by his last will and testament to appoint a new trustee or new trustees to succeed him thereunder. If a vacancy occurs in the office of trustee for any cause, a new trustee or successor shall be selected by a majority vote of the incumbent or remaining TRUST AND TRUSTEE 381 trustees, each trustee to have one vote. A writing setting forth such selection shall be drawn up and signed by those casting a majority of votes and shall then be recorded in, etc. It is suggested that where there are two or more trustees, a provision should be inserted in the will recommending that a record be kept of the transac- tions at every meeting. See p. 353. 5. Power to Sell, Mortgage, Lease, Invest, and Re- invest, etc. If the will gives the trustee no power to sell, invest, and reinvest, an order for that purpose may be obtained from the court. Nearly all well-drawn wills, however, contain such a power, and the directions as to time, manner, and kind of investments must be implicitly followed. And if the administration of the trust is confided to the wise discretion of the trustees, the court will not interfere, if that discretion is reasonably and fairly exercised. In regard to wording of powers to sell, mortgage, lease, etc., and the laws applying thereto, the same rules apply as in the case of executors. See pp. 333 et seq. In addition to the forms there given and forms to be found on pp. 511, 522, 572, 586, the following is offered: I hereby authorize and empower my said trustees and their successors in trust in their discretion, from 382 TESTAMENTARY FORMS time to time, to sell, mortgage, lease and convey upon such terms as they may deem best any or all of the real and personal estate belonging to the trust and reinvest the proceeds in investments, suitable and proper for trustees to invest in, and the same shall be part of the principal of the trust estate and be subject to all the provisions thereof. And I authorize said trustees and their successors to execute, acknowledge and deliver any and all legal instruments in writing which may be required to execute the above powers conferred upon them; and no purchaser from said trustees or their succes- sors shall be required to see to the application of the purchase money. The receipts of my said trustees for any moneys paid to them shall be an absolute discharge to the person or persons paying the same and such person or persons shall not be required to see to the application thereof. A power to partition is frequently conferred upon trustees, as in the following forms: Power to Partition. I hereby authorize my trustees to make partition of any real estate which at the time of my decease I may hold, in common with others, and to this end they may determine valuations, and arrange terms and details, make payments to secure equality, execute and deliver necessary deeds or other in- struments, and take in their own names as trustees title to the real estate allotted to them. TRUST AND TRUSTEE 383 I hereby confer upon my executors absolute power and authority to partition and divide in severalty the real property devised in this will at the appraised valuations thereof and allot the same to and among the trust estates herein created. Another form is given on p. 440. It is a general rule that the testator may give such directions as to investments as he deems best, in the absence of which executors, trustees, and guardians must invest in property recognized as suitable for them to invest in and located within their own jurisdiction. This is said to be the rule in a few jurisdictions even where the will gives the trustees discretion as to investments. See 1 Perry on Trusts, § 460. In many States trustees are limited by statute to specified investments, and in a few they are authorized to make any investments provided they act in good faith and exercise sound discretion. The rule that a trustee is protected, if he takes the same care of the trust property which he takes of his own, is no longer, followed, and the rule that he is protected, if he takes the same care of the trust property which a prudent man would take of his own, is unsound and unsafe. Many testators give explicit instructions as to investments, as (a) that the testator's business be continued by the trustees for a period sufficiently long for liquidation, and that the proceeds be then invested in sound securities; (b) that the trustees invest in specified property not generally regarded as legally 384 TESTAMENTARY FORMS proper for trustees to invest in; (c) that the trustees invest in specified property whether suitable or not for trustees to invest in; (d) that all or a part of the testator's investments, as existing at the time of his decease, shall be continued in the trust. As to the insertion of clauses relieving trustees from liability, see p. 324. If a testator proposes to insert a provision that the trustee is only authorized to invest in certain desig- nated bonds, such as those of cities, towns, counties, railroads, etc., and the trust is likely to be of long duration, his attention should be called to the probability of lower rates of interest. Many regard bank and trust company shares as improper invest- ments on account of double liability. The following forms are offered: Authority to Invest in Specified Property. I authorize and empower my trustees and their successors to invest and reinvest the trust estates created by this will from time to time, without obtaining the approval or authority of any court, in the stock of sound and conservatively managed banks, in the stock or bonds, or both, of other stable financial institutions, reliable railroads, public service corporations, industrial and manufacturing estab- lishments, improved and productive real estate, and mortgages secured by real estate or personal prop- erty, the loan in every case to be not more than one-half the value of the security. My trustees are not to be held responsible for any losses resulting TRUST AND TRUSTEE 385 from any investments they may make in the above- permitted securities and property, provided they exercise a sound discretion and act in good faith. Authority to Invest in Certain Bonds op States and Cities and in Real Estate. I direct my trustee and his successor or successors in that capacity to invest and reinvest the trust estate in the bonds of the States of Ohio, Illinois, New York, Massachusetts, Pennsylvania, New Jersey and Connecticut, of the cities of New York, Boston and Philadelphia, and sound, dividend paying rail- roads in any of the States aforesaid, and in improved real estate and safe mortgages upon the same in any of the States above-named. Certain Investments Favored, but any In- vestments Approved by Trustees and Benefi- ciaries Allowed. I particularly favor as investments for the trust estate created by this will the public debt and securities of the United States, of the States which have the largest amount of taxable property, of cities in such States, the first mortgage bonds of sound railroads in the United States and safe loans with any of the above-named securities as collateral. However, I authorize and empower my trustees to invest in any other securities or property, which they and the beneficiaries and remainder-men of the trust shall approve and select. 386 testamentary forms Authority to Invest in Railroad Bonds or Other Safe Property. I direct my trustees to invest and reinvest the trust funds in the bonds or stock of railway companies in the United States, which have paid regular dividends upon the capital stock for a period of three years preceding the time of such investment, but they may also invest not more than one-third of the trust funds in any other property which they deem sound and reliable, looking always to the safety of the security rather than to high rates of interest. General Authority to Invest. Having given my said trustees ample power of sale in order to vary investments, I now authorize them to purchase any safe property the same as I would do if living, but I caution them in investing on mortgage to take a first mortgage not exceeding in amount one-half the assessed valuation of the real estate, and in investing in railway securities to select only the securities of railways which have paid regular dividends on all their capital stock for a period of five years preceding such investment. I also authorize them to retain any investments made by me, which may come to them as a part of the trust estate. I require that not over twenty per cent of the trust estate shall be invested in any one kind of security or property. trust and trustee 387 General Authority to Hold Investments and Reinvest. I authorize and direct my trustees and their suc- cessors to continue to hold as part of the trust estate all property real or personal owned by me at the time of my death and which may be conveyed by my executors to them, the said trustees, although some or even all of such property may be of a kind regarded as not suitable for trustees to invest in, and I also authorize and direct them to invest the funds of the estate from time to time in any securities or property, which trustees are allowed to invest in, and in the purchase of and loans upon national, state, city, town, county and railway bonds, and also improved and unincumbered real estate, wher- ever situated. Authority to Retain Sound Trust Invest- ments, Sell Others and Reinvest in Trust Property. When my executors turn over the residuum of my estate, which constitutes this trust, I authorize and empower my trustees to retain those securities, assets and properties, which are suitable for trustees to invest in and to sell the balance of the residuum so turned over to them and reinvest the proceeds in property suitable for trust estates. 388 testamentary forms One Half of Trust to be Invested in Realty and the Other Half in First Mortgages. I especially authorize, order and direct my trustees and their successors to invest one half of the trust estate in improved and productive real estate and the other' half in first mortgages upon improved and productive real estate, the mortgage in each case to be not over fifty per cent of the as- sessed valuation of the property upon which the mortgage is taken. I caution my said trustees to look carefully to the titles in all cases, and neither to purchase nor loan on incumbered real estate. Authority to Invest in Good Faith and with Sound Discretion. I authorize my trustees to invest the trust funds in any property, real or personal, they may select and do not hold them answerable for any losses occasioned by any investments they may make, provided they exercise sound discretion and act in good faith. Reinvestments. While mjr trustee in making reinvestments is to seek only properties suitable and proper for trus- tees to invest in, yet even then I direct that he must as a condition precedent to making such re- investments obtain the approval in writing of the beneficiary. TBUST AND TRUSTEE 389 Other forms are given on pp. 511, 547, 551, 572, 583, 591. Authority is often conferred upon trustees as to erecting buildings and making improvements, al- though such authority would probably come within a general power as to investing and reinvesting the trust estate in realty as well as personalty. The following form may be used: If my trustees shall deem it advisable to improve any of the real estate held by them in trust by erect- ing buildings and making improvements thereon, and if at any time assessments for improvements are levied upon any such real estate, then I direct my said trustees to use and employ for such purposes any of the funds, securities or other personal property constituting a part of the principal of the trust. A form like the following as to purchase and foreclosure may be of use: In case of the foreclosure of mortgages upon any real estate held by my said trustees, I authorize and empower them to purchase the same by auction or otherwise and hold the realty thus acquired as a part of the trust estate in place of the mortgages so foreclosed. 6. Auditing Accounts and Examining Securities. It is remarkable that in so many States there are no statutes permitting beneficiaries and remainder- 390 TESTAMENTARY FORMS men to examine the assets and securities of trust estates under proper regulations. That an auditor of an executor's or trustee's account may be pro- vided for by will goes without question. Williams v. Corbet, 8 Sim. 349. One of two methods may be adopted, either providing for an auditor or giving the person interested the privilege of investigating for himself. If every will should contain a provi- sion on the subject, and the parties in interest or their attorneys should investigate annually, there would be very few cases of defalcation by trustees. The following forms may be of service; Auditing and Examining Accounts. Every year when my trustees have prepared their account and are ready to submit the same to the court, I direct and order them to give an accurate copy of the same to A. B. [the beneficiary] and C. D. [the remainder-man] and thereupon to present and submit to them or their duly appointed attorney or attorneys at the Safe Deposit vaults or in any other proper place the securities, assets and property of the estate, and allow them ample time to examine and investigate the same. And I authorize the said A. B. and C. D. to make such examination and take such notes and make such copies as they may desire either personally or by attorney, and I direct said trustees to give them reasonable aid and assistance. When my trustees have prepared their yearly account and are ready to submit it to the court, I TEUST AND TRUSTEE 391 direct them to give an accurate copy thereof to any accountant or auditor that my said wife [the bene- ficiary] may select, and submit to him for examina- tion and verification the securities, assets and other property of the trust estate. Thereupon the said accountant or auditor shall make full report to my said wife and shall be paid by my said trustees for his services from the income of the trust estate the sum of one hundred dollars. I request my trustees to keep accurate books of account, and I direct that all parties interested in this trust, both life tenants and remainder-men, shall have the right to inspect such books at pleas- ure and shall also be entitled, at least once a year, to examine the securities, assets and property of the trust estate. I request and require my trustees to furnish annual accounts to each of the cestuis que trust and to each of the remainder-men on the first day of January of each year, and then to permit all of the cestuis que trust and remainder-men to examine and verify all the investments, securities and assets of the trust estate. I direct my said trustees to keep accurate books of account, which, together with all vouchers, papers, and documents relating to the administration of the affairs of the estate and also all the securities, prop- erty, assets, and investments of the estate, shall be 392 TESTAMENTARY FORMS always open and subject to the inspection of the cestuis que trust and of the remainder-men or those entitled to the principal when the trust shall termi- nate; and I enjoin upon said cestuis que trust and remainder-men or those entitled to the principal as aforesaid, when the annual account of the trus- tees is ready for presentation to the Probate Court, particularly to examine all the securities, assets, property, and investments of the estate, together with the papers, vouchers, and documents relating to the administration thereof, to see if the account is made up accurately and properly. If my said trustees at any time and in any way attempt to hinder the cestuis que trust and remainder-men or those entitled to the principal as aforesaid in any inspection and examination, then I desire the Judge of Probate to remove the trustees on petition and appoint other trustees in their places. As to directions that a majority of the trustees may act, see pp. 328 et seq. As to forms as to dis- cretionary powers, see p. 343. As to trustees pur- chasing trust property, see p. 345. As to directions to insure, see p. 345. As to employment of attorneys, agents, clerks, etc., and consultations with others, see pp. 350 et seq. As to delegation of powers and duties by power of attorney, see p. 355. As to in- structions as to voting shares, see p. 356. As to compromise and arbitration, see p. 348. TRUST AND TRUSTEE 393 III. The Cestui Que Trust. 1. Who may be a Cestui Que Trust. It is a general rule that nearly any one of full age may be a cestui que trust, unless there are statutes to the contrary. 2. Payment of Income — Alienation — Accumula- tion. The words "rents" and "profits" generally apply to income from real, and the words "income" or "income and profits" to income from personal, property held in trust. It is common to regard the word "income" as meaning "net income," although many testators go further and define the "net in- come" as all the income remaining after the "gross income" has been reduced by payments for repairs, taxes, trustees' compensation, insurance, and other current and incidental expenses. In some jurisdictions the cestui que trust is en- titled to the income from and after the death of the testator, and in others from one year from that event, being payable then only at the end of the second year. See Flummerfelt v. Flummerfelt, 51 N. J. Eq. 432. The attorney should bring this matter to the attention of the testator, for he may desire to make special provision, as in one of the following forms: 394 testamentary forms Payment of Income. I declare that the income of all trusts created by this will shall be payable from the date of my death. I declare that the income of all trusts created by this will shall be payable from the date of the proving thereof in the probate court. I declare that the income of all trusts created by this will shall not be payable until two years have elapsed from the day of my decease. I declare that the income of all trusts created by this will, shall be payable after two years have elapsed from the proving of this will. Often it is not convenient or desirable to set aside the trust estate until a year or two years from the testator's decease, so special provisions are inserted like the following: Special Provisions as to Beneficiary. I direct my executors to pay to A. B. in quarterly payments from the time of my decease until property has been set apart for the establishment of the trust for his benefit, a sum of money which shall be equal to five per cent per annum upon the amount so given in trust. I direct that the beneficiaries under this will shall be paid from the general funds of my estate five per cent interest per annum from the time of TRUST AND. TRUSTER 395 my decease, on amounts equivalent to the amounts given in trust for their benefit and until the property- shall be set apart for the establishment of the trusts. As the trust estate for the benefit of my wife will not be established until two years after the proving of this will, I direct my executors to pay to her from the general funds of my estate, in monthly instal- ments, beginning from my decease and continuing until said trust is so established^ the sum of five thou- sand dollars per annum. The period of payment should be stated as "monthly," "quarterly," "semi-annually," "annu- ally, " or other similar provisions should be made. In giving income state clearly the proportions, and avoid such clumsy expressions as the net income "shall be equally divided between the heirs of my mother L., and wife E." A testator's solicitude for his beneficiaries often induces him to provide that their income shall not be anticipated or alienated by them or seized and appropriated by their creditors. In England and in some American States such provision is permitted only in case of alienation, attachment, bankrupcy, etc., by a direction that the estate shall terminate by a condition or conditional limitation. The provision in the famous case of Nichols v. Eaton, 91 U. S. 716, which was sustained, is given in Remsen on Wills, 517, and is as follows: 396 TESTAMENTARY FORMS Provided Always, that it shall not be lawful for my said daughter to sell, assign, encumber, charge, or dispose of, by way of anticipation or otherwise, the income so to her payable as aforesaid, or any part thereof; and that, notwithstanding any such charge, sale, assignment, or other disposition, my said trustees are hereby required to pay such income into the proper hands of my said daughter, for her separate and peculiar use and benefit, whether mar- ried or sote, upon her own receipts. Provided Also, that if my said sons respectively should alienate or dispose of the income to which they are respectively entitled under the preceding trusts; or if, by reason of the bankruptcy or insol- vency of my said sons respectively, or by any other means whatsoever, the said income can no longer be personally enjoyed by my said sons respectively, but the same or any part thereof shall, or, but for this present provision, would belong to or become vested in or payable to some other person or persons, then the trusts hereinbefore expressed concerning the said income, or concerning so much thereof as should or would have so become vested in or payable to any other person or persons other than my said sons respectively as aforesaid, shall immediately thereupon cease and determine; And the same income shall be applied by my said trustees during all the then residue of the life of my said sons re- spectively in manner following; that is to say, upon trust to pay and apply the said income or such part thereof as aforesaid to and for the support and TRUST AND TRUSTEE 397 maintenance, or otherwise for the use and benefit of the wife, child, or children, for the time being, of my said sons respectively, or such one or more of such wife, child, or children, and in such manner as my said trustees in their discretion shall think proper, and as to such wife for her sole and separate and inalienable use; And in default of any object of the last mentioned trust at any period during the life of my said sons respectively, and when and so often as the same shall happen, then, upon trust, from time to time, so long as such vacancy or want of objects shall continue, to accumulate and invest the income aforesaid in augmentation of the prin- cipal or capital thereof in the nature of compound interest, with power of changing investments as hereinbefore expressed; And in case at any time after my decease such accumulation should cease to be lawful, then upon trust, to apply the said an- nual produce and income, or such part thereof as may not lawfully be accumulated during said want of objects as aforesaid, in such and the like manner as the same would be applicable under the ulterior trusts of this my will. Provided also, that in case at any future period circumstances should exist which, in the opinion of my said trustees, shall justify or render expedient the placing at the disposal of my said children re- spectively any portion of my said real and personal estate, then it shall be lawful for my said trustees, in their discretion, but without its being in any manner obligatory upon them, to transfer absolutely 398 TESTAMENTARY FORMS to my said children respectively, for his or her own proper use and benefit, any portion not exceeding one-half of the trust fund from whence his or her share of the income under the preceding trusts shall arise; and immediately upon such transfer being made, the trusts hereinbefore declared concerning so much of the trust fund as shall be so transferred shall absolutely cease and determine; And in case of the cessation of said income as to my said sons respectively, otherwise than by death as herein- before provided for, it shall be lawful for my said trustees, in their discretion, but without its being obligatory upon them, to pay to or apply for the use of my said sons respectively, or for the use of such of my said sons and his wife and family, so much and such part of the income to which my said sons respectively would have been entitled under the preceding trusts in case the forfeiture hereinbefore provided for had not happened. In some jurisdictions it is settled that the founder of a trust can secure the income thereof to the cestui que trust "by providing that it shall not be alienable by him, or be subject to be taken by his creditors," without any cesser or limitation over. Broadway Bank v. Adams, 133 Mass. 170, 174. In other juris- dictions such negative provisions are regarded with disfavor, and those which direct the application of the income for the support of the beneficiary or a gift over are commended, as in the following form: trust and trustee 399 Anticipation and Attachment op Income. I give to the Equitable Trust Company of, etc., the sum of One Hundred Thousand Dollars in trust to invest the same in securities and property such as trustees are authorized to invest in, and to this end I give said trustee full power and authority for the purpose of varying and changing the investments and reinvestments, to sell both real and personal property by public auction or by private sale and convey the same by such deeds or other instruments of conveyance and transfer as may be necessary to give a satisfactory and complete title. I direct said trustee to pay from the income of the trust all taxes, insurance if any, brokerage and all other expenses incident to the management of trust estates, in- cluding a reasonable amount for the trustee's com- pensation, and then to pay over the balance of the income, which I denominate the net income, to my son A. B. during the term of his natural life. I particularly declare that the said A. B. shall have no right to anticipate or alienate the said net income and that the same shall not be subject to attachment, seizure or sequestration by his creditors, by any legal process or procedure whatever, either at law or in equity. If at any time the said A. B. shall attempt to anticipate or alienate said net income or shall become a bankrupt, or an attempt shall be made by any creditor of the said A. B. to attach, seize or sequestrate said net income, then the said A. B.'s right to receive the same shall absolutely cease for the rest of his life and the said trustee shall apply 400 TESTAMENTARY FORMS the same for the support, maintenance and benefit of the said A. B. in any way it may deem best, and its expenditures for the purpose shall not be ques- tioned by the said A. B. or any one else. On the death of the said A. B. this trust shall ter- minate and the principal of the trust, including in- crease and accumulations, if any, shall, discharged of all trust, be divided equally among the children of the said A. B. the issue of a deceased child to take the parent's share by right of representation. Other forms may be found on pp. 523, 531, 590. It is common to provide not only that the bene- ficiary shall not anticipate the income, and that his creditors shall not interfere therewith, but also that the trustees may in their discretion add a part or all of the income to the principal fund. And it should appear whether the discretion is to with- hold the income entirely, or only to regulate and control' the time and mode of payment. Williams v. Bradley, 3 Allen, 270, 278. Any income at the death of the beneficiary in the hands of the trustee, and not absolutely added to the principal, will doubtless go to the beneficiary's executor or administrator. A testator may desire to provide as follows: If at the time of the decease of the beneficiary there is in the hands of the trustee any income not absolutely added to the principal, the same shall be regarded as so added and shall be disposed of as part of the principal. TRUST AND TRUSTEE ,401 For an, able discussion of this entire subject, see Gray's Restraints on Alienation, § 236 et seq. The following is offered as a form: I authorize my trustees each year to set aside and add to the principal of the trust fund such part of the net income as, in the exercise of a sound discre- tion, they may deem best, and sums so added shall become as much a part of the principal as if origi- nally a part thereof; but I trust that my said trus- tees will not so capitalize any part of the income if the habits of the beneficiary are good and his life is exemplary. Other forms are given on pp.524, 531, 552, 557, 590. When the trust is largely of realty, a provision like the following is sometimes inserted: Instead of paying the entire net income to the beneficiary, my said trustee and his successors may apply such portions thereof, as he and they may deem best, either in the payment and discharge of mortgages or other incumbrances upon the realty of the trust estate or in making improvements thereon. 3. Annuities. An annuity is a fixed amount payable absolutely, and thus differs from income. If a testator gives an annuity, it should clearly appear whether it is his intention to create a trust fund or to make the 402 TESTAMBNTAET FOKMS same a payment out of his estate generally. Swett v. Boston, 18 Pick. 123, 128. If a fixed amount is set apart as the principal sum out of which an annuity is to be paid, it may in a few years so depreciate as not to yield the amount of the annuity; in which case the annuitant may have an action against the residuary legatees, if distribution has been made to them. See 2 Williams on Executors (7th Am. ed.), 664 et seq. Or it may possibly yield a sum in excess of the annuity, so that there will be an accumulation of income in the hands of the trustee unprovided for by the will. Russell v. Loring, 3 Allen, 121. Of annuities it may be said that they are for life, un- less a contrary intention is expressed; that annual taxes on principal are generally not deducted from annuities; that, if there is no provision to the contrary, an annuity is in most cases alienable and subject to claims of creditors; that annuities are payable one year from the testator's death, if there is no statute or provision in the will to the contrary; and that in some States annuities are, by statute, regarded as accruing from day to day and appor- tioned accordingly. See Remsen on Wills, 145. If the testator is determined to set apart a certain sum as principal, the best way is to give the annuitant the entire net income. For form, see p. 525. If an executor and residuary legatee, having given a bond to pay debts and legacies, becomes bound to pay an annuity during his life, he may create a trust in his own will from the income of which the annuity shall be paid after his death. Brooks v. Rice, 131 Mass. TRUST AND TRUSTEE 403 408. As to annuities where the trust is created for the benefit of more than one, see p. 435. Sometimes a testator gives his wife an annuity during widowhood of an amount which shall with the income derived from her own property equal a certain sum per annum. Such a provision is not wise, as the trustee may not be able to ascertain just what her income from her own property is, and the income itself may vary. The following forms relate to annuities: Annuities. I give to A. B. the sum of One Thousand Dollars per annum, payable quarterly, fpr the period of five years after the proving of this will, provided she continues during that period to be the companion of my mother, C. D. I direct my trustees to pay to my wife, A. B., an annuity of Five Thousand Dollars during her life, the same to be paid semi-annually. I direct my trustees to pay to the Wedgwood Infirmary the sum of One Thousand Dollars per annum for a period of five years after my decease. I trust that thereafter the members of my family will contribute to the support of said Infirmary. I give my son, A. B., an annuity of Three Thousand Dollars payable semi-annually; but, if at any time he shall assign the same or anticipate the payment 404 TESTAMENTARY FORMS thereof in any manner, or the same shall be attached or seized by his creditors by any proceedings at law or in equity, then I direct that the payment of the annuity to him shall cease and that my trustees shall apply the same for his maintenance and support. I give A. B., C. D., and E. F. of etc., each an annuity of One Thousand Dollars payable quarterly, the first payment to be made three months from the day of my decease; and I authorize and direct my executors and trustees to set apart from my estate a fund the income of which shall be sufficient to produce said annuities, and upon the death of the first annuitant to pay into the residue of my estate one-third of said fund, discharged of all trust; upon the death of the second annuitant one-half of the remaining fund, discharged of all trust, and upon the death of the last annuitant the balance of the fund, discharged of all trust. During the period which shall elapse from the date of my decease until the fund is set apart to produce the annuity of Five Hundred Dollars given above to A. B., I direct my executors to pay the said A. B., from the general funds of my estate, One Hundred and Twenty-five Dollars every three months, and proportionately for a fraction of that period. I give my wife A. B. an annuity of Five Thousand Dollars, beginning with the date of my death and TRUST AND TRUSTEE 405 payable quarterly; and I direct my executors to set apart, and transfer and turn over to my trustees before-mentioned sufficient securities to produce this annuity. Upon the death of the said A. B., I give said securities or the property into which they may have been converted, discharged of all trust, to any person or persons she may name and appoint in and by her last will and testament; and in default of such appointment, to the General Hospital of, etc. Having created a trust fund, the income of which will be more than sufficient in my judgment to sat- isfy the annuities given above, I direct my trustee to add any part of the income not required for that purpose to the principal of the trust. I direct my executors to set apart such funds or securities as they in their judgment may deem ade- quate to provide for the annuities given in this will, and I declare that said annuities shall in no event be a charge upon any of my real estate. All annuities bequeathed herein shall be reckoned from the day of my death and payable semi-annually on the first days of January and July, except that the first payment shall include the fractional part of the six months between the date of my death and the succeeding first day of January or July, which- ever it may be. Another form may be found on pp. 531 et seq. 406 TESTAMENTARY FORMS 4. Application of Income for Education, Main- tenance, and Support. A testator may give the income of property to a person for the education, support, and maintenance of children or others, and such person will be entitled to the income so long as he properly maintains them. Chase v. Chase, 2 Allen, 101. It should clearly appear, where there is a trust, whether the trustee is to pay over the income or personally ex- pend it for the beneficiary. If the beneficiary is an infant, is incompetent, or is laboring under some disability, it may be well to authorize the trustee to pay the income to a guardian, an individual, or some legally constituted authority for the support of the beneficiary. If the whole of the income is not to be applied, provision should be made for disposing of the remainder. The trust should be so drawn that all discretionary powers shall pass to the trustee's successor or successors. It may be well to provide that the income shall not be alienated or be subject to seizure by creditors. If the trustee is to apply the income for the education and support of a child during minority, the trust to terminate at his majority and the principal to be paid to him, it is suggested that a direction be inserted in the will that all income not needed for the above purposes be accumulated. See Matter of McCormick, 40 N. Y. App. Div. 73; 163 N. Y. 551. If the trustee of a small estate is to provide for the beneficiary's support, it should clearly appear whether, in the event of the income proving in- TRUST AND TRUSTEE 407 sufficient for that purpose, he may resort to the principal. In all cases where the income given for the support of a person infirm or advanced in years is that per- son's only means of support, it is advisable to provide that the trustee shall pay from income on hand, or, if there is no income in his possession, then from the principal, the beneficiary's funeral expenses, and the expenses of the last sickness. See p. 526. The following forms may be of service: Income for Education and Support. I authorize and direct my said trustee to apply all or any part of the net income to the education and maintenance of the said A. B. during minority in such manner as my said trustee shall deem best, adding any part of said income which he does not so apply to the principal of the trust, and he shall not be answerable to any court or individual for the application and expenditure of said income, as above directed. I further authorize my said trustee, instead of so applying the said income, to pay the same to the guardian of the said A. B., and my said trustee shall then be released from all responsibility as to the application thereof, but shall add any part of said income not paid to said guardian to the prin- cipal of the trust. If my grandchildren A. B. and C. D. are under twenty-one years at the time of my decease, I direct my said trustees to apply in their discretion so much 408 TESTAMENTARY FORMS of the net income of the trust as they may think necessary for the education, maintenance and sup- port of said grandchildren during their respective minorities. If my said trustees deem best, they may pay said income directly to said grandchildren after they arrive respectively at the age of eighteen years, or may pay the same to their guardian or guardians until they are respectively of age; and neither they nor said guardians shall be held responsible for the application of said income as aforesaid; and all in- come not so applied or paid over to said grandchil- dren or their guardian or guardians shall be added by the said trustees to the principal of the trust. My trustees may during the minority of any beneficiary under this will apply in their discretion the whole or any part of the income of the trust estate held for such beneficiary for his or her main- tenance, education and support, adding the income not so applied, if any, to the principal of the trust; and this authority may be exercised by my said trustees regardless of the ability of the parents to educate and support such beneficiary or the existence of any other fund that may be used for the purpose; but my said trustees may, instead of so applying said income, pay over the same to the parent or guardian of such beneficiary and shall not be held responsible for the application thereof. While I leave to the discretion of my trustee the amount to be applied by him to the support and TRUST AND TRUSTEE 409 maintenance of my son, yet, if there is no improve- ment in his habits, I suggest that one thousand dollars per annum will be ample. I give to my trustees and their successors the sum of Two Hundred Thousand Dollars, and I direct them to apply as much of the net income thereof as they in their discretion may deem adequate for the maintenance and support of my son A. B., who is deprived of his reason. I authorize and direct them to rent a house for the use and occupancy of my said son, if they think expedient, and provide him with the comforts and luxuries of life, the best medical attendance, and the most efficient nurses and servants. They may expend money from said net income for any other purposes which they may deem conducive to his happiness. If in their judg- ment all the income of the estate is not required for his support and maintenance, then I direct them to add all unexpended income to the principal and the same shall become as much a part of the prin- cipal as if originally a part thereof. If the said A. B. be restored to reason, the trust is to terminate, and the entire principal with accumulations, if any, and all unexpended income is to be paid to him, dis- charged of all trust. If he die without being re- stored to reason, the trust is to terminate, and the entire principal with accumulations, if any, dis- charged of all trust, is to be paid to, etc. Other forms are given on pp. 519, 524, 531, 552, 557. 410 TESTAMENTARY FORMS 5. Questions between Tenant for Life and Remain- der-man. It is well established that the trustee must consult alike the interests of the tenant for life and remain- der-man. For this reason it is apparent, as already stated, that the same person should not be both trustee and remainder-man. See p. 365. In regard to insurance, repairs, taxes, etc., the following points are important: Both the life tenant and the remainder-man have an insurable interest in the buildings situated upon the trust estate. See Lerow v. Wilmarth, 9 Allen, 382; 2 Perry on Trusts, § 553. "We have been referred to no case in which it has been decided that the neglect of the life tenant to insure is to be re- garded as in the nature of voluntary or permissive waste, though it has been held that the failure to pay taxes is; Stetson v. Day, 51 Maine, 434; but that manifestly stands on different ground." Harri- son v. Pepper, 166 Mass. 288, 289. See as to insur- ance, p. 345. It has been held that the insurance money re- ceived by the tenant for life is personal estate, and cannot be applied to the building of a new house without the consent of the remainder-man. Haxall v. Shippen, 10 Leigh, 536. See forms on pp. 513, 573. The following is offered as a form: In case of injury to, or destruction of, any build- ing belonging to the trust estate, whether the same TRUST AND TRUSTEE 411 be caused by fire or otherwise, then I authorize my trustees in their discretion to invest the moneys, received on account of insurance against such in- jury or destruction, in property, real or personal, suitable for trustees to invest in, or to use the same for the restoration or rebuilding of the structure; and, if such moneys prove insufficient for that pur- pose, the trustees may make up the balance from other funds belonging to the trust estate. Other forms are given on pp. 345-347. It has been held that the expense of putting into tenantable repair an estate purchased by a trustee is a charge on the principal fund, but that of keep- ing it in repair is a charge on the income. Parsons v. Winslow, 16 Mass. 361. "The repair of trust property is frequently the subject of express provisions in wills and settle- ments, and trustees must be governed by the direc- tions contained in the instruments of trust. So there are frequent directions in instruments of trust respecting insurance of property, and the use and application of the insurance money in case of loss or damage by fire." 2 Perry on Trusts, § 553. The tenant for life pays ordinary taxes. See Lor- ing's A Trustee's Handbook (3d ed.), 139. "But when the whole estate is subject to, and benefited by the discharge of, an incumbrance not created by either, equity will apportion it ratably between their different interests." Plympton v. Boston Dispen- sary, 106 Mass. 544, 547. This was the case of an 412 TESTAMENTARY FORMS assessment for a betterment, and it was held that "the tenant for life must contribute to the extent of interest during his life on the amount paid, and at his death the remainder-man must bear the charge of the principal." As to the discharge of incumbrances generally, see Loring's A Trustee's Handbook (3d ed.), 137. That generally repairs of real estate come out of income and substantial improvements out of capital, see Little v. Little, 161 Mass. 188, 194, 195, 202. Where a testator creates a trust consisting entirely of realty, it is suggested that some provision be in- serted as to extraordinary taxes. Perplexing questions constantly arise as to what is income to go to the cestui que trust, and capital to be added to the principal. The rule in Massachusetts stated in Minot v. Paine, 99 Mass. 101, 108, that "cash dividends, however large, are income, and stock dividends, however made, are principal," has been modified by later opinions. This subject is of especial in- terest to testators in those States in which trustees are permitted to invest in the shares of corporations. The disbursements of the earnings of a corpora- tion, either as profits or in the shape of additional stock, is a matter of great uncertainty, and the methods of disbursements are so various as to make it impossible to apply a general rule. The vote of the directors or stockholders authorizing extra dividends is often resorted to by the courts to throw TRUST AND TRUSTEE 413 light upon the subject. If the attention of a tes- tator is called to this matter, he may authorize the insertion in his will of a provision like one of the following: Cash and Stock Dividends. If at any time during the continuance of this trust a stock dividend or an extra cash dividend shall be declared upon any shares of stock of any corporation held as a part of the principal of this trust, such stock dividends shall be regarded as capital and shall be added to the principal and form part thereof, and such cash dividend shall be regarded as income and shall be paid to the cestui que trust. In the case of stock or extra cash dividends de- clared upon any shares of stock of any corporation at any time forming a part of the principal of this trust, I direct my said trustee and his successor and successors in that capacity to determine whether such stock and extra cash dividends are capital or income and I confer upon him and them absolute discretion to add any part or all of such stock and cash dividends to the principal to form part thereof, or to pay out any or all of the same as income to the cestui que trust. If at any time during the continuance of this trust a stock dividend or an extra cash dividend shall be declared upon any shares of stock of any corporation held as a part of the principal, I au- 414 TESTAMENTAEY POBMS thorize and direct my said trustee and his successor and successors in that capacity to regard all such stock and extra cash dividends as income and pay over and transfer the same to the beneficiary. Where any questions may possibly arise as to capital and income I direct that the money in dis- pute whether profits, dividends, extra dividends or interest be treated as income and not as principal. In all cases of stock dividends, three-quarters thereof are to be treated as principal and one-quarter as income. I give my trustees full power and authority to decide and determine what property or money re- ceived by them shall be capital and what shall be income, and all beneficiaries and remainder-men shall be bound by their decision and determination. Another form is given on p. 577. The question "often arises between partners as to what shall be called capital and what income when by their contributions to the capital, or by the terms of the partnership articles, their proportional shares of the income are different from their shares in the capital. Such questions arise when a partner- ship business is closed and the partnership affairs are settled, or at an earlier time when there is a divi- sion of the profits. In reference to such a question the rule is that everything in addition to the capital contributed by the individual partners is income; TBTJST AND TRUSTEE 415 but the question in reference to the rights of life tenants and remainder-men is, What part of the property is held in the business as a fund to be used for the benefit of the business and what part is per- manently separated from the business and turned over to the individual proprietors as income to be spent?" D'Ooge v. Leeds, 176 Mass. 558, 563. Where the residue of personal estate which con- sists of various and uncertain investments, as an interest in a partnership or a leasehold estate, is made the subject of a trust, a part of the profits received before conversion is made will be invested as capital and a part distributed as income. Kin- month v. Brigham, 5 Allen, 270, 280; Westcott v. Nickerson, 120 Mass. 410; Minot v. Thompson, 106 Mass. 583. This introduces the subject of wasting invest- ments. Where -a testator proposes to give specific property or the residuum of his estate in trust, his attention should be called to the law of wasting in- vestments. Howe v. Earl of Dartmouth, 7 Ves. 137. If this residuum consists of uncertain investments, as an interest in a partnership, leasehold estates, ships not sold and wound up or at sea, shares in min- ing companies, copyrights, patents, etc., it may be advisable to make special provisions as to what pro- portion of the money to be received from them shall go to the tenant for life and what proportion shall be added to the capital. See 2 Seton's Judgments and Orders (5th ed.), 1417. In the absence of such provisions the following deserve notice: 416 TBSTAMENTAEY FORMS 1. In England personal property must be con- verted, if possible; and after conversion the method adopted is to calculate what sum put out at interest at four per cent per annum on the day of the testator's death, and accumulating at compound interest at that date, with yearly rests, and deducting income tax, would, with the accumulations of interest, amount on the day when the reversion falls in or is realized to the sum actually received; and the sum so calculated represents corpus and the rest is in- come. Re Earl of Chesterfield's Trusts, 24 Ch. D. 643; Beavan v. Beavan, 24 Ch. D. 649, n.; Wilkin- son v. Duncan, 23 Beav. 469. This rule has been followed in Massachusetts in Kinmonth v. Brigham, 5 Allen, 270, and Westcott v. Nickerson, 120 Mass. 410. These were partnership cases and the rate of interest was fixed at six per cent. 2. Where property is so laid out as to be secure, and to produce a large annual income, but is not capable of immediate conversion without loss and damage to the estate, the rule in England is not to convert the property, but to set a value upon it, and to give to the tenant for life four per cent on such value, and the residue of the income must then be invested, and the income of the investments paid to the tenant for life, but the corpus must be secured for the remainder-man. Meyer v. Simonsen, 5 De G. & Sm. 723, 726; Arnold v. Ennis, 2 Ir. Ch. Rep. 601; Be Llewellyn, 29 Beav. 171 ; Caldecott v. Calde- cott, 1Y.&C.C. C. 312; Gibson v. Bott, 7 Ves. 89. See Brown v. Gellatly, 2 Ch. 751, 759. This rule is TRUST AND TRUSTEE 417 followed in Minot v. Thompson, 106 Mass. 583. While in Massachusetts in Hyde v. Hilliard, Supr. Jud. Court, Suffolk, No. 762, Eq., 1883, which was not appealed, the judge held that the money re- ceived from the testator's copyrights was income, as certain provisions indicated the testator's inten- tion, he also held that Calumet and Hecla mining stock came within the above rule, and that interest should be allowed at six instead of four per cent. In the case of Bowditch v. Coffin, in the same court, No. 4772, Eq., 1895, which was not appealed, the judge held that the fair valuation of the testator's copy- rights, at his death, was $30,000, and that the tenants for life were entitled to four per cent en the amount of such value from the day of the death of the testator for the first year after the testator's decease, the same to be paid from the sums paid in under the contracts and copyrights for that year, and the residue for that year was to be added to and to form part of the principal of the trust fund; that from the funds so paid in under the con- tracts and copyrights for the second year after the testator's decease the tenants for life were entitled to four per cent on $30,000 after first deducting there- from the residue added to the principal at the end of the first year; and the residue at the end of the second year was then to be added to and to form part of the principal of the trust, and so on from year to year, until finally the whole proceeds of the property except the sums paid to the life tenants should be transferred to the principal; and that the 418 TESTAMENTARY FORMS parties should be permitted at any time thereafter, in case of change of circumstances, to apply to the court for a modification of the valuation, etc. A similar decision was rendered in the Probate Court of Suffolk County relative to the shares of the same testator in the Calumet and Hecla mine, No. 94,395. As to copyrights when the author is not living, see p. 77. This whole subject is one of much impor- tance, and in certain cases it may be advisable to express an intention in the will. Many decisions will be found in 2 White & Tudor, Lead. Cas. in Eq. (ed. of 1891), Pt. 1, 321 et seq.; 2 Seton's Judg- ments and Orders (5th ed.), 1417 et seq. It is evident that where a trust is created out of the residuum the attorney should know of what the residuum consists. If the interest in a business is given in trust, the investment is of course a wasting one, and it follows that, if the business is incorporated, the investment remains the same. Hence where shares in an in- corporated business are the subject of a trust it is well to provide for the payment of the entire divi- dend to the beneficiary, or for the addition of a part thereof to the capital. The following forms are believed to cover most cases of wasting investments: Wasting Investments. The 50 shares of the capital stock of the Calumet and Hecla Mining Company given herein by me in trust and which I have directed my trustee to re- TRUST AND TRUSTEE 419 tain, as a part of the trust estate, if he deems it wise so to do, probably constitute a wasting invest- ment; nevertheless not caring to have any part of the dividends therefrom capitalized, I direct my said trustee and his successor and successors in trust to regard the entire dividends paid on said shares as income and to pay the same, less expenses chargeable to income, to the beneficiary. I think it probable that the 50 shares of the capital stock of the Calumet and Hecla Mining Company given herein by me in trust and which I have directed my trustee to retain as a part of the trust estate, if he deems it wise so to do, are a wasting security or investment. I hereby direct my trustee and his successor and successors in that capacity to add to the capital of the trust one half of all the dividends paid on said 50 shares and the moneys so added shall be a part of the capital or principal of the trust and subject to all the pro- visions relative thereto. I direct him and them to pay the other half of said dividends to the beneficiary. I think it probable that some of the investments I have directed my said trustee to hold as a part of the trust estate are of a wasting nature, viz. [enumerated]. However that may be, I order and direct that all moneys received by my said trustee and his successor and successors as dividends, in- terest, and profits from said investments or from 420 TESTAMENTARY FORMS any 6ther investments that at the time of the formation of the trust or at any time thereafter during its continuance he and they may hold as a part of the trust estate, shall be treated as fol- lows: that one-third thereof shall be added to the principal of the trust and form a part thereof, and the other two-thirds, less expenses chargeable to in- come, shall be regarded as income and paid to the beneficiary. I direct my said trustee, if he deems best, to re- tain and hold in the trust any or all of my residuary assets, as he may receive the same; and I exempt him from all liability in the event of their deprecia- tion. If any of these assets consist of wasting in- vestments, such as Calumet and Hecla Mining Stock, patents, copyrights, etc., I direct my trustee to pay three-quarters of the net income or dividends derived therefrom to A. B., the cestuis que trust above named, and to add the remaining one-quarter to the principal of the trust. My trustee may, of course, at any time he sees fit dispose of such wasting investments or any other trust investments under the power of sale hereinbefore given, and reinvest the proceeds as a part of the principal in such property as is suitable for trustees to invest in. If the testator's business is given in trust (and this generally occurs when it is part of the residuum) it is particularly desirable that provision should be made as to income during the period of liquidating. TRUST AND TRUSTEE 421 and winding up. After the usual provisions in a will the residuum may be given in trust somewhat as follows: All the rest, residue and remainder of my prop- erty, both real and personal, of which I may die seized and possessed and to which I may be entitled at the time of my decease, and wherever the same may be situated, I give and bequeath to my said trustees in trust to be administered and managed by them according to the following directions and instructions. The larger portion of said rest, resi- due and remainder consists of the business now owned and conducted by me at, etc. It is my estimate that it will take three and perhaps five years from the time of my decease to completely adjust my affairs, convert my assets into money and invest the same in sound, suitable trust investments. But whatever that period may be, I direct my said trustees to pay to my wife, A. B., ten thousand dollars per annum and no more in equal quarterly payments for a period of six years from the day of my death, and it is immaterial whether this amount be paid from principal or income. At the expiration of said six years, my affairs having been liquidated and the residuum having been converted into trust invest- ments, I direct my said trustees to pay the entire net income of the trust estate to my said wife in quarterly payments during her life; and upon her death, whether before or after the expiration of said six years, I direct that the trust herein established 422 TESTAMENTARY FORMS shall terminate, and that the entire principal thereof, discharged of all trust, shall go to, etc. Another form is given on p. 578. See also form in case of winding up partnership just below, p. 423. 3. There seems to be an exception to the rule as to wasting investments where property is specifically bequeathed or where the intention can be gathered from the whole will that it should be enjoyed in specie. If, for example, the will contains an expres- sion authorizing the trustee to hold the property invested just as he received it from the testator, it may be held that the beneficiary is to enjoy it in specie, and the principal may be greatly reduced thereby. See Gray v. Siggers, 15 Ch. D. 74; Wood v. Thomas, [1891] 3 Ch. 482; Healey v. Toppan, 45 N. H. 243, 261, 262, and cases cited; Clarkson v. Clarkson, 18 Barb. 646, 648, 657; 2 Wms. on Executors, 456 et seq. It is dangerous to insert such a provision without any qualification. A form like the following may be used: Bequest not to be Enjoyed in Specie. Having authorized my said trustee to receive my own investments from the executor and hold them in the same form in the trust estate, I now declare that it is not my intention that the cestui que trust shall enjoy said estate in specie; but I authorize and direct my trustee to determine what interest, profits, dividends etc., are principal and what are income and to add the portion so determined as TRUST AND TRUSTEE 423 principal to the principal fund and to pay the por- tion so determined as income to the cestui que trust. The determination and action of my said trustee in the premises shall be final and binding upon all parties interested in the trust. It is suggested that an interest in a partnership may be given as follows: Interest in Partnership. All the rest, residue and remainder of my estate, which consists of a one-third interest in the property and assets of the house located and doing a general merchandise business in the city of Boston under the partnership name of "X. Y. & Company," I give, devise, and bequeath to the said A. B. or his successor, as executor, for the benefit of my wife CD., the same to be managed according to the following instructions: Whether it be deemed best at the time of my decease to liquidate the affairs of the partnership or for the surviving partners to purchase my inter- est therein at the figure and upon the terms named in the partnership articles, in either event a con- siderable period will be required, the termination of which I fix at two years and a half from the time of my decease. During this period my wife is to be paid by my said executor from the funds and assets received by him from the partnership five thousand dollars the first twelve months, five thousand dollars the second twelve months, and twenty-five hundred 424 TESTAMENTARY FORMS dollars the last six months. At the termination of said two years and a half the balance of the funds and assets received by my said executor from the part- nership shall be regarded as capital and shall form the principal of the trust; and the said A. B., having credited himself in his account as executor with the payment of the same to himself as trustee, he will then charge himself as trustee conformably to the following instructions: he is to pay over to my said wife once every three months the net income from principal during the term of her natural life. At her decease the trust shall terminate and the entire principal, discharged of all trust, shall be equally divided among my children, then living, the issue of a deceased child to take the parent's share by right of representation. If there be no children, or the issue of any deceased children, then living, I direct that the entire principal, discharged of all trust, shall go to any person or persons, corporation or corporations, whom my said wife CD. may name and appoint by her last will. Any funds or assets received by my said trustee after the expiration of said two years and a half, either from the partner- ship or from any other source, are to be added to and are to form a part of the principal and are to be managed and disposed of as above directed. The provision for my wife, whereby she is to be paid cer- tain sums during the two and a half years after my decease, during which period she is to receive no other payments from my estate, I deem the most consistent with the proper settlement of my affairs. TRUST AND TRUSTEE 425 The twelve thousand five hundred dollars thus to be paid her is intended for her support and that of my children during the said two years and a half; if inadequate, I trust that the Judge of Probate will grant a liberal allowance. See form as to liquidating a business just above, p. 421. If the will authorizes the trustees to change in- vestments, and directs them to pay the residue of the income to the tenant for life, after deducting all proper costs, charges, and expenses, brokerage would undoubtedly be a charge upon the income, although the tendency is to regard all commissions as a more convenient charge upon the principal. Money paid for real estate taken by right of emi- nent domain is probably principal and not income. Gibson v. Cooke, 1 Met. 75. "In a purchase or sale of real estate the brokers' commission is in practice considered as part of the price of the property, and so is generally charged to principal, and would probably be allowed so generally." Loring's A Trustee's Handbook (3d ed.), 142. Forms like the following may be used: Payment of Commissions, etc. I direct my trustee and his successors to pay all commissions, brokerage, etc., on sales by them of either the real or personal property belonging to the trust estate from principal and not from income. 426 TESTAMENTARY FORMS I direct my trustee and his successors to pay all commissions on sales by him and them of real estate belonging to the trust estate from principal, and all commissions on sales by him and them of personal property belonging to the trust estate from income. I think it probable that before the termination of this trust my trustee and his successor and suc- cessors will find it necessary to vary the investments both of real and personal property as authorized above. I do not think it advisable that in making such changes he or they should be amenable to a rigid rule as to broker's charges. Hence I authorize and direct him and them to pay all commissions on the sales of both real and personal property belong- ing to the trust estate from either principal or income as he or they may deem expedient and best. It is sometimes said that the life tenant is entitled to all the net interest on bonds received from the testator's estate, or bought by the trustees at a price above par; and whatever is paid for accrued interest on the bonds bought is to be retained from the interest subsequently received. It is also held that if a trustee makes an investment in bonds, pay- able at a day certain and bought at a premium, he is not obliged to pay the entire net income to the tenant for life, but is entitled to deduct such an amount from the actual interest received on each bond as will, by successive deductions, make good to the capital the amount of premium paid upon the TRUST AND TRUSTEE 427 original purchase of the bond, without regard to the market value of the bond at the time of making such deductions. See New York Life Ins. Co. v. Baker, 165 N. Y. 484. In Shaw v. Cordis, 143 Mass. 443, it appeared that the testator gave the residue in trust during the lives of his four sons, directing the trustees to convert the same into three enumerated kinds of securities, called stocks, and "to pay over all the dividends and income of said stocks over and above costs and charges of the trustees ... as fast as they shall be received, in equal proportions, to each of my said four sons." The trustees bought bonds, included in the securities specified, for which they paid a premium. It was held that the testator intended that the whole in- come, after conversion, should be paid to his sons, without any deduction to make good to the remain- der-men the premium which it might be necessary to pay in buying them. "Where the trust property consists wholly or partly of real estate or securities the testator should consider its condition and income-bearing properties with reference to the future and make provision for contingencies." Remsen on Wills, 265. Forms like the following may be used: Interest on Bonds. If my trustees shall receive from my executors or shall thereafter purchase bonds for the trust estate at a price in excess of their face or par value, then I order and direct that any loss occasioned by 428 TESTAMENTARY FORMS the depreciation in value of said bonds or by the pay- ment thereof at par or face value at maturity shall be borne by and taken out of principal and not by and out of income. But if any other bonds should appreciate in value between the time when they are received or purchased and the time when they are disposed of or are paid on maturity, then I order and direct that the increase representing such appreciation shall be added to the principal and shall form a part thereof. I confer upon my trustees absolute authority to pay the expenses incidental to the management of the trust estate out of principal or income or both, and I order and direct that if there is any loss caused by the depreciation in value of any bond belonging to the trust estate, such loss shall be chargeable to principal and not to income. As it is probable that the trust I have created will continue for many years, I deem it best to clothe my trustee and his successor and successors with ab- solute discretion relative to securities which he or they may receive from my executors at a valuation above their face or par value or which he or they may purchase at a premium. I authorize him and them to pay over the entire interest or proceeds of coupons of all such securities to the beneficiaries as income or add a portion thereof to the principal of the trust, as he and they may deem best, and to his and their decision and action in the premises the beneficiaries TRUST AND TRUSTEE 429 and remainder-men of the trust shall have no right to object and from the same no right to appeal to any court or tribunal. It is stated as a general rule that, if the will is silent or there is no statute on the subject, dividends on shares of stock are not to be apportioned but coupons or interest upon securities accrue from day to day and are to be apportioned, though not pay- able until a fixed time. See 2 Perry on Trusts, § 556. In some States there are statutes providing that a person entitled to an annuity, rent, interest, or income given by will, instrument, etc., or his repre- sentative, shall have the same apportioned if his right or estate therein terminates between the days upon which it is payable, unless otherwise provided in said will or instrument; but no action shall be brought therefor until the expiration of the period for which the apportionment is made. In most States, however, the common law applies. It may be said generally thatr apportionment arises or is appealed to in case of promissory notes of individ- uals or of incorporated companies, whether secured or not by mortgage or pledge, interest upon invest- ment bonds not due, due and overdue, rents of real estate, which become payable after the death of the testator, dividends from the profits of incor- porated companies, and taxes when the life tenant dies within a year after the day when the property is taxed and before the tax is paid. This is, perhaps, an unsatisfactory matter to treat 430 TESTAMENTARY FORMS in most wills, but forms like the following have occasionally been used: Apportionment op Income. Interest upon the bonds herein specifically be- queathed in trust shall be apportioned as follows: so much thereof as shall have accrued up to the time of my decease, though not then due or payable, shall fall into the residuum of my estate. Rents and dividends arising from the trust in- vestments shall be regarded as accruing from day to day and be apportioned in respect of time ac- cordingly. I am aware that it is difficult to lay down a gen- eral rule or give explicit directions as to apportion- ment, which will apply equitably and satisfactorily in all cases. I therefore authorize and direct my trustee and his successor and successors at the ter- mination of this trust to use his and their discretion in the apportionment of interest due or not due upon promissory notes, coupons due and payable or not due and payable, rents due and not due, dividends declared but not payable, and issues, interest, accretions and profits upon and growing out of any other properties or investments belong- ing to the trust estate. My said trustee and his successor and successors may apportion all such interest, coupons, rents, dividends, issues, accre- tions and profits as they deem best as between the TEUST AND TRUSTEE 431 executor or administrator of the beneficiary and the remainder-man, or they may give all such coupons, rents, etc. to said executor or administrator or to the remainder-man, and their decision and action in the premises shall be final and binding upon my estate and all parties concerned or interested in the trust. 6. Disposition of Income and of the Fund when -the Cestui Que Trust Lives in a Jurisdiction other than that of the Testator. In creating a trust for a cestui que trust who lives in a jurisdiction other than that of the testator, it may be well for the attorney to ascertain if there are any restrictions in such other jurisdiction imposed upon beneficiaries. This may be so in the case of married women, so that it may be well to insert a provision like one of the following: Sole and Separate Use. Any moneys or legacies given and payable to any woman under this will shall be for her sole and separate use free from the control or direction or any claim of her husband or any one else. All payments by the provisions of this will to married women are to be made to their sole and separate use and upon their individual receipts, and are to be free from the control, interference,, direction, or debts of their husbands. Other forms are given on pp. 569, 575. 432 TESTAMENTARY FORMS In one State at least it is provided by statute that the Probate Court may authorize the trustee to pay over the fund itself to a trustee appointed by the proper court in another State or country; but all the cestuis que trust and the trustee must assent, and the court must be satisfied that the laws of such other State or country secure the due per- formance of the trust. Mass. Rev. Laws, c. 150, §§ 27, 28. In some States a different rule of taxation applies when the beneficiary lives without the testator's jurisdiction from that which applies when he lives within it. It may be well to bring this fact to the attention of the testator. IV. Termination of the Trust. 1. The Rule against Perpetuities. In the first place, care should be taken not to violate the rule against perpetuities. This it is almost impossible to do, if the testator desires that the property shall not vest till the expiration of a long period of time. It is very easy to make pro- vision for the probable termination of the trust within the required period, and still to make it possible that the estate will not vest within that time. If real estate outside the testator's juris- diction is involved, the attorney should consult with counsel in the foreign jurisdiction as to draft- ing the provision so as not to violate the law of perpetuities. See pp. 193 et seq. TRUST AND TRUSTEE 433 2. Powers of Appointment. In most cases where the testator intends that the trust shall cease with the life of the cestui que trust, and is indifferent as to the disposition of the prin- cipal, a convenient method of termination is by a power of appointment, to be exercised by the cestui que trust. It is usual to provide that this may be done by any instrument under his hand and seal. If the trust estate is a large one, it is better to pro- vide that only a last will shall be a due execution of the power; and then there will be an instrument on record as proof of the execution. It should also be remembered while a will is ambulatory and revo- cable during the life of the testator, that if an appointment is made by any voluntary conveyance under the hand and seal of the appointee of the power, it is probable that he cannot revoke it, unless such power of revocation is reserved in the instru- ment. See Viney v. Abbott, 109 Mass. 300. A provision, however, should be inserted in the will as to termination in default of any execution of the power. Various forms creating powers and executing the same will be found on pp. 68 et seq. The following are also forms of execution: Execution of Powers op Appointment. I direct that this trust shall terminate upon the death of my daughter, A. B. and that my trustee shall then pay over, transfer and deliver the entire principal constituting the trust, as the same shall then be, in such manner and to such person or per- 434 TESTAMENTARY FORMS sons, corporations, organizations, societies or as- sociations, as she may direct and appoint in and by her last will and testament, made and executed ac- cording to the laws of the State or country of her domicile; in default of such appointment, to the issue of the said A. B., living at the time of her decease, per capita, and, if she leave no issue living at the time of her decease, then to such person or persons who at the time of her decease would be entitled to her personal estate under the laws of the State of her domicile if she had died intestate. All the rest, residue and remainder of my estate,, of which I shall die seized and possessed and to which I may be entitled at the time of my decease, both real and personal, and wherever the same may be situated, I give, devise and bequeath to A. B. for and during the term of his natural life; and I give, devise and bequeath the same after his decease to such of his children and grandchildren and to their heirs and assigns forever, and in such shares or por- tions, as he may, by his last will and testament duly executed, name, designate and appoint; and, in default of such appointment, I give, devise and bequeath the same to his children living at the time of his decease and the issue then living of de- ceased children and their heirs and assigns forever, such issue to take the parent's share by right of representation. A form of a limited power is given on p. 75. TRUST AND TRUSTEE 435 3. Instalments. It is quite frequent for the testator to provide, when the cestui que trust is also remainder-man, for the termination of the trust and the payment of the principal to the cestui que trust upon his attaining a certain age; a less common, but in some cases an equally advantageous, method is to provide for the termination by instalments, — the principal to be paid to the cestui que trust in separate shares at dif- ferent periods of time. But in either case the dispo- sition of the property should be provided for in the event of the death of the cestui que trust before the trust has fully terminated. For forms see pp. 525, 545, 557. 4. One Fund Chargeable with Annuities, or as Many Funds as there are Cestuis Que Trust. Where the testator proposes to create a trust for the benefit of more than one cestui que trust, it is for him to consider whether he will establish one entire fund, charging annuities upon it (see p. 528), or giv- ing each cestui que trust a certain portion of the in- come; or whether he will establish as many different trusts as there are cestuis que trust, — each estate to be separate and distinct from the other. For form see p. 521. The former is the more convenient method in most States, as only one bond need be given and one set of accounts kept. But care should be exercised in such case to provide for the proper termination of the trust. 436 TESTAMENTARY FORMS The easiest way is to provide that as each cestui que trust dies the trust shall terminate as to a certain share or amount of the principal. But if it is the testator's intention that the cestuis que trust shall take the income for their joint lives and the life of the survivor, or that they shall enjoy in succession, that intention should appear; and the trust will terminate and the gift over take effect upon the death of the last cestui que trust. For form see p. 528. Testators frequently emphasize the fact that trust estates are to be separate and that separate accounts are to be kept. For forms see pp. 523, 568, 576. 5. Whether "Survivor" is to be Changed into "Other." Accruing Shares. "Whether the word 'survivor' is to receive a con- struction accordant with its strict and proper accepta- tion, or is, by a liberal interpretation, to be changed into 'other,' is a point which has been variously decided"; but "we are now taught by a series of decisions which outweigh any opposing dicta or opinions that the word 'survivor,' like every other term, when unexplained by other parts of the will, is to be interpreted according to its strict and literal meaning." 2 Jarman on Wills (6th Am. ed.), 632. For example, a testator gives property in trust, the income to be paid to his wife for life, and after her death the principal to be divided equally among his four sons, A., B., C, and D.; and provides that if any of them shall die in the lifetime of the mother his share shall go to his issue, but if any of them shall TRUST AND TRUSTEE 437 die before the age of twenty-one years without issue, his share shall go to the "survivors." A. dies leaving children. B. dies under twenty-one, without issue. Are the children of A. entitled to any part of the share of B.? It is natural to suppose the testator's intention to be that the children shall take the share which would have accrued to the parent, if living; but, instead of saying so, he gives such share to the "survivors." Consequently the share of B. goes to C. and D. The testator's intention should therefore clearly appear. 2 Jarman on Wills (6th Am. ed.), 632 et seq., 702; Hayes & Jarman's Concise Forms of Wills (11th ed.), 274 et seq. See Re Walker's Estate, 12 Ch. D. 205. A will provided that on the death of the beneficiary, a sister, the estate was to go to three brothers. It then stated: In case either of my brothers die before my sister leaving issue surviving her, then such repre- sentative issue are to take the share of the deceased parent, otherwise such share of the brother deceased without surviving issue is to go to my surviving brothers and the representative issue of either who have deceased leaving issue surviving said The following form relates to survivorship on termination of a trust: I order and direct that upon the death of said A. B. (the life tenant) the trust shall terminate and the entire principal thereof, discharged of all trust, 438 TESTAMENTARY FORMS shall go and be paid to my four sons, C. D., E. F., G. H. and I. J., in equal shares; and, if any of them shall die before the said A. B., leaving issue living at the time of the death of said A. B., such" issue shall receive the share the parent would be entitled to if living; but if any of them so dying shall leave no issue living at the time of the death of said A. B., the share of such one so dying shall be paid to the survivors of my four sons, C. D., E. F., G. H. and I. J., and the issue of any of them who may have deceased, such issue to take the parent's share by right of representation. "The general rule is that where distinct legacies are given with survivorship, the clause of survivor- ship, unless extended by particular words, attaches only to the original shares, and does not affect the accruing shares. But an exception to this rule has been admitted, where the disposition is, not of sepa- rate legacies, but of one aggregate fund, which the testator meant should remain an aggregate fund, and should not be broken into fragments, if some of the persons, to whom interests in it were given, happen to die." 2 Williams on Executors (Am. ed.), 508. A testator gave the residue of his estate in trust, the income to be equally divided among his children, naming them, and, in case of the death of either with- out issue, then equally among the survivors; but in case of the death of either leaving issue, his share of the capital to be divided among such issue. It was TRUST AND TRUSTEE 439 held that no part of the estate became distributable as undevised estate upon the death of one of the children without issue,, but that the rights of the survivors and issue in the capital as well as the in- come of the fund became proportionally enlarged. Cook v. Smith, 101 Mass. 341. 6. Termination Before all the Purposes of the Trust have been Accomplished. In some cases courts can decree the termination of a trust when all the parties are capable of acting and assent thereto, although all its purposes may not have been accomplished; as where property was given in trust, the income to^be paid to the testator's wife for the maintenance of his children, the latter having afterwards all died without issue. Bowditch v. Andrew, 8 Allen, 339. Or where the direction was to deposit the residue in a bank to be appropriated by the executors for the relief of the testator's heirs, if they should need assistance. Smith v. Harrington, 4 Allen, 566. So probably where the same person becomes absolutely entitled to both the income and principal. Of course, if justice requires or the testator directs that the legal and equitable estate shall be kept distinct, there will be no merger by their merely com- ing together in one person. On this subject see Loring's A Trustee's Handbook (3d ed.), 173. In all cases of contingent remainders the trust must, of course, be preserved until the death of the life tenant, or until the happening of some 440 TESTAMENTARY FORMS other contingent event. Smith v. Harrington, 4 Allen, 566, 569. 7. General Points as to Termination. If the trust consists of real estate, the trustees will be required to make partition among the remainder- men only when authorized by the most positive language. And such authority would probably never be inferred from a mere direction to convey to them as tenants in common. In some jurisdictions there are statutes which provide that, if, by a written instrument, a trust estate is to be distrib- uted in whole or in part among heirs or next of kin of a person or persons, or to a class of persons, the Probate Court may, upon petition after notice, order the trustee to convert the estate, real and personal or either, into cash, and distribute it among those entitled. Authorizing a trustee to make partition of real estate upon the termination of the trust is a rather delicate undertaking. However, a form like the following may be sufficient: Partition of Real Estate. I authorize and direct my trustees and their suc- cessors upon the termination of this trust to divide and allot the real estate among the remainder-men in shares and interests as equal and just as possible; and to this end I authorize them (a) to fix values, (b) arrange and divide into parcels (c) set apart TRUST AND TRUSTEE 441 any parcel or parcels in common to two or more remainder-men, if they deem such course advisable or necessary (d) make divisions and partitions equal by using any portion of the personal property belong- ing to the trust, and (e) execute and deliver to the remainder-men such quit-claim deeds as the circum- stances of the case or cases may require; and the partitions, allotments and payments so made shall be absolutely binding upon all parties in interest. Trustees are often authorized to terminate the trust in the exercise of a reasonable discretion, as in the following form: Termination in Discretion op Trustee. To pay over the net income thereof to my son A. B. for and during the term of his natural life; provided, however, if at any time during the con- tinuance of this trust my said trustee or his successor or successors feels assured that the life of the said A. B. is exemplary and is of opinion that the said A. B. is fully capable of managing property with care and prudence, he or they may convey and transfer to the said A. B. the entire principal constituting the trust, discharged of all trust, to be his absolutely. But if the said trustee or his successor or successors concludes not to exercise his or their discretion, but to continue the trust during the life of A. B., then I direct that the trust shall terminate upon his death and that the said trustee or his successor or successors shall convey and transfer the entire principal con- 442 TESTAMENTARY FORMS stituting the same to the person or persons and in such proportions as the statutes of this State would distribute the same, if the entire principal were the property of A. B. and he had died intestate. Another form is given on p. 526. Testators sometimes provide that a trust is to terminate in the alternative, as upon the death of the cestui que trust (a married woman), or upon the death of her husband, she being still living. In the last event a provision may be inserted for the principal, discharged of all trust, to be paid to the cestui que trust. Sometimes wills contain a provision as to delegat- ing a trust and revoking the same, as in the following form taken from an actual will. Such a provision is doubtful both from a legal and practical stand- point. • I authorize and empower the trustees of any trust estate created by this my will, at any time and from time to time to deposit in the Trust Company, or in any other Trust Company of the City of, etc., or elsewhere, to their credit, but without responsi- bility to them, any part of the share of my estate which shall be held by them in trust, such company to hold and dispose of the same in accordance with the terms of the trust, unless before the termination thereof the trustees shall take the same again into their actual possession. TRUST AND TRUSTEE 443 It may be well in some cases to provide for the termination of a trust by the purchase of an annuity, as follows: Purchase op an Annuity. If my said son A. B. shall die before arriving at the age of fifty years, then I declare that the trust shall terminate and that my said trustee and his successor or successors shall pay over the entire principal, discharged of all trust, to, etc. But if my said son A. B. shall attain the age of fifty years, I also declare that the trust shall terminate, and I direct my said trustee and his successor and successors to turn the entire principal constituting the trust into money and pay over the same to some sound and reputable life insurance company upon the agreement that, in consideration of its receiving and keeping the same as its property absolutely, it will pay the said A. B. an annuity during his life. A testator, having appointed his wife and four sons executors of and trustees under his will, pro- vided for the termination of the trust upon the death of the last survivor of the acting trustees, as follows: Termination on Death, etc., op Trustee. And for the purpose of guarding against the con- tingency of any unsuitable person being appointed trustee of any or either of the trust funds herein- before created, I direct as to each of said trust funds 444 TESTAMENTARY FORMS that, in case of the death, disability or resignation of any of the trustees hereinbefore appointed, the trust shall vest in and be executed by the others of those whom I have named, and upon the death of the last survivor of the acting trustees during the continuance of the trust, the trust shall cease and the entire trust fund be paid to the beneficiary entitled to the income. The objection to a provision like the above is that on the death of the last trustee a new trustee would have to be appointed to wind up the estate. 8. Resulting Trusts. In providing for the termination of a trust, the law of resulting trusts should be borne in mind. It is well settled that if a will fails to dispose of the whole of the testator's property, real or personal, the whole of the undisposed-of interest, whether legal or equitable, devolves to the person on whom the law, in the absence of any disposition, casts that species of property. 1 Jarman on Wills (6th Am. ed.), 558. Hence, if the trust fail by the extinction of the cestui que trust, where the devise is to the trustee for a specific purpose only, he holds the property "not for his own benefit, but for the devisor's heirs-at-law, as a resulting trust, and is answerable to them for it." Easterbrooks v. Tillinghast, 5 Gray, 17, 21. "The same reason applies when the property de- vised is more than is needed to support the trust. TRUST AND TRUSTEE [445 The support of the trust being the sole purpose for which the devise is made, if there is a surplus beyond what is needed for that purpose, it is property not disposed of by the will, and descends to the heir-at- law or distributee, discharged of all trusts, without in any way defeating the intention of the testator." Sears v. Hardy, 120 Mass. 524, 542. The same rule applies where the trust is not suffi- ciently defined to enable the court to carry it out. 9. Heirs-at-Law, Next of Kin. The careless use of these words has produced much litigation. In many States heirs-at-law are con- strued to mean those who are heirs of real estate, and may include a husband or wife as a statutory heir. The period at which "heirs-at-law" and "next of kin" are to be determined, whether at the time of the death of the testator or of the life tenant, or at some other period, should clearly appear. "It is the duty of the executor or administrator of a deceased trustee to settle the decedent's trust accounts, and his estate is liable for breaches of trust committed in his lifetime. The guardian of an insane person would stand in the same position as the execu- tor of a deceased trustee." Loring's A Trustee's Handbook (3d ed.), 20. GUARDIAN A will which merely appoints a guardian without disposing of property is good. Rood on Wills, 446 TESTAMENTARY FORMS § 68. The statutes of nearly all States provide for testamentary guardianship of minor children, and in most cases they must be the minor children of the testator himself. 'It is generally provided that the appointment must be subject to the approval of the Probate Court, and that the guardianship is to continue during the minority of the child or for a less period. It is often remarked that as the trusts of admin- istration and guardianship are incompatible, they ought not to be in the same person, especially while the estate is in the process of settlement; but it is doubtful whether in most cases any wrong is likely to be done by the conjunction. See Ernst's Law of Married Women, 193. Nearly any one can be a guardian, but it is obvious that the management of the property of a minor should be intrusted only to a person of integrity, discretion, and business experience. In some juris- dictions safe deposit, loan, or trust companies are authorized by statute to act as guardians. Married women are empowered by statute to be guardians without the assent or interference of their husbands. A single woman also nearly everywhere may be a guardian, but upon marriage it is probable that her sureties would be entitled to be released and that she would be required to furnish a new bond. Statutes frequently declare that the father of the minor, if living, and, in case of his death, the mother, shall be entitled to the custody of the person GUARDIAN 447 of the minor and to the care of his education, while the guardian should have the care and management of the ward's estate. So statutes often provide that the power of appointment of a guardian by will shall in the first instance be in the father of the minor, or, if he has died, without exercising the power, then in the mother. Statutes provide that, if the testator so orders, the guardian shall not be required to give sureties on his bond, and also that, if there are two or more acting jointly as guardians, they may give either separate or joint bonds. It should be noted that a guardianship differs from a trusteeship in this, that in the former case the ward is generally both remainder-man and benefi- ciary, so that, the keeping of the guardian's accounts is a very simple matter. Generally, interest com- puted for a year is added to the principal; then the expenses are deducted from the amount, and the balance forms the new capital upon which the next year's interest is to be computed, and so on from year to year. Boynton v. Dyer, 18 Pick. 1, 8. Hence questions relating to principal and income rarely arise. Of course the appointment of a guardian in one State gives him no authority and has no effect in another. Before giving realty out of the State to a guardian for a ward, the law of the jurisdiction should be ascertained. "Guardians are not, like executors, administrators, or trustees, invested with a legal title to the property 448 TESTAMENTAKY FORMS which is placed under their care; but they have a naked power, not coupled with an interest. The •debts of the ward remain his; so that, though he has no power to pay them, yet he, and not the guardians, must be sued upon them .... It is true that they may make contracts in their own names, and such contracts bind themselves, but do not bind either the ward or his estate." Hicks v. Chapman, 10 Allen, 463, 464. Unauthorized dealing with the ward's estate is, therefore, a delicate matter. It is provided by statute in many jurisdictions that the Probate Court may on application au- thorize or require the guardian to sell and transfer any personal property held by him as guardian, and to invest the proceeds thereof and all other money in his hands, in such manner as may be most for the interest of all concerned and may give directions for the management of the estate in the hands of the guardian. So, if the personal property is in- sufficient to pay the debts of the ward, the guardian may be licensed to sell the ward's real estate for that purpose. For convenience and safety, therefore, it would seem to be advisable to give the guardian all the powers of a trustee or make him an absolute trustee until the minor attains to the age of twenty-one years, including a full power to sell, invest, and reinvest the estate from time to time, as the trustee may deem wise. A convenient method is to give the property to trustees to pay the income to the mother to apply for the maintenance and support GUARDIAN 449 of the children during infancy, or in case she neglects so to do to apply it themselves. Sometimes the property is given to a trustee to apply for the edu- cation and maintenance of a minor, without appoint- ing any guardian at all, and the minor is commended by the testator to the care and affection of a rela- tive. It is often both convenient to the trustees and useful to the objects to authorize the payment or delivery of pecuniary or specific legacies of small amounts or value to the parents of infant legatees, with a direction that their receipts shall discharge the trustees. As to compensation of a guardian, see pp. 371 et seq. As to investments, see pp. 383 et seq. As to compromises, see pp. 348 et seq. A great deal of the law hereinbefore given relative to trustees applies equally to guardians. Forms like the following are generally used: Appointment of Guardians. I constitute and appoint A. B. the guardian of my daughter C. D., and release him from giving a surety or sureties upon his official bond. I desire my said guardian to have a parental care of and oversight over the said C. D. during minority. I name and appoint my wife A. B. the guardian of our minor children C. D. and E. F., and release her from giving any bond or other security for the discharge of her duties as such guardian. 450 TESTAMENTAEY FORMS I purposely appoint no guardian of my children A. B. and C. D., as my trustee as hereinbefore pro- vided is to apply the income of the trust for their education and for their maintenance and support until they reach majority. But I commend my said children to the considerate care and affection of their aunt E. F., with whom they have lived since the death of their mother, trusting that she will continue her kindly counsel and oversight. All money given by this will for the benefit of any minor may in the discretion of the trustee be paid by him to the guardian or parent or parents of such minor, and the trustee shall not be required to see to the application thereof. Other forms will be found on pp. 519, 553. CHAPTER XVII PUBLIC CHARITIES It seems almost impossible to lay down general rules as to gifts for charitable, educational, religious, or like purposes, as statutes in the different states have so modified the provisions of the original English statute of charitable uses. Statutes in different jurisdictions — Limit the power of charitable corporations to take. Limit the power of a testator to give. Forbid a charitable corporation to take more than a certain amount fixed by law. Declare charitable bequests void unless given by will executed a certain period before the death of the testator. Abolish charitable gifts altogether. In drawing a will the attorney cannot be too care- ful in examining the law of the testator's jurisdic- tion as to charitable gifts. Although the doctrine of charities existed and gave rise to much legislation long before the time of Elizabeth, yet the statute 43 Elizabeth, c. 4, is com- monly called the statute of charitable uses. In it are given the following charitable objects and pur- poses: Relief of aged and impotent and poor people; 451 452 TESTAMENTARY FORMS maintenance of sick and maimed soldiers and mar- iners; schools of learning; free schools; scholars in universities; repairs of bridges, ports, havens, causeways, churches, sea-banks, and highways; education and preferment of orphans; relief, stock, or maintenance for houses of correction; marriages of poor maids; supportation, aid, and help of young tradesmen, handicraftsmen, and persons decayed; relief or redemption of prisoners or captives; aid or ease of any poor inhabitants concerning payment of fifteens, setting out of soldiers, and other taxes. The following definition of a charity is regarded as one of the best : "A charity in the legal sense may be defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or other- wise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature." Jackson v. Phillips, 14 Allen, 539, 556. "A good charitable use is 'public,' not in the sense that it must be executed openly and in public, but in the sense of being so general and indefinite in its objects as to be deemed of common and public bene- fit. Each individual immediately benefited may be PUBLIC CHARITIES 453 private, and the charity may be distributed in pri- vate and by a private hand. It is public and general in its scope and purpose, and becomes definite and private only after the individual objects have been selected." Saltonstall v. Sanders, 11 Allen, 446, 456. In most jurisdictions it is believed that the fol- lowing principles are Well established: That any purpose is charitable in the legal sense of the word which is within the principle and reason of the statute, although not expressly named in it; and objects have been upheld as charities which the statute neither mentions nor distinctly refers to. That if the persons or body beneficially interested in the use are definite and certain, it is not a pub- he charity, although the trust may be exclusively restricted to religious uses alone. That it is immaterial where the beneficiaries re- side; and the fact that the charity is to be admin- istered in a foreign country does not of itself render it invalid. That if the charitable bequest is otherwise valid, it will not fail simply because it cannot take effect immediately for want of proper objects or trustees, or of enabling acts of the legislature or of the executive. A charitable bequest in trust by a resi- dent of Massachusetts to a town in another State was held not void, because the town at the time the bequest was made was incapable, under the laws of that State, of taking the trust; and it was ordered that the fund be paid over to the town upon it& 454 TESTAMENTARY FORMS being enabled, by a subsequent act of the legislature of the other State, to administer the trust according to the will. Fellows v. Miner, 119 Mass. 541. A testator in creating a charity should be informed that if at any time the trust becomes impossible of execution the doctrine of cy pres will be resorted to, and a court of equity will order the charitable pur- pose to be executed as nearly as possible according to the testator's expressed intent. For able dis- cussion of this subject see Jackson v. Phillips, 14 Allen, 539, 573, 599. Great care should be used in providing for trus- tees. Generally if no trustee is named, the estate descends to the heirs of the testator subject to the trust. Bartlett v. Nye, 4 Met. 378. If the trustees have a discretion as to the charitable purposes to which the estate is to be applied, it is plain that they may die before the testator, or may decline to act, or may fail to make application of the fund. If the trust is not a personal one, but is given to the trustees and their successors, it cannot fail from any of the above-named causes. Loring v. Marsh, 2 Clifford, 469, 493; s. c. 6 Wallace, 337. But if the trust is a personal one it fails and the fund goes to the next of kin. Fontain v. Ravenel, 17 How. 369. In some States trustees for charities are not required to give bonds. It is said that the purposes which the testator has in view can often be better carried out by providing for a perpetual succession of trustees without resorting to the courts. See PUBLIC CHAEITIES 455 Lowell et al, Apts., 22 Pick. 215, 216, 217. Courts of equity will not only appoint new trustees to fill va- cancies, but they will sanction a scheme for the ad- ministration of the charity, which provides for the appointment and succession of trustees without a continual recourse to legal proceedings. Attorney- General v. Winchelsea, 3 Bro. Ch. 373; Attorney- General v. Shore, 1 M. & Cr. 394; 12 Sim. 426. See p. 540. On the other hand, it is maintained that, as a charity is public, new trustees should be appointed by court and not by an exclusive body. See p. 583. As to who may take a charity, a devise or bequest to an unincorporated society for charitable uses is generally valid. So a city or town may hold real and personal estate in trust for the support of schools, and for the promotion of education within its limits, and may hold donations for the main- tenance of libraries and reading-rooms. So also religious societies, both incorporated and unincor- porated, have the most liberal powers as to taking and holding gifts and donations made to them. - It is common to give money for the saying of masses for the dead, and the gifts have been both upheld and also declared to be invalid. There seems to be no objection to giving the money abso- lutely to the church or clergy, with a written request outside the will that the money be used for the pur- pose just stated. It is not the purpose to enter at length here 456 TESTAMENTARY FORMS on provisions for the creation of charities which have been sustained, as the local law must in each case be examined and followed in drawing the will; but it may be said generally that valid charities are created where the gifts are for the furtherance and promotion of the cause of piety and good morals, or in aid of objects and purposes of benevolence or charity, public or private, or temperance, or for edu- cation, for relief of the poor and sick, for the pro- motion of agricultural or horticultural improvements, for public parks, for the benefit of disabled soldiers and seamen, for the missionary cause of a church, for the public good by encouraging learning, science, and the useful arts, for poor meritorious widows living within certain limits, for the cause of Christ, for the support of a city missionary of a certain church, for public libraries, etc. It may be said generally that invalid charities are created where the gifts are for public worship, which is public only in the sense that it is open to the public by courtesy, to executors to be distrib- uted to such persons, societies, or institutions as they may consider most deserving (the word "chari- table" being omitted), for the permanent care of a private tomb or burial-place, to a school, which is a private pecuniary enterprise, etc. One of the best ways to aid education, charity, or religion is to give money to maintain or endow insti- tutions already existing.. The gift may be an abso- lute one. PUBLIC CHARITIES 457 The following are examples : Charitable Gifts to Established Institutions. I give Ten Thousand Dollars to the People's Uni- versity of etc., to be used by it for any object or objects germane to its corporate purposes. It is my wish, however, that the income thereof may be used for free scholarships, the candidates to be selected on the basis of character and merit. All the rest, residue and remainder of my property, both real and personal, of which I shall die seized and possessed and to which I may be entitled at the time of my decease, I give, devise and bequeath to the Tenth Ward Free Hospital of etc., a corporation duly formed and established under the laws of the State of, etc., to be held, enjoyed, applied and ex- pended for the purposes permitted and authorized by its certificate of incorporation, dated, etc., or by any amendment hereafter made to said certificate under general laws or by legislative act. I am at present engaged in the erection of a build- ing located at the corner of A. B. and C. D. Streets in the city of, etc., which building upon completion is to be used for charitable and religious purposes conformably to the deed of conveyance to, etc., dated, etc., and recorded, etc. If at the time of my decease said building is uncompleted, I authorize, direct and empower my executors to complete and finish the same with the funds of my estate agree- 458 TESTAMENTARY FORMS ably to the plans and specifications now existing with such modifications and changes as they may deem desirable. I give the organization known as the Society for the Education and Training of Homeless Children, which is duly incorporated by law, and is located at No. 714 Blank Street in the city of New York, the sum of One Hundred Thousand Dollars. While I commend all the activities of that organization, I particularly favor its work in placing poor children in homes in the country districts and in small towns and providing for their education and training on practical fines. While I hope that the managers of the Society will expend the income of my be- quest for the promotion of the object just referred to, I impose no restraint and leave them free to expend the same for any purposes germane to their corporate requirements. I give to the People's University of, etc., the sum of Fifty Thousand Dollars to be added to the Free Lecture Fund, the income to be expended as the trustees of the University may decide for lectures to the students on literary and scientific topics or any other subjects of an educational nature. I give to said University the sum of One Hundred Thousand Dollars, the income to be used as the trus- tees of the University may decide in payment of the tuition and board of worthy students of limited means. PUBLIC CHAEITIES 459 I give the said University the sum of Two Hundred Thousand Dollars, the entire amount to be used as the trustees of the University may deem best in the repair of and in making additions to any building or buildings of the said University or in the erection of a dormitory. I give the said University the sum of Twenty Thousand Dollars, the entire amount to be expended in purchasing such books as the trustees of the University may select for the University library. All the rest, residue and remainder of my property, both real and personal, of which I shall die seized and possessed and to which I may be entitled at the time of my decease, I give, devise and bequeath to the People's University of, etc., founded and en- dowed by, etc., and duly incorporated according to law, to have and to hold to said University and its successors, the personalty absolutely, and the realty in fee simple. The said University through its trustees or other governors may use said rest, residue and remainder for any purpose germane to the provisions of its charter or act of incorporation. I give and bequeath to the corporation styled "The Trustees of the Winthrop Library," located in the city of Chicago, the following described bonds [description]. I desire that the net income or annual proceeds of said bonds or of any securities or prop- erty into which they may be converted shall be applied to and expended in the payment of salaries 460 TESTAMENTARY FORMS of librarians and other employees, of charges for heat and lighting, of other current expenses, and in the purchase of furniture and materials or apparatus suitable and peculiar to the needs and uses of a library. If there is any surplus income, I desire that it may be expended in the purchase of new books and the rebinding and recovering of old ones. But the desires and wishes first expressed are not to be construed as creating a trust, and the above- mentioned trustees and their successors are au- thorized to expend the said net income or annual proceeds for any purposes provided for and defined in the act incorporating "The Trustees of the Winthrop Library." I give and bequeath the sum of Two Hundred Thousand Dollars to the "Bridgton Free School for Manual Training" located in the city of Cleveland and duly incorporated under the laws of the State of Ohio, the net income thereof to be expended for the maintenance and support of such school in such way agreeably to law as the trustees may direct. An excellent method of giving money for chari- table and religious work, etc., is to give it to those, in whom the testator has confidence, to expend con- formably to wishes expressed or to a request in writ- ing which is not made a part of the will. PUBLIC CHARITIES 461 Charitable Bequests to be Expended According to Wishes of Testator. During two years after the proving of this will I authorize and empower my executors to donate to charitable, benevolent, religious and educational in- stitutions such sums of money as I have been in the custom of donating to such institutions during similar periods. My executors are acquainted with my purposes and desires; they are not to be called to account for any donations for the above purposes and the same are to be credited in their accounts as executors as proper and legal expenditures. In addition to the property given to my trustees in trust as hereinbefore provided, I give and be- queath to them not as trustees but personally as joint tenants the sum of Thirty Thousand Dollars to be theirs absolutely. It is my wish .that they expend the same in accordance with wishes expressed in a memorandum which will be found among my papers, but they are not required so to do. For several years I have devoted a certain amount of money to the promotion of religious and charitable work in the city of New York, and I desire the con- tinuance of the expenditure for those purposes for some time after my decease, without establishing in this will a charitable trust. As my son A. B. is acquainted with my views and wishes, I give and bequeath unto him the sum of Twenty Thousand Dollars, feeling confident that he will expend the 462 TESTAMENTARY FORMS same in the manner and for the purposes I have already in private declared to him. No restraint or trust, however, is imposed upon him and he is to expend the money without being called to account by any individual or tribunal. I give and bequeath to my friend A. B. the sum of Ten Thousand Dollars, which I trust he will divide among such charitable institutions as he deems most deserving and in such proportions as he thinks best. I impose no restraint and create no trust, but leave the said A. B. entirely free as to the best method in his judgment of disposing of the above legacy, without being answerable to any person or court whatsoever. As charitable trusts are sometimes incapable of fulfilment ,of testator's wishes on account of the happening of unforeseen events and change of circumstances generally resulting in costly litigation, I do not propose to establish any such trusts in this will, but I earnestly enjoin my wife and children from the abundant resources I leave them to give freely from time to time to deserving charities,, especially to hospitals and orphan asylums. I give my wife A. B. the sum of Fifty Thousand Dollars, and I desire her to expend the same for chari- table purposes conformably to wishes I have already expressed to her. I give the said legacy to my wife to be hers absolutely, and her use and expenditure PUBLIC CHARITIES 463 of the same are not to be interfered with or ques- tioned by any one. I have learned from experience and observation that perpetual trusts for religious and charitable objects are not always satisfactory, as the happening of unforeseen events and changes of circumstances often make the carrying out of the testator's inten- tion either difficult or impossible. In most cases I believe it better to give outright to benevolent and religious objects, leaving the institutions or societies unrestricted in the use and expenditure of the funds. It has been my practice for many years to give out- right to deserving objects; and I now urge my wife and children to continue the benefactions in the same manner from the property herein bequeathed to them. A wealthy man while living frequently establishes a charitable, educational, or religious institution and then makes provision in his will for its maintenance and support. If such an institution is incorporated it may receive the testator's donations given by his will, and his estate will be relieved from further responsibility. More frequently the wealthy testator provides for the foundation after his death. The provision in such case should be carefully worded. The best method is to bequeath and devise the property to executors or trustees with a limitation over to a corporation to be organized. The following brief form may be of service: 464 TESTAMENTARY FOEMS Gift to Executors with Limitation over to Corporation when Organized. I give the sum of One Million Dollars to establish in the city of New York a foundling hospital and to erect or purchase a suitable building, to endow the institution and to provide for its maintenance and support. I direct my executors as soon as may be after my decease to obtain from the legislature a charter, or cause a corporation to be formed under the laws of the State, for the purpose of receiving the bequest and accomplishing the object suggested of a free foundling hospital open to infants irrespec- tive of considerations of nationality, religion and color. I direct my said executors to see that in the charter or certificate of incorporation all the details of organization and management are fully set forth and that the same be supplemented by appropriate by-laws. Upon the due establishment of the cor- poration I direct my said executors to pay over and transfer to the proper officers thereof the above be- quest of a million dollars and accumulations, if any; and thereupon my said executors shall be released from all responsibility relative thereto. It is my wish that my friends A. B., C. D., E. F., G. H., and I. J. may be on the first board of directors. In establishing libraries, hospitals, etc., testators, after providing for the regular purposes, of the foundation, often forget to provide for janitor's compensation, heating, lighting, and other expenses incident to the care of buildings. See form on p. 581. PUBLIC CHARITIES 465 Various forms used in creating public charities may be found in Burrill v. Boardman, 43 N. Y. 254; Tilden v. Green, 130 N. Y. 29; Allen v. Stevens, 161 N. Y. 122; Inglis v. Trustees of Sailor's Snug Harbor, 3 Pet. (U. S.) 99; Blatchford v. Newberry, 99 111. 11; Attorney General v. Newberry Library, 150 111. 229; Crerar v. Williams, 145 111. 625. Many forms may also be found in Remsen on Wills. See also pp. 539, 579. It is not uncommon for trustees under wills for educational and charitable purposes, etc., to obtain a special act of incorporation. In Appendix II may be found copies of such acts, and also of acts provid- ing that the trustees shall convey the property to the corporation and obtain their discharge by the Probate Court. CHAPTER XVIII EXECUTION AND ATTESTATION It is a general rule that a will which bequeaths personal property must be executed conformably to the law of the testator's domicile, and one which devises real property, conformably to the law of the country in which the real property is situated. It is common for attorneys to overlook this law as to realty, and the statutes in so many jurisdictions are so favorable to the proof of foreign wills, that little trouble is likely to arise; but for safety the attorney should ascertain the law of the foreign jurisdiction, and see that the will is executed accord- ing to that law as well as according to the law of the testator's domicile. See p. 17. Although a seal is not necessary to the validity of a will, as there is no need of raising a presumption of a consideration, yet it is always safe to affix one; especially if a power of appointment is to be executed by a writing under the hand and seal of the testator. In such case it has been held that a will signed but not sealed is not a due execution of the power. See West v. Ray, Kay, Ch. 385; Taylor v. Means, 4 De G., J. & S. 597. A testator should exercise great care in making. 466 EXECUTION AND ATTESTATION 467 any obliterations or interlineations in the will. It is better in most cases to rewrite the entire instrument; and it is apparent, where erasures and interlineations are made either in a will or codicil, or both, that additional pains must be exercised to avoid conflict or confusion. Obliterations and interlineations are of two kinds: 1. Those made before the execution of the will. If there is no evidence to show when they were made, the presumption is that they were made after the execution of the will. Cooper v. Bocket, 4 Moo. P. C. C. 419. "The burden of proof is on a party presenting a will to show that alterations or inter- lineations in it were made before its execution, and unless there is something in the nature of them, as applied to other parts of the writing, or unless there is other evidence to show that they were a part of the will when it was executed, they will be rejected for want of proof. The opportunities for making alterations in a will are often so great, and the re- quirement of the statute that a will shall not take effect unless it is executed with due formality is so strict, that apparent alterations in a will are looked upon with some suspicion. The validity of changed portions is not assumed, but there may be evidence to establish it; and this evidence may be found in the instrument itself, or may come from outside of it." Wilton v. Humphreys, 176 Mass. 253, 257. The only safe way after the erasures and interlin- eations have been made is to carefully refer to them between the attestation clause and the signatures of 468 TESTAMENTARY FORMS the witnesses. See p. 508. Each witness should, of course, verify the changes by actual observation. 2. Those made after the execution of the will. This subject has been already considered under "Revocation." See p. 303. In most States wills executed on the Lord's day are valid. It is better, however, to have the will executed on a week-day, unless illness or some other circumstance makes the execution on a Sunday urgent. The wording of the in testimonium clause is not important. Forms like the following may be used, most of which are taken from actual wills: In testimony whereof I have hereunto set my hand and seal this tenth day of August, 1911. In witness whereof I have signed and sealed these presents and do publish and declare the same as and for my last will and testament this twenty- second day of November in the year of our Lord one thousand nine hundred and eleven. In testimony whereof I have hereunto set my hand and seal this ninth day of October, in the year of our Lord nineteen hundred and eleven, and have written my name on the margin of each preceding page. In witness whereof I, the said A. B., have here- unto set my hand and seal at the city of Chicago, EXECUTION AND ATTESTATION 469 this second day of June, 1911, and have put my initials to each preceding page. In witness whereof I have hereunto subscribed my name and affixed my seal at No. 2 Jackson Street, in the city of Boston, this sixteenth day of July in the year of our Lord one thousand nine hundred and eleven, in the presence of C. D., E. F., and G. H., whom I have requested to become at- testing witnesses hereto. In testimony whereof I, the said A. B., have to this my last will and testament contained in ten sheets of paper and to every sheet thereof sub- scribed my name this second day of April in the year of our Lord one thousand nine hundred and eleven. In testimony whereof I have with full knowledge of all the contents of the foregoing instrument here- unto set my hand and seal and have signed, sealed, acknowledged, published and declared the same to be my last will and testament and acknowledged the signature hereto to be my genuine signature written by myself, in the presence of the persons subscribing hereto as witnesses, and have requested them to attest the same as my last will and testa- ment and to attest my signature hereto at, etc., this fifth day of May A. D. 1911. In nearly all jurisdictions there is an inflexible rule that the will must be signed by the testator or 470 TESTAMENTARY FORMS by a person in his presence and by his express direc- tion. If the testator directs some one to sign his name for him, the attestation clause should be slightly varied to meet the circumstances of the case. See p. 508. When the testator signs himself, the signature must be in his own handwriting, or, in case he is unable to write, his mark. The signa- ture should be at the end of the will, and this is obligatory in some jurisdictions. Where the signature of the testator was by mak- ing a +, and his name was appended to the cross by one of the attesting witnesses, it was held to be a sufficient signing by the testator. Nickerson v. Buck, 12 Cush. 332. In Matter of Phelps, 22 St. Rep. (N. Y.) 896, the will was subscribed by the testator's mark with two witnesses. One witness died after the execution and the testimony of the other was taken by commission. The court would not admit the will to probate "unless testimony of other persons who were present at the time of the execution of the paper is given." Remsen, p. 353, says, "This suggests, in such cases, the importance of more than the statutory number of witnesses." When the will is written on several sheets of paper, and especially when the will is an important one, the testator should sign or write his initials on every sheet in addition to his signature at the end. This is, of course, unnecessary, so far as the validity of the will is concerned; but it is a safe course to pursue, as every sheet of the will is thus identified. See in testimonium clauses just above, also p. 504. EXECUTION AND ATTESTATION 471 But all the separate sheets of paper must be in the room and in the presence of the attesting witnesses. But a signature to each page of the will, when the last page is left unsigned, is not -prima facie a suffi- cient execution. Sweetland v. Sweetland, 4 Sw. & T. 6. As in the case of typewritten wills deception may be easily practised by removing one or more sheets and substituting others, the testator should sign every sheet of the will. Even though the statutory requirement is two witnesses, it is better to have three; and, if the statute calls for three, four can do no harm. Gener- ally an attesting witness must be one who at the time of the attestation would be competent to testify in court to the matter which he attested. It is evident that the witnesses should be per- sons of respectability, character, and good standing. Business men, physicians, and friends and acquaint- ances of the testator make the best witnesses. The witnesses should be younger than the testator, so that they will probably survive him; for if they are all dead at the time of the testator's decease, it will be necessary to prove their signatures in order to establish the will. For safety the following should not be witnesses, — infants, incompetent persons, those convicted of a crime, an heir-at-law of the testator, an executor named in the will, a legatee or devisee under the will, the husband or wife of a legatee or devisee, a creditor of the testator, a member or stockholder of 472 TESTAMENTARY POEMS a corporation to which property is bequeathed in the will, the attorney who draws the will, for by becoming a witness his privilege from giving testi- mony is in many States waived. In some States besides the family physician who has been the medical adviser of the deceased, and witnesses who by special skill and experience are qualified as experts in the knowledge and treatment of mental diseases, the witnesses to the will are alone competent to give their opinions in evidence. In most jurisdictions, however, it is probable that nearly any one acquainted with the testator may give his opinion as to the testator's mental con- dition. It is safer not to have as witness to a codicil a legatee in the will. See Denne v. Wood, 4 L. J. (0. S.) 57. "When one consents to become a witness to the execution of a will, and goes into court and testi- fies that he did not regard the testator, at the time of his attestation of the execution, as being in a state of mind suitable to the full comprehension and understanding of his act, he virtually declares his own infamy." 1 Redfield on Wills (3d ed.), 666, n. An inhabitant of and a taxpayer in a town is a competent witness to a will which gives the town the interest of a fund for the purchase of books for the town library; and the fact that he may have, as an inhabitant, the use of the books so purchased, does not render him incompetent. Hitchcock v. Shaw, 160 Mass. 140. Any document or paper cannot be incorporated EXECUTION AND ATTESTATION 473 in the will by reference, unless the provisions set forth on p. 129 are complied with. Otherwise it must be properly executed and witnessed in ac- cordance with the statute. The following are the safest rules to follow in the actual execution and attestation of the will: 1. Publication. For safety, as a part of the act of executing the will the testator should declare to all the witnesses, "This is my last will and testament, and I desire and request you to act as witnesses to my signature to it." In most cases there would probably be no objection if the declaration be made by another than the testator, but in his presence and by his direction and with his assent. The fact of publica- tion should appear in the attestation clause. As a general rule it is not necessary to the validity of a will that it be read by or to the person executing it: it is sufficient if the court is satisfied, by compe- tent evidence, that the contents of the will were known to and approved by the person executing it, at the time it was executed as a will. 2. The witnesses should see the testator sign the will. The witnesses should not only be in the same room with the testator but they should actually witness the writing of his name — then no question may be raised. 3. The witnesses should sign in the presence of the testator, and after he has himself signed the will. 474 TESTAMENTARY FORMS The witnesses should sign directly after the attes- tation clause in the presence of the testator, at his request, and in the presence of one another. The testator and all the witnesses should remain in the room until they have all signed. 4. The witnesses should sign in the presence of each other. This may not be necessary in all jurisdictions, but it is advisable; otherwise, where large interests are at stake, a door might be opened to perjury and fraud. In some States it is provided by statute that if it appears to the court by the consent in writing of the heirs, or by other satisfactory evi- dence, that no person interested in the estate of a person deceased intends to object to the probate of an instrument purporting to be the will of such de- ceased person, the court may grant probate thereof upon the testimony of one only of the subscribing witnesses; and the affidavit of such witness, taken before the register of probate, may be received as evidence. It is plain that the court cannot know that the other two names are those of actual wit- nesses, unless the witness present can testify that he saw them sign. Better have all subscribing wit- nesses testify, if the testator leaves property in an- other jurisdiction, the laws of which require that all subscribing witnesses must testify. The statutes of several States provide that the witnesses to a will shall write opposite to or under their names their respective places of residence. The precaution is a wise one to take, especially in EXECUTION AND ATTESTATION 475 a large city, where, otherwise, a witness might not easily be found when needed. See p. 504. In the case of a blind and illiterate testator it is essential that he should fully understand the entire provisions of the will and that the witnesses should know that he understands them. If the will is read to the testator by a disinterested person in the presence of the witnesses, every requirement will be met. If the will is read to the testator privately, he should state to the witnesses that he has full knowledge of its contents, and this fact should ap- pear at the end of the attestation clause in language like the following: And we state and affirm that the testator being blind [illiterate] declared in the presence of all of us that the will having been just read to him he had full knowledge of all its contents and provisions and was fully satisfied therewith. In the case of testators of advanced years and feeble intellects great precaution is necessary, both in the interests of testators and for the profes- sional standing and reputation of counsel. Affirma- tive proof may be required that the testator had full knowledge of the contents of the will. 1 Jarman on Wills, 36. In the case of deaf and dumb testators who can- not read or write, care should be taken that the methods employed by the testators to communi- cate their purposes and desires, whether by signs 476 TESTAMENTARY FORMS or otherwise, are sufficient to justify the court in ad- mitting their wills to probate. See In the Goods of Francis Owston, 2 Sw. & Tr. 461; Rollwagen v. Rollwagen, 63 N. Y. 504. Testators frequently execute their wills in dupli- cate. "The custom of executing wills in duplicate is much more common in England than in this coun- try. Its desirability, however, is obvious, as it lessens greatly the risk of loss. As there is but one will, one copy only is probated." Gardner on Wills, 43. It may be well to write the in testimonium clause as follows: In testimony whereof I have hereunto and to an- other will of identical contents and provisions set my hand, etc. If after a will is executed the law as to the for- malities of execution is changed, the will should be re-executed, unless there is a statute providing that a will which is made and executed in conformity with the law existing at the time of its execution shall have the same effect as if it were made and executed pursuant to any later laws. "Republica- tion and re-execution may be accomplished directly or indirectly, directly by signing and witnessing the same paper again, indirectly by sufficient reference to it in a duly executed codicil." Rood on Wills, § 392 et seq. Although an attestation clause is not necessary, yet it is advisable not to omit it. EXECUTION AND ATTESTATION 477 The following is the attestation clause commonly- used: Signed, sealed, published and declared by the testator as and for his last will and testament, in the presence of us, who, at his request, in his pres- ence and in the presence of one another, have here- unto subscribed our names as witnesses. The following forms are taken from actual wills: We, the undersigned, certify that on this tenth day of April in the year of our Lord nineteen hun- dred, A. B. exhibited to us the foregoing instrument in typewriting on three pages, inclusive of this, and declared the same to be his last will and testament, and requested us to witness his execution of it. Whereupon he did, in our presence, subscribe his name at the end thereof, and the signature A. B. at the end thereof is the genuine signature of said testator. He did also in our presence write the initials A. B. in the margin of the first and second pages of said instrument. We do, therefore, in the presence of said testator and of each other, sub- scribe our names as witnesses. The above written instrument consisting of five sheets was subscribed and sealed by the testator, A. B., on the day it bears date, at the city of etc., in our presence, and he then and there, to each of us, acknowledged, published and declared the same to be his last will and testament; and thereupon, 478 TESTAMENTARY FORMS at his request, and in his presence, and in the pres- ence of each other we signed our names thereto as attesting witnesses. On this second day of June eighteen hundred and ninety-two the above named testator, A. B., in our presence subscribed and sealed the foregoing in- strument and declared the same to be his last will and testament and we thereupon, at his request, in his presence and in the presence of each other, have hereunto subscribed our names as attesting witnesses. The foregoing instrument contained on this and the fifty-one preceding pages, was on this twenty- fifth day of February, in the year of our Lord nine- teen hundred and four, signed, sealed, published and declared by the said A. B., the testator therein named, as and for his last will and testament, in the presence of us, who at his request and in his presence, and in the presence of each other, have hereunto sub- scribed our names as witnesses, having also seen the said testator's name written by him in full on the margin of each page except the last one. On this 14th day of July A. D. 1898, the under- signed being present and believing the testator to be of sound mind and memory, saw the testator sub- scribe the foregoing will. At the time of such sub- scription the testator stated to all the undersigned that the paper was his last will and testament. EXECUTION AND ATTESTATION 479 Thereupon each of us, in the presence of the testator, and at his request, and in the presence of each other, hereby attest and subscribe said will as witnesses, the day and year above written. The foregoing instrument was, at the date thereof, by the testator, A. B., signed, sealed, published and declared by him to be his genuine signature, written by himself, in our presence and hearing, and we, at his request and in his presence and in the presence of each other have subscribed our names hereto as attesting witnesses. And we further state that the testator was at the time of the making and signing of said instrument of sound and disposing mind and memory. Subscribed, sealed, published and declared by the said testator A. B. to be his last will and testament, in the presence of us and each of us, who, at his re- quest and in his presence, and in the presence of each other, have hereunto signed our names as wit- nesses, this clause having been first read to us and we having noted and hereby certifying, that the matters herein stated took place in fact and in the order herein stated. A matter which deserves particular attention is the custody of the will. The document should be placed where no opportunity will be afforded to purloin or tamper with it. An excellent method is to place it in the custody of the testator's attorney 480 TESTAMENTARY FORMS or of the executor named in it. If the testator re- tains the will himself, he should inform the executor of the place where it may be found after his decease. Should the testator place the will in his safe deposit box and leave no instructions with the company as to permitting his executor to open the box after his decease, trouble and annoyance may be occasioned. If a will is lost or destroyed, a correct copy thereof duly sworn to may be admitted to probate in nearly all jurisdictions. It is suggested, therefore, that the attorney who draws the will should keep a copy thereof. In some places it is provided by statute that the testator may enclose the will in a sealed wrapper and deposit it, for safe keeping, in the registry of probate, and that it shall be delivered after his decease to the executor or executors named therein. There are statutes in most States declaring that the possessor of a will must present it for probate within a certain period after the testator's decease or he will be proceeded against, and also statutes imposing penalties for the larceny or destruction of wills. CHAPTER XIX SUGGESTIONS FOE PREPARING WILLS] The following suggestions are of a general nature and of almost universal application, and they largely refer to points which will be found in the preceding chapters. The object is to give, in concise form, nearly every consideration pertaining to the real preparation of a will, as well as to suggest to the attorney questions which, without the assistance of a printed page, he may very likely forget to ask the testator. The following remarks from the preface to the first edition of "Hayes and Jarman's Forms of Wills" merit attention: "There cannot, indeed, be a greater mistake than that of supposing that a very small stock of legal terms, added to a very ordinary education, suffices to accomplish tjhe will-maker. On the contrary, a will is alone capable of exhausting the science and ingenuity of the most able conveyancer. It may embrace every allowable modification of property, every possible scheme of disposition. . . . Even of those testators whose wills are prepared under professional service, it may be safely affirmed, that, while the intentions of not a few are frustrated by 481 482 TESTAMENTARY FORMS failure in point of expression, the intentions of a far greater number are never elicited by presenting to their consideration the arrangements most suitable to their views and circumstances. . . . On the other hand, it must be admitted that the blame of mis- carriage is not unfrequently attributable to the testator himself. Want of explicitness or candor in the communication of the actual state of his property or circumstances, or an obstinate attachment to some favorite project, may render abortive the most judicious advice." The initial instruction or warning for the attorney to give the testator is to make as simple and brief a will as possible, and not to defer the vesting of interests and the final settlement of his estate, un- less urgent reasons exist therefor. Long and in- volved wills often give rise to litigation; and if trusts not to terminate before the expiration of a long period are created, births, deaths, and the happening of unforeseen events may produce results entirely different from those the testator anticipated and thought that he had provided for. Examples of long and involved wills may be found in Remsen on Wills, 466, 482, and 532. I. The attorney should obtain instructions from the testator in person. Great as is the danger of writing a will from written instructions, it is, of course, still greater when the instructions are conveyed from the testator to the attorney by some third person. An attorney, there- fore, who draws a will from such instructions, with- SUGGESTIONS FOR PREPARING WILLS 483 out sufficient excuse, may be regarded as highly- reprehensible. In Rogers v. Pittis, 1 Add. 30, 46-48, it appeared that the solicitor who drew up the will took the in- structions for it from the party whom it purported principally, if not solely, to benefit. Sir John Nicholl expressed himself as dissatisfied' with the solicitor's conduct, not, as he said, for the sake of giving pain to that individual, "but for that of admonishing pro- fessional gentlemen generally, that where instruc- tions for a will are given by a party not being the proposed testator — a fortiori, where by an interested party — it is their bounden duty to satisfy them- selves thoroughly, either in person or by the instru- mentality 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." Where a person is confined to the house, it will be necessary to take instructions in the sick-room, but it is always better to write the will in some other place. II. The attorney should inquire fully as to the nature and extent of the testator's property, both real and personal. -, This course is probably rarely pursued; yet no attorney can safely prepare a will disposing of even the smallest interests, without full and accurate in- formation of the nature and extent of the testator's investments. 484 TESTAMENTARY FORMS Such information is indispensable in a country- composed of many States, each having its own laws regulating the disposition and distribution of property. The following are the more important questions to be asked: 1. Has the testator any real estate in another State or country? If so, it should be properly described. See p. 16, And the will should be executed with due formalities. See p. 17. 2. If real estate specifically devised is subject to a mortgage or hen, made by the testator, is it his intention that such mortgage or hen shall not be paid out of his personal estate? See pp. 91 et seq. If personal property specifically bequeathed is subject to a mortgage, or is pledged in any way, is it also his intention that such incumbrance shall not be discharged out of his personal estate ? See p. 96. Does he also understand the law pertaining to specific bequests ? See pp. 235 et seq. 3. If the testator gives a life estate in realty, does he desire to confer power upon the life tenant to lease the premises for a period which may extend beyond his life ? See p. 159. If the testator desires to give a life estate in per- sonal property, is he aware that in most cases the creation of a trust is desirable? See p. 161. 4. What is the character of the testator's contracts both as to real and personal property ? Are rights- of action liable to survive ? See p. 80. SUGGESTIONS FOR PREPARING WILLS 485- 5. Has the testator any trust funds or other prop- erty belonging to others in his possession which are not distinguishable from the mass of his own property ? If so, they should immediately be properly marked and designated. See p. 62. 6. Has the testator so far given validity to any declaration of trust that the property, which is the subject thereof, will not pass by his will ? For example, has he deposited money in savings banks in trust for others without any intention of constituting himself a trustee ? See p. 63. 7. Has the testator any vested or contingent interests ? If so, he should be informed that if he makes no provision as to them they will generally pass under the residuary clause. See p. 299. 8. Has the testator any power of appointment as to any kind of property? See pp. 68 et seq., 433 et seq. Here also, if he does not refer to the power, the residuary clause may be a due execution thereof. See p. 299. 9. What are the testator's wishes as to personal effects and furniture ? See p. 229. As to monuments, grave-stones, burial lots, etc. ? See pp. 81 et seq. As. to his home? Seep. 88. As to the winding up or pres- ervation of his business ? See pp. 101, 421, 423. As to life and other insurance? See pp. 77, 345. As to joint real and personal property ? See p. 99. As to giving executors the right to sign notes, etc.? See 486 TESTAMENTAKY FORMS p. 112. As to pew and opera box? See pp. 113, 114. As to manuscripts, documents, etc.? See p. 115. 10. Does the testator desire to impose any condi- tions either precedent or subsequent as to payment of legacies, as to charging legacies or the expenses of one's education upon realty, as to legacies to an executor or trustee, as to marriage, as to re- straint of alienation, as to disputing the will, as to residence, as to gifts to servants, employees, etc.? See pp. 163-188. 11. Is the testator made to understand the inci- dents attending the form or character of legacies, as, for example, general (see p. 242) ; residuary (see p. 299); cumulative or substitutional (see p. 144); specific or demonstrative (see pp. 235-252)? 12. Does the testator propose to give legacies to either debtors or creditors or both ? See pp. 253- 268. 13. Does he desire to make special provisions as to the payment of and interest upon legacies ? See pp. 269-292. 14. Is the testator informed of the necessity of accuracy in the description of both legatees and legacies ? See pp. 209-234. 15. Is the testator informed of the law of lapsed legacies and of the circumstances or events that may possibly revoke a will ? See pp. 293, 307 et seq. 16. What is the extent of the testator's liabilities ? This is one of the most important considerations of all, as it may be advisable, if the liabilities are extensive, to provide for the marshalling of assets, SUGGESTIONS FOR PREPARING WILLS 487 etc., for the payment of debts and legacies. See pp. 329-333. The attorney should especially inquire as to indirect liabilities, such as indorsements, etc., for, if the testator is liable upon any ordinary commercial obligations, it may be advisable to defer the pay- ment of legacies till a sufficient time has elapsed to determine what the testator's liability actually is. See p. 278. Where a testator is apprehensive that there may be either an increase or a depreciation of his property between the execution of his will and the day of his death, he should bear in mind, if he makes any one person a residuary legatee, the law referred to upon p. 300. If he does not desire to specifically devise or bequeath the greater portion of his estate, one of the safest methods is to give the legatees "shares" or "portions," and not specified amounts; then the legatees will only take their designated proportion of what remains after the debts have been paid. See p. 250. 17. Is the testator the me'mber of a partnership ? This is peculiarly a matter of interest to one in active business. The difficulty of anticipating the future is, of course, apparent; but a testator may naturally desire to make some provisions as to con- tinuing his business, so far as is necessary to com- plete his contracts. See p. 101. 18. When it comes to naming the executor or exec- utors see that the following matters are brought to the attention of the testator, — the bond and liabil- 488 TESTAMENTARY FORMS ity thereon, charges of administration, authority of majority to act, debts, funeral expenses, monument, etc., powers to sell, mortgage, lease, etc., purchase of property of estate by executors, insurance, taxation, compromise and arbitration, employment of at- torneys, etc., suggestion as to keeping records, delegation of powers, instructions as to voting shares, auditing accounts and examining securities, etc. See pp. 321-359. III. The attorney should inquire fully as to the testator's personal position and his relations to his family. If the testator is single he can, of course, dispose of his property as he pleases, so long as he does not violate any rules of law; but a single testator or testatrix should be informed of the rule of revocation in some jurisdictions, in case of marriage. See p. 306. If the testator is married, he should be thoroughly informed as to the claims of children, posthumous children, and the issue of deceased children. See pp. 51 et seq. Also as to illegitimate children. See p. 216. Also as to adopted children. See p. 216. If the testator proposes to remember his children, he should be asked if any of them have received from him advancements, or are likely to receive such ad- vancements during his life, and whether such ad- vancements are to be deducted from their shares. See pp. 256 et seq. As a will by proof becomes a matter of record, it is not advisable to speak either in praise or condemna- tion of a child or children, unless the very best SUGGESTIONS FOR PREPARING WILLS 489 reasons exist for it. See Rose v. Porter, 141 Mass. 309. If a legacy is given to a daughter or other married woman, is it to be for her sole and separate use? See p. 431. If the testator proposes to name a guardian for a child, not only the law of, but practical points relating to, guardianship should be brought to his attention. See pp. 445 et seq. The rights of wife or husband should be especially made clear to the testator or testatrix. See pp. 51 et seq. In the first place, it should be learned whether there is an ante-nuptial contract. See p. 54. Then the testator or testatrix should be made to clearly understand the right of waiver in case of dis- satisfaction with the provision made for her or him. It is especially the duty of the attorney to explain the confusion which a waiver frequently works among the other provisions of the will. See p. 55. IV. Public charities and trust estates. If a charitable trust is determined upon, important considerations, including direct gifts and foundations before and after death, should be presented to the testator. See pp. 451-465. There is no duty devolving upon an attorney which should be so faithfully discharged as that of making clear to a testator, who desires to create a trust by his will, what a trust really implies. With the in- 490 TESTAMENTARY FORMS crease of wealth has come a corresponding increase in the number of trust estates. The majority of suc- cessful men seem to be possessed of the idea that there is some marvellous benefit to be derived by placing their property in the hands of trustees for the longest period of time which the law allows. Of course cases constantly arise which make the crea- tion of a trust almost imperative, but generally the testator's intention would be as well carried out and the parties in interest would as fully enjoy the testa- tor's bounty, if the gift were an absolute one. Where the beneficiary is past middle life, and the principal upon his or her death is to go to some speci- fied person or persons, the purposes of the trust can be easily carried out, as the remainder-men are clearly defined, and the period when the property is to vest is not long deferred. But in the case of most large estates, the period of vesting is put off till the expira- tion of the longest time allowed by law. The princi- pal of the trust in the mean time often increases of itself without any addition of income; the beneficiary or beneficiaries at last die, and a large amount of property is turned over to some individual or indi- viduals, who were very likely infants, or else unborn, at the time of the testator's decease. Hence the testator really thwarts his own intention. In the fancied protection of those who are near to him, he makes an ultimate provision of the most liberal nature for those whose welfare is probably of little concern to him. It is obvious that births and deaths are matters of such great uncertainty that it is almost SUGGESTIONS FOE PEEPAEING WILLS 491 impossible for a testator to defer the vesting of his estate for any length of time, with any probability that the course of events will be such as to carry out his cherished intentions. If the testator proposes to create a trust out of the residuum, he should first see that personal effects, etc., are given outright (p. 302), he should be informed as to the law of wasting investments (pp. 415 et seq.), and as to the residuary clause as a general drag-net (pp. 299 et seq.). "The man who locks up his estate for three gen- erations, or longer, in nine cases out of ten does his heirs no service, and entails an incumbrance upon his estate, of vastly little utility to any one." 1 Red- field on Wills (3d ed.), 668, n. However, in many cases it may be advisable to create a trust for the benefit of one who lives in an- other State or country, although the testator desires to make the gift an absolute one; as, for example, in the case of a married woman domiciled in a State or country the laws of which give her only a limited in- terest in property bequeathed to or acquired by her. The trust in such case will, of course, be governed by the laws of the testator's domicile, and the testator can, if he chooses, provide for the disposition of the principal by power of appointment to be exercised by the beneficiary. As to the number and selection of trustees, a few suggestions may be pertinent: The experience of those who have filled the position is that the number should rarely exceed two. Where 492 TESTAMENTARY FORMS there are more than that number, and frequently where there are only two, unity of action often becomes so inconvenient, if not impossible, that gradually the management of the estate is largely intrusted to that one of the number who can most easily attend to it. It is needless to remark that in the case of gross mismanagement on the part of the sole custodian of the property, the parties in inter- est may find it difficult to obtain satisfaction of the semi-acting trustee or trustees, provided, of course, they gave several bonds. So a testator frequently appoints a son or near relative to act as co-trustee with some friend or other disinterested party. The son or other relative, look- ing upon the property as belonging to the family, little by little assumes the sole management thereof, and his co-trustee, not desiring a conflict, acquiesces therein. In case the property is squandered, the parties in interest, as in the case just referred to, may find difficulty in obtaining a remedy at law, if, of course, the liability is several. It would seem that a man's availability for the position of trustee should depend upon something besides character, position, ability } experience, and wealth. It is probable that one-half of the invest- ments of existing trust estates are in unregistered securities payable to bearer and capable of manual delivery. The opportunity thus offered a trustee to hypothecate them for his own obligations may, in the hour of temptation, be eagerly embraced. The posi- tion of trustee, therefore, should be rarely filled by a SUGGESTIONS FOR PREPARING "WILLS 493 man whose business relations are such as to neces- sitate the hiring of money. For this reason lawyers and men who have retired from active business gen- erally prove the most reliable. If, however, the trust has been determined upon, most of the matters in the preceding pages as to the creation of trusts should be brought to the testa- tor's notice. See pp. 360 et seq. V. The use of words. "Words, in general, are to be taken in their ordi- nary and grammatical sense, unless a clear intention to use them in another can be collected." 2 Jarman on Wills (6th Am. ed.), 772. But "the grammatical construction, or the order of particular sentences, is never allowed to defeat the general intention of the testator, as clearly mani- fested by all the provisions of the will taken as a whole." Metcalf v. Framingham Parish, 128 Mass. 370, 376. But grammatical inaccuracy in the use of language should be carefully avoided. "It may be said gener- ally that in considering the obscure provisions which are often found in wills little help is to be obtained from precedents." Croft, petr., 162 Mass. 22, 26. Words can be supplied "only when necessary to carry out the apparent intention of the testator as gathered from the whole will." Butterfield v. Hamant, 105 Mass. 338. As to supplying or transposing words, see Seaver v. Griffing, 176 Mass. 59. One word may be held to mean another, as "or" may be construed "and" to give effect to the testator's intention. 494 TESTAMENTARY FORMS Hunt v. Hunt, 11 Met. 88. Indifference in the use of language, either grammatically or ungrammatically, in the belief that the court will carry out the testa- tor's intention by supplying, transposing, or chang- ing words, if necessary, is reprehensible. The only safety is in adherence to the following rule laid down by an eminent lawyer: "In drafting a pro- vision don't be satisfied, if you think it conveys the meaning you intend merely. Mould it till you are satisfied that it conveys no other meaning." "Where a testator uses technical words, he is pre- sumed to employ them in their legal sense, unless. the context clearly indicates the contrary." 2 Jarman on Wills (6th Am. ed.) , 772. As to " donors ' ' being used by mistake for "donees," and as to "legacy" being used in, the sense of "pecuniary legacy," see White v. Massachusetts Institute, 171 Mass. 84, 95, 98. When it is necessary to use the same word more than once with the same meaning it is better to re- peat the word, and not use a synonym or a synony- mous expression. See Moore v. Hegeman, 72 N. Y. 376. Repugnancy is most carefully to be avoided. Be- fore the execution of the will it should be closely scrutinized, to see if its various parts are consistent and harmonious. "Where two clauses or gifts are irreconcilable, so that they cannot possibly stand together, the clause or gift which is posterior in local position shall SUGGESTIONS FOR PREPARING WILLS 495 prevail, the subsequent words being considered to denote a subsequent intention." 1 Jarman on Wills (6th Am. ed.), 473. "Where the testator struggles with the utmost pertinacity to disinherit a child or other heir, hem- ming the exclusion round with all manner of ingen- ious devices, to render his purpose doubly secure; this very extreme caution, and the strange and causeless labor thus taken to secure an unwise or a vicious result, has proved the occasion for a jury to declare the entire will void, as the offspring of a diseased or a perverted mind." 1 Redfield on Wills (3d ed.),. 668, n. APPENDIX I FORMS OF WILLS FORM I Will op an Unmareied Man Bequests to a sister and to a brother, who is made executor. Another sister made residuary legatee. Know all Men by these Presents: That I, Richard Roe, of, etc., do make this my last will and testament, revoking all wills by me at any time heretofore made. After the payment of my just debts and funeral expenses, I give, devise, and bequeath as follows: First. I give and bequeath unto my sister, Mar- garet Roe, all the pictures, engravings, Legacyof books, and household furniture, which I furniture . and money may possess at the tune of my decease. I also give and bequeath unto her, the said Margaret Roe, the sum of Three Hundred Dollars. Second. I give and bequeath unto my brother, John Roe, the sum of Five Hundred Dol- Legacy lars; and I constitute and appoint the executor said John Roe the executor of this my last will. 497 498 TESTAMENTARY POEMS — APPENDIX I Third. All the rest, residue, and remainder of my Residue property, both real and personal, of which I shall die seized, and possessed and to which I shall be entitled at the time of my decease, I give, devise, and bequeath unto my sister, Sarah Roe. In testimony whereof I hereunto set my hand and seal this tenth day of January, a. d. 1878. Richard Roe. [L. S.] Signed, sealed, published and declared by the tes- tator as and for his last will and testament, in the presence of us, who, at his request, and in his pres- ence and the presence of one another, have hereunto subscribed our names as witnesses. A. B. G. D. E. F. FORM II Will op a Married Man Entire estate given to wife absolutely. She is made executrix without being required to give a surety or sureties on her bond. Children living or to be born excluded. Wish ex- pressed that wife comply with requests set forth in an unat- tested paper, which is separate from the will and in no sense a part thereof. ( This is the last will of me, John Doe, of, etc. After the payment of my just debts and funeral expenses, I give, devise, and bequeath all the prop- Entire es- erty and estate,«both real and personal, of tatetowife ^ich j s h a ]j di e se ized and possessed, and to which I shall be entitled at the time of my de- FORMS OP WILLS 499 eease, to my wife, Mary Doe, and to her heirs and assigns forever. I constitute and appoint the said Mary Doe the executrix of this will, and direct that she give neither a surety nor sureties upon her official bond. I purposely give no bequest in this will to my only living children, James and Sarah Doe, and I exclude them and their issue, provided either or children both of them shall die before me, and also excluded any and all children that may be born to me after the date of this instrument, from any claim upon my estate of every nature and description. While my said wife is to be unrestrained in the possession and enjoyment of my entire property be- queathed and devised to her above, — the Request real estate to be hers in fee-simple, and the t0 wife personal property to be hers absolutely, — I never- theless desire her to comply with my wishes ex- pressed in a certain paper which I am to draw up, and which will be found among my papers at the time of my decease. But such paper neither is a part of this testament, nor are the requests therein contained in any sense legally obligatory upon my said wife. In testimony whereof I have hereunto set my hand and seal this tenth day of August, a. d. 1881. John Dob. [L. S.] Signed, etc. [Three witnesses.] 500 testamentary forms — appendix i Unattested Paper Boston, August 11, 1881. Whereas in and by my last will and testament, dated August 10, 1881, I gave all my property to my wife, Mary Doe, I now desire to ex- Request J . , , press my wishes as to her management and disposition of the same, with which wishes I trust she will comply, though they have no legal validity or force. If it becomes necessary for her, or if she deems it advisable, to reinvest any of the property given her by my will, I desire that she shall seek only those investments which yield low rates of interest, and which are consequently safe and reliable. I have made no provision for my children in my will, because I desire my wife to have the sole con- trol and enjoyment of my property during her life. I desire my wife to assist either or both of my chil- dren, if they are at any time in affliction or suffering, using only her income for that purpose; but I do not desire her to lend them money in any way whatever, not even if the safest security is offered; or to sign or indorse for their benefit any bill of exchange, draft, promissory note, bond, or other obligation, to the end that she may enjoy during life, without hazard or restraint, the entire property given her by my will. If she desires to dispose of her property by will, I trust that she will not show any preference in her bequests to the children; and if either dies before FORMS OF WILLS 501 her, leaving issue, I hope that she will give to such issue the share which she would have given to the parent if living. John Doe. FORM III Will of an Unmarried Man A certain building and real estate given to a nephew, with provision that he shall assume any mortgage or mortgages thereon. The business there carried on, together with the good-will of the same, and the plant, machinery, fixtures, etc., also given to him, with provision that the business debts shall be paid out of the general estate. Summer residence given to a sister for life, with vested remainder to her children living at the date of the will. Household effects in said residence given to the sister absolutely. A friend appointed executor and given a legacy as a mark of personal regard; but, in the event of his death before the tes- tator, the legacy to go to his children. Residue given to two other nephews and the survivor of them. This is the last will of me, John Brown, of Boston, in the County of Suffolk and Commonwealth of Massachusetts. After the payment of my just debts and funeral expenses, I give, devise, and bequeath as follows, viz. : First. I give and devise unto my nephew, John Smith, who has been many years in my employ, and to his heirs and assigns forever, the lot of . UGV1SG land containing about three thousand square feet, and the building thereon, situated in said Boston, on the northeast corner of Wing and Winthrop Streets; for a more particular description 502 TESTAMENTAET FORMS — APPENDIX I of which reference may be had to the deed of con- veyance of said land to me from X. Y., dated June 13, 1869, and recorded in Suffolk County Registry of Deeds, Book 6,004, page 211. But if, at the time of my decease, said lot of land is subject to Mortgage ' . ' any mortgage or mortgages given to secure any debt or debts contracted by me, my said nephew shall assume said debt or debts and the mortgage or mortgages given as security therefor, and shall not be entitled to have the same paid out of my personal estate. And I give and bequeath unto my said nephew the business of box manufacturing carried on by Bequest of m e in said building, including the plant, business machinery, fixtures, utensils, stock in trade, book-debts, good-will, and effects of every nature and description connected therewith. But, of course, all debts and obligations incurred by me in relation to said business, which may be outstanding at the time of my decease, are not to be assumed by my said nephew or discharged out of said stock in trade, but are, like other debts, to be paid out of my general estate. Second. I give and devise unto my sister, M. N., wife of O. P., of Boston, for and during the term of her natural life, my summer resi- Life estate ' J dence at Lynn, m the County of Essex, including the entire premises connected therewith, all of which are situated on the east side of Pacific Avenue, and are fully described in the devise of the same to me in the will of my father, David Brown, FORMS OF WILLS 503 dated January 10, 1858, and proved in the Probate Court for the County of Suffolk, May 2, 1865. After the decease of my said sister, I give and devise said residence and the premises connected there- „ . . ... . Remainder with m fee-simple to the children of my said sister, M. N., now living, i. e., at the date of this will; and I intentionally exclude from any inter- est whatever in this devise in remainder any and all children born to my said sister from and after the date of this will. I give and bequeath unto my said sister, A. B., absolutely, all the household furniture and „ . „ . Furniture effects which may be in said residence at the time of my decease. Third. I constitute and appoint my friend, Thomas Blank, the executor of this my last will, and I give and bequeath unto him, as a „ _ , i,, , ^ Executor mark of personal regard, the sum of One Thousand Dollars. I direct that this legacy of One Thousand Dollars shall be paid to him even if for any reason he fails to qualify as executor in the Probate Court. If, however, the said Thomas Blank shall die before me, then I give and bequeath the said sum of One Thousand Dollars to the children of the said Thomas living at the time of my decease, to be equally divided among them. Fourth. All the rest, residue, and remainder of my estate, both real and personal, of which I shall die seized and possessed, and to which I shall be in any way entitled at the time of my decease, I give, devise, and bequeath to my nephews, 504 TESTAMENTAEY FORMS — APPENDIX I William Smith and Joseph Smith, as tenants in common, and to their heirs and assigns forever. But if either the said William or Joseph, or both of them, shall die before me, leaving issue living at the time of my decease, then I give and devise the Tenants in parent's share of said rest, residue, and common remainder to said issue, to take by right of representation; and, in default of such issue, I give and devise the same to the survivor of said William and Joseph; and if both the said William and Joseph shall die before me, only one of them leaving issue living at the time of my decease, I give and devise the entire rest, residue, and remainder to such issue. In testimony whereof, I, the said John Brown, have set my hand and seal to this my last will and testament, written upon five sheets of paper, upon each one of which sheets I have also written my name, in the City of Boston, in the Commonwealth of Massachusetts, this fourth day of January, in the year of our Lord one thousand eight hundred and seventy-eight. John Bkown. [L. S.} Signed, etc. A. B., 450 Lincoln Street, Boston. C. D., 311 West Washington Street, Boston. E. F., 109 North William Street, Boston. FORMS OP WILLS 505 FORM IV Will of a Married Man Pecuniary legacies given to sons. Daughter given a legacy of a smaller amount, because she was provided for at the time of her marriage. Residue given to wife, who is made executrix, without giving a surety or sureties on her bond; and she is cautioned not to give a bond to pay debts and legacies. She is authorized as executrix to sell both real and personal estate, and purchaser is not required to see to the application of the purchase-money. Agreement in copartnership articles as to disposition of testa- tor's interest in said copartnership referred to, and executrix authorized to fully carry out the same. Provision made that the executrix shall not pay legacies till twenty-eight months after the testator's death. This is the last will of me, A. B., of, etc. After the payment of my just debts and funeral expenses, I give, devise, and bequeath as follows, viz. : First. I revoke all wills by me at any _ Revocation time heretofore made. Second. I give and bequeath unto each of my two sons [names] the sum of Twenty Thousand ■Legacies Dollars. Third. I give and bequeath unto my daughter [name], wife of [name], the sum of Fifteen , L ■" L ' , Legacy Thousand Dollars; and I thus provide for her less liberally than for my above-named sons, because I gave her at the time of her marriage the sum of Five Thousand Dollars, with which Reasons to purchase a wedding outfit and establish for pref- ere nee her in her home. Fourth. I give, devise, and bequeath unto my 506 TESTAMENTARY FORMS — APPENDIX I wife [name], and to her heirs arid assigns forever, all Residue the rest, residue, and remainder of my to wife property, both real and personal; and I constitute and appoint her the executrix of this my last will, and request the judge of probate not to require a surety or sureties upon her offi- Executnx . . cial bond. I particularly caution my said executrix to give a regular bond, and not one to pay debts and legacies; so that in the event of a defi- Suggestion ciency of assets (a result, however, which as to bond j ( j no ^ a pp re hend) she will not be per- sonally held upon her obligation. And I authorize and empower her, as said executrix, if in the settle- Power ment of my estate she deems it advisable, of sale {. ge jj koth rea j ^j p ersona i estate by public auction or by private sale, and execute and deliver such deeds and other instruments of transfer as may be necessary and proper; but no purchaser shall be required to see to the application of the purchase-money. Fifth. Whereas, by my articles of copartnership, dated the third day of October, 1864, I covenanted interest in and agreed with my partner [name], that partnership $ gai( j p artne rship existed at the time of my decease, my executrix should offer to him my entire interest in said partnership at a price agreed upon and set forth in said articles of copartnership, as will more particularly appear by reference thereto, now I hereby request and direct my said executrix to carry out said agreement in every particular as soon as can be conveniently done after she receives POBMS OF WILLS 507 her letters of administration, and to that end I confer upon her, as said executrix, every power and author- ity which I should possess if living. Sixth. Whereas my relations with business men and also with various corporations are such as to require the indorsement of my name upon Legacies i , not to be various promissory notes and other com- paid for mercial obligations, I hereby request, and ^^' direct my said executrix not to pay the months above-named legacies to my said sons and daughter in full directly after the payment of my debts, but to wait a sufficient time, not to exceed twenty-eight months from the day of the probate of this will, until said notes or other obligations are paid and discharged, and my estate is no longer liable thereupon. But at any time within said twenty-eight months and before my estate is entirely free from liability as aforesaid, my said executrix may, if Partial she thinks it advisable, make small ad- p 3 *™ 61 * 8 vancements of money, or convey other property to a small amount, to my sons and daughter above named; and such advancements and conveyances are to be regarded as proportional payments of the legacies given to them by this will, and they are to receive and receipt for them as such. And my said sons and daughter are not to be entitled to any interest upon said legacies before the expiration of said twenty- eight months from the probate of this will; but after the expiration of said twenty-eight months they shall receive interest at the rate of five per cent, per annum 508 TESTAMENTARY FORMS — APPENDIX I upon so much of their legacies respectively as are then unpaid. In testimony whereof, Y. Z., of, etc., has, in my presence and by my express direction, and in the presence of the three subscribing witnesses, hereto signed my name and affixed my seal this tenth day of December, a. d. 1880. A. B., byY. Z. [L. S.] The following alterations, viz., the erasure of and the interlineation of in the third line on the second page, and the entire obliteration of the eleventh line on the fifth page, were made before signing. We, the undersigned, have attested the execution of the foregoing writing by Y. Z., of, etc., signing the name of A. B., of, etc., in his presence and by his express direction, and in the presence of us, together present at the same time; and we, in the presence of the said A. B., at his request, and in the presence of one another, hereto subscribe our names as witnesses. E.F. G. H. I.J. Codicil Will confirmed. Advancements made to sons to be deducted from their legacies, and advancements made to daughter, or to her husband, to be deducted from hers; but no interest to be claimed thereon. I, A. B., of, etc., make this codicil to my last will, dated 10th of December, a. d. 1880, hereby ratifying and confirming said will in all respects save as changed by this instrument. FORMS OF WILLS 509 Whereas by said will I gave to each of my two sons [names] a legacy of Twenty Thousand Dollars, I now order and direct, if at the time of Advances my decease I hold any promissory note or t0 sons notes against either of said sons, whether barred by the Statute of Limitations, or not, or have any claim or claims against either of them as may appear by book balance upon my ledger, that all such notes and claims shall be regarded as a portion of my estate, and shall be deducted from the respective legacies given to them by said will. And whereas by said will I gave to my daughter [name] a legacy of Fifteen Thousand. Dollars, I now order and direct that if at the time of my Advances decease I hold any such notes or have any t0 aug ter such claims against my said daughter or against her husband [name], such notes or claims shall also be regarded as a portion of my estate, and shall be deducted from the said legacy given to my said daughter by said will. But interest is not to be reckoned or claimed upon any of the notes or book-charges herein- before referred to. In testimony whereof I, A. B., of, etc. A. B. [L. S.] Signed, sealed, published and declared by the testator to be a codicil to his last will, in the presence of us, who, etc. E. F. K. L. M.N. 510 TESTAMENTARY FORMS — APPENDIX I FORM V Will of a Married Man Two appointed executors and trustees; not required to give sureties on their bonds. As executors, they or the survivor of them authorized to sell or mortgage real and personal estate. As trustees, they or the survivor of them authorized to sell, invest, and reinvest the trust estate, the wife's written consent having been first obtained. Purchasers from both ex- cutors and trustees not to see to the application of the purchase- money, and all persons taking receipts exempted from liability. Household furniture, horses, carriages, etc., given to wife out- right. All provisions for wife to be in lieu of dower. Legacy of one thousand dollars given to the executors and trus- tees or to the survivor of them. Homestead estate given to the trustees to permit wife to occupy during life, with provision as to sale and purchase of another residence, if wife in writing so directs, and also as to rebuild- ing, in case of destruction by fire. Power of appointment by will given to wife, in default of which the estate, or the one purchased in lieu thereof, to go to the residuary legatee. One hundred thousand dollars given to the trustees or to the survivor of them, to pay the net income to testator's wife for life, and, after her decease, to convey the same, discharged of all trust, to the residuary legatee. Executors directed to purchase annuity upon the life of the testator's aunt. Specific legacy given to a brother, not to be exonerated from incumbrances. Remainder, whether vested or contingent, given to a sister of the testator. Note of a debtor of the testator to be given up to him. Legacy given to a creditor in satisfaction of a note. Residue given to a son of the testator. Provision made as to marshalling of assets, in case the estate proves insufficient to pay debts and all the legacies. Know all Men by these Presents: That I, A. B., of, etc., being of sound and dis- posing mind and memory, do make this my last will FORMS OF "WILLS 511 and testament, revoking all wills by me at any time heretofore made. After the payment of my just debts and funeral expenses, I give, devise, and bequeath as follows, viz. : First. I constitute and appoint [name] and [name], the executors of, and the trustees under, this will, and I direct that they be exempt from „ ' r Executors giving a surety or sureties upon their offi- and cial bonds, both as said trustees and exec- utors. I authorize and empower them, as such ex- ecutors or the survivor of them, their or his heirs, executors, and administrators, if, in the settlement of my estate, they deem it advisable, to p sell or mortgage both real and personal sell or estate, by public auction or by private sale, and to execute and deliver all deeds, instru- ments, and writings necessary to transfer a proper title thereto. I authorize and direct them, as said trustees or the survivor of them, their or his heirs, executors, and administrators, to invest and reinvest the trust estate given to them by article invest- " fifth " of this will, either in sound securi- ments ties which pay a low rate of interest, or in productive real estate of undisputed title; and to this end I give them, as such trustees or the survivor of them, their or his heirs, executors, and administrators, — the consent in writing thereto of my wife, named below, having been first obtained, — full power and author- ity to sell both real and personal estate, by public auction or by private sale, and to sign and deliver all instruments of transfer which may be legally nee- 512 TESTAMENTARY FORMS — APPENDIX I •essary and proper. I direct that the purchasers, at , ,..,.. any such sales, from both my said execu- Application J ' ~ of purchase- tors and trustees, or the survivor of them, shall not be required to see to the applica- tion of the purchase-money; and I also direct and declare that the receipts of both my said executors and trustees to all persons whatsoever, for all moneys, securities, or effects paid or delivered to Receipts such trustees or executors, shall exonerate the persons taking the same from liability to see to the application of the moneys, securities, or effects therein mentioned. Second. I give and bequeath unto my wife [name] absolutely all the carriages and carriage horses, with Carriages *k e harnesses and other appendages be- movable longing thereto, of which I shall die pos- effects, fur- . niture, etc., sessed; also all the implements, stock of hay, corn, and straw, and other movable effects which shall be used in or about my stable at the time of my decease; also the gardening implements and other portable effects which shall be used in or about my gardens and grounds at the time of my decease. I also give and bequeath unto my said wife all the fur- niture, linen, plate, china, glass, books, prints, pictures, wines, liquors, fuel, consumable provisions, and other household effects which shall, at my decease, be in or about my homestead residence hereinafter referred to. I declare that the provisions for my said wife in in lieu of this will shall be in lieu of all claims, in- dower eluding dower, which she would have had upon my estate had I died intestate. FORMS OF WILLS 513 Third. I give and bequeath One Thousand Dollars unto my said executors and trustees, as a mark of personal esteem, to be equally divided B 1 1 between them. In the event of the death executors of either of them before me, I give and trustees devise the same to the survivor. Fourth. I give and devise my homestead estate [described] to my said trustees or the survivor of them, their or his heirs, executors, and ad- Homestead ministrators, to be held by them upon the estate following trusts, viz.: to permit my said wife to use and occupy the same for and during the term of her natural life, they applying from the income of the property given them in trust by article "fifth" of this will an amount sufficient to pay all ordinary taxes upon the premises, all necessary re- pairs, and the premium for ample insurance upon the buildings; to sell the said homestead estate when- ever my said wife shall in writing so request, and from the proceeds purchase a lot of land, with house, for my said wife to occupy, and stable, if necessary, adding the surplus, if any, to the principal of the trust estate given to them by said article "fifth;" in case said house or other buildings is wholly or par- tially destroyed by fire, to rebuild the same with the proceeds of the insurance money, or purchase or build a house and other buildings, as my said wife shall in writing direct, adding the surplus, if any, to the principal of the trust estate given to them by said article "fifth;" and, upon the decease of my said wife, to convey said homestead, or the estate 514 TESTAMENTARY FORMS — APPENDIX I purchased in lieu thereof, discharged of all trust, to any person or persons, corporation, society or asso- ciation, whom or which my said wife shall by her last will name and appoint; and in default of such appointment to convey the same to my son [name], mentioned below, as my residuary legatee. Fifth. I direct my said executors, or the survivor of them, as soon as convenient after my decease, to Trust set apart to themselves, as trustees, prop- tor wife erty t0 t]ie value of o n e Hundred Thou- sand Dollars, and to reinvest the same from time to time, if necessary, as directed by article "first" of this will; to pay the income arising therefrom, after deducting an amount sufficient to meet all contin- gent expenses, including those referred to above in article "fourth," to my said wife, every three months, or oftener if they shall think fit; and upon her decease to convey and transfer the entire principal sum with accumulations, if any, discharged of all trust, to my son [name], mentioned below as my residuary legatee. Sixth. I give to my said executors, or to the sur- vivor of them, the sum of Three Thousand Dollars, Le ac for w ^ a which I direct them to purchase from purchase of the Columbia Trust Company of, etc., at annuity the expiration of a year from the day of the probate of this will, an annuity upon the life of my aunt [name], according to the provisions of its charter and the terms adopted by its directors upon which it will undertake such trusts. I mean by an annuity upon her life one whereby the said company shall pay to my said aunt a large income during her POKMS OF WILLS 515 life, and, upon her decease, shall become absolutely entitled to the principal sum of Three Thousand Dollars with accumulations, if any. Seventh. I give and bequeath unto my brother [name], as a specific legacy, two one-thousand-dollar first-mortgage bonds of the Kentucky Cen- Specific tral Railroad, numbered 2018 and 2019 JSS^"" 1 respectively; and if, at the time of my toe™ * decease, either or both of said bonds are pledged for any debt or debts contracted by me, the said [name] shall take the same subject to such incum- brance thereon, and shall not be entitled to have said debt or debts paid out of my personal estate. Eighth. Whereas [name], by his last will dated, etc., and proved, etc., gave certain real estate therein described to [name] for life, and after his Devise of decease to myself and others in fee, dis- remamder charged of all trust, now I give, devise, and bequeath all my right, title, and interest therein and thereto, whether the same is a vested or a contingent re- mainder, or has become, by the death of the life tenant, an estate in possession, to my sister [name], and to her heirs and assigns forever. Ninth. I release [name] from all liability to me for and upon the debt which he owes me represented by his note to me for one thousand dollars, Release of dated, etc., payable five years after date, debtor or so much thereof as shall be owing at my death, and all interest and arrears thereon down to and including the day of my death; and I direct my said executors or the survivor of them to cancel and 516 TESTAMENTARY FORMS — APPENDIX I deliver the said note to the said [name], or, in the event of his death before me, to his executors or administrators. Tenth. I give and bequeath unto [name] the sum of Eight Hundred Dollars in full satisfaction of my Legacy to note of Four Hundred Dollars to him, creditor dated, etc., payable, etc., and all interest which may be due thereon when this legacy is paid; and I direct my said executors or the survivor of them to pay said legacy to said [name], only upon the condition that said note shall be cancelled by the said [name] or his legal representatives, and given up to my said executors or the survivor of them. Eleventh. I give, devise, and bequeath unto my son [name], and to his heirs and assigns forever, all „ .. the rest, residue, and remainder of my Residue ' ' J property, both real and personal, of which I shall die seized and possessed, and to which I shall be entitled at the time of my decease. Twelfth. If the residue given to my said son by the preceding article "eleventh" shall prove in- Provision sufficient for the payment of my debts as to and the legacies hereinbefore bequeathed, then I direct my said executors or the sur- vivor of them to apply my assets, after all debts have been paid, first, to the payment in full of the bequests to my wife of the homestead estate and One Hundred Thousand Dollars in trust, and of the car- riages, household furniture, etc., given to her out- right; second, to the payment in full of the specific- legacy to my brother given by article "seventh,'" FORMS OF WILLS 517 and the legacy in satisfaction of my note given by article "tenth;" "and, third, to the payment of such proportion of the other legacies as the balance divided pro rata shall be sufficient for. In testimony whereof, etc. [Signature and seal.]' [Attestation clause and three witnesses.] FORM VI Will of a Married Woman Husband appointed executor with power of sale; not required to give sureties on bond. Wearing apparel and household furniture given to a sister. Trust estate over which the testatrix has power of appointment given to her son. Ten thousand dollars which the executor is directed to receive from a trust company given to testatrix's daughter. Certain bonds given to the husband in trust, with power to change the securities and apply the net income for the main- tenance and support of testatrix's minor daughter. The bonds or property purchased in lieu thereof to be hers on arriving at twenty-one, or, in case of her death before that time^ to go to the son mentioned in article "third." Residue, if any, given to the testatrix's husband. All provisions for husband to be in lieu of curtesy. This is the last will of me, A. B., of, etc., wife of C. D., etc. After the payment of my just debts and funeral expenses, I direct that my property shall be dis- posed of in accordance with the following direc- tions, viz.: 518 TESTAMENTARY POEMS — APPENDIX I First. I appoint my husband, C. D., the executor of this will, and I release him from giving Executor . a surety or sureties upon his official bond. I authorize him to sell real or personal estate by private sale or by public auction, if he deems it Power advisable for the payment of debts and of sale legacies, and to convey the same by proper deeds of conveyance. w . Second. I give and bequeath my entire apparel, wearing apparel and household furniture to my sister [name]. Third. Whereas my father [name], in and by his last will, dated June 3, 1849, and proved in the Execution Probate Court for the County of, etc., of appoint- April 3, 1857, gave to certain trustees ment therein named and their successors in trust the sum of Twenty Thousand Dollars, the net income to be paid to me during my life, and the principal, with its accumulations, if any, to be paid over and transferred at the time of my decease, dis- charged of all trust, to such person or persons as I might by any instrument in writing designate and appoint, now, in the exercise of the said power and of every other power now or at the time of my decease me hereunto enabling, I do hereby give, devise, and bequeath the said principal sum of Twenty Thousand Dollars, with accumulations, if any, to my son [name], and to his heirs and assigns forever. Fourth. I direct my said executor to receive from the Winthrop Trust and Loan Company of, etc., the FORMS OF WILLS 519 sum of Ten Thousand Dollars, and all interest and accumulations thereon, or the real estate, Bequest of stocks, notes, bonds, and mortgages in lieu Sounder of said sum, with interest and accumu- mdenture lations, which by the terms of a contract in writing between said company and my uncle [name], executed the second day of February, 1847, the said company agrees to assign, transfer, and pay to my executors or administrators in sixty days after proof of my decease. And I give, devise, and bequeath, and direct my said executor to pay and deliver, said principal sum of Ten Thousand Dollars, with inter- est and accumulations, if any or the real estate, stocks, notes, bonds, and mortgages in lieu thereof, to my daughter [name], and to her heirs and assigns forever. Fifth. I give and bequeath unto my daughter [name], provided she is twenty-one years of age or over at the time of my decease, fifteen one- specific thousand-dollar first-mortgage six per cent. be( i uest bonds of the Penobscot Railroad Company, num- bered 1018 to 1032 inclusive. If, however, she is under twenty-one years of age at the time of my decease, then I give and bequeath said Trugt bonds to my said husband, C. D., but in trust, nevertheless, to be managed by him in accord- ance with the following instructions; I direct him from time to time to pay over the net income arising from said I bonds to my said daughter Application [name], or apply the same as he shall think of mcome fit, for her personal maintenance and support, or 520 TESTAMENTARY FORMS — APPENDIX I otherwise for her personal benefit, or pay the same or such part thereof as he shall think fit to any person or persons to be so applied, without liability on the part of my said trustee to inquire into the application thereof. If my said trustee, for any reason, shall regard said bonds as an insecure investment, I authorize him Change of to sell the same and purchase other secur- mvestment ^i es ^ jj eu thereof, applying and disposing of the net income arising therefrom as he is directed to apply and dispose of the income derived from said bonds. If my said daughter shall die before arriving at the age of twenty-one years, then I give and be- queath said bonds, or the securities purchased in Termina- lieu thereof, discharged of all trust, to my tion of trust gon [ name j ) mentioned in article "third" of this will. But if my said daughter shall reach the age of twenty-one years, then I direct my said trus- tee to deliver to her said bonds, or the securities purchased in lieu thereof, and the same shall be her own absolute property and estate discharged of all trust. Sixth. The rest, residue, and remainder of my property, if any, both real and personal, I give, de- Residue to vise, and bequeath to my said husband, husband q -q^ an( j ^ ^ ^ehs an( j ass ig ns forever; and I declare that the provisions for him in this will shall be in heu of all claims, including curtesy, which he would have had upon my estate had I died intestate. In testimony whereof I have hereunto set my FORMS OF WILLS 521 hand and seal this fifth day of May, A. d. 1884. [Signature and seal.] [Attestation clause and witnesses.] FORM VII Will of an Unmarried Man 1 Two appointed executors and trustees, and all executors and trustees, whether original or substituted, exempt from giving a surety or sureties upon their bonds. Power to sell given to executors. Power to sell and vary securi- ties given to trustees. Purchasers from both executors and trustees not required to see to the application of the purchase- money, and those taking receipts exonerated from liability. Trustees directed to keep the funds and accounts of the various trust estates separate and distinct. The net income of ten thousand dollars given to brother during life, but not to be alienable or liable to be taken by his cred- itors. Trustees authorized to pay him only a part of the in- come, to withhold the same entirely, or to apply the whole or any part thereof for the support and maintenance of his wife and children; and may add income to principal. Upon the death of the beneficiary, principal given to his wife, and, in the case of her decease, to her children. The net income of ten thousand dollars given to a sister, with provision as to termination of the trust, by instalments, upon arriving respectively at thirty and forty years of age. Upon her death, before the trust has fully terminated, the entire principal, with accumulations, then in the hands of trustees, given to her children. The net income of ten thousand dollars and a part of the prin- cipal, if necessary, to be applied for the clothing, board, etc., 1 The difference between this and the succeeding form should be carefully noted. It is assumed that the property disposed of by both wills is of the same amount. 522 TESTAMENTARY FORMS — APPENDIX I of an aunt. Upon her death, expenses of last sickness and funeral expenses to be paid from the principal, the balance of which to go to an educational institution. The net income of ten thousand dollars to be paid to a friend, with power to terminate the trust in his favor at any time in the exercise of a reasonable discretion. If trust not so ter- minated, principal, upon the death of the beneficiary, to go to his children. Net income of the residue given to two brothers during their joint lives, and, upon the death of either, to the survivor during his life. Upon the death of such survivor, principal given to nephews. Number of executors and trustees to remain two, and the words "my executors," "my said executors," and "my trustees," "my said trustees," to include executors or trustees for the time being, whether original or substituted. This is the last will of me, A. B., of, etc. After the payment of my just debts and funeral ex- penses, I give, devise, and bequeath as follows, viz. : First. I constitute and appoint [name] and [name] the executors of, and the trustees under, this my Executors ^ist w ^» an( * ^ exempt all executors of, and and trustees under, this will, whether orig- trustees . . mal or substituted, from giving a surety or sureties upon the bonds required of them as said _ . executors and trustees. By substituted Bonds J executors are meant, of course, adminis- trators with the will annexed. I authorize my said executors to sell both real and personal estate by private sale or by public auction, Power of for the payment of debts and for the pur- s e pose of investing the trust estates herein- after created, and to execute and deliver such deeds of conveyance or other instruments of transfer as may be necessary to pass a proper title to the same. FORMS OF WILLS 523 I authorize my said trustees from time to time to invest and reinvest the various trust estates herein- after bequeathed to them, if in their judg- invest- ment they deem it advisable, always pur- ™hw| s t° chasing sound securities which pay a low ments rate of interest, or other reliable property, real or personal; and to this end I empower them to sell real and personal estate, either by public auction or by private sale, and to execute such instruments as may be necessary to transfer the title thereto. But no purchaser from my said executors or Applica- trustees shall see to the application of the p ^ C hase- purchase-money, and the receipts of my mone y said executors and trustees for all moneys and effects paid or delivered to them by virtue of this will shall exonerate the persons taking the same from . all liability to see to the application or disposition of the money or effects therein mentioned. I direct my said trustees to keep the funds of the several trust estates created by this will ge Mat separate and distinct, and I enjoin upon trust them a similar caution in regard to keeping their accounts of the same. Second. I give and bequeath to my said trustees the sum of Ten Thousand Dollars in trust, to invest the same as above directed, and, after _ ; ' Trust deducting an amount sufficient to meet all contingent expenses, to pay over the balance of the income once every quarter, or oftener if they shall deem advisable, to my brother [name] during his natural life. I direct that said income shall not be 524 TESTAMENTARY FORMS — APPENDIX I alienable by my said brother [name], either by assign- AUenation, ment or by any other method, and that etc " the same shall not be subject to be taken by his creditors by any legal process whatever; nor shall the same pass in any event to his assignee or trustee under any trust deed that may be executed by him or under any insolvent or bankrupt law, state or national. I authorize my said trustees, in Dis osi- their discretion, to pay only such part of tion of said income to my said brother [name] as my said trustees may deem sufficient for his use and benefit, or to entirely withhold such income from him, expending the whole or any part thereof, as they may deem advisable, for the support and maintenance of his present wife [name] and chil- dren, or in case of her decease before my said brother, for the support and maintenance of the children alone. If at the expiration of every year beginning Accumuia- with a year from the day of my decease taon there is in the hands of my said trustees a balance of income which they do not propose to pay over to my said brother, or to expend for the support and maintenance of his wife and children, then I direct them to add the same to the principal sum of Ten Thousand Dollars; and the income of all sums added to the principal is, of course, to be disposed of as the income of the original principal to which Termina- ^ e sums have been added. Upon the tion of decease of my said brother I give and be- trust queath said principal sum of Ten Thousand Dollars, with all its accumulations, if any, discharged FORMS OF WILLS 525 of all trust, to [name], the said present wife of my said brother, and, if she shall have deceased, then to her children by my said brother living at the time of his decease, to be equally divided among them. Third. I give and bequeath to my said trustees the sum of Ten Thousand Dollars in trust, with all powers of investment and reinvestment _ . Trust given above, and I direct them to pay the net income thereof annually, or as much oftener as they may deem best, to my sister [name], wife of [name], during the continuance of this trust, as here- inafter provided. I direct my said trustees to pay over and deliver to her, when she arrives at the age of thirty years, one half of said principal Termiaa . sum of Ten Thousand Dollars, with its ac- tion by in- cumulations, if any, discharged of all trust, and after paying to her the net income of the other half till she arrives at the age of forty years, then to pay over and deliver to her the remaining half, with its accumulations, if any, discharged of all trust. In the event of the death of my said sister before this trust has fully terminated, I direct my said trus- tees to pay over and deliver all or so much of the principal sum of Ten Thousand Dollars, with its accumulations, if any, as may be in their possession, discharged of all trust, to the children of my said sister living at the time of her decease, to be equally divided among them. Fourth. I give and bequeath to my said trustees the sum of Ten Thousand Dollars in trust, with all powers of investment and reinvestment given above, 526 TESTAMENTARY FORMS — APPENDIX I and I direct them to apply the net income thereof to _ .. or for the clothing, board, lodging, main- support, tenance, and support, or otherwise for the personal and peculiar benefit of my aunt [name], during her life, at such time or times, in such portions and in such manner in all respects, as my trustees shall think most conducive for her comfort and convenience, with full power to expend a part of the principal for any or all of those purposes, if, in their judgment, the net income shall prove insuffi- cient therefor. After the decease of my said aunt I order the following disposition of what remains of the said principal sum of Ten Thousand Dollars. I Termina- direct my said trustees to pay the expenses boa of the last sickness and the funeral ex- penses of my said aunt therefrom, and then to pay over and transfer the balance, if any, discharged of all trust, to the Trustees of the Massachusetts Acad- emy of said Boston, to be expended for the benefit of said Academy, agreeably to the provisions of its charter and by-laws. Fifth. I give and bequeath to my said trustees the sum of Ten Thousand Dollars in trust, to invest _ the same as above directed, and to pay Trust ' * J over the net income arising therefrom semi- annually, or oftener, as they may deem proper, to my friend [name], during his natural life, or so long as this trust may continue, as provided below. I au- thorize my said trustees, in the exercise of a reason- able discretion, to terminate this trust at any time during the life of the said [name], by paying and "forms op wills 527 delivering to him the principal sum of Ten Thousand Dollars, with its accumulations, if any, discharged of all trust; but if they do not Hon by deem it advisable to terminate the same r S at e death during the life of said [name], then I author- ° f . bene " ize my said trustees, upon the death of the said [name], to pay over and deliver said principal sum, with its accumulations, if any, discharged of all trust, to his children and the issue of any deceased child by right of representation. Sixth. I give and bequeath all the rest, residue, and remainder of my property, both real and per- sonal, to my said trustees, to invest the Residue same as above directed, and to pay the mtmst net income thereof semi-annually, or as much oftener as they may deem best, to my brothers [name] and [name], equally, during their joint lives, and, upon the death of either, to the survivor during his life. Upon the death of such survivor I direct my said trustees to pay over and deliver the entire Termina- principal sum formed by the conversion of bon said residue into proper investments with its accumu- lations, if any, discharged of all trust, to my three nephews, C. D., E. F., and G. H., to be equally divided among them. Seventh. I declare that the number of my execu- tors of this will, and of my trustees for every trust created under this will, shall remain two, Number of so long as there are any duties to be dis- ^d U01 charged by said executors and trustees; *™ stees and I also declare that the words "my executors," 528 TESTAMENTARY FORMS — APPENDIX I "my said executors," and "my trustees," "my said trustees," wherever hereinbefore occurring, shall be construed and taken to mean the executors or trustees for the time being, whether original or substituted. In testimony whereof, etc. [Signature and seal] [Attestation clause and witnesses.] FORM VIII Will of an Unmarried Man Two appointed executors and trustees; and all executors and trustees, whether original or substituted, exempt from giving a surety or sureties upon their bonds. Power to sell given to executors. Entire estate to be trans- ferred to trustees as soon as convenient and practicable after the testator's decease. Power to invest and reinvest given to trustees. Purchasers from both executors and trustees not required to see to the application of the purchase-money, and those taking receipts exonerated from liability. An annuity of four hundred dollars given to brother during life, but not to be alienable or liable to be taken by his creditors. Trustees authorized to pay him only a part of the income; to withhold the same entirely, or to apply the whole or any part thereof for the support and maintenance of his wife and chil- dren. Upon his decease, ten thousand dollars, discharged of all trust, to be paid to the wife, and, in the event of her decease, to her children. An annuity of four hundred dollars given to a sister until thirty, when five thousand dollars is to be paid to her, discharged of all trust. An annuity of two hundred dollars given to her until forty, when another five thousand dollars is to be paid to her, discharged of all trust. If she dies under thirty, ten thousand dollars to be paid to her children; if over thirty and under forty, five thousand dollars to be paid to them. * FORMS OF WILLS 529 Trustees directed to apply four hundred dollars per annum for the clothing, board, etc., of an aunt. Upon her death, ex- penses of last sickness and funeral expenses to be paid from ten thousand dollars of the principal, and the balance thereof to go to educational institution. An annuity of four hundred dollars to be paid to a friend. Trus- tees authorized to discontinue its payment at any time, and to pay to him ten thousand dollars from the principal; if they do not conclude so to do, authorized, upon the death of the beneficiary, to pay ten thousand dollars from the principal to his children. Net income of the residue given to two brothers during their joint lives, and upon the death of either, to the survivor during his life. Upon the death of such survivor, principal given to nephews. If, however, the trust is not then entirely terminated as to the other beneficiaries and remainder-men, the income to be added to the principal until such termination. Number of executors and trustees to remain two, and the words "my executors," "my said executors," and "my trustees," "my said trustees," to include executors or trustees for the time being, whether original or substituted. This is the last will of me, A. B., of, etc. After the payment of my just debts and funeral expenses, I give, devise, and bequeath as follows, viz. : First. I constitute and appoint [name] and [name] the executors of, and the trustees under, this my last will, and I exempt all executors of, and Executors trustees under, this will, whether original and trus- tees' bonds or substituted, from giving a surety or sureties upon the bonds required of them as said executors and trustees. By substituted executors are meant, of course, administrators with the will annexed. I authorize my said executors to sell both real and personal estate by private sale or by public auction, for the payment of debts and for the purpose of in- 530 TESTAMENTARY FORMS — APPENDIX I vesting the trust estate hereinafter created, and to „ * execute and deliver such deeds of con- Power of . sale to veyance or other instruments of transfer executors , , ,.,, as may be necessary to pass a proper title to the same. I direct my said executors, as soon as is convenient and practicable after my decease, to transfer my E to entire property, real and personal, remain- estate in ing after the payment of my debts, to themselves as trustees, and to manage the same according to the instructions hereinafter con- tained and set forth. I authorize my said trustees invest- from time to time to invest and reinvest ments ^e pri^pa] f the trust herein created, always purchasing sound securities which pay a low rate of interest, or other reliable property; and to this „ . end I empower them to sell real and per- Power of ^ r sale to sonal estate, either by public auction or by trustees . , private sale, and to execute such instru- ments as may be necessary to transfer the title thereto. But no purchaser from either my said A licatio executors or trustees shall see to the appli- of purchase- cation of the purchase-money, and the money . receipts of my said executors and trustees for all moneys and effects paid or delivered to them by virtue of this will shall exonerate the persons Re . taking the same from all liability to see to the application or disposition of the money or effects therein mentioned. Second. I direct my said trustees to pay from the income of the principal of the trust estate herein. FORMS OP WILLS 531 created an annuity of Four Hundred Dollars, in equal quarterly payments of One Hundred Dol- Annuity lars each, or oftener, if they shall deem advisable, to my brother [name], during his natural life. I direct that said annuity shall not be alienable by my said brother [name], either by assign- Alienation, ment or by any other method, and that the etc " same shall not be subject to be taken by his creditors by any legal process whatever; nor shall the same pass in any event to his assignee or trustee under any trust deed that may be executed by him or under any insolvent or bankrupt law, state or national. I authorize my said trustees, in their discretion, to pay only such part of said annuity to my M • t . said brother [name], as my said trustees nance and may deem sufficient for his use and benefit, or to entirely withhold such annuity from him, ex- pending the whole or any part thereof, as they may deem advisable, for the support and maintenance of his present wife [name] and children, or, in case of her decease before my said brother, for the support and maintenance of the children alone. If at the expiration of every year beginning with a year from the day of my decease there is in the hands Accumula- of my said trustees any of said annuity tion which they do not propose to pay over to my said brother, or to expend for the support and mainte- nance of his wife and children, then I direct them to add the same to the principal of this trust. Upon the decease of my said brother I direct my said trustees to pay over and deliver from the principal 532 TESTAMENTARY FORMS — APPENDIX I of the trust herein created Ten Thousand Dollars, _ discharged of all trust, to [name], the said Payment on death of present wife of my said brother, and, if she shall have deceased, then to her children by my said brother living at the time of his decease, to be equally divided among them. Third. I direct my said trustees to pay from the income of the principal of the trust estate herein created an annuity of Four Hundred Dol- Annuity lars annually, or as much oftener as they may deem best, to my sister [name], wife of [name], until she arrives at the age of thirty years; at which time I direct my said trustees to pay over and deliver p to her, from the principal of the trust herein from created, Five Thousand Dollars, discharged pnncip o j. ^ trus ^ Then I direct my said trustees to pay her an annuity of only Two Hundred in- stead of Four Hundred Dollars, annually, or as much oftener as they may deem best, until she arrives at the age of forty years; at which time I direct my said trustees from the said principal to pay over and de- liver to her the sum of Five Thousand Dollars, dis- charged of all trust. In the event of the death of my said sister under the age of thirty years, I direct my said trustees to discontinue the annuity of Four Hundred Dollars given to her above, and to pay over and deliver from the said principal the sum of Ten Thousand Dollars, discharged of all trust, to the children of my said sister [name] living at the time of her decease, to be equally divided among them; and in the event of her decease after arriving FORMS OF WILLS 533 at the age of thirty years and before attaining the age of forty years, I direct my said trustees to dis- continue the annuity of Two Hundred Dollars given to her above, and to pay over and deliver from the said principal the sum of Five Thousand Dollars, discharged of all trust, to the children of my said sister [name] living at the time of her decease, to be equally divided among them. Fourth. I direct my said trustees to apply from the income of the trust estate herein created Four Hundred Dollars per annum to or for the ,, . r Mainte- clothmg, board, lodging, maintenance, and nance and support, or otherwise for the personal and peculiar benefit of my aunt [name], during her life, at such time or times, in such portions and in such manner in all respects, as my trustees shall think most conducive for her comfort and convenience. Upon the decease of my said aunt I direct my said trustees to separate from the principal of this trust the sum of Ten Thousand Dollars; and, Payment after paying therefrom the expenses of the of P rmci P al last sickness and the funeral expenses of my said aunt, I direct them to pay over and deliver the bal- ance, discharged of all trust, to the Trustees of the Massachusetts Academy of said Boston, to be ex- pended for the benefit of said Academy agreeably to the provisions of its charter and by-laws. Fifth. I direct my said trustees to pay from the income of the principal of the trust estate herein created an annuity of Four Hun- dred Dollars, in equal quarterly payments of One 534 TESTAMENTARY FORMS — APPENDIX I Hundred Dollars each, or oftener, if they shall deem advisable, to my friend [name], during his natural life, or so long as they may deem advisable, as here- inafter provided. I authorize my said trustees, in Discretion the exercise of a reasonable discretion, to of trustees (jj scon tinue the payment of this annuity at any time during the life of the said [name], and to pay and deliver to the said [name], from the prin- cipal of the trust herein created, the sum of Ten Thousand Dollars, discharged of all trust; but if they do not deem it advisable to so discontinue the annuity and to pay to him the said sum of Ten Thousand Dollars, then I authorize my said trustees, Payment of upon the death of the said [name], to pay principal over and deliver the said sum of Ten Thousand Dollars, discharged of all trust, to his children and the issue of any deceased child by right of representation. Sixth. I give and bequeath all the rest, residue, and remainder of my property, both real and per- _ .. sonal, to my said trustees, to invest the Residue ' same as above directed, and to pay the net income thereof semi-annually, or as much oftener as they may deem best, to my brothers [name] and [name], equally, during their joint lives, and upon the death of either to the survivor during his life. Upon the death of such survivor I direct my said Termina- trustees to pay over and deliver the entire taon principal sum formed by the conversion of said residue into proper investments, with its accu- mulations, if any, discharged of all trust, to my three FORMS OF WILLS 535 nephews, C. D., E. F., and G. H., to be equally divided among them, provided the trust created by this will has terminated as to all the before-named beneficiaries and remainder-men. If the trust has not so terminated, I direct my said trustees to add the income to the principal until such termination, when I direct them to divide the same, discharged of all trust, among said nephews as directed above. 1 Seventh. I declare that the number of my execu- tors of, and of my trustees under, this will shall re- main two, so long as there are any duties Number of to be discharged by said executors and t™ 81 * 68 trustees; and I also declare that the words "my ex- ecutors," "my said executors," and "my trustees," "my said trustees," wherever hereinbefore occurring, shall be construed and taken to mean the executors or trustees for the time being, whether original or substituted. In testimony whereof, etc. [Signature and seal.] [Attestation clause and witnesses.] 1 It has been observed on page 521 that a trust somewhat similar to the above may be terminated by the distribution of a certain portion of the principal, upon the death of each beneficiary or at some specified time; but it will be noticed that under the above form the continuance of the payment of the residue of the income to some one, or its addition to the principal, is necessary, provided the survivor of the beneficiaries named in article "sixth" should decease before the termination of the trust as to all the before- named beneficiaries and remainder-men. 536 TESTAMENTARY FORMS — APPENDIX I FORM IX Will of a Married Man Two appointed executors and trustees with full power to sell. Purchasers not required to see to the application of the purchase-money. Entire estate given to trustees to pay the net income to the testator's wife, she bringing up the children to their satis- faction. If she fails so to do, they are authorized to apply a part of the income for that purpose. Upon death of wife before youngest child attains twenty-one, trustees directed to apply part of income for education, etc., of minor children, and to add balance to principal. When such youngest child attains twenty-one, the wife having deceased, or upon her decease after said child attains twenty- one, the trust to terminate, and the principal to be divided among the testator's children. The expressions "executors," "trustees," etc., to include both original and substituted executors and trustees. Know all Men by these. Presents: That I, A. B., of, etc., being of sound and dispos- ing mind and memory, do make this my last will and testament, revoking all wills by me at any time here- tofore made. After the payment of my just debts and funeral expenses, I declare that my property shall be disposed of as hereinafter directed. First. I constitute and appoint my friends [name] and [name] the executors of, and the trustees under, Executors ^is my ^ ast y "^> anC * * §* ve tnem > Dot ^ as and executors and trustees, full power and au- trustees thority to sell both real and personal estate by public auction or by private sale, and to convey POEMS OP WILLS 537 the same by such deeds or other instruments as may be necessary to transfer the legal title Powers of thereto. But no purchaser, either from my saie ' etc- said executors or trustees, shall be required to see to the application of the purchase-money. Second. I give, devise, and bequeath all my prop- erty and estate, both real and personal, wherever the same may be situated, to my before- Entire named trustees in trust, to be held and estate managed by them in accordance with the instructions hereinafter contained and set forth, to wit: I direct my said trustees to pay the entire net income thereof to my wife [name] during her life, she maintaining, educating, and bringing up, income to to the satisfaction of my said trustees, my wife ' etc " son or sons for the time being under the age of twenty- one years, and my daughter or daughters for the time being under that age not having been married. But if she shall fail so to do, I authorize my said trustees, in their discretion, to retain and Discretion appropriate for that purpose so much of oftmstees the said net income as they shall think expedient, and to pay the residue to my said wife for her own support and maintenance. Third. If my said wife shall die before my young- est child, whether a son, or a daughter not having been married, shall have reached the age Mainte . of twenty-one years, then I direct my said nance and trustees to apply so much of said net in- come as may, in their judgment, be necessary for 538 TESTAMENTARY FORMS — APPENDIX I the maintenance, education, and support of my said children under the age of twenty-one years, whether a son or sons, or a daughter or daughters not having been married, and to add the balance of said income to the principal fund. When such youngest child, whether a son, or a daughter not having been mar- Termina- ried, shall attain said age of twenty-one faon years, then I direct that this trust shall terminate; and I authorize my said trustees to divide the entire principal fund, with its accumulations, if any, discharged of all trust, equally among all my children then living (that is, at the time of my said wife's decease), the issue of any de- ceased child to take the parent's share by right of representation. Fourth. Upon the death of my said wife after the said youngest child, whether a son, or a daughter Tennina- not having been married, shall have at- bon tained the said. age of twenty-one years, then I likewise direct my said trustees to terminate this trust by dividing the entire principal fund, with its accumulations, if any, discharged of all trust, equally among all my children then living (that is, at the time of my said wife's decease), the issue of any deceased child to take the parent's share by right of representation. Fifth. I declare that the expressions, "executors," Meaning " my executors," "my said executors," and ofexecu- "trustees," "my trustees," "my said tors, etc. hi ■ trustees, wherever occurring m this will, shall be construed to mean, the executors or execu- FORMS OF WILLS 539 tor and the trustees or trustee for the time being, whether original or substituted. In testimony whereof, etc. [Signature and seal.] [Attestation clause and witnesses.] FORM X Will of an Unmarried Man Executor appointed, released from giving sureties on his bond, and given full power to sell real and personal estate. All property remaining after payment of debts and charges of administration given to three trustees to expend the income for charitable purposes. Power to invest and reinvest given to trustees. Provision made as to perpetual succession of trustees, and all substituted trustees to have all the powers and authorities of the original trustees. Know all Men by these Presents: That I, A. B., of, etc., do make my last will and testament, revoking all wills by me at any time here- tofore made : First. I constitute and appoint [name] the execu- tor of this will, and request that he be exempt from giving a surety or sureties upon his official Executor, bond. I give my said executor or his sue- etc " cessor full power and authority to sell both real and personal estate by public auction or by private sale, and to convey , the same by proper deeds of conveyance. 540 TESTAMENTAKY FORMS — APPENDIX I Second. All my property, both real and personal, remaining after the payment of my debts and the charges of administration, I give, devise, estate and bequeath to [three names] and their successors in trust, to hold and invest the same, and dispose of the income thereof as herein- after directed. Third. I give my said trustees power to invest and reinvest the principal of this trust from time Power of to time as they may think fit, always, sale however, seeking investments which yield a small income, and are consequently safe and reliable. Fourth. I direct my said trustees to appropriate the net income of the principal of the trust created income for by article "second" of this will to the fur- charities therance and promotion of the cause of piety and good morals, the general relief of the poor, either through public institutions or through alms- giving by the agency of individuals, or for the education of deserving youths; and I give my said trustees full power and discretion to appropriate and expend said income in such manner as in their judgment may best promote the objects before mentioned. Fifth. If my said trustees, or any of them, or any future trustees or trustee hereof, shall die, either Succession before or after their or his acceptance of o trustees ^g trust herein created, go to reside abroad, desire to be discharged from, renounce, decline, or become incapable or unfit to act in the FOKMS OF WILLS 541 said trust, then, and in every or any such cases, and so often as the same shall happen, I direct the trustees or trustee for the time being competent to act (whether desirous of being discharged or not), or, if there shall not be any trustee, the Judge of Probate for the County of, etc., in his individual and not in his official capacity, by any writing or writings under their or his hands or hand, attested by two or more witnesses, to nominate and substitute any person or persons to be trustee or trustees hereof in the place of the trustee or trustees so dying, going to reside abroad, desiring to be discharged, renouncing, de- clining, or becoming incapable or unfit to act as aforesaid. Every new trustee to be from time to time appointed as aforesaid shall thenceforth be com- petent in all things to act in the execution of the trusts hereof as fully and effectually, and with all the same powers and authorities to all purposes whatsoever, as if he had hereby been originally ap- pointed a trustee in the place of the trustee to whom he shall, whether immediately or otherwise, succeed. And the expression "my said trustees," wherever occurring in this will, shall be construed to mean the trustees or trustee for the time being, whether original or substituted. In testimony whereof, etc. [Signature and seal.] [Attestation clause and witnesses.] 542 TESTAMENTARY FORMS — APPENDIX I FORM XI Will op a Married Man Wearing apparel, furniture, etc., given to wife. Residue of estate given to wife and six children, wife to have one- third or three-ninths and each child one-ninth. Provisions for wife in lieu of dower. Residence to be allotted to wife as a part of her one-third share. A friend named executor, released from giving sureties on bond and given full power of sale. This is the last will of me, A. B., of, etc. After the payment of my just debts and funeral expenses, I give, devise, and bequeath as follows: First. I give and bequeath my wearing apparel, watches, jewelry, other personal effects, and all the w furniture in the house now occupied by apparel, my family and myself, to my wife, C. D., etc to be hers absolutely. I mean by the word "furniture" just used above, all my household articles, useful and ornamental, tapestries, pictures, engravings, paintings, portraits, plated and silver ware, books, bric-a-brac, statuary, and all works of art, domestic stores, wines, liquors, linen, bedding, and all other portable articles in and about my residence at the time of my decease. Second. All the rest, residue and remainder of my estate of every nature and description, both real Residue in and personal, of which I shall die seized s aies and possessed and to which I may be en- titled at the time of my decease and wherever the same may be situated, I direct shall be divided into POEMS OF WILLS 543 nine equal shares or parts. I give, devise and bequeath three of said shares or parts, being three- ninths, or one-third of said rest, residue and remain- der, to my said wife, C. D. and to her heirs and assigns forever. I give, devise and bequeath to each of my six children, E. F., G. H., I. J., K. L., M. N. and 0. P., one of said shares or parts, or one-ninth of said rest, residue and remainder, to have and to hold to them and their respective heirs and assigns forever. The above provisions for my said wife C. D. are in lieu of dower and of the right of dower and all other right, title or interest, statutory or in lieu of otherwise, that she would have in and to dower my estate, if I had died intestate, or that she would have in and to my estate if she were not barred by the exclusion herein stated. I direct that the said house or residence now occu- pied by myself and family shall be allotted to my said wife C. D., as a part of the above-men- ^ tioned three-ninths or one-third share of of house to wif 6 my estate, at a valuation of thirty thousand dollars, and to this end I give and devise said house or residence and the land upon which the same is situated to the said C. D. and her heirs and assigns forever. The following is a more particular descrip- tion of the premises [description]. Third. I appoint my friend S. T. the executor of this will. I release him from giving a „ & 6 Executor surety or sureties upon his official bond, and I give him as such executor full power and 544 TESTAMENTARY FORMS — APPENDIX I authority to sell real or personal estate by public or Power of private sale and convey the same by proper sale deeds of conveyance and transfer. In testimony whereof, etc. [Signature and seal.] [Attestation clause and three witnesses.] FORM XII Will op a Widower Residence, furniture, etc., given to only child, a son, absolutely. Residue given in trust to trust company to pay the net income to the son for five years, when one-tenth part of the principal, discharged of all trust, to be paid to him. The net income of the remaining principal to be paid to him for another five years, when one-ninth part of the principal, discharged of all trust, to be paid to him. The net income of the remaining principal to be paid to him for ten years, when the trust to terminate and the entire principal to be paid to him. In the event of his death before twenty years have elapsed from the time of the testator's decease, the trust to terminate and the entire principal to be paid to any person or corpora- tion whom the son may name and appoint by will, and, in default of such appointment to his issue, and, in default of such issue, to certain institutions. The trust company appointed executor, released from giving sureties on bonds, given power of sale both as executor and trustee and cautioned as to investments. Statement as to letter addressed to son to be found with the will. Know all Men by these Presents: That I, A. B., of, etc., widower, do make this my last will and testament revoking all other wills by me at any time heretofore made. FORMS OF WILLS 545 After the payment of my just debts and funeral expenses I give, devise and bequeath as follows: First [Gives to his only child, C. D. Residencej his residence, furniture, silver and other furniture, etc. personal effects to be his absolutely.] Second. All the rest, residue and remainder of my property, both real and personal, of which I shall die seized and possessed and to which I Residue m shall be entitled at the time of my decease, trust for and wherever the same may be situated, I give, devise and bequeath to the Stability Trust Company of, etc., in trust to collect all rents, issues, interest and other income, and, after paying all ex- penses properly chargeable to income, including a reasonable sum for its own services, to pay over the balance or net income, in quarterly payments or oftener if it deems best, to my said son, C. D., for a period of five years from the day of my death; to then pay over and transfer to said C. D. Tennina . one-tenth part of the principal of the trust, tion by in- stalments discharged of all trust; to pay over the net income of the principal of the trust remaining, in quarterly payments or oftener if it deems best, to said C. D. for another five years or ten years from the day of my death; to then pay over and transfer , to said C. D. one-ninth part of the principal of the trust, discharged of all trust; to pay over the net income of the principal of the trust then remaining, in quarterly payments or oftener if it deems best, to . said C. D. for a period of ten years; and then (twenty years from the day of my death) to pay over and 546 TESTAMENTARY FORMS — APPENDIX I transfer the entire principal of the trust remaining, discharged of all trust, to the said C. D. to have and to hold to him and to his heirs and assigns forever. If my said son, C. D., shall die at any time before the above trust shall absolutely terminate, that is, p er of before twenty years shall have elapsed appoint- from the day of my decease, I order and direct the said trustee to pay over and transfer the entire principal of the trust then in its hands and possession, discharged of all trust, to any person or persons, corporation or corporations, soci- ety or societies, association or associations that my said son, C. D., may name and appoint in and by his last will and testament, and, in default of such appointment, to pay over and transfer said entire principal, discharged of all trust, to his issue living at the time of his decease, the children of a deceased child to take the parent's share by right of represen- tation, and, in default of such issue, to pay over and transfer said entire principal, discharged of all trust, to the Old Ladies' Home, the Old Man's Retreat and the People's Hospital, all of the city of, etc., to be equally divided among them. Third. I constitute and appoint the said Stability Trust Company the executor of this will, release it from giving a surety or sureties upon its bonds both as executor and trustee, and confer upon it both as executor and trustee full Power of power and authority to sell both real and sale personal property by public auction or by private sale and convey the same by such instru- FORMS OP "WILLS 547 ments or deeds as may be necessary and proper to give a valid title thereto; and I caution said trustee to seek only those investments which yield a moder- ate rate of interest and are consequently safe and reliable. Fourth. I have left with this will a letter in a sealed envelope addressed to my son, C. D., and I desire the same to be delivered to him as Letter to soon as is convenient after my decease. son Neither the letter nor its contents are to be in any way regarded as a part of this will. In testimony whereof, etc. [Signature and seal.] [Attestation clause and signatures of witnesses.] Letter to Son To my son, C. D.: I have given you by will my entire estate; resi- dence, furniture, silver and other personal effects to be yours absolutely and the rest of my Letter to property, which I regard at the present son time to be worth about five hundred thousand dollars, in trust. You are to receive the net income from the trust estate, and the trust is to terminate by instal- ments, and in the event of your death before such termination, the entire 'principal, discharged of all trust, is to go as you may appoint by will and, in default of such appointment, to your issue, if you leave any, and, in default of issue, to certain chari- table institutions. 548 TESTAMENTARY FORMS — APPENDIX I At the end of five years from my decease, one- tenth of the entire trust estate is to be paid to you, discharged of all trust. You will thus become the owner absolutely of about fifty thousand dollars. You have received a college education and have little idea of the value of money, as you have never made any. I fancy you may be inclined to speculate in stocks. My advice to you is not to do so; but it is probable that you will not heed the warning of one, to whose prudence, frugality and fifty years of un- remitting labor you are indebted for your property. It is asserted by some that sales at stock boards are often washed and that so-called reputable bank- ing houses sometimes bucket their deals. Of these charges I know nothing, but I do know that even with fair treatment from stock board, banker and broker, the making of money by speculation is problematical,, if not impossible. If you see fit to speculate with the- fifty thousand dollars above-mentioned, it will all go in a very few years. Possibly you may be inclined to dabble in inven- tions and patents instead of speculating in stocks. My warning as to this form of venture is equally em- phatic. Only three men out of ,a hundred are said to succeed in business life. Not one invention out of five hundred ever produces pecuniary returns. It is very easy to imagine that a patented article or machine is capable of turning out endless profits, but outside of the intrinsic value of the article or machine, there are numerous business and other conditions which must be considered and which FORMS OP WILLS 549 unfortunately more often promote failure than success. At the end of ten years from my decease one-ninth of the remaining trust estate is to be paid to you, discharged of all trust. You will for the second time become the owner absolutely of about fifty thousand dollars. You will now very likely feel dis- posed to try to make money in legitimate business; but, as you were not born poor and have had a college education, you will not succeed in commercial life. Your business activities, however, like your stock speculations, will bring great enlightenment, will lessen your assurance, will promote caution and will beget some sadness and regret. At the end of twenty years from my decease the balance of the estate, amounting to about four hun- dred thousand dollars, will be paid over to you, discharged of all trust. Fortified by your experiences and by the coolness and deliberation which come with years, you will then realize how hard it is to earn money and will probably never again subject your property to the hazards of speculation and trade. Do not regard the preceding remarks as severe and unkind. Believe me when I say that they are prompted only by a spirit of affection. I believe that if you live twenty years after my decease you will regard the provisions of my will and the sugges- tions herein made as eminently wise. A. B. 550 TESTAMENTARY FORMS — APPENDIX I FORM XIII Will op a Widower Wearing apparel, furniture, etc., given to daughter. Sister of testator appointed executrix and trustee, released from giving sureties on her bonds and given full powers of sale. Trustee cautioned as to investments. Duties, powers, and discretions conferred upon trustee to extend to successors. Residue of property consisting of personalty given in trust, the trustee to apply income for support of daughter, adding unapplied income to principal, or to pay whole or part of income to daughter, adding any part thereof not so paid over to principal. If daughter marries before arriving at thirty years of age, trustee to purchase for her a house and furni- ture and provide her with marriage portion from principal of trust. If daughter reaches thirty years of age, trust to terminate and principal to be paid to her. If she dies before reaching thirty, trust to terminate and principal to be paid to her issue and, if she leave none, then to go as daughter may appoint by will. If daughter die leaving issue and testator's sister be living, re- quest that she be appointed guardian of such issue. Request that in purchasing house and furniture, if daughter should marry, trustee defer to daughter's wishes. Request as to trustee and testator's daughter having a common home. This is the last will of me, A. B., widower, of, etc. After the payment of my just debts and funeral expenses, I give, devise and bequeath as follows: First. I have no real estate. I give and bequeath all my watches, jewelry, wearing apparel, other Personal personal effects, library and furniture to effects, etc. my fought and only chi l d C . D . to be hers absolutely. FORMS OF "WILLS 551 Second. I constitute and appoint my sister E. F. the executrix of, and the trustee under, this will; and I release her from giving a surety or sure- Executrix ties upon her official bonds. I confer upon and trustee the said E. F. in the capacities both as executrix and trustee full power and authority to sell both real and personal estate, either by public auction or Power of by private sale, and convey the same by sale such deeds or other instruments of conveyance as may be necessary to give a valid title. In executing the above power I caution my said trustee to invest the proceeds of any sales or sale only in sound invest- and reliable properties, which yield a low ments rate of interest, rather than in investments, which pay a large rate of interest and are presumably sub- ject to risk and hazard. The discretions hereinafter conferred upon my said trustee are to be exercised by her as fully as if I were alive and capable of exercising the discre- Discre . tions myself; and all duties, powers and tjons, discretions created and provided for in this trustee, will are to extend to and are to be possessed, exercised and discharged by the trustee under this will for the time being, whether the said E. F. or her successor or successors. Third. All the rest, residue and remainder of my property, which consists entirely of personalty, of which I shall die possessed and to which I Residue may be entitled at the time of my decease m trust and wherever the same may be situated, I give and bequeath to my said trustee E. F. in trust, for the 552 TESTAMENTARY FORMS — APPENDIX I following purposes, to wit: to collect and receive all income thereof and after paying therefrom the ex- penses chargeable to income, including a liberal compensation to herself; (A) To apply the whole or _ . . a part of the balance or net income, as she Provisions r _ ' as to may deem best, for the maintenance and support of my said daughter C. D. and to add the unapplied income, if any, to the principal. (B) If she deems it for the best interests of my said daughter not so to apply the net income, then to pay over in quarterly payments the whole or a part thereof, as she may deem best, to the said C. D. and to add any part thereof not so paid over to the prin- cipal. (C) If my said daughter shall marry before arriving at the age of thirty years, to purchase from j. . the principal of the" trust estate a house of house for not to exceed twenty thousand dollars in value, and furniture, furnishings, etc., therefor not to exceed three thousand dollars in value, the house to be conveyed to my said daughter C. D. in her own name, and the furniture and fur- nishings, etc., to be hers absolutely and to also pay over and transfer to my said daughter C. D. from Marriage the principal of the trust estate securities portion Q £ ^ e va i ue f thirty thousand dollars as a marriage portion to be hers absolutely. That there may be no misunderstanding let me repeat that by the purchase of the house, furniture, etc., and the payment of the marriage portion the principal of the trust estate will be diminished to an amount not to exceed fifty-three thousand dollars. FOKMS OF WILLS 553 If my said daughter CD. shall arrive at the age of thirty years, then the trust above stated shall ter- minate, and I direct my said trustee to Termina- tion vey, transfer and pay over the entire to 110 **™ 8 * principal then constituting the trust estate, dis- charged of all trust, to my said daughter C. D. to be hers absolutely. If my said daughter C. D. shall die before arriving at the age of thirty years, then the trust shall terminate, and I direct my said trustee to convey, transfer, and pay over the entire principal constituting the trust to the issue, if any, then living of the said C. D. and, if she leave no issue then living, then to any person or persons she may name and appoint in and by her last will and testament duly executed. If, at the time of the death of my said daughter C. D. under the age of thirty years leaving issue then living, my said sis- ter E. F. be then living, I desire that she be appointed the legal guardian of such issue. Fourth. In the event of the marriage of my said daughter C. D. under the age of thirty years I trust that my said sister E. F., in pur- wishes of chasing the house, furniture, etc., referred beneficiai y to above will be guided as far as possible by the wishes of the said C. D. Fifth. As my said sister, daughter and myself have long had a common home, I earnestly hope common that the relation may continue after my home death as to my said daughter and sister — at least 554 TESTAMENTAEY FORMS — APPENDIX I until the marriage of my said daughter, if that event should occur. In testimony whereof, etc. [Signature and seal.] [Attestation clause and signatures of witnesses.] FORM XIV Will of Widower Executors and trustees appointed, released from giving sureties and given powers of sale. Homestead given to testator's sister, during son's minority, then to him absolutely at majority. On his death before twenty- one same to go to testator's sister, and, if not living, then over. Furniture and personal effects given to testator's sister during son's minority, then to him absolutely at majority. On his death before twenty-one same to go to testator's sister, and, if not living, then over. Pecuniary legacy given to sister. Wishes expressed as to occupancy and use of homestead by sister and son. Residue in trust to pay ten thousand dollars per annum of net income to testator's sister for education and support of son during minority and for maintenance of home. Trustees to apply all or part of said ten thousand dollars in case of death of sister before son's arriving at twenty-one, adding what remains, if anything, to the principal. Trust to terminate as to one half of the principal when the son reaches twenty-one and the same to be paid to him; five thousand dollars per annum to be paid to him from net income until he reaches thirty, when balance of principal, discharged of all trust, to be paid to him. If son dies before twenty-one, trust to terminate and entire principal to be paid to testator's sister, if living; if not living, then over. If son dies after twenty- one and before arriving at thirty, trust to terminate as to principal remaining, and same to be subject to son's power FORMS OP "WILLS 555 of appointment; in default of which, to be paid to testator's sister, if living; if not living, then over. Always to be two trustees and provision made as to new trustees. Executors authorized to compromise claims or refer them to arbitration. Provision as to compensation of executors and trustees. Know all Men by these Presents: That I, A. B., of, etc., do make this my last will and testament revoking all wills by me at any time heretofore made. After the payment of my just debts and funeral expenses I give, devise and bequeath as follows: First. [C. D. and E. F. appointed executors and trustees, released from giving sureties Jbxecutors, upon their bonds and given full powers etc., ap- „ . , pointed of sale.] Second. The lot of land with the house thereon now occupied by me in the city of, etc., is bounded and described as follows [description]. I Devise of give and bequeath the same to my sister homestead G. H., to have and to hold until my son I. J. arrives at the age of twenty-one years, when I give and devise the same to him and his heirs and assigns forever. If he should die before arriving at the age of twenty- one years, then I give and devise the same to the said G. H. and to her heirs and assigns forever, and, if she be not living, then to the Home for Destitute Children in the city of, etc., and its successors absolutely. Third. All my furniture and personal effects now in said house I give and bequeath to the said G. H. to use and enjoy the same until my said son arrives 556 TESTAMENTARY FORMS — APPENDIX I at the age of twenty-one years, when I give and „ bequeath the same to him to be his ab- Furniture, ^ personal solutely. If he should die before arriving effects etc* at -the age of twenty-one years, I give the same to the said G. H., and, if she should not be living, then to the Home for Destitute Children in the city of, etc. Fourth. I give to the said G. H. the sum of One Pecuniary Hundred Thousand Dollars to be hers lega °y absolutely. Fifth. It is my wish that the said G. H. shall live in my present home at least until my said son attains Wishes as the age of twenty-one years and shall take to son ^e care of and exercise the supervision over him which a parent would take and exercise. I do not appoint her his guardian,' as, since the death of his mother, she has shown all the love and solicitude of a parent and he has constantly deferred to her wishes. I urge him to confide in her and to be guided by her judgment. Sixth. All the rest, residue and remainder of my estate, both real and personal and wherever situated, Residue of which I shall die seized and possessed m trust and to which I may be entitled at the time of my decease, I give, devise and bequeath to the afore-mentioned trustees C. D. and E. F. in trust to collect the rents, issues, profits and income thereof and, after paying therefrom all the proper and legitimate expenses incident to the management of trust estates, including their own compensation hereinafter referred to, to dispose of the balance or FORMS OF WILLS 557 net income as follows: To pay over ten thousand dollars per annum in equal quarterly payments to the said G. H. during the minority of the said I. J., for the education and support of the said For educa- I. J. and the maintenance of the mutual malnte- home, the said G. H. merely to receipt for nance of son said money and to be in no event held answerable for the expenditure thereof, except that, in case of her death or disability, the said trustees will apply all or so much of said ten thousand dollars annually as they may deem best for the education and support of the said I. J., and for the maintenance of said home until he arrives at the age of twenty-one years, adding all that remains annually of said net income to the principal of said trust to become a part thereof; to pay over to said I. J., after he attains the age of twenty-one years, one-half of the entire principal of said trust, discharged of all trust, to be Termina- his absolutely; to then pay over to him trustafter from the net income of the remainder of twenty- 01 "* the estate held in trust five thousand dollars per annum in equal quarterly payments (adding all that remains annually of said net income to the principal to become a part thereof) until he reaches the age of thirty years, when the trust is to terminate and they will pay over and transfer to him the entire principal remaining, discharged of all trust, to be his absolutely. In the event of the death of I. J. before arriving at the age of twenty-one years, I will and direct that the above trust shall terminate and that the 558 TESTAMENTARY FORMS — APPENDIX I entire principal, discharged of all trust, shall be Before paid to the said G. H., to be hers abso- twenty-one i ute i y . an ^ if s h e be not living, then to the Home for Destitute Children in the city of, etc., and its successors absolutely. In the event of the death of the said I. J. after arriving at the age of twenty-one years and before Before arriving at the age of thirty years, I will thir,y and direct that the trust shall terminate as to the principal then remaining in the hands and possession of the trustees and that the same, dis- charged of all trust, shall go to any person or persons the said I. J. may name and appoint in and by his t, . last will and testament, to be theirs ab- Power of ' appoint- solutely, and, in default of such appoint- ment, to G. H. to be hers absolutely, and,, if she be not living, to the Home for Destitute Children in the city of, etc., and its successors absolutely. I direct that there shall always be two trustees of the above trust, and in the event of the death Number of °^ an ^ * rus * ee > °f n ^ s resignation or dis- andnew qualification for any cause, a successor trustees shall be duly appointed by the probate court, who shall have all and singular the same powers and discretions and shall be subject to all and singular the same duties and responsibilities as those conferred and imposed upon the original trustees. Seventh. I authorize and empower my said execu- tors to settle by compromise any disputed debt FOEMS OP "WILLS 559 1 owing by me or to me at the time of my decease, paying cash in full settlement in the case compro- of my own debts and, in the case of debts nuse due my estate, accepting real or personal security if they deem advisable and allowing such time for payment as they may deem reasonable; and also to settle by reference to arbitration all such disputed debts owing either by or to me, and I give to and confer upon said executors absolute discretion to act in the premises without liability for any loss occasioned by said compromises, settle- ments or arbitrations. Eighth. As my executors may be required to do more work than is customary for executors to perform in most cases, I direct that they shall each Compen . be entitled to receive as compensation for sation. of their services two and one-half per cent, and t.T\ IStt fi fiR of the appraised valuation of the personal estate; and each, as compensation for his services as trustee, shall be entitled to three per cent, of the income collected by them. In testimony whereof, etc. [Signature and seal.l [Attestation clause and signature of witnesses.] 560 TESTAMENTARY FORMS — APPENDIX I FORM XV Will of a Married Man Three named as executors, released from giving sureties and given full power of sale. Homestead, furniture, etc., given to wife. Residue given to wife and three sons, one son receiving less than his brothers. Executors to keep estate open for ten years after testator's decease and authorized to borrow money. Certain sums to be paid to wife and sons for ten years after tes- tator's decease, when the estate is to be paid over to them; and distribution in kind authorized. If son who receives less than his brothers disputes the probate of the will, he is to forfeit legacy and the same to go to his brothers. Number of executors always to be three, and, in case of vacancy, successor to be appointed, who shall have all the powers of an original executor. Concurrence of two executors required. Executor may authorize co-executor or co-executors to act in his place. Executors to employ attorneys, clerks, etc., and make disburse- ments therefor and for office rent, etc. Suggestion that executors keep a record of proceedings. Compensation of executors. This is the last will of me, A. B., of, etc. After the payment of my just debts and funeral expenses I give, devise and bequeath as follows: First. [C. D., E. F., and G. H., named as execu- Executors tors, released from giving sureties and given full power of sale.] stead, fur- Second. [Homestead, wearing apparel, mture, etc. furniture, etc., given to wife, I. J., absolutely.] Third. All the rest, residue and remainder of my property, both real and personal, of which I shall die FORMS OF "WILLS 561 seized and possessed and to which I may be entitled at the time of my decease and wherever _ tJ ., . . , _ . Residue tne same may be situated, I give, devise and bequeath to my said wife I. J. and my three sons K. L., M. N., and 0. P., to have and to hold to them and their heirs and assigns forever, but in the following proportions. I give, devise and bequeath to my said wife I. J. one-third or four-twelfths, to each of my said sons, K. L. and M. N. three-twelfths and to my said son, 0. P. two-twelfths of said rest, residue and remainder, but their possession of the same is not to be immediate, as will hereinafter appear. The condition of my estate is such that I deem it advisable for my executors to „ . . , J Estate to keep it open and unsettled for a period of be kept ten years after my decease. I direct them pen not to hastily settle my estate, but to exercise a reasonable discretion in bringing my business affairs to a termination, and in liquidating and discharging all debts and obligations pertaining thereto. In this way unnecessary loss will be avoided and my assets will be preserved. I do not think that it will be necessary for my executors to borrow money, but, if in their judgment they deem it expedient so to do, then I authorize them to borrow not exceeding thirty thousand dollars and pledge any of the Borrowing sound assets of my estate as security for mone y the loan or loans. The money so borrowed is to be used only to liquidate pressing demands. My wife will of course apply to the Probate Court for the allowance which the law provides for widows. 562 TESTAMENTARY FORMS — APPENDIX I In addition thereto I direct my executors to pay to Allowance her four thousand dollars per annum and to wife tQ pay to m y ggjd gong j£ l_ an( j ]y[ j^ each three thousand dollars and to my said son 0. P. two thousand dollars per annum, all of such payments to be made semi-annually until the end of said ten Distribu- years; and at the end thereof my entire end of ten estate then in the hands of my executors is years ^o k e paid by them to my wife and three sons in the proportions indicated above, to be theirs absolutely. In thus paying over the property to my said wife and three sons, I declare and direct that payment, transfer, and delivery in kind of any bonds, stocks, or other securities and property shall be a sufficient discharge of the duties of my executors and an absolute protection to them. Fourth. I have ample reasons for making a less liberal provision in this will for my son 0. P. than Disputing for my other children; and I now declare ^ that if the said 0. P. shall in any way oppose or contest in any court or tribunal the probate and validity of this will or shall question my motive in making the same, then the said 0. P. shall forfeit all his right, title and interest in and to the portion of my estate herein bequeathed and devised to him and the same shall go to his two brothers, K. L. and M. N., to be equally divided between them. Fifth. I declare that the number of executors of Number of this will shall always be three, and that execuors ag goon ag a vacanC y occurs from what- ever cause a successor shall be appointed by the Pro- FORMS OF WILLS 563 bate Court. I trust that a person approved by the acting executors may be so appointed. All successors shall have all the powers and authority of original executors. In the transaction of all business the con- Majority of currence of two executors shall be required. executors Any one of said executors may, by power of at- torney in writing duly executed and acknowledged, authorize either co-executor or his co- powerof executors to act in his stead and place and attome y execute in his name any papers, instruments, and documents coming within the scope of his duties and powers as an executor. I authorize and empower my said executors to employ such attorneys, clerks and agents in the transaction of the business of my estate Em . as they may deem necessary, and make mentof such disbursements therefor, and for office , * rent, stationery, etc., as are reasonable and proper. I suggest to my executors, as their labors will extend over a period of ten years, that they keep an accurate record of all their transac- _ . Record tions. I recommend that after every meet- of transac- ing they write out in a record book an accurate statement of all agreements, proposals, undertakings, etc., and affix their signatures thereto. In this way there will be a continuous story of all their doings; and misunderstandings and disagree- ments may be avoided. Inasmuch as the management of my affairs is to extend over a period of ten years, and much time 564 TESTAMENTARY FORMS — APPENDIX I and attention must be devoted to the administra- Compen- tion of my estate, I declare that it is my sation ^jg^ ^at m y executors be well paid for their services and that the Judge of Probate will allow them liberal compensation. In testimony whereof, etc. [Signature and seal.] [Attestation clause, signatures of witnesses.] FORM XVI Will of Widower Trust Company appointed executor and trustee with full power of sale. Residence, furniture, wearing apparel, etc., given to daughter. Rest, residue and remainder to be divided into eleven equal shares. Two shares given in trust to pay net income to daughter for life, and, on her death, to be paid to children, etc., as she may appoint by will, and, in default of such appointment, then to children and the issue of any deceased child. If child or issue of a deceased child is under twenty-one, its interest to be held in trust until majority and income to be paid to guardian. Three shares given in trust to pay net income to another daughter for life, and, on her death, principal to be paid to children and the issue of a deceased child, and, if no children or issue, then to daughter's sister and brothers and issue of any one deceased. Three shares given in trust to pay net income to son for life, and, on his death, principal to be paid as he may appoint by will; but, if his own son be then living, to pay net income to such son until he reaches forty and then entire principal to be paid to him. If son's son dies after his father and before reaching forty, principal to go as he may appoint FOKMS OP WILLS 565 by will and, in default thereof, according to the statutes providing for the distribution of intestate estates. Three shares given in trust to pay the net income to another son for life, and, on his death, principal to be paid to children and issue of deceased children per capita. All trusts declared to be separate and distinct and separate accounts to be kept thereof. Equitable interests of daughters as beneficiaries declared to be for their sole and separate use. Trustee authorized in its discretion to add a part of income of each trust to principal. Reason stated for giving first-named daughter two instead of three shares in trust, that residence, furniture, etc., given to her outright. Know all Men by these Presents: That I, A. B., widower, do make this last will and testament revoking all wills by me at any time heretofore made. After the payment of my just debts and funeral expenses I give, devise and bequeath as follows: First. [Equity Trust Co., of, etc., ap- Executor, pointed executor and trustee and given ported full powers of sale.] o7tae° Wer Second. [Residence, furniture, wearing Residencet apparel, etc., given to daughter, C. D., to «^«jg"£ be hers absolutely.] Third. All the rest, residue and remainder of my property, of which I shall die seized and possessed and to which I may be entitled at the, time Residue of my decease and wherever situated, m whether acquired before or after the execution of this will, including all lapsed devises and legacies and all property over which at the time of my decease I shall have any power of testamentary dis- 566 TESTAMENTARY FORMS — APPENDIX I position, I give and bequeath in trust to my above- named trustee, to hold, manage and dispose of ac- cording to the directions hereinafter given. I direct my said trustee to divide said rest, residue and re- Division mainder, which consists entirely of per- into shares gona i es tate, into eleven equal shares or parts, and in making such division its judgment is not to be questioned by any of the legatees or bene- ficiaries under this will. Fourth. I give two of said shares or parts to said trustee in trust to pay over the net income thereof For to my said daughter, C. D., in equal semi- daughter annua i payments for and during the period of her natural life, and, upon her death, to pay over the principal of the trust, discharged of all trust, to her children and the issue of any deceased child in such proportions as she may direct and appoint in and by her last will and testament duly executed; and, in default of such appointment, to pay over to and divide the same, discharged of all trust, among her children living at the time of her decease and the issue then living of any child of hers who may have deceased, such issue to take the parent's share per ■stirpes and not per capita. If any child of my said daughter or the issue of any child is, when he or she becomes entitled to any share of the principal of the trust as above provided, under twenty-one years of age, then I direct my said trustee to hold his or her share in trust, paying over the net income semi- annually or oftener to the guardian or guardians of such child or issue, and paying over the principal, FORMS OP WILLS 567 discharged of all trust, to such child or issue, upon reaching his or her majority. Fifth. I give three of said shares or parts of said rest, residue and remainder to said trustee, in trust, to pay over the net income thereof to my For another daughter E. F. in payments semi-annually dau e hter and as nearly equal as possible for and during the term of her natural life, and upon her death, to pay over the principal of the trust, discharged of all trust, to her children then living and the issue then living of any deceased child, such issue to take the parent's share by right of representation or per stirpes and not per capita; and, if my said daughter shall have no children or the issue of a deceased child living at the time of her decease, then to such of my sons G. H. and I. J., and my daughter C. D., as may then be living and to the issue then living of a de- ceased son or daughter, such issue to take the parent's share by right of representation per stirpes and not per capita. Sixth. I give three of said shares or parts of said rest, residue and remainder to said trustee in trust to pav over the net income thereof to my _ r j . j p or son son G. H. in quarterly payments during the term of his natural life, and, upon his death to pay over, if his son K. L. be not then living, the prin- cipal of the trust, discharged of all trust, to such person or persons as he may by his last will and testament, duly executed, in writing designate and appoint; but if his son K. L. be then living, to pay over the net income of the trust estate to the said 568 TESTAMENTARY FORMS — APPENDIX I K. L. until he arrives at the age of forty years and then to pay over to him the entire principal of the trust, discharged of all trust, to be his absolutely. In the event of the death of the said K. L. after the death of his father and before he arrives at the age of forty years I direct that the above trust estate held for him shall terminate and that the principal thereof, discharged of all trust, shall go to any person or persons he may name and appoint in his last will and testament and, in default of such appointment, to the person or persons who would be entitled thereto under the statutes providing for the distri- bution of personal property in the case of intestacy,, provided the trust estate were the absolute property of the said K. L. Seventh. I give three of said shares or parts of said rest, residue and remainder to said trustee in For an- trust to pay over the net income thereof other son ^ Q m y SQR j j ^ sem i_ a nnual payments, during the term of his natural life, and, upon his death, to pay over the principal of the trust, dis- charged of all trust, to his children then living and to the issue then living of any deceased child to be equally divided among them, not per stirpes but per capita. Eighth. Although my intention as to the above trusts is apparent from the language used in creating Trusts to them, yet that there may be no doubt or be separate uncertainty upon the matter, I now declare that said trusts are all separate and distinct, that each is to be evidenced by a letter of trust from the FOKMS OF WILLS 569 probate court and that the accounts of each kept by the trustee are to be separate from those of any- other. Ninth. I hereby declare that the equitable interest of my daughters C. D. and E. F., as beneficiaries in the trusts above created, is for their sole g t and separate use, independent of any right estate of or control of their husbands; and that their individual receipts shall be a sufficient discharge and protection of the trustee without their husbands signing the same or assenting thereto. Tenth. I authorize my said trustee in its discre- tion to add not more than one-quarter of the annual net income of any one of the above trusts Accumu . to the principal thereof, and the amount lationof income so added shall become as much a part of the principal as if originally a part thereof. Eleventh. My reason for giving in trust for my daughter C. D. two instead of three shares of the rest, residue and remainder is due to the Reasonfor fact that by the second article of this will bequest to I have given her my residence, furniture and wearing apparel outright, and have in this way made what I believe to be an equitable distribution of my estate. In testimony whereof, etc. [Signature.] [Attestation clause and signatures of witnesses.] 570 TESTAMENTARY FORMS — APPENDIX I FORM XVII Will of a Married Man Provision made as to monument and care of burial lot. Two named executors, released from giving sureties and given power of sale. Two named trustees and released from giving sureties. Always to be two trustees and vacancy to be immediately filled. Trus- tees given power to sell, lease, partition, etc. ; authorized to erect buildings, insure the same and rebuild in case of fire, appoint agents or attorneys, and vote at meetings of corporations. Provision made as to liability of executors and trustees. Residence, furniture, etc., given to wife. One half the residue given in trust for wife for twenty years when trust to terminate and trustees to transfer to her entire principal, discharged of all trust. The other half of residue given in trust for daughter for twenty years, she to receive income upon her individual receipt and free from interference of husband; at the expiration of which period trust to terminate and trustees to transfer to her entire principal discharged of all trust. If wife die before the expiration of twenty years, the trust to terminate and principal to go as she may appoint, and, in default thereof, to the daughter, and, if she be not living, then to a hospital. If daughter die before the expiration of twenty years, the trust to terminate and principal to go as she may appoint, and, in default thereof, to the mother, and, if she be not living, to a hospital. The trust estates declared to be separate and distinct. Provisions for wife in lieu of dower, etc. Trustees authorized to take over from executors securities of the testator, though not of the character permissible for trustees to invest in, and not to be held accountable for loss; but in case of any sale the proceeds to be placed only in cer- tain specified investments. Provision made as to allotting real estate of the trust. Extra cash and stock dividends upon shares held in trust to be added to capital. FOEMS OP WILLS 571 Dividends, interest and profits in case of wasting investments held by trust to be regarded as income. Certain amounts stated as compensation of executors and trustees. This is the last will of me, A. B., of, etc. After the payment of my just debts and funeral expenses I give, devise and bequeath as follows: First. I direct my executor to erect over my grave in the Redwood Cemetery, in the City of, etc., a monument not to exceed in cost the sum _ . , Burial, etc. of one thousand dollars, and to pay therefor from the general funds of my estate; and I also direct him to pay to the Trustees, Proprietors, or other officers of the said Cemetery the sum of two hundred dollars for the perpetual care and repair of my burial lot in said Cemetery. Second. I nominate and appoint C. D. and E. F. the executors of this will and direct that they be exempt from giving a surety or sureties Executors, upon their official bonds. I give them etc " and the survivor of them full power and authority to sell both real and personal estate by private sale or by public auction and convey the same Power of by such deeds or other instruments of sale conveyance as may be necessary to pass a valid title. I also constitute and appoint the said C. D. and E. F. the trustees under this will of the trust estates hereinafter created, and direct that they Number of be exempt from giving a surety or sureties upon the bonds required of them as said trus- 572 TESTAMENTARY FORMS — APPENDIX I tees. I direct that there shall always be two trustees under this will and all the powers and dis- cretions vested herein in said C. D. and E. F. are equally given to and conferred upon all succeeding and substituted trustees. In the event of a vacancy in the office of trustee, I desire that a suitable successor be immediately appointed by the Probate Court. Third. I hereby bestow upon my said trustees and their successors full power and authority in Power to their discretion to sell, lease, partition and partition, 6 ' exchange real estate and to sell and ex- etc - change personal property comprised in and belonging to the trust estates, whether said real and personal estate were original or subsequent invest- ments, and no purchaser shall be required to see to the application of the purchase money. Such sales may be by auction or on private terms, for cash or on credit. Such leases may be for any time not ex- ceeding ten years for any one lease and may contain such reasonable conditions as my said trustees and the lessee or lessees may agree upon, and if any such lease shall be in force at the time of the termination of the trusts herein created, it shall bind those who are entitled to the estate in remainder. I authorize my said trustees and their successors to erect buildings upon my real estate, if they deem „ ., ,. it advisable so to do, and I caution them Buildings T to keep all the buildings, whether erected Insurance r ° ' , by them or taken over from my estate, well insured. FORMS OF WILLS 573 In case any of the buildings upon any of the real estate held under the trusts herein created are dam- aged or destroyed by fire or by any other cause, then I authorize my said trustees in their discretion to repair or rebuild the same, paying therefor from the insurance money, . .... and, if insufficient, using in addition thereto any other personal property or funds of the principal of the trust estates. I hereby authorize my said trustees and their successors to appoint from time to time any agent or attorney to execute and deliver any Agents or deeds, transfers, documents or papers, or attome y s perform any ministerial acts pertaining to the trust estates and to the administration thereof, including authority to vote by ballot or otherwise voting at at any meeting of any corporation in which meetm s s the trust estates may be interested as a stockholder or otherwise. Fourth. None of my executors and trustees shall be held responsible for any property received by another nor for any wrongdoing, de- Liability of falcation or miscarriage of another, but S^ each only for his own wilful default. tees And no executor or trustee shall be held accountable for any loss occasioned to the estates in his hands, if he has acted in good faith. Fifth. I give and devise to my wife G. H. and to her heirs and assigns forever the Resldence residence which we now occupy which is bounded and de'scribed as follows [description]. I 574 TESTAMENTARY FORMS — APPENDIX I also give and bequeath to my said wife all my Furniture, household furniture, personal effects and etc# wearing apparel to be hers absolutely. All the rest, residue and remainder of my prop- erty, both real and personal, of which I shall die One half seized and possessed and to which I may in trust U ment, etc., and have reserved a sum suffi- cient therefor, they enter into a contract for a library building which will absorb all the funds re- maining for the purpose less about twenty or twenty- five thousand dollars to be retained by them to pro- vide for extras or other eventualities. When the library is completed it is to be absolutely free or, in other words, is to be for the use, benefit Library to and advantage of the people, irrespective be free Q f condition, creed or color; and no restric- tions of any < kind are to be imposed except reason- able rules and regulations as to taking out books and the use of reading rooms. I desire my trustees to erect a substantial fire- proof building and to purchase books of the better Libr class such as are found today in the free books and public libraries throughout the land; and periodicals . . . ,. I express a similar wish as to periodicals and newspapers. I constitute and appoint my friends G. H., I. J. and K. L. all of, etc., the executors of this will and I release them from giving a surety or sureties upon their official bonds. I give said executors, the survivors or survivor of them, full power and authority to sell both real and personal Power of property by public auction or by private ! ' sale and convey the same by such deeds or other instruments of conveyance as may be suit- FORMS OP WILLS 583 able and proper; and purchasers are not to be re- quired to see to the application of the purchase money. I appoint the said G. H., I. J., and K. L. the trus- tees under this will, and, if bonds are required of them and their successors, then I release „ Trustees them and their successors from giving a surety or sureties thereon. I give said trustees and their successors the power and privilege to vary in- vestments at pleasure, always seeking prop- p 0W er of erty suitable for trustees to invest in; and sale to this end I confer upon them unrestricted authority to sell both real and personal property, by public auction or by private sale and convey the same by proper deeds of conveyance; and purchasers are not required to see to the application of the purchase money. I authorize my said executors to transfer and set over to my said trustees or their successors as part or all of the said three-tenths of Retention the residuum which they are to hold in tor's S jn- trust as a permanent fund any safe and vestmeilts sound securities belonging to me at the time of my decease at the appraised valuation; and I direct that my trustees and their successors are not to be held answerable for any loss or depreciation that may occur by retaining such securities or by holding any other sucurities purchased by them, provided they exercise sound discretion and act in good faith. I condemn the method provided in many wills for 584 TESTAMENTARY FORMS — APPENDIX I trustees for public charities filling vacancies in their N ew board without resort to any court or tri- trustees bunal, because I deem such method directly contrary to the principle which should obtain in the administration of trusts for charitable purposes. I desire the successors of the original trustees to be appointed in the regular way by the probate court or other proper authority; and when a vacancy occurs, the surviving trustees will select some man of sterling character and recognized business ability, and then present his name by petition to the appointing power, with whom shall be left the question of selection or rejection. In the case of public charities advantages are incorpora- sometimes gained by the incorporation of tion the trustees. This is a matter for my own trustees to consider, and I leave it entirely to their discretion. Fourth. I have talked freely with my two sons, above named, about the motives which have induced Disputing me to make this will, and I believe that wm they will be entirely satisfied with its pro- visions. Nevertheless, I order, direct and declare that if either of my said sons shall contest or dispute the probate of this will, or maintain before any judicial body that this is not my last will, or call in question before any tribunal the validity of any legacies given and provisions made herein, then I absolutely revoke the legacy or legacies given to said son, and declare the same void and of no effect, and I absolutely de- clare that said legacy or legacies so revoked shall fall FORMS OP WILLS 585 into the residuum of my estate and- constitute a part thereof. I further declare and direct that if any attempt is made to contest this will in the court of probate or before any other tribunal and proves un- Expenses successful, my executors shall pay all the of contest expenses necessitated in resisting such attempt and defending the will, including reasonable compensa- tion to themselves in addition to the compensation to which they are otherwise entitled as executors. In testimony whereof, I have hereunto set my hand and seal this tenth day of August, 1911. [Signature and seal.] [Attestation clause and witnesses.] FORM XIX Will op a Married Man Statement, as to debts for guidance of executors. Three appointed executors and trustees; not required to give sureties on bonds and given full powers of sale. Purchasers not required to see to the application of the purchase money, and all persons taking receipts exempted from liability. Duties of executors to devolve upon survivors or survivor, but number of trustees always to be three. Executors and trustees liable only for their own personal defaults. Residence, furniture, etc., given to wife. Trust created for benefit of wife and children. Trustees to pay all expenses of residence from income and the balance thereof to wife and three children, the trust to terminate on the death of the wife and the principal to be divided among the children, with pro- visions both as to principal and income in the event of a child dying before the mother. 586 TESTAMENTARY FORMS — APPENDIX I No anticipation or assignment of income by children or attach- ment thereof by creditors. If so anticipated, assigned or attached, trustees to apply income for support and main- tenance of beneficiary. Desire that residence be a home for the family and that wife make renewals, etc., of furniture, etc. Trustees authorized to retain investments even if such as trus- tees are not usually allowed to invest in; new investments to be in sound properties. Instructions to executors as to settling the estate. Provisions for wife in lieu of rights. This is the last will of me, A. B., of, etc. After the payment of my just debts and funeral expenses I give, devise and bequeath as follows: First. I declare at the outset for the enlightenment of my executors that I have no debts at the present Amount of time except those of a trifling nature and debts that, as I have retired from business and make it a rule not to indorse paper or incur other obligations, it is probable that at the time of my decease my entire indebtedness will be limited to a few outstanding bills for household expenses. Second. I constitute and appoint C. D., E. F. and G. H. the executors of and the trustees under Bonds of this will, and I exempt them both as ex- execuors ecu t ors an( j trustees from giving a surety trustees or sure ti es upon their official bonds. I give them as such executors and the survivors or survivor of them full power and authority to sell both real and personal estate by public auction or by private sale and convey the same by proper deeds of conveyance. I give them as trustees and their successors in that capacity the authority to vary FORMS OP WILLS 587 the investments of the trust estate, hereinafter created, from time to time as they may Powers of see fit, and to effect that end I confer sale upon them as such trustees and their successors in that capacity full power and authority to dispose of and sell both real and personal estate by public auction or by private sale and convey the same by such deeds or other instruments as may be suitable, proper and sufficient to pass and convey a valid title. t I direct and declare that the receipts in writing of my executors and trustees, for the time being, for any money, moneys or property received Executors' by them shall absolutely discharge any tees'^-" person or persons named in such receipts ceipts as paying said money or moneys or transferring said property to said executors or trustees; that no per- son or persons shall have the right or be under the obligation to inquire into the propriety or legality of any sale of property under this will by my said executors or trustees; that in the event of any sale by said executors or trustees no purchaser Application shall be required to see to the application of purchase money of the purchase money, and that no tenant or other person paying rent or other money or trans- ferring property to said executors and trustees shall be answerable for the use, application or disposition of the same. It is my will that if one of my execu- tors dies or resigns, a successor shall not Number of be appointed in his place, but the duties executors of the office shall devolve upon and be discharged 588 TESTAMENTABY FORMS — APPENDIX I by the survivors or survivor of them. But it is my Number of will that there shall always be three trus- trustees ^ ees g0 j on g ag ^ e trust continues; and hence if one of the trustees dies, resigns or for any reason becomes incapable of acting, a successor shall be appointed by the probate court; and I trust that in such case the judge of that tribunal will favorably consider any person recommended and indorsed by the two acting trustees. I direct that my said executors and my said trus- tees and their successors shall be liable for their Liability own personal defaults and wrongdoing and toreand" no * eacn ^ or the other. I further declare trustees th a t th e y s hall not be responsible for the neglect or default of any broker, banker or agent in whose hands they may have placed any money or securities of the trust estate; and I further release them from all liability for any loss which may occur by reason of the depreciation of any real or personal property in their hands and possession. But I require of said executors and of said trustees and their suc- cessors good faith in all transactions. Third. [Gives residence, wearing apparel, furni- Residence, ture, etc., in residence, horses, carriages, etc^given harnesses and stable furnishings, out-door to wife implements and tools of all kinds to wife, I. J. to be hers absolutely.] Fourth. All the rest, residue and remainder of my property, real and personal, of which I shall die seized and possessed and to which I may be entitled at the time of my decease or over which I shall FORMS OF WILLS 589 then possess any power of appointment and wher- ever the same may be situated, I give, de- Trust fof vise and bequeath to the afore-mentioned wife and trustees and their successors in trust to manage, control and dispose of the same as follows: to collect and receive the income thereof and after paying therefrom taxes, insurance, amounts required to make good depreciation of buildings, a sufficient sum for their own compensation and all other charges incident to trust estates and properly payable from income, to pay from what remains or the net income all the expenses of the house, stable and premises devised above to my said wife, including Household all supplies for family and domestic main- ete.^ pro-' tenance and the maintenance of the stable vided for and the improvement and adornment of the grounds, including food of all kinds, hay, grain, fertilizers, wages of servants and employees and all other ex- penses naturally and properly incurred in running and maintaining a residence, stable and premises; to pay over one-half of the balance of the net income, quarterly or semi-annually as they may decide, to my wife, I. J., during her life and one-sixth of the said balance of the net income, quarterly or semi-annually as they may decide, to each of my three children, K. L., M. N., and 0. P., dur- ing the life of their mother; and if any one of the three shall die before his or her mother, leaving issue living at the time of his or her decease, to pay over said one- sixth of the balance of the net income to such issue, if over twenty-one years of age, and, if under twenty- 590 TESTAMENTARY FORMS — APPENDIX I one years of age, to apply so much of the same as they may deem best to the education, maintenance and support of such issue during minority, adding what remains to the principal of the trust, and, if any one of the three so dying shall leave no issue living at the time of his or her decease, then to add said one- sixth of the balance of the net income to the principal of the trust; and upon the death of their said mother Tennina- to pay over, transfer and deliver the entire 11011 principal constituting the trust, discharged of all trust, to the said K. L., M. N., and O. P., to be equally divided among them. I further will and direct that if any of the three — the said K. L., M. N. and 0. P. — shall die before his or her mother leaving issue living at the time of the mother's death, such issue on the termination of the trust as above provided shall take the parent's share by right of representation; but, if he or she leave no issue then living, his or her share shall go to any person or persons whom he or she may name and appoint in and by his or her last will and testament duly executed. Fifth. No beneficiary under this will, except my said wife, shall have the right and power to alienate, Noantici- dispose of, anticipate or in any way in- pation, as- cumber or create a charge upon the income signment, . ° * etc., of to which he or she is entitled under the above provisions of this will, and also the same shall not be subject to attachment, diversion, seizure or sequestration by any creditor of any bene- ficiary by any legal process whatever; and if any FOKMS OP WILLS 591 beneficiary, except my said wife, shall so alienate, dispose of, anticipate, incumber or create a charge upon the income to which he or she is entitled or if he or she shall become a bankrupt or make any assignment for the benefit of creditors, or if said in- come shall be in any way attached, diverted, seized or sequestered, or an attempt shall be made to attach, divert, seize or sequester the same by any legal process, then my said trustees and their successors shall immediately cease to pay said income to said beneficiary and shall thereafter apply the same for his or her support and maintenance. Sixth. I have made the foregoing provisions as to the maintenance of my residence with the desire and in the hope that my wife and children Remarks will make it a common home. As I have as to residence given my wife all the furniture, horses, carriages, etc.,«I trust that she will make renewals and provide for all depreciation of the same out of her own resources, of which she has ample. Seventh. I hereby authorize and direct my said trustees and their successors to take and retain in their discretion any part or all of said invest- residuary estate as it may be in at the ™^ves^ time of "my decease, even if the properties, ments investments and estates may be such as trustees are not usually allowed to invest in, without liability or responsibility on the part of said trustees and their successors for any loss resulting therefrom. While they are thus to exercise their discretion in retaining investments I urge them in making new investments 592 TESTAMENTARY FORMS — APPENDIX I to seek productive real estate, sound first mortgages of real estate, the bonds and stocks of the best rail- roads, the bonds and stock of the best industrial companies, and stock in reliable banks and trust companies; but I do not limit them to investments merely in the State of my domicile. Eighth. While, as already intimated, I do not in- tend to leave debts to any great amount, yet I am instruc- aware of the reasonableness of the law that ecutorsand executors shall have two years in which trustees ^ se ttle an estate. I am also aware that a cestui que trust or beneficiary is entitled in the juris- diction of my domicile to the income of the trust es- tate from the time of the testator's death, unless the will otherwise provides. My wife has property of her own; and it is my earnest wish that the judge of probate will allot to her from my estate the most liberal allowance provided by law. If these resources — her own and such allowance — are not sufficient for her maintenance and those of the family during the two years succeeding my decease, then I trust that my executors and the survivors or survivor of them will pay to her and my children such amounts of income from my estate as the judge of probate may direct and allow. The method to be employed by my said executors in settling my estate is as fol- lows: They will charge themselves on their books as executors with the entire assets and property which I shall leave at the appraised valuation and shall open no books as trustees until two years shall have elapsed from the date of the proving of this POEMS OF WILLS 593 will. At the expiration of said two years they will file their accounts as executors showing that they have credited themselves as executors with paying over and transferring to themselves as trustees the entire property constituting the principal of the trust. They shall then open a set of books as trustees charging themselves with the entire principal re- ceived from themselves as executors, file their accounts annually, and at the termination of the trust a final account showing that they have credited themselves with paying over and transferring to the remaindermen the property to which they are entitled. Ninth. The provisions in this will for my wife, I. J., are in lieu of dower, widow's rights Provisions or any other claims upon my estate, stat- ii eu f utory or otherwise, which she would have ngnts had if I had died intestate. In testimony whereof I have hereunto set my hand and seal this tenth day of December, a. d. 1911. [Signature and seal.] [Attestation clause and witnesses.] APPENDIX II PUBLIC CHARITIES Acts of Incorporation Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., G. H. and I. J., the trustees under the will of the late E. M., of W., and their successors are hereby made a Trustees corporation at said W. by the name of FundW Trustees of the M. Fund, for the purpose "wporated of holding in trust and administering in accord- ance with the directions of said will and the codicil thereto, the fund therein provided for the benefit of the Unitarian Society of said W. and for the es- tablishment and support of a school in said town, with all the powers and privileges requisite Powers for carrying into full effect the provisions and duties of said will and codicil and all the powers, rights and privileges, and subject to all the duties, restrictions and liabilities set forth in all general laws which now are or may hereafter be in force and applicable to such corporations, not inconsistent with the pro- visions of said will. Sect. 2. Said corporation is hereby authorized and empowered to take and hold for the purpose 595 596 TESTAMENTARY FORMS — APPENDIX II therein set forth all the estate bequeathed in trust iwr * t by said will and codicil to the trustees May take J and hold herein named; and may take and hold any other estate real or personal which may be acquired by said corporation by gift, devise, purchase or otherwise for the same purposes: pro- „ . vided, however, that the actual value of Proviso the estate by them held or possessed as aforesaid shall not at any one time exceed the amount of five hundred thousand dollars. Sect. 3. Said corporation may permit the town of W. to use for a public school kept under the re- School strictions and in accordance with the pro- may b/ visions of said will and codicil the school amfbUc building which the said trustees have school erected in said W. and may devote the income under their control for school purposes to the support in part or in whole of such school. Sect. 4. After the organization of the corpora- tion created by this act, the trustees named in the Corpora- said will and codicil of the said E. M., and convey 17 now holding under the appointment of the estate probate court within and for the county of, etc., are hereby authorized to convey the estate real and personal now in their possession or standing in their names as trustees as aforesaid or in the name of E. M., including all reversions and re- mainders after the life estates provided for by said will to said corporation; and upon the allowance in said probate court of the accounts of said trustees to the date of said conveyance to said corporation, PUBLIC CHAEITIES 597 said trustees shall be discharged by said probate court. Sect. 5. Nothing in this act shall be construed to impair the jurisdiction of the supreme judicial court over the subject matter of the trust ere- Turisdic _ ated by said will and codicil; but said tionof corporation shall, in the execution of the purposes for which it is created, be held to have the same powers, and be subject to the same limi- tations in respect thereof which are applicable to said trustees by the provisions of said will and codicil. Sect. 6. Upon the death or resignation of any of said incorporators their successors shall Successors be appointed by the probate court within to be appointed and for the county of, etc. Sect. 7. Nothing in this act shall be construed as exempting from taxation any of the property held in trust by this corporation excepting that held for educational purposes. Sect. 8. This act shall take effect upon its passage. Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., G. H., I. J., K. L., M. N., O. P., Q. R., S. T., and U. V., the trustees named in the last will of R. N., late of W., Trustees of are hereby made a corporation by the borate 1 ?" name of The Trustees of N. Hospital, and said trustees, their associates and successors in office, shall continue a body corporate for the purposes hereinafter set forth, and set forth in said will; with all the powers and privileges and subject to all the 598 TESTAMENTAKY FOBMS — APPENDIX II duties and liabilities contained in all general laws now or hereafter in force relating to such corporations. Sect. 2. Said corporation shall have authority to buy and hold real and personal estate to an amount May buy not exceeding two hundred and fifty thou- and, etc., san( j dollars, including all the real and exceeding personal estate, and the proceeds thereof, 250,000 bequeathed and devised in said will for the establishment and maintenance of a hospital in W., and any and all personal and real estate which may be otherwise given, granted, bequeathed or devised to said corporation, for the use and bene- fit of said hospital. Sect. 3. Whenever the Trustees incorporated by this act shall, for any cause, become less than nine in number, the remaining trustees shall number of choose by ballot some person or persons fiuing S of' to fill the vacancy or vacancies until the vacancies, sa j(j trustees shall be nine in number; and etc. ' thereafter the number of trustees shall continue to be nine; and any vacancy thereafter occurring shall be filled by ballot by the remaining trustees. The said nine trustees shall always consist of four female and five male members. They shall serve without pay, and no bonds shall be required of them. They shall always be residents of W., and no trustee shall continue to hold his office after ceasing to be a resident of W. Sect. 4. The trustees shall have the care and management of said hospital and of the funds thereof. They shall have full power to elect or appoint such PUBLIC CHAKITIES 599 officers as from time to time they may think neces- sary or expedient, and generally to do all Powers acts and things necessary or expedient to and duties be done for the purpose of carrying into effect the provisions and purposes of said will and of this act. Sect. 5. The town of W. is hereby authorized to raise by taxation sums of money not ex- Town may ceeding one thousand dollars in any one moneyfor 6 year, and to appropriate the same towards hos P ital the support and maintenance of said hospital. Sect. 6. This act shall take effect upon its passage. Be it enacted, etc., ap follows: Section 1. A. B., C. D., and E. F., the trustees named in the will of the late C. C. D. of H., are hereby made a corporation by the name corpora- of the C. D. Hospital, and said trustees, tors their associates and successors in office, shall con- tinue a body corporate for the purposes hereinafter set forth and set forth in said will; with Name and all the powers and privileges and subject P" 1 ? 0815 to all the duties and liabilities contained in all gen- eral laws now or hereinafter in force relating to such corporations. And the said A. B., C. D., Powers and E. F. shall hold office as the incorpo- ■"* duties rated trustees until their associates, substitutes or successors are chosen in the manner hereinafter provided and shall assume their offices. Sect. 2. Said corporation shall have authority to buy and hold real and personal estate to an amount not exceeding two hundred and fifty thousand dol- 600 TESTAMENTAEY POEMS — APPENDIX II lars including all the real and personal estate and Real and tne proceeds thereof bequeathed and de- personai vised in said will for the establishment pctflt p not exceeding and maintenance of a hospital in N., and 250,000 a ^ an( j a ^ rea ^ an( j p ersona i estate which may be otherwise given, granted, bequeathed or devised to said corporation for the use and benefit of said hospital. Sect. 3. The number of the trustees of said cor- poration shall never exceed seven; and said corpora- Trustees ^ on may at any k ga * mee t m g e ^ ect by not to ex- ballot any citizen of the city of N. or of either of the towns of H. and W. to be a member thereof. No person shall continue a member of said corporation after ceasing to be a resident of one of said three places. Sect. 4. Said corporation may choose and elect such officers as may be required to give effect to the Election of purposes and provisions of said will, and officers j s h ere by authorized to accept, execute and perform any and all the other trusts arising under said will which the executors thereof or any special trustee might do. Sect. 5. This act shall take effect upon its passage. Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., G. H., I. J., K L., and M. N., all of the town of N., who were appointed Corpora- trustees of the funds bequeathed by S. L. H. , t0IS late of N., deceased, and their successors in said trust, are hereby made a corporation by the PUBLIC CHARITIES 601 name of the Trustees of Florence Kindergarten, for the purpose of holding and managing Name and said funds bequeathed to them by said will ^ m ^ ose and other property real and personal not exceed- ing in all five hundred thousand dollars, for the pur- pose of the trust as set forth in said will, and with all the powers and privileges and subject p 0W ers to all the duties, restrictions and liabilities and duties of the general laws relating to literary and charitable corporations. Sect. 2. Said corporation shall be managed by a board of trustees composed of said incor- xobeman- porators. Vacancies occurring in said aged by trustees board of trustees shall be filled by a „ Vacancies majority vote of the remaining trustees. Sect. 3. This act shall take effect upon its passage. Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., G. H., and the mayor of the city of N. for the time being, their associates and successors, are hereby made corpora- a corporation by the name of the W. tors Scientific School, for the purpose of establishing a scientific school in said N., or assisting young men of that city as provided in the will of Name and W. W., deceased, to obtain a scientific p^^ ^ education; with all the powers and privileges and subject to all the duties, restrictions and Powers liabilities set forth in all general laws which and duties now are or may hereafter be in force and applicable to such corporations. 602 TESTAMENTARY FORMS — APPENDIX II Sect. 2. The said corporation shall have authority to receive, hold and manage the fund bequeathed h id ^ or *^ e P ur P 0Ses f° r which the said corpo- and man- ration is created by the will of W. W., late of N., deceased, . and any other donations or bequests which may be made for its benefit, and may hold for the purposes aforesaid real and per- sonal estate to an amount not exceeding three hun- dred thousand dollars. Sect. 3. The officers of said corporation shall consist of the trustees under said will, one of whom Officers to snau ' 3e president; also a treasurer and a consist of secretary, who may or may not be members ITUSlvcS under the of said board of trustees. Whenever a trustee shall die or resign or become in- competent to discharge the duties of his trust, a successor shall be elected by ballot by the remain- ing trustees; but no person so elected shall have any authority to act as trustee until approved as such by the judge of probate for the county of, etc. Sect. 4. The said institution shall be established in said N., and shall be conducted and managed in To be es- accordance with the provisions of the will tabUshed of W. W. It shall as often as once in three years, and oftener when thereto re- quested, render to the probate court for the county of, etc., and also to the city of N. an account of all receipts and disbursements of the said trust fund. Sect. 5. This act shall take effect upon its passage. PUBLIC CHARITIES 603 Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., and G. H., all of S. in the county of H., trustees of the funds created for charitable purposes by the will of corpora- J. W. H., late of said S., deceased, and their tors successors in said trust, are hereby made a corporation by the name of the Trustees of the J. W. H. Fund, for the purpose of managing said funds and Name and dispensing said charities with greater facil- v^pose ity and security; with all the powers and privileges and subject to all the restrictions, duties and lia- bilities set forth in the general laws which now are or hereafter may be in force and applicable to such corporations. Sect. 2. Said corporation may hold all. such notes, mortgages, deeds and moneys as may have been given or transferred to the trustees aforesaid in corporate their said capacity, and may sue and re- P° wers cover upon the same without any special or further conveyance or transfer thereof to the said corporation; and may hold and dispose of real estate to any amount which may have been by said trustees, or may be by said corporation, taken as security for or in payment of any debt due to said trustees or said corporation. Sect. 3. Nothing in this act contained shall be construed as altering the mode of ascertaining the persons who shall be trustees of said funds obligations from time to time which is provided in oftrustees said will; nor as relieving such trustees from the obligation of giving bonds as required by law, or from any liability which they may have incurred or 604 TESTAMENTARY FORMS — APPENDIX II hereafter may incur by virtue of such bonds; nor as restricting, enlarging, or in any way changing the provisions of said will, or the scheme of charity therein set forth. Sect. 4. The city council of the city of S. is hereby authorized to direct the payment from the treasury Certain °^ Sa *^ C ^ ^° Sa "* cor P ora tion of a sum taxes to be equal to the amount paid as taxes by said refunded . . . . trustees to said city in the year eighteen hundred and eighty-one, to be held and used by said corporation as income of said trust fund in the manner provided by said will. Property Sect. 5. All of the funds and prop- exempted er ty aforesaid shall be exempted from taxation taxation. Whereas, G. S. B., late of the city of F., deceased, in and by his last will and testament bearing date April twelfth, eighteen hundred and seventy-five, and proved and allowed by the probate court holden at W. within and for the county of W., on the sixth day of March, a. d. eighteen hundred and eighty-eight, did make provision for founding and maintaining a hospital within said city of F., and for the use of all its inhabitants, by a generous bequest, now amount- ing to more than four hundred and thirty thousand dollars. Now, therefore, to enable the inhabitants of said city of F. to receive the benefits of said gen- erous bequest of said testator and effectually to realize and meet the benevolent intention expressed in said will, therefore, — PUBLIC CHARITIES 605 Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., G. H., I. J., K. L., M. N., O. P., Q. R., S. T., U. V., W. X., Y. Z., B. M., and H. E., all of said F., and their successors who shall be residents therein, are hereby made B Hospital a corporation by the name of the B. Hos- incorpo- pital, for the sole purpose of establishing and maintaining a public hospital for the use of the inhabitants of the said city and others who may be admitted thereto under the provisions of said will who may require medical and surgical treatment. Sect. 2. Said corporation shall have authority for the purpose aforesaid, and no other, 5^^ to hold real and personal estate to the personal CSt cite amount of eight hundred thousand dollars. Sect. 3. The mayor of the city of F., the president of the common council and the city treasurer, sev- erally for the time being, shall be trustees Board of ex-officiis during the terms of their respec- tmstees tive offices, and together with the corporators above named shall constitute the board of trustees, of whom the mayor shall be, ex-officio chairman, and whose terms of office except as above provided shall be as follows: The trustees shall in the month of January in the year eighteen hundred and ninety-one elect five of their members whose terms of office are not fixed as above, who shall hold for the term of one year from the first day of February in the year eighteen hundred and ninety-one, and five of their own number who shall hold for the term of two years from the said first day of February, and the remain- 606 TESTAMENTARY FORMS — APPENDIX II ing five shall be elected to hold for the term of three years from the said first day of February, and who shall severally hold for the terms for which they are elected and until their successors are chosen, and thereafter each class in succession for the period of three years. Six members of the board shall consti- Sixmem- tute a quorum except in the election or constitute removal of trustees, when a majority of the a quorum board shall be required. Whenever a vacancy shall occur in the board of trustees by reason of the death, resignation or otherwise of the members so elected, the remaining trustees shall fill the va- cancy for the unexpired term. If the board of trustees shall fail for three months to elect its members in accordance with the provisions of this act, the city council of the city of F. shall forthwith proceed to an election by concurrent vote. No member of the board as such shall receive compensation for his services. And the city of F. is hereby authorized Funds etc. an( ^ empowered to place in trust in the maybe hands of the trustees of said corporation placed in r hands of all funds, gifts and bequests, which are or trustees may be held by it for the purpose of estab- lishing and maintaining said hospital, especially all sums it may from time to time receive from the trustees appointed under the will of G. S. B., late of said F., deceased. And said corporation shall, upon the acceptance of this act by the city council as hereinafter provided, receive and hold all past and future bequests and gifts that may be made for the maintenance of said hospital, and the^ same shall PUBLIC CHARITIES 607 be appropriated, held and used by said corporation for the sole use and purpose aforesaid as a trust in behalf of and for the inhabitants of said city, and to such other persons as may be permitted to enjoy the benefits of said hospital in pursuance of the pro- visions of said will. And said trustees shall render to the city council annually in the month To make of January a report of their proceedings, jj^ttotne with a statement of the condition of the cxty council hospital, the property and funds pertaining to the same, with an accurate account of all receipts and expenditures, together with such other information or suggestions as they may deem desirable or the city council may at any time require. And said trustees shall in behalf of said city carefully and considerately carry into 'execution the generous plan of the testator as contemplated by the said will. Sect. 4. And said trustees shall appoint a treas- urer, and shall require of him a bond with satis- factory sureties in the penal sum of not less than twenty-five thousand dollars for the faithful dis- charge of his duties, and his books of accounts and vouchers shall at all times be open to the trustees aforesaid, or any one of them. Sect. 5. The trustees shall appoint a clerk whose duty it shall be to keep a full and fair To appoint record of the proceedings of the board, aclerk and to discharge such other duties as they shall from time to time prescribe. The compen- compensa- sation of the treasurer and clerk shall be tion fixed by the board of trustees. 608 TESTAMENTARY FORMS — APPENDIX II Sect. 6. The trustees shall have full power to elect such other officers as they may from time to To have time think necessary or expedient, and elect other t° determine and appoint the tenure of officers thejp offices, and of those of the treasurer and clerk; to remove any trustee who shall be inca- pable through age, infirmity or otherwise for the discharge of his duties as said trustee, or who by unreasonable absence from the meetings of the board shall fail to discharge the duties of his office, and generally to do all acts and things necessary to be done for the purpose of carry- ing into full effect the provisions and purposes of this act. Sect. 7. It shall be the duty of the trustees to safely and securely invest, or to hold invested, the investment trust funds derived under said will or of funds otherwise, and they shall have regard at all times to all the provisions of said will affecting said - trust and the desire of the testator as expressed therein, and particularly to the suggestions made in the following extract therefrom: Extract from the Will of G. S. B. And the remainder of said principal not herein- before disposed of under the preceding provisions of Extract this will I direct my trustees to pay over ^fof e to the city of F. as far as and as fast as G. s. B. ft i s re i ease d from the charges and annui- ties hereinbefore created, for the founding and main- PUBLIC CHARITIES 609 taining of a hospital for the care of the sick. And while I do not wish to embarrass this gift with pro- visions and restrictions, but desire that the city shall carefully and considerately carry my plan into execution, believing that founders of benevolent institutions like the one I contemplate often create great difficulties by endeavoring to settle in advance the details of the work they have projected, still I wish to indicate in general terms two purposes which I desire to have executed. First: I desire that a substantial and commodious hospital building shall be erected; and as I trust my charity may sur- vive and do good to the poor for many generations, and also believe that the city of F. will in time be a large and prosperous city, I would suggest that the sum of at least one hundred thousand dollars be devoted to the purchase of the necessary land and the erection of the structure. And I also request and direct that while those who are able to pay for the services rendered them in the hospital may be subjected to such moderate and reasonable charge as is usual "in such cases in similar charitable insti- tutions, those on the other hand who are in poverty and sickness shall ever be received and cared for kindly and tenderly "without money and without price" and without regard to color or nationality. It is by the request of my wife, whose good judgment has so greatly aided me in all the affairs and purposes of my life, that I was led to make the foregoing provision for the foundation of a hospital. 610 TESTAMENTARY FORMS — APPENDIX II ' Sect. 8. This act shall take effect whenever it , shall be accepted by a concurrent vote of effect upon the board of aldermen and common council acceptance rf ^ dty rf F> Sect. 9. Nothing in this act contained shall be held to alter or impair any trust created by said Trust ere- will. And the corporation hereby created, not to be acting through its trustees and proper impaired officers, shall be deemed the agent of said city of F. for the proper execution of all trusts aris- ing under the provisions of said will. And nothing in this act contained shall be construed as releasing the city of F. from any obligation arising from the acceptance of said bequest under said will, or from any condition made therein. And the said A. B. is _,. . hereby authorized and empowered to pre- .rirst meet™ ingof scribe the time and place for the holding trustees of the first meeting of said trustees and to notify them thereof. Be it enacted, etc., as follows: Section 1. The city of F. is hereby authorized to borrow the sum of one hundred thousand dollars and to issue its notes or certificates of $100,000 indebtedness therefor at a rate of interest po^oVes- n °t exceeding four per centum per annum, ta h Us ^taf and said money shall be expended for the purchase of land and the erection of a hospital building in said city as contemplated in the bequest made therefor in the will of G. S. B. late of said F., deceased: provided, that from the sum PUBLIC CHARITIES 611 received under said will by said city, or by any per- son or corporation in its behalf, no allow- _ . 11 i -i Provisos ance snail be made for any interest paid, or discount allowed, on account of money borrowed and expended as aforesaid; provided, further, that the indebtedness so created by said city shall not be included in determining the amount of debt said city is authorized to incur under existing provisions of law. Sect. 2. This act shall take effect upon its passage. Be it enacted, etc., as follows : Section 1. A. B. of S., C. D., E. F., G. H., I. J., K L., M. N., 0. P., and Q. R., all of N., and their associates who may be elected under the corpora- provisions of the will of W. W. S. late of tors said N., to fill existing vacancies in the board of trustees named in said will, and their successors, are hereby incorporated by the name of the Trustees of the S. Free School, with all the powers and privileges requisite for carrying into full effect the provisions of said will, and with all the powers, rights and privileges, and subject to all the duties, restrictions and liabilities set p 0W ers forth in all general laws which now are andduties or hereafter may be in force and applicable to such corporations. Sect. 2. Said corporation may take and hold all and singular the estate, real and personal, devised and bequeathed by the said W. W. S. by his said 612 TESTAMENTARY FORMS — APPENDIX II will and codicil to his trustees therein named for the May take Purposes aforesaid, together with its accu- and hold mulations heretofore made, and may take estate be- queathed and hold any other and further estate, real y and personal, which may be acquired by them by gift, devise, purchase or otherwise for the same purposes: provided, however, that the actual „ value of the real and personal estate by exceed them so held and possessed shall not exceed the sum of four hundred thousand dollars, all of which estates shall be devoted and appropriated exclusively for the purposes of education in the man- ner set forth in said will and codicil. Sect. 3. After the organization of the corporation created by this act, the surviving executor of the Executor said will of W. W. S. and the trustees now tees may holding under the appointment of the pro- tatTto cor- b ate court within and for the county of B., poration an( j x. L. his and their attorney, are hereby authorized to convey the estate, real and personal, now in their possession or standing in their names or in the name of the estate of W. W. S. or of the executors of the will or estate of W. W. S. or of K. L. attorney for A. B., surviving executor of the will of W. W. S., or however the same may be expressed, to said corporation, and upon the allow- ance in said probate court of the account of said trustees from the date of the allowance of the final account of said surviving executor to the date of said conveyance to said corporation, said trustees shall be discharged by said probate court. PUBLIC CHARITIES 613 Sect. 4. Nothing in this act shall be construed to impair the jurisdiction of the supreme judicial court, sitting in equity, to grant to said Jurisdic- corporation authority to sell and dispose court in of its real estate ; but said corporation shall, fo beim-* in the execution of the purposes for which paired it is created, be held to have the same powers, and be subject to the same limitations in respect thereof, which are applicable to the said trustees by the provisions of said will. Sect. 5. This act shall take effect upon its passage. Be it enacted, etc., as follows : Section 1. A. B. and C. D., appointed by the probate court trustees for the time being under the will of the late C. E. F. of N., are hereby Trustees made a corporation by the name of the 2brary in- "Trustees of the F. Library," and said corporated trustees their associates and successors in office shall continue a body corporate for the purposes herein- after set forth, with all the powers and privileges and subject to all the duties, restrictions and liabil- ities in the general laws relating to such corporations. And the said A. B. and C. D. shall hold office as such incorporated trustees until their substitutes and suc- cessors are elected in the manner hereinafter pro- vided and shall assume their offices. Sect. 2. The said corporation shall have authority to take and hold real and personal estate to an amount not exceeding eight hundred thousand dol- lars, including all the real and personal estate and 614 TESTAMENTARY FORMS — APPENDIX II the proceeds thereof bequeathed and devised by said Real and ^. E. F. for the establishment and main- personal tenance of a library in said N., and any gc+g+g not to exceed and all real and personal estate which may ' be otherwise given, granted, bequeathed and devised to said corporation or to said town of N. for the use and benefit of said library. Sect. 3. The legal voters of the town of N. may, at annual or special town meeting called for the pur- Town may P ose after the passage of this act, vote to elect a accept the same, as also the provisions and trustee or r ' r trustees, bequests of said will upon the terms and ceptance conditions prescribed therein; and at the 01 l same or any future meeting within the time limited by said will, articles being inserted in the warrant for that purpose, it shall be lawful for the town to determine by vote whether, in the exer- cise of the option authorized by said will, it will elect one or three trustees to have the superintend- ence and management of the affairs of said corpora- tion; and when said option is determined it may, at the same or a future meeting, proceed to the election, by ballot, of a single trustee, or of three trustees, ac- cording as the town shall have predetermined by its vote ; and upon the election of said trustee or trustees the same shall hold office until his or their successors shall have been respectively elected and qualified as hereinafter provided, or until a vacancy in office shall occur through the resignation, death or removal from office of any trustee; and the said town, at the same meeting when this act is accepted or at a PUBLIC CHARITIES 615 future meeting within the time limited by said will, an article being in the warrant for that purpose, may determine whether it will direct the Todeter- trustees holding office by appointment of ™^!^L, the probate court to permit the whole of years the sum appropriated by said will for library shall accu- purposes to accumulate for a term not m a e exceeding ten years, and for what term, as authorized by said will, in order to increase the amount avail- able as a building fund; also, at the same or any future meeting, the said town may determine and direct as to any other matter or thing which it is competent for the town to determine, direct and do, under an article in the warrant therefor, by way of carrying into effect the provisions of said will, and in anticipation of the time when the trustees ap- pointed by the probate court shall convey to the trustee or trustees elected by the town, the real, per- sonal and mixed estate held by the former for the uses and purposes of said library. Sect. 4. If said town, in the exercise of its option before referred to, shall elect to have but Name of one trustee, the name of said corporation corporation if but one shall be "The Trustee of the F. Library"; trustee is and whether the town shall elect one or three trustees, no trustee shall receive any pecuniary compensation for his services. Sect. 5. If said town shall elect one trustee only to have the superintendence and management of the affairs of said corporation, said trustee shall hold office' for the term of three years from the first 616 TESTAMENTARY FORMS — APPENDIX II Wednesday in May next after said trustee shall have „, been elected, and once in three years there- Trustees to ' J serve for after at the annual town meeting holden next before his term expires, his successor shall be chosen in his stead. If however said town shall in its option determine to elect three trustees, sajid trustees shall be elected, one to serve for the term of three years from the first Wednesday in May next after said election, one other for two years, and the third for one year from the same date; and annually, at the annual town meeting in each year after said first election, a trustee shall be elected for three years to succeed the trustee whose term is then next to expire. Sect. 6. In case a vacancy shall occur in the office of any trustee chosen by the town, whether occa- Vacanc in s i° ne d by resignation, death, removal from office of office, or from any other cause, the town may at any meeting called for the purpose choose another trustee who shall hold office for the residue of the unexpired term. Sect. 7. The said town of N. is hereby further authorized at any annual or special meeting legally Town to notified and warned, to elect a secretary ter^treas- an< * treasurer of said corporation, and all urer, etc., other agents and employes therein, and compensa- to remove the same at their pleasure; to fix the compensation of each; to establish all necessary rules and regulations for the library, and generally to control all the affairs of the corpora- tion; but in the absence of action on the part of the town the trustee, or a majority of the trustees elected PUBLIC CHARITIES 617 by the town in accordance with the provisions of this act, being first duly sworn to a faithful discharge of the duties of their office, shall have the general superintendence and management of the affairs of the corporation, shall appoint the librarian and other employes in the library, and fix the compensation of each, and shall have the power to remove any of them for sufficient cause; they shall also have power to remove the treasurer whenever in their judgment the safety of the corporation funds requires his re- moval, and may appoint a treasurer pro tempore to continue in office until the town have opportunity to act upon the subject. They shall further do all things enjoined upon them by said will, and generally shall have all the powers of the town, had Secretary the town chosen to exercise them, except Srertobe the election of trustees, and of the secre- swom tary and treasurer of the corporation; and the secre- tary and treasurer of said corporation, elected as hereinbefore provided, shall each take the Treasurer oath prescribed in said will, and said treas- to give urer shall give bonds as therein required, and they shall respectively perform all the duties enjoined upon them by said will. Sect. 8. This act shall take effect upon its ac- ceptance by the town of N. at a town meet- Sub - ect t0 ing duly called and by a vote duly passed acceptance , , , ' by town and recorded. Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., G. H., I. J., K. L., 618 TESTAMENTARY FORMS — APPENDIX II M. N., 0. P., Q. R., S. T., U. V., W. X., Y. Z., Corpora- V- A., W. L., Q. B., S. D., 0. B., U. C, tors j Y, t their associates and successors, are hereby made a corporation by the name of the A. Nervine Asylum, for the purpose of establishing Name and and maintaining a hospital to afford care purpose an( j re ii e f to indigent, debilitated and ner- vous persons, inhabitants of this Commonwealth, who are not insane and who may be in need of the benefit of a curative institution;, with all the powers and privileges, and subject to all the duties, restric- tions and liabilities set forth in all general laws which now are or may hereafter be in force and applicable to such corporations. Sect. 2. Said corporation shall have authority to receive, hold and disburse the income of the fund May hold bequeathed for the purposes for which the fund be- sa jd corporation is created by the will of queathed for the pur- S. A., late of N., deceased, and any other |,0bt " "'"" donations or bequests which may be made for its benefit, and may hold for the purposes afore- said real and personal estate to an amount not exceeding three hundred thousand dollars. Sect. 3. The members of said corporation shall consist of the trustees under the residuary clause of Members ^ e will of the said S. A., and their succes- of corpora- sors, and the persons associated with them in this act of incorporation, of such persons as may at any legal meeting of the corporation be elected members by ballot, of such persons as shall, with the consent of the board of managers hereinafter PUBLIC CHARITIES 619 referred to first obtained, pay to the said trustees as an addition to the fund held by them for the use of the corporation, the sum of one hundred dollars or more each, and also of such persons as shall, with the consent of the said board of managers first ob- tained, pay into the said fund the sum of twenty-five dollars each, as an initiation fee, and shall thereafter pay and continue to pay into said fund annually in advance the sum of three dollars each; the said last mentioned persons to be members while they shall continue the said annual payment and no longer. Sect. 4. The officers of said corporation shall consist of the trustees under the will of the said S. A., and their successors, a president, a officers of vice-president, a treasurer, a secretary, a COI P° iahoa physician, a board of not less than nine managers, of which the president, vice-president, treasurer and trustees shall be members, and three supervisors, who shall examine the affairs of said corporation as often as once in three months, and report the general result of such examination annually in two Annual ' of the leading newspapers of B. All the report said officers except the said trustees, shall be annually elected by ballot at meetings duly called for the pur- pose, and whenever a trustee shall die, resign, or become incompetent to discharge the duties of his trust, a successor shall be elected by ballot at a meeting of the corporation duly called for the pur- pose; but no person so elected shall have power or authority to act as a trustee until approved as such by the judge of probate for the county of, etc. 620 TESTAMENTARY FORMS — APPENDIX II Sect. 5. The said institution shall be established Institution ™ one °^ *he P ai "t s °f ^foe C ^Y of B., and to be es- sna n be conducted and managed in accord- tablished . . . ° in B. or ance with the provisions of the will of the '""' My g a id S. A., and with such by-laws as may be adopted by the corporation, not inconsistent therewith. Sect. 6. The said corporation shall have author- ity to receive and care for persons not indigent, May re-. w ho ma y be otherwise suitable for treat- ceive and care for, ment in its institution, at the discretion of pensation," i* s board of managers, but shall require who are not *k e payment to the corporation by such indigent persons of reasonable compensation there- for, the amount of which shall be determined by the managers. Sect. 7. This act shall take effect upon its passage. Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., G. H., I. J., K. L., M. N. and 0. P., all of H., and their successors, Corpora- are hereby constituted a body corporate tors under the name of the Trustees of the S. Academy, to be established at H., and to be managed Name and and conducted in accordance with the purpose pj an an( j p rov j s i ons se t f or th in the last will of S. S., late of said H. And the said trustees shall have power and authority from time to time Trustees as vacanc i es ma Y occur in their board, to and other elect by ballot new members to fill the officers " same; also to elect a president, vice-presi- dent, secretary and treasurer, and such other officers PUBLIC CHARITIES 621 of said corporation as may be found necessary, and to declare the duties and tenures of these respective offices ; and also to remove any trustee from the same corporation, when in their judgment he shall be rendered incapable by age or otherwise of discharging the duties of his office, or shall neglect or refuse to perform the same: -provided, nevertheless, that the number of members shall never be greater than eight. Sect. 2. The said corporation shall have full power and authority to determine at what time and places their meetings shall be held, and M etia s i the manner of notifying the trustees to of corpora- convene at such meetings; and from time to time to appoint a principal, preceptress, and such teachers or assistants as in their judgment the said academy requires, and to determine the Principal duties and compensation of each, and the teachers tenure of their several offices; to make etc- and ordain as occasion may require, reasonable rules, orders and by-laws not repugnant to the constitu- tion and laws of this Commonwealth, with Rui es and reasonable penalties for the good govern- re euia tions ment of said academy, and for the regulation of their own body; and to determine and regulate the course of study in said academy: provided, nevertheless, that no corporate business shall be transacted at any meeting unless five at least of the trustees are pres- ent; and provided, further, that all action under the provisions of this section shall be subject to any express directions and restrictions named in said will. 622 TESTAMENTARY FORMS — APPENDIX II Sect. 3. The said corporation shall be capable of taking and holding in fee-simple, or any less estate, R al d ^ gift, grant, bequest, devise or otherwise, personal any lands, tenements, or other estate, real or personal, and of managing, investing, appropriating and disposing of the same, and of the rents and profits thereof, in such manner as shall best promote the prosperity of said academy and the objects for which it is founded, they conforming to the will of the founder and of any donor or donors in the application of any estate which has been, or may be given, devised or bequeathed for any object connected with the said academy: provided, however, the clear annual income of all said estate shall not exceed ten thousand dollars. Sect. 4. This act shall take effect upon its passage. Be it enacted, etc., as follows: Section 1. A corporation is hereby created by the name of S. Academy, to take, hold and manage Academy the estate, real and personal, devised and ratedfas., bequeathed to the town of S., by M. S., to hold es- late of N., deceased, and to execute the queathed trusts upon which said estate was given to said town, according to the terms of the will of said deceased, with the powers and privi- leges, and subject to the duties, restrictions and lia- bilities set forth in all general laws which now are or hereafter may be in force applicable to such corporations. Sect. 2. The corporation shall consist of five PUBLIC CHARITIES 623 trustees, elected by said town from among the inhab- itants thereof, at its annual meetings by Corpora- ballot. Those heretofore elected shall hold S ist of five" office as follows: A. B., five years; C. D., %££f hy four years; E. F., three years; G. H., two the town years; and I. J., one year, from the annual March meeting, in the year eighteen hundred and seventy- one. At the expiration of the term for which any trustee is elected, his successor shall be Termof chosen for five years. Any vacancy by office, va- death, resignation, removal from town, or ' otherwise, may, at any town meeting called for that purpose, be filled by election for the remainder of the term. Sect. 3. Said corporation shall also take, hold and manage the fund or property given to said town by said T. D., late of C, deceased, and _ •» ' ' ' ro manage shall execute the trusts upon which said fund given property or fund was given to said town according to the terms of the instrument signed by K. L. and M. N., executors of the will of said D. and recorded in the records of said town. Sect. 4. All the estate, funds and property, both real and personal, so given to said town by said S. and D., shall immediately vest in said Tokeep corporation upon the passage of this act. ^^'^ The corporation shall keep the funds and trusts sep- i- • i , f arately property of said two trusts separate from each other, and shall appropriate the income thereof for the purposes for which said trusts respectively were created; may bargain, sell, transfer and convey 624 TESTAMENTARY FORMS — APPENDIX II any of the trust estate, real or personal, of either trust, and reinvest the proceeds thereof in other in- vestments from time to time as deemed best for the May use interest of the trusts. And the corporation s! trust for may appropriate from the principal of the school* S. trust estate a sum not exceeding fifteen house thousand dollars in the purchase of a lot of land and the erection of a building thereon, for a public school, as provided in said will. Sect. 5. The trustees shall annually render to the town of S. accounts of the condition of said trust estates and funds, and the receipts and ex- Trustees to render to penditures thereof, which shall be printed, annually an and a printed report also of the condition receipts and °^ sa ^ school or academy, specifying the expendi- number of scholars and their deportment tures and proficiency, with such other informa- tion in relation thereto as they may deem useful to the town. Sect. 6. This act shall take effect upon its passage. Be it enacted, etc., as follows: Section 1. A. B., C. D., E. F., G. H., I. J., K. L., M. N., 0. P., Q. R., S. T., U. V., their associates Corpora- and successors, are hereby made a corpora- tors tion by the name of "The Trustees of the Howard Funds in W. B.," for the purpose of holding in trust and administering the school fund, parochial Name and fund, and lecture fund provided for by purpose the wU1 of the late g g jj ^ of w g ( proved and allowed in the probate court, held at P., PUBLIC CHARITIES 625 in and for the county of P., on the thirteenth day of May, in the year one thousand eight hundred and sixty-seven; subject to all the duties, liabilities and restrictions set forth in all general laws which now are or may hereafter be in force relating to such corporations. Sect. 2. Said corporation is hereby authorized and empowered to take and hold, for the purposes therein set forth, all the estate bequeathed corpora- in trust by said will to the trustees herein j^ 1 ^ named; and may take and hold any other hold real estate, real or personal, which may be sonai acquired by said corporation by gift, devise, purchase or otherwise, for the same purposes: provided, however, that the actual value of _. , A ± . r ' Limitation the estate by them held or possessed as aforesaid, shall not at any one time exceed the amount of two hundred thousand dollars. Sect. 3. Said corporation shall cause accurate account to be kept of all the receipts and Accounts expenditures of each fund provided for of receipts r . and expen- in said will, in the same manner as if dituresto each of said funds was held by a separate corporation. Sect. 4. This act shall take effect upon its passage. INDEX ABATEMENT, ^of legacies, 242 et seq. ABROAD, making will while, 12. ABSENT LEGATEES, provisions as to, 17, 273-276. ABSOLUTE ESTATE IN PERSONALTY, how created, 155, 161. ACCELERATION, of remainder, 189. ACCOUNTS, directions to executor as to filing, 358. auditing of, 359, 389. ■ separate, in trust estates, 436. of guardian, how kept, 447. ACCRUING SHARES, how affected by clause of survivorship, 438. ACCUMULATION, of income, 202, 400, 401. ADEMPTION, of legacies, 238 et seq., 263 et seq., 303 et seq. ADMINISTRATION, general and foreign, 14. ADMINISTRATOR, use of word in case of lapsed legacies, 293. there must be, if no executor, 308. appointed, when minor is executor, 310. of deceased trustee, duties of, 445. ADOPTED CHILDREN, provisions as to, 211, 216. effect of, on will, 307. 627 628 TESTAMENTARY FORMS ADVANCES, provision as to, a reason for making a will, U. to children, when to be deducted from their shares, 256 et seq. when cannot be barred by statute of limitations, 257. meaning of legal debts in reference to, 258. how to be deducted from portions in trust, 258. interest upon, 258. suggestions as to, 259. not preventing lapse, 294. AFTER-ACQUIRED PROPERTY, when it passes, 59. AFTER-BORN CHILDREN, provisions as to, 53, 214. AGE, testamentary, 48 et seq., 475. AGENTS, provisions as to employment of, 350. AGREEMENT, to make a will, 143. ALIEN, may make a will, 50. as devisee and legatee, 126. executor, 310. trustee, 367. ALIENATION, law as to, in case of real estate, 15, 16. restraint of, 177. of income, 395, 400. ALLOTMENT OF REAL ESTATE, in case of devise, 302. ALLOWANCES, to widow, 56. ALTERATIONS. (See Obliterations and Interlineations.) ALTERNATIVE, termination of trust in, 442. AMBIGUITY, how solved by punctuation, 129. created by words of locality and occupancy, 147. ANCILLARY ADMINISTRATION, law as to, 14, 15. INDEX 629 "AND." (See Or.) ANNUALLY, use of, 395. ANNUITY, when payable, 291. may be granted by trust companies, 368. when a payment out of estate generally, 401, 402. when out of a fixed amount as principal, 402. description of, 402. when annuitant should be given entire net income, 402. to wife, 403. when apportionable, 429. fund chargeable with payment of, 435. termination of trust by, 443. ANTE-NUPTIAL AGREEMENT, provisions as to, 121. ANTICIPATION, of income, 395, 400. APPOINTMENT. (See Power of Appointment.) APPORTIONMENT, of income, etc., 429. ARBITRATION, SUBMISSION TO. (See Compromise.) ARTICLES, consumable, gift of, 160. ASSIGNMENT, of income, 395-400. assigns; use of word in case of lapsed legacies, 293. ATTACHMENT, of income, 395-400. ATTESTATION. (See Witness.) clauses of, 470, 476. ATTORNEY. (See Suggestions for Wills.) caution required of, in drawing will, 48, 50. provisions as to employment of, 350. AUDITORS, of trustees' accounts, 359, 389. AUSTRIA-HUNGARY, treaty with, as to disposing of property, 19-21. AWARD, to widow, 56. 630 TESTAMENTARY FORMS B BASTARD. (See Illegitimate Children.) BAVARIA, treaty with, as to disposing of property, 21, 22. BENEFICIARIES. (See Trust and Trustee.) BEQUEATH, use of, 148. BLIND TESTATOR, provisions as to, 475. BODY OF TESTATOR, disposition of, by will, 81. BOLIVIA, treaty with, as to disposing of property, 23. BOND, of indemnity to executor, when required, 277. executor, 321 et seq. guardian, 447. trustee for charity not required to give, 454. BONDS, specifically bequeathed, interest on, 241. held in trust, interest on, 426. BOOKKEEPERS, provisions as to employment of, 350 et seq. BRAZIL, treaty with, as to disposing of property, 23, 24. BROKER, provisions as to employment of, 350 et seq. BROKERAGE. (See Commissions.) BROTHERS AND SISTERS, meaning of, 215, 223. BRUNSWICK AND LUNENBURG treaty with, as to disposition of property, 24. BURDEN OF PROOF, in case of will, 467. BURIAL, directions as to, 81, 82. BURIAL LOT. (See Cemetery Lot.) INDEX 631 BUSINESS OF TESTATOR, copartnership articles as to, 101. provisions as to carrying on, after testator's decease, 101 et seq. C CAPACITY, testamentary, 48 et seq. CAPITAL, questions as to, 410 et seq. CARRIAGES, bequest of, 231. CEMETERY CORPORATIONS, when may hold funds in trust, 367. CEMETERY LOT, provision as to, 11, 81-88. CESTUI QUE TRUST. (See Trust and Trustee.) CHARGES OF ADMINISTRATION. (See Compensation.) CHARITABLE OBJECTS, subscriptions to, 98. CHARITABLE USE. (See Public Charity.) CHILDREN. (See Description of Legatees; Homestead; Posthumous Children.) disinheritance of, 8, 9, 51 et seq., 495. expression of intention as to 9, 51 et seq. after-born, 53, 214. estate tail in case of, 155. when devise to, creates vested remainder, 190, 191. when contingent remainder, 191, 192. debts from, when regarded as advances, 257. in the case of lapsed legacies, 296. CHIROGRAPHY, in case of will, 128. CITY, as trustee, 367, 455. CLASS, in case of perpetuities, 202. lapse in case of fluctuating, 295. CLERKS, provisions as to employment of, 350. 632 TESTAMENTARY FORMS CODICIL, definition of, 143. > cumulative or substitutional gifts by, 144, 145. affecting whole will, not advisable, 145. should be annexed to will, 145. appointment of executors, etc., by, 145. revocation of legacy in will by, 146, 301. commencement of, 146. revocation of, 303, 304. legatee in will should not be witness to, 472. COLOMBIA, treaty with, as to disposing of property, 25. COMMENCEMENT, of a will, 137. codicil, 146. COMMERCIAL PAPER, signing of, etc., by executor, 112. COMMISSIONS, provisions as to, 425. COMMUNITY PROPERTY, of husband and wife, 55. COMPENSATION, providing for executors, a reason for making a will, 11. of executor, 325. legacy in lieu of, 172. of trustee and guardian, 371, 449. COMPROMISE, provisions as to, 348. CONCURRENT DEATHS, possibility of, a reason for making a will, 7. CONCURRENT WILLS, definitions of, 142. CONDITION, when will dependent upon, 140. land charged with payment of money, when upon, 152, 163 et seq. words necessary to create, 163. difference between precedent and subsequent, 164. result when it becomes impossible, 164. performance of, 165. general points as to: payments of legacies, 166. INDEX 633 CONDITION (Continued) devises charged with payment of legacies for one's educa- tion, 171. legacy to executor or trustee, 172. restraint of marriage, 174. alienation, 177. disputing will, 178. residence, 184. gifts to servants, etc., 185. various conditions, 188. application of rule against perpetuities to, 206. CONDITIONAL LIMITATION, preferable to condition, 163-166. CONDITIONAL WILL, definition of, 140. CONFIRMATION, of conveyance by devise, 118. CONFIRMATION OF WILL. (See Codicil.) CONSENT, power of sale dependent upon, 337, 338. CONTEST OF WILL. (See Disputing Will.) expenses of, 327. CONTINGENT REMAINDER. (See Remainder.) CONTRACTS, completion of, by executor, 112. CONVERSION, of land into money or money into land, 334. investments which come to trustee, 416. COPARTNERSHIP. (See Business op Testator.) COPYRIGHT, renewals and extensions of, 77. as wasting investment, 415. CORPORATION, devise or bequest to, 126. joint tenancy in case of, 157. lapse in case of dissolution of, 294. may be executor, 313. guardian, 446. member of, as witness to a will in which property is bequeathed to, 471, 472. COUNSEL. (See Attorney.) 634 TESTAMENTARY FORMS COUSIN, meaning of, 215. CREDITOR, legacy to, 267, 268. may be executor, 311. as witness to will, 471. CREMATION, directions as to, 81. CUMULATIVE LEGACIES, provisions as to, 144. CURTESY, of husband, 56. none in a vested remainder, 61. CUSTODY, of will, 479. CY-PRES. (See Public Chabitt.) D DEAD BODY. (See Body op Testatok.) DEAF AND DUMB TESTATOR, provisions as to, 475. DEBTOR, legacy to, 253 el seq. may be executor, 311. DEBTS, general rules as to payment of, 269 et seq., 329 et seq. DECLARATION OP TRUST, provisions as to, 63. DEFECTS, may be supplied, 234. DEFICIENCY OF ASSETS. (See Abatement.) DELEGATION, of trust, 442. DEMONSTRATIVE LEGACY, paid from general assets, though fund fails, 238, 239. when it abates, 249. DEPENDENT RELATIVE REVOCATION. (See Revocation.) INDEX 635 DESCENDANTS, include what, 217, 224. DESCENT, title by, 3. in case of real estate, 15. when heir takes by, and not by purchase, 117, 308." DESCEIPTION OF LEGATEES AND LEGACIES. (-See Specific Devises and Legacies; Life Estate in Personalty.) Of Legatees, children, declaring who are, 4. in a class, 210-213. en ventre sa mere, 210. exclusion of, etc., 209, 210. posthumous, 211. nephews and nieces, meaning of, 211. gift direct to wife and children, 211-213. who take under gift to children, 211-213. plurality of children, 213. gifts to youngest or oldest sons, 214. children at the date of the will, 214. at a period beyond testator's death, 214. after-born children, 53, 214. "heirs" may mean children, 215. "issue" may be limited to children, 215, 217. meaning of cousin, 215. adopted children, 216. illegitimate children, 216. meaning of descendants, 217, 224, 225. when children take per capita or per stirpes, 218, 219. when heirs to be applied per stirpes or per capita, 218, 219. meaning of "heirs of my children," 220. "heirs" and "heirs-at-law," 220, 222. "next of kin," 222-224. "family," 225-226. "relations" or "relatives," 227. "legal representatives," 227. "survivors," 227. "husband" and "wife," 228. "executors" and ''administrators," 228. Of Legacies, "my property," "my estate," etc., include what, 228. wearing apparel, watches, jewelry, furniture, etc., 229 et seq. goods, etc., at a particular place, 233. "my chest and its contents," 233. 636 TESTAMENTARY FORMS DESCRIPTION OF LEGATEES AND LEGACIES (Continued) "interest in a factory," 234. "money," 234. construction of intent, 234. DESCRIPTION OP REAL ESTATE. (See Trust and Trustee.) accuracy in, desirable, 147. words of locality and occupancy and general names should be avoided in, 147. tie, proper words to give, 148. whether life estate or fee, 148. fixtures when part of freehold, 150. devise to one and in case of his decease to another, 151. where testator is mortgagee, 151, 152. mortgagor, 152. charged with the payment of money, 152. application of the purchase money, 153. Fee-Tail, how barred, 154. liable for payment of debts, 154. how created, 155. estate limited to take effect after, is a remainder, 189. Joint Tenancy, Tenancy by the Entirety, and Tenancy in Common, how created, 156-158. exact interest should be designated, 157. survivorship in case of, 158. legacy given to two or more, 157, 158. no joint tenancy in case of corporations, 157. Estate for Life or for Years, to one for life, then to heirs in fee, 159. debts and legacies charged upon, 159. power to mortgage, 159. taxation of, 159. damages in laying out ways, etc., 159. terminable by sale under power, 159. removal of fixtures in case of, 159. leases in case of, 159. when specific, 236. DESTROYED WILL, provisions as to, 480. DEVISE AND LEGACY. (See Condition; Perpetuity; Re- siduary Legatee; Specific Devises and Legacies.) "devise" proper word to give real estate, 148. What May Be Bequeathed or Devised, all testator's estate, 59. INDEX 637 DEVISE AND LEGACY (Continued) after-acquired property, 59. contingent and vested interests, 60. property testator does not own, 61. mingled with testator's, 62. of others in testator's possession, 62. trust deeds, 62. gifts mortis causa, 66. good-will of a business, 66. trade secret, 67. property subject to power of appointment, 68 et seq. rights as fellow or patron, 76. policies of.insurance, 77. heirlooms, 78. actions which survive, 80. testator's body, gravestones, etc., 81. residence of testator, 88 et seq. real estate subject to mortgage, 91 et seq. personal estate subject to incumbrances, 96. joint real and personal property, 99. business and partnership interests, 101 et seq. power to executor to sign notes, 112. pew, 113. opera box, 114. dumb animals, 114. manuscripts, letters, etc., 115. confirmation of conveyances, 118. money for purchase of tokens of remembrance, 120. confirmation of ante-nuptial agreement, 121 et seq. What May not Be Bequeathed or Devised, right of continuance of copyright, 77. an estate tail, 116. an estate of homestead, 116. devise or legacy to subscribing witness, 116. to husband or wife of subscribing witness, 116. insurance for widow and child of assured, 77. devise to heir of estate to which he is entitled by descent, 117. illegal gifts, 119. repugnant restrictions, 494. Legacy to a Debtor, not intended to forgive debt in addition to legacy, 253. how debt deducted from legacy, 253. when cannot be barred by statute of limitations, 253, 254. rules as to advances, 256 et seq. gifts as satisfaction of legacy, 263-267. Legacy to a Creditor, generally regarded as a bounty, 267. when in satisfaction of debt, 267. 638 TESTAMENTABY FOEMS DEVISE AND LEGACY {Continued) Payment of Legacies, general provisions as to, 269-272. payable in one year, 273. when statute of limitations no defence to an action for a legacy, 273. absent legatees, 273-276. liability of real estate to pay legacies, 276. action for legacy, 277. when legatee must give refunding bond, 277. insertion of provisions in wills as to payment of legacies, 278. distribution in kind, 281. currency in which to be paid, 284-287. legacy taxes, 287. Interest upon Legacies, in case of advances, 258, 259. when payable upon pecuniary legacies, 289. exception in case of minor children and widow, 289, 290. when exception in case of minor child does not apply, 290. on legacies payable at a certain time, 290. rights of residuary legatee as to, 291. statutory provisions as to, 291. upon specific legacies, 241, 291. DEVISEE AND LEGATEE, Who May Be, all persons, except those forbidden, 125. married woman, 125. alien, 126. unincorporated societies, 126. corporations, 126. municipal corporations, 127. United States, 127. when devisee entitled to fixtures, 150. bound to see to payments of money charged upon devise, 91, 96. entitled to rents and profits of real estate, 334. DIES WITHOUT ISSUE, ETC., meaning of, 155. DIRECTIONS. (See Recommendations.) DISCRETION, conferred on executors and trustees, 343, 381, 383. as to adding income to principal, 400. termination of trust in the exercise of, 441. in the case of public charities, 454. DISINHERITANCE, of children, 8, 9, 51 et seq., 495. INDEX 639 DISPUTING WILL, provisions as to, 178. DISTRIBUTION, in kind, 281. power of sale not authorizing, 336. power of sale authorizing, 337. DIVIDENDS, when income or principal, 412 et seq. ' when apportionable, 429. DIVORCE, revoking will, 307. DOCUMENTS, disposition of, by will, 115. how incorporated in will, 129, 472. DOMICILE, of testator in making will, 12. change of, after making will, 13, 307. declaration of, in will, 14. as affecting trust, 370. taxation of trust when determined by, 370, 432. trustee not residing in testator's, 364. of beneficiary, as affecting public charity, 453. when it makes creation of trust imperative, 491. DONATIO CAUSA MORTIS, testator should be informed of, 66. DOWER. (See Widow.) as a reason for making a will, 5. provisions as to, 56. none in a vested remainder, 60, 61. legacy in lieu of, when preferred, 290. DUMB ANIMALS, provisions as to, 114. DUPLICATE WILLS, revocation of, 303. execution of, 476. E EDUCATION. (See Maintenance and Sotpoet.) ELECTION, doctrine of, 61. to waive will, 61. 640 TESTAMENTARY FORMS EMPLOYEES, gifts to, 185. ENCUMBRANCES. (See Incumbrances.) EQUITABLE CONVERSION. (See Conversion.) ERASURE. (See Obliterations and Interlineations.) ESTATE FOR LIFE OR FOR YEARS. (See Description op Real Estate.) ESTATE TAIL. (See Description op Real Estate.) not the subject of devise, 116. ESTOPPEL. (See Election.) in case of bond to pay debts and legacies, 322. EVIDENCE. (See Fac-simile.) as to testator's mental condition, 48. to show whom the testator intended to describe, 209. EXCLUSION, of certain persons as legatees, 209, 210. EXECUTION OF WILL. (See Attestation; Re-execution; Witness.) conformably to law of foreign jurisdictions, 17, 466. seal should be affixed, 466. obliterations and interlineations, 300, 467, 468. on the Lord's day, 468. must be signed by testator, or by some one in his presence and by his direction, 469, 470. general rules as to, 470. EXECUTOR, will merely appointing, good, 3, 9, 309. estate not liable for tort committed by, 102. right of, to fixtures, 150. legacy to, 172. carrying on of testator's business by, 101 et seq., 420 et seq. signing, etc., notes by, 112 et seq., 333. if none named, must be an administrator, 308. in his own wrong, 308. in case of partial intestacy, 309. delegation of power to name, 310. appointment of, may be qualified, 18, 309. conditional, 309, 310. may be trustee, 369 et seq. of deceased trustee, duties of, 445. as witness to a will, 471, 472. use of word in case of lapsed legacies, 293. INDEX 641 EXECUTOR (Continued) Who May Be, several persons in several degrees, 309. a minor, 310. a single woman, 310. a married woman, 310. aliens and non-residents, 310. unnamed person, 311. a creditor, 311. a debtor, 311. a partner, 312. a trust company or other corporation, 313. anyone capable of making a will, 313. executor of executor not to administer on first estate, 313. appointment of, 313 et seq. new, 313, 318 et seq. Bond, executor generally required to give, 321. exemption from giving sureties, 321. whether substituted executors included, 321. surety companies as sureties, 321. residuary legatee, when executor, to give bond to pay debts and legacies, 322. danger in giving such bond, 322. direction as to inventory and account, 322. separate or joint bonds, 323. liability thereon, 323 et seq. Charges of Administration, expenses and reasonable compensation allowed, 325. directions as to, 325. " legacy in lieu of compensation, 325. expenses of contest, 327. Directions that a Majority of Executors May Act, provisions as to, 328. Just Debts and Funeral Expenses, executor need not be authorized to pay, 329, 330. special directions as to, 330 et seq. Power to Sell, Mortgage, Lease, etc., different kinds of powers, 333, 334. when heirs or devisees entitled to rents, until estate sold, 334. when executor must account for income, 334. conversion of real into personal or of personal into real estate, 334. , what powers of sale do or do not survive, 336, 337. power which does not authorize partition, 336. how power should be worded so as to include successors, 336, 377. 642 TESTAMENTARY FORMS EXECUTOR (Continued) repetition of power, 337. power to distribute proceeds among remainder-men, 337. dependent upon consent, 337. application of purchase money, 338. receipts of executors and trustees, 338. power to sell does not authorize mortgage, 338. as to interests held in common, 342. to lease, 343. discretionary powers, 343. Purchase of Trust Property by Executors and Trustees, only when authorized by will, 344. Directions as to Insurance, provisions as to, 345. Taxation of Estate of Deceased Person, provisions as to, 347. Compromise and Arbitration, provisions as to, 348. Employment of Attorneys, Agents, etc., provisions as to, 350. Keeping Records, provisions as to, 353. Powers of Attorney, provisions as to, 355. Voting Shares, instructions as to, 356-358. No Inventory or Accounting, provisions as to, 358. Auditing Accounts and Examining Securities, provisions as to, 359. EXECUTORS AND ADMINISTRATORS, meaning of, in the case of legacies, 228. EXECUTORY DEVISE. (See Perpetuity.) by will, 60. not after an estate tail, 189. sale of estates subject to, 192. two kinds of, 193. indestructible by first taker, 193. EXONERATION, of mortgaged estate, rule as to, 91, 96, 241. EXPENSES, of contest of will, 327. INDEX 643 F FAC-SIMILE, of will, admitted in evidence, 129. FAMILY, residence as a home for, 88, 89 includes what, 225, 226. FARM, devise of, specific, 236. FEEBLE-MINDED TESTATOR, provisions as to, 475. FEE SIMPLE. (See Description of Real Estate.) FEE-TAIL. (See Estate Tail.) FELLOW, bequest of rights of, 76. FEME COVERT. (See Husband and Wife; Married Woman.) FEME SOLE. (See Single Woman.) FLXTURES, as between executor and devisee, 150. FOREIGN WILLS, effect of, 14. FORMS OF WILLS, abatement of legacies, 243. absent legatees, 274. accounts, filing of, 323, 358. acts of incorporation, 595-625. ademption of specific legacies, etc., 239. advances, 260. agents, etc., employment of, 351. allotment of real estate to residuary legatee, 302. annuities, 368, 403-405, 443. ante-nuptial agreements, 121-124. application of will, limiting, 16. apportionment of interest, 241, 430. arbitration, 348. attestation clauses, 475, 477 et seq., 504, 508. attorneys, etc., employment of, 351. auditing accounts and examining securities, 390. bonds, interest on, 427. borrowing money, 112, 333. burial lot, 84 et seq. business, carrying on of, etc., 105 et seq., 421, 423. 644 TESTAMENTARY FORMS FORMS OF WILLS (Continued) business, incorporation of, 105 et seq. cash and stock dividends, 413. cemetery lot, 84 et seq. charges on real estate, 153. charitable gifts, 457-464. charitable objects, subscription to, 99. children and issue of deceased children. adopted, 216. after-born, 53. disinheriting, 8. inequalities as to, 53. naming, 4, 5, 52. clerks, etc., employment of, 351. commencement of codicil, 146. will, 138. commercial paper, signing etc., 112, 333. commissions, payment of, 425. community property, 55. compensation of executors, etc., 325. compromise and arbitration, 348. concurrent wills, 142. conditions, legacies given on, 167 et seq. confirming conveyances, 118. contest, expenses of, 327. contracts, completion of, 112. conversion, 335. cremation, 82. cumulative legacies, 144. debts, statement as to, 331. delegating and revoking trust, 442. descent, estate given according to, 118. devise of fixtures, 151. for life with power to sell, 149. without a trustee, 170. discretionary powers, 343. discretion in terminating trust, 441. disinheriting children, etc., 8. disputing will, condition as to, 179 et seq. distributive share of widow, 56. documents, provisions as to, 115. domicile, declaration of, 14. dower, provisions in lieu of, 56. dumb animals, 114. employees, gifts to, 186 et seq. erecting buildings and making improvements, 389. exclusion of certain persons, 210. executors, appointment of, 314. INDEX 645 FORMS OF WILLS (Continued) arbitration by, 348. attorneys, etc., employment of, 351. auditing accounts of, 390. authority of, to lease, 343. compensation of, 325. compromises by, 348. discretionary powers of, 343. insurance by, 346. keeping records by, 354. legacies to, 173. liability of, 324. majority of, to act, 328. new, 318. powers of attorney by, 355. powers of sale to, 339 et seq. purchase of trust property by, 345. receipts of, 339. voting shares, 357. exoneration of specific legacies and devises, 93 t farming tools, wagons, etc., bequest of, 231 et s fellow or patron, rights of, 76. furniture, bequest of, 231 et seq. grandchildren, inequalities as to, 53. gravestones, provisions as to, 84 et seq. guardians, appointment of, 449. heirlooms, provisions as to, 78. illegal gifts, 119. income, alienation of, 396-400. annuities, 368, 403-405, 443. anticipation of, 396-400. apportionment of, 241, 430. attachment of, 396-400. capitalization of, 400. for education and support, 407-409. for sole and separate use, 431. payment of, 394. incorporation of business, 105 et seq. charities, 595-625. incumbrances, payment of, 93-97. indefinite bequests, 120. inheritance taxes, 288. insurance, 346. interest upon legacies, 291. bonds, 427. in testimonium clauses, 468, 476, 504, 508. inventory, filing of, 323, 358. investments and reinvestments, 384-389. 646 TESTAMENTARY FORMS FORMS OF WILLS (Continued) jewelry, bequest of, 229. keeping records, provisions as to, 354. keepsakes, 233. lapsed legacies, 297. leases, 160, 343, 381. legacy to creditor, 268. debtor, 254 et al. taxes, 288. letters, 115. liability of executors and trustees, 324. liens, mortgages, etc., 93 et seq. life estate, without trustee, 161, 162, 170. literary executor, 116. loans to partnership, 105 et seq. manuscripts, 115. marriage, restraint of, 175. mementos, 233. memorials, 121. monuments, 84 et seq. mortgage, power to, 381. mortgages and liens, 93 et seq. foreclosure of, 389. papers, 115. partition, 100, 382, 440. partnership, carrying on etc., 105 et seq., 421, 423. patron, rights of, 76. payment of legacies, 279. personal effects, 78, 229. plurality of persons, gifts to, 213. powers of appointment, 70 et seq., 433. attorney, 355. sale, etc., 339, 381. promissory notes, signing, etc., 112, 333. property of others, 62. public charities, 457-464. purchase money, application of, 339. ratifying conveyance, 118. rebuilding, 410. receipts of executors and trustees, 339. rents and profits, 170. requests, 78, 131 et seq. residence as home, 90, 91. satisfaction of legacy, gifts as, 266. servants, gifts to, 186 et seq. shares, estates given in, 250, 251. sole and separate use, 125, 431. specific legacies and devises, 237. INDEX 647 FORMS OF WILLS (Continued) stable appurtenances, 231 et seq. ' stock dividends, 413. subscriptions to charitable objects, 99. substitutional gifts, 144. survivorship on termination of trust, 437. termination of trust on death, etc., of trustee, 443. testator's body, 82. thirds of widow, 56. tokens of remembrance, 121. tombstone, 84 et seq. trust, declaration of, 64. trustees, appointment of, 314, 366. arbitration by, 348. attorneys, employment of, 351. auditing accounts of, 390. authority to erect buildings, 389. authority to lease, 381. compensation of, 325, 371. compromises by, 348. discretionary powers of 343, 441. disinterested, 366. filling vacancies in board of, 374 et seq. insurance by, 346. investments by, 384 et seq. keeping records by, 354. legacies to, 173. liability of, 324. majority to act, 328. new, 318, 374 et seq. partition by, 382. powers of attorney by, 355. . powers of sale to, 339 et seq., 381. purchase of trust property by, 345. receipts of, 339. voting shares by, 357. void sifts and devises, 119. voting shares, 357. wasting investments, 418, 422-425. watches, 229. , wearing apparel, 229. wills, complete forms of, 497-593. FOUNDATION, in case of public charities, 463. FRANCE, treaty with, as to disposing of property, 26, 27. 648 TESTAMENTARY FORMS FRAUD. (See Evidence.) in case of will, 48. FUNERAL EXPENSES, payment of, 330. when advisable to provide for, where income is given for main- tenance and support, 407. FURNITURE. (See Household Furniture.) G GENERAL DESCRIPTION, how not to be limited, 147. GIVE, applies to both real and personal estate, 148. GOODS AND CHATTELS. (-See Household Furniture.) GOOD-WILL, of business, bequest of, 66. GRAMMATICAL REQUIREMENTS, in case of will, 493, 494. GRANDCHILDREN, provisions as to, 190, 211, 212. GREAT BRITAIN, treaty with, as to disposing of property, 27-31. GUARDIAN, will merely appointing, good, 445. testamentary appointment of, 446. who may be, 446, 447. bond of, 447. duties of, 447 et seq. account of, 447. not invested with legal title, 447. sales by, 448. advantage of making guardian trustee, 448. compensation of, 371 et seq. investments of, 383 et seq. compromises by, 348 et seq. GUATEMALA, treaty with, as to disposing of property, 31. INDEX 649 H HANSEATIC REPUBLICS, treaty with, as to disposing of property, 32. HEIRLOOMS, provisions as to bequeathing, 78. HEIRS, use of, in executing power of appointment, 69. devise to, of one living, void, 117. estate to which entitled by descent, void, 117. expectant, how defeated, 5. should be used in devise, though not necessary to give fee, 148, 363. when devise to, creates vested remainder, 190, 191. contingent remainder, 191, 192. may mean children, 215. when they take per stirpes or per capita, 219. "heirs" and "heirs-at-law," 220, 222. when not to be construed as next of kin, 220. use of, in case of lapsed legacies, 293. devise to, of estate to which entitled by descent, 308. when entitled to rents and profits of real estate, 334. when property more than sufficient for trust, 444, 445. entitled to estate in case of resulting trust, 444. when estate descends to, subject to trust for public charity, 454. as witnesses to will, 471. HEIRS OF THE BODY. {See Estate Tail.) HESSE, treaty with, as to disposing of property, 33. HOLOGRAPHIC WILL, definition of, 139. HOME. (See Residence.) HOMESTEAD, estate of, cannot be affected by devise, 116. description of, 147. whether trustees have fee in, 362. HONDURAS, treaty with, as to disposing of property, 33. HORSES, ETC., bequest of, 231. 650 TESTAMENTARY FORMS HOUSEHOLD FURNITURE, susceptible of liberal construction, 230. provisions as to, 230 et seq., 362. HUSBAND AND WIFE. (See Married Man; Married Woman.) community property of, 55. waiver of will by, 55. as tenants by the entirety, 156. mention of, by name, 228. advances to husband to be deducted from wife's legacy, 257. ILLEGAL GIFTS, provisions as to, 119. ILLEGITIMATE CHILDREN, ' provisions as to, 211, 216. ILLITERATE TESTATOR, provisions as to, 475. INCOME. (See Annuity; Apportionment; Trust and Trustee.) meaning of, 393. of property in trust, when payable, 393. special provisions^as to, 394. "monthly," "quarterly," "semi-annually," "annually," 395. anticipation, alienation, assignment, and attachment of, 395-400. discretion as to adding to principal, 400. use of, to discharge mortgages, etc., 401. for education, maintenance, and support, 406. insurance, repairs, and taxes, when charged upon, 410. when extra dividends are, 412. wasting investments, 415 et seq. when apportionable, 429. INCORPORATION, of trustees, 465, 595 et seq. INCUMBRANCES, discharge of, 91-96, 241, 401. INDEFINITE BEQUESTS, provisions as to, 120. INDEMNITY, bond of, 278. INFANTS, when interest on legacy to, payable, 289, 290. may be executors, 310. INDEX 651 INFANTS (Continued) as trustees, 367. guardianship of, 445 et seq. INSTALMENTS, termination of trust by, 435. INSTRUCTIONS. (See Recommendations.) INSURANCE, provisions as to, a reason for making a will, 10. policies of, when and when not subject of bequest, 77. directions as to, 345. by tenant for life and remainder-man, 410. INTENT, in revoking wills, 304. when not defeated by grammatical construction, etc., 493. INTEREST UPON LEGACIES. (See Apportionment; Devise and Legacy.) INTERLINEATIONS. (See Obliterations and Interlinea- tions.) INTESTACY, a reason for making a will, 1 et seq. partial, not favored, 148, 309. IN TESTIMONIUM CLAUSE, wording of, 468, 470, 476. INVENTORY, legacy dependent upon amount of, 188. directions to executors as to filing, 322, 358. INVESTMENTS. (See Wasting Investments.) by executors and trustees, 333, 383, et seq. ISSUE, of a deceased child, how disinherited, 51 et seq. inequality of treatment of, 53. devise determinable in event of not leaving, 155. devise to one and his issue creates estate tail, 155. limited to children, 215. descendants, 217. in case of lapsed legacies, 296. ITALY, treaty with, as*to disposing of property, 34. 652 TESTAMENTARY FORMS J JAPAN, treaty with, as to disposing of property, 35. JEWELRY, bequest of, 229. JOINT TENANCY AND TENANCY IN COMMON, when devise by joint tenant void, 99. provisions as to partition, 100. language necessary to create, 156, 301. designation of exact interest advisable, 156. in case of corporations, 157. legacy to two or more, 157, 158. lapse in case of, 295. when power of sale to joint tenants survives, 336. sale by executor of testator's interest, 342. when remainder-men take as tenants in common, 440. JOINT WILL, definition of, 139. JUDGE OP PROBATE, when acts under will in appointing new trustee, 373. JURISDICTION, as affecting execution of power of appointment, 69. JURISDICTION, FOREIGN, effect of will on, 14 et seq. K KEEPSAKES, selection of, 232. KONGO, treaty with, as to disposing of property, 35. LANGUAGE, of will, 128. LAPSED DEVISES AND LEGACIES, lapse in case legatee dies before testator, 293. application to residuary legatees, 293, 299. use of words "heirs, executors, assigns," etc., 293, 294. gift to corporation lapsing by dissolution, 294. rule as to advancement on account of a legacy, 294. INDEX 653 LAPSED DEVISES AND LEGACIES (Continued) no lapse in case of joint tenants, 295. lapse in case of tenants in common, 295. but not when class is fluctuating, 295. devise to individuals by name lapses, 296. statutory provisions substituting one legatee for another, 296. no lapse when legacy is given over, 297. LARCENY, of wills, 480. LAST SICKNESS. (See Funeral Expenses.) LEASE, by life tenant, 159. executors authorized to, 343. LEASEHOLD ESTATE, as wasting investment, 415. LEGACY. (See Devise and Legacy.) LEGACY TAXES. (See Taxation.) LEGAL REPRESENTATIVES, meaning of, 227. LEGATEE. (See Devise and Legacy.) LETTERS, provisions as to, 115. LIABILITY, of executor, 323 el seq. trustee, 370. guardian, 323 et seq. LIENS. (See Incumbrances.) LIFE ESTATE. (See Description op Real Estate.) LIFE ESTATE IN PERSONALTY, cannot be given in tail with remainder over, 160. when a bequest of money is a gift of the interest, 160. gift of use of things consumed by use is absolute, 160. words which give fee in real, give absolute property in personal, 160, 161. provisions qualifying absolute gift must be clear, 161. when trustee necessary in case of general gift with limitation over, 161. life estate in residue not advisable, 162. LIFE INSURANCE. (See Insurance.) 654 TESTAMENTARY FORMS LIMITATIONS, STATUTE OF, when debt barred by, cannot be deducted from legacy, 257. in regard to payment of debts, 269 et aeq. legacies, 273. trusts, 364. LIQUOR, INTOXICATING, not to be used on devised premises, 188. LITERARY EXECUTOR, provision as to, 116. LORD'S DAY, execution of will on, 468. LOST WILL, provisions as to, 480. M MAINTENANCE AND SUPPORT, devises charged with expenses of, 171. income for, 406. of ward, 449. MANUSCRIPTS, provisions as to, 115. MARRIAGE, agreements before, 121. restraint of, 174. when it revokes will, 306. portions, 256 et seq. MARRIED MAN. (See Curtesy; Dower; Husband and Wife.) may make a will, 51. MARRIED WOMAN. (See Curtesy; Dower; Husband and Wife; Widow.) may be devisee or legatee, 125. gift for sole and separate use of, 125, 431. may make a will, 58. execution of power of appointment by, 69. may be executrix, 310. trustee, 367. guardian, 446. MARSHALLING OF ASSETS, reason for making a will, 6. directions as to, 330. INDEX 655 MASSES, bequest of money for, 455. MECKLENBURG-SCHWERIN, treaty with, as to disposing of property, 36. MEMENTOS, selection of, 232. MINING SHARES, as wasting investment, 415. MINORS. (See Infants.) MISTAKE, in executing will, 48. MONEY, devised land charged with payment of, 152. meaning of, 160, 234. MONTHLY, use of, 395. MOROCCO, treaty with, as to disposing of property, 37. MONUMENT, provision as to, 11, 81. forms as to, 84-88. MORTGAGE. (See Exoneration; Incumbrances.) when power to, should be given, 159, 338. MUNICIPAL CORPORATIONS, bequests and devises to, 127. MUTUAL WILLS, definition of, 139. N NEPHEWS AND NIECES, meaning of, 211, 212. NET INCOME, meaning of, 393. NEXT OF KIN, when devise to, creates remainder, 190. meaning of, 222-224, 445. NON-RESIDENT, as executor, 310. trustee, 367. 656 TESTAMENTARY POEMS NUNCUPATIVE WILL, provisions as to, 13. definition of, 139. OBLITERATIONS AND INTERLINEATIONS, law as to, 300, 467. OPERA BOX, provisions as to, 114. "OR," may be construed "and," 493. ORIGINAL WILL, when court will look at, 128. "OTHER," whether "survivor" is to be changed into, 436. P PAPERS, disposition of, 115. how incorporated in will, 129, 472. PARAGRAPHS, in case of wills, 128. PARAGUAY, treaty with, as to disposing of property, 38. PARTITION, provisions as to, 100. power to sell not authorizing, 336. powers to trustees to, 382. among remainder-men, 440. PARTNER. (See Business op Testator.) of testator may be executor, 312. interest of, whether capital or income, 414. PATENTS, as wasting investments, 415. PATRON, bequest of rights of, 76. PAYMENT OF DEBTS, provisions as to, 269 et seq., 329 et seg. PAYMENT OF INCOME. (See Income.) INDEX 657 PAYMENT OF LEGACIES. (See Devise and Legacy; Ex- ecutor.) when upon condition, 166. devises charged with, 171. PECUNIARY LEGACY, regarded as general, 236. interest on, 289. PER CAPITA, provisions as to, 218 et seq. PERPETUITY, limitation must take effect within required period, 193 et seq. rule in New York, 198. will speaks from death of testator, 199. sufficient if title vests within prescribed period, 200. alternative contingencies, 201. devise to a class of persons, 202. directions to accumulate the income, 202. accumulation for charitable purposes, 204. devise not to vest for twenty-one years or less, 204. - application of rule to public charities, 204-206. conditions subsequent, 206. powers of appointment, 207. disposition of property when limitation void, 208. avoidance of, in termination of trust, 432. PERSONAL EFFECTS, bequest of, 229. PERSONAL PROPERTY. (See Life Estate in Pebsonadty.) ^ pews as, 113. pledge of, 96. PER STIRPES, provisions as to, 218 et seq. PEWS, provisions as to, 113. PLEDGE, rights of legatee in case of, 96. PLURALITY, of donees, 213. of persons preventing lapse, 295. PORTIONS, deductions from, given in trust, 258. 658 TESTAMENTARY FORMS POSTHUMOUS CHILDREN, provisions as to, 211. POWER OF APPOINTMENT, conferred by foreign will, 18. limitation to particular class or certain persons, 68. execution when domicile not that of testator, 68. statutory provisions as to, 68. execution by residuary clause, 68. reference to, advisable, 69. use of "heirs" in execution of, 69. conferred upon married women, 69. requirement as to execution by will, 69. execution of, making property part of testator's assets, 69. sale of estate subject to, 192. application of rule against perpetuities to, 207. termination of trust by, 433. POWER OP ATTORNEY, by executors and trustees, 355. POWER TO SELL. (See Executor; Trust and Trustee.) giving, a reason for making a will, 10. PRECATORY WORDS, avoidance of, 130, 360, 361. PREMIUMS. (See Bonds.) PRESUMPTION, of destruction of will, 304. PRINCIPAL. (See Income; Remainder; Trust and Trustee.) various questions as to, 410 et seq. PROBATE OF WILL. (See Will.) PROFITS, meaning of, 393. PROMISSORY NOTES. (See Advances; Apportionment.) signing of etc., by executor, 112. PUBLICATION, of will, 473. PUBLIC CHARITY, in case of unincorporated societies, 455. bequest for, in foreign jurisdiction, 17. application of rule against perpetuities to, 204 et seq. statutes in different jurisdictions, 451. objects in statute of Elizabeth enumerated, 451. charity defined, 452. INDEX 659 PUBLIC CHARITY {Continued) rules and principles relative to, 453. indefiniteness of, 452. the doctrine of cy-pres, when resorted to, 454. when estate descends to heirs of testator subject to trust, 454. when estate should be given to trustees and their successors, 454. trustees not required to give bonds, 454. appointment of new trustees, 455. who may take a charity, 455. masses for the dead, 455. general objects enumerated, 456. invalid charities enumerated, 456. gifts to maintain or endow existing institutions, 456, 463. bequests to be expended according to wishes of testator, 460. bequests to executors with limitation over to corporation when organized, 463. provisions for expenses incident to the care of buildings, 464. adjudications containing forms, 465. incorporation of trustees, 465. PUNCTUATION, of wills, 128, 129. PURCHASE MONEY, APPLICATION OF, when purchaser must see to, 153. in case of powers of sale to executors, 338. trustees, 381. Q QUARTERLY, use of, 395. R RATIFICATION. (See Codicil.) of conveyance by devise, 118. REAL ESTATE BROKERS, provisions as to employment of, 350 et seq. REASONS, for making a will, 1 et seq. for creating trust, 360, 489. RECEIPTS. (See Sole and Separate Use.) of executors and trustees, 338, 381. RECOMMENDATIONS, provisions as to, reason for making a will, 11. 660 TESTAMENTARY FORMS RECOMMENDATIONS {Continued) expressed in instrument distinct from will, 78, 130 et seq., 361, 460. RECORD, will as matter of, 4. incorporated by reference, 129, 472. suggestion to executors and trustees as to keeping, 353. RE-EXECUTION, of will in case of change of domicile, 13. law, 476. RE-INVESTMENTS. (See Investments.) RELATIONS OR RELATIVES, meaning of, 227. when devise to, creates vested remainder, 190. legacy to, does not lapse, 296. of cestui que trust, should not be trustees, 366. REMAINDER, may be devised, 60. no dower or curtesy in, 60, 61. may be defeasible upon the happening of a condition subse- quent, 189. may be limited to take effect after an estate tail, 189. preferred to executory devise, 189. vested, preferred to contingent, 189. acceleration of, 189. vested, how created, 190, 191. contingent, how created, 191, 192. sale of estate subject to, 192. when specific, 236. preservation of trust necessary in case of contingent, 439. REMAINDER-MAN, power as to distribution among remainder-men, 337. should not be trustee, 365. questions between, and life tenant, 410 et seg. partition in case of, 440. RENTS, charges upon, 159. of real estate until sold for debts, 334. meaning of, 393. REPAIRS, when charged upon principal or income, 411. REPRESENTATION. (See Per Stirpes.) INDEX 661 REPUBLICATION, of will, 476. REPUGNANT PROVISIONS, rule as to, 494. REQUEST. (See Recommendations.) RESIDENCE, as a home for the family, 88, 89. conditions as to, 184. of trustee and cestui que trust outside the jurisdiction of the court, 370. RESIDUARY LEGACY, not specific, 236. RESIDUARY LEGATEE. (See Residue.) entitled to distribution when gift too remote, 208. rights of relative to payment of legacies, 291. what the term passes, 299 et seq. rights as to increase or decrease, 300, 301. lapse when more than one, 301. revocation by codicil of gift to one of several residuary legatees,- in will, 301. allotment of real estate to one of several residuary legatees, 302. application of lapse to, 293. as executor, 322. RESIDUE. (See Residuary Legatee.) including after-acquired property, 60. gift of, when it operates as an execution of a power of appoint- ment, 68. life interest in, without creating trust, 162. liable to pay debts and legacies, 300. what sinks into, 399 et seq. rights as to increase or decrease of, 300, 301. in trust, 364. RESTRAINT. (See Alienation.) RESULTING TRUST, in case of failure of charitable object, 206. where testator has not disposed of all his property, 444. REVERSION, when passes under residue, 300. REVIVAL, of will, 304. 662 TESTAMENTARY FORMS REVOCATION, of trust deed, 2. trust, 442. legacy by codicil, 143-146. By Burning, Tearing, etc., of will executed in duplicate, 303. will not revoked by destruction of codicil, 303. statutory provisions, 303, 304. when witnesses required, 304. presumption of revocation, 304. when former will not revived, 304. what power to revoke includes, 304. "dependent relative revocation," 305. By Changes in Testator's Condition, marriage and birth of child, 306, 307. effect of power of appointment, 306, 307. By Some Other Writing, how it is to be executed, 307. By Change of Domicile or Divorce and Adoption of ChiM, provisions as to, 307. RIGHT OF REPRESENTATION. (See Per Stirpes.) RIGHT OF REVERTER, when passes under residue, 300. RUSSIA, treaty with, as to disposing of property, 39. S SAFE KEEPING OF WILLS. (See Custody.) SATISFACTION, of legacy by gift, 263-267. SAVINGS BANK, deposits in, in trust, 63. as trustee, 367. SAXONY, treaty with, as to disposing of property, 41. SEAL, should be affixed to will, 466. SECURITIES, directions as to examination of, 359, 389. SEMI-ANNUALLY, use of, 395. INDEX 663 SEPARATE TRUST ESTATES, provisions as to, 436. SERVANTS, gifts to, 185. ,SERVIA, treaty with, as to disposing of property, 42. SHARES, giving property in, 250. SHELLEY'S CASE, RULE IN, abolished by statute, 155, 159. SHIPS AT SEA, as wasting investments, 415. SIGNATURE. (See Execution of Will.) SIMULTANEOUS DEATHS, possibility of, a reason for making a will, 7. SINGLE MAN, may make a will, 51. SINGLE WOMAN, may be executor and trustee, 310, 365. guardian, 446. may make a will, 51. SISTERS. (See Brothers and Sisters.) SOLE AND SEPARATE USE, of married woman, 125, 431. SON, ELDEST OR YOUNGEST, what period referred to, 214. SOUND AND DISPOSING MIND, when person of, may make will, 48. questions raised as to, 50. SPAIN, treaty with, as to disposing of property, 43. SPECIFIC DEVISES AND LEGACIES, rights of devisees and legatees in case of mortgage of, 91, 96. not favored, 235. intention must be clear, 235. bequest of stock, 235. "my" in reference to stock, 235. sum due upon mortgage or note, 236. 664 TESTAMENTARY FORMS SPECIFIC DEVISES AND LEGACIES (Continued) proceeds of mortgage, 236. money due on a certain bond or in a particular bank, 236. a particular security, 236. mortgage deed, note, and debt, 236. bequest of all of certain articles, 236. pecuniary legacy regarded as general, 236. devise of farm, etc., specific, 236. use of a certain lot for life and remainder specific, 236. residuary legacy not specific, 236. ademption, 238. rule as to demonstrative legacy, 238, 239. when interest upon, belongs to legatee, 241. abatement, 242 et seq. contribution, 250. STOCK, bequest of, 97, 235. SUBSCRIPTIONS, to stock bequeathed, 97. charitable objects, 98. SUBSTITUTIONAL LEGACIES, provisions as to, 144. SUCCESSION, rights of, 56. SUGGESTIONS FOR WILLS, duties of attorney as to, 482. personal instructions, 482, 483. nature and extent of testator's property, 483-488. testator's personal position and relations to his family, 488. public charities and trust estates, 489 et seq. SUNDAY. (See Lord's Day.) SUPPORT. (See Maintenance and Support.) SURVIVAL OF ACTIONS, provisions as to, 80. SURVIVORSHIP, in case of joint tenants and tenants in common, 99, 295, 301. as determining contingent remainder, 191. refers to what period of distribution, 227. in case of powers of sale, 336. power of survivor to consent to sale, 338. privilege of surviving partner to take business, 104. INDEX 665 SURVIVORSHIP {Continued) when court should appoint a new trustee to act with survivors, 373. survivor of trustees, estate vesting in, 373. income for joint lives and life of survivor, 436. when survivor means other, 436. when clause of survivorship does not apply to accruing shares, 438. SWEDEN AND NORWAY, treaty with, as to disposing of property, 44. SWITZERLAND, treaty with, as to disposing of property, 45. T TAXATION, of life tenant, 159. legacies, 287. property of deceased persons, 347. trust property, 411. TENANTS BY ENTIRETY, in case of husband and wife, 101. TENANT FOR LIFE. (See Annuity; Apportionment; Trust and Trustee.) questions between, and remainder-men, 410 et seq. TENANTS IN COMMON. (See Joint Tenancy and Tenancy in Common.) TERMINATION OF TRUST. (See Trust and Trustee.) TESTATOR. (See Will.) THIRDS, of widow, 56. TOMB. (See Cemetery Lot.) when bequest for permanent care of, creates a perpetuity, 82. TORT, committed by executor, 102. TOWN. (See City.) TRADE SECRET, bequest of, 67. TREATIES, provisions of, as to disposition of property, 18-47. 666 TESTAMENTARY FORMS TRUST AND TRUSTEE. {See Guardian; Public Charity.) creation of trust, a reason for making a will, 6. devise of property the subject of trust, 62. legacy to trustee, 172. trust in case of savings bank book, 63. Language and Subject-matter of Trust, reasons for creating a trust, 360, 489. words necessary to create, 360 et seq. caution as to the word "use," 361. what may be subject of trust, 361 et seq. household furniture should be given outright, 362. when real estate is included, 362 et seq. trust property and trustee outside testator's domicile, 364. trust of all over a certain amount, 364. residue in trust, 364. application of statute of limitations, 364. The Trustee, directions that a majority may act, 328 et seq. discretionary powers, 343. purchasing trust property, 344. directions to insure, 345. employment of attorneys, etc. , and consultations with others, 350. keeping records, 353. powers of attorney, 355. voting shares, 356. compromise and arbitration, 348. nearly any one may be, 365. remainder-man as, 365. relation should not be, 366, 492. married woman may be, 367. when infants may be, 367. alien may be, 367 non-resident may be, 367. city may be, 367. trust company may be, 367. savings bank as, 367. cemetery corporation as, 367. one in his official capacity as, 367, 368. annuities, 368. executor as, 369 et seq. may reside outside jurisdiction, 370. how domicile determines taxation, 370. bond and liability thereon, 370. compensation of, 371. Number and Appointment of New Trustees, number of, 491. until appointment property vests in survivor, 373. INDEX 667 TRUST AND TRUSTEE (Continued) provisions for appointment of, 373, 455. when judge of probate in appointment of, acts under will, 373. provisions in will for filling vacancies, 374, 455. Power to Sell, Mortgage, Invest, etc., directions as to, 381-389. Auditing Accounts and Examining Securities, provisions as to, 389. The Cestui Que Trust. nearly anyone may be, 393. meaning of "rents," "profits," "income," etc., 393. when entitled to income, 393. how regulated, 393. special provisions, 394. meaning of "monthly," "quarterly," "semi-annually," "an- nually," 395. proportions should be clearly stated, 395. alienation and anticipation, 395 et seq. adding income to principal, 400, 401. Annuites, provisions as to, 401 et seq. Income for Education and Support, party entitled to income so long as he educates and main- tains, 406. whether income to be paid over or expended, 406. to be paid to guardian, 406. discretionary powers should pass to successors, 406. alienation or attachment of income, 406. accumulation of unused income, 406. directions as to use of principal when income insufficient, 406, 407. when advisable to pay funeral expenses, 407. Questions between Tenant for Life and Remninder-man, insurance, depreciation, repairs, taxes, etc., 410-412. dividends, whether income or principal, 412 et seq. capital and income in the case of partnerships, 414. wasting investments, 415-425. commissions or brokerage, 425. interest on bonds, 426-429. apportionment of dividends, coupons, interest, etc., 429. disposition of fund when cestui que trust lives in another jurisdiction, 431, 432. ■ sole and separate use, 431. Termination of the Trust, avoidance of creation of perpetuity, 432. by power of appointment, 433. by instalments, 435. 668 TESTAMENTARY FORMS TRUST AND TRUSTEE (Continued) one fund, or as many as there are cestuis que trust, 435. separate trust estates and separate accounts, 436. whether "survivor" is to be read "other," 436-439. termination before purposes are accomplished, 439. preservation of trust in case of contingent remainder, 439. when trustees required to make partition among remainder- men, 440. distribution by conversion into cash, 440. termination in discretion of trustee, 441. the alternative, 442. delegation and revocation, 442. purchase of an annuity, 443. termination on death of trustee, 443. resulting trusts, 444. use of "heirs-at-law" and "next of kin," 445. TRUST COMPANY, as executor, 313. trustee, 367. guardian, 446. may grant annuities, 368. TRUST DEEDS, when not advisable, 1, 3. provisions as to, 63. TRUST PROPERTY, purchase of, by executors and trustees, 344. TYPEWRITTEN WILLS, deception in case of, 471. U UNDUE INFLUENCE, in case of will, 48. UNINCORPORATED SOCIETY, devise or legacy to, 126. taking bequest for charitable use, 455. UNITED STATES, may be devise or legatee, 127. UNNAMED PERSON, as executor, 311. UNSOUNDNESS OF MIND, in case of will, 48. USES, STATUTE OF, still in force, 361. INDEX 669 V VACANCIES, in number of executors and trustees, 318 et seq., 373. in case of public charities, 455. VESTED REMAINDER. (See Remainder.) VOID DEVISES AND LEGACIES. (See Condition; Devise and Legacy; Perpetuity.) pass by residuary devise, 299. VOTING SHARES, instructions as to, 356. W WAD7ER, of will by husband or wife, 55. WARD. (See Guardian.) WASTING INVESTMENTS, law of, 415-425. WATCHES, bequest of, 229. WEARING APPAREL, bequest of, 229. WIDOW, rights of, a reason for making a will, 7-9. waiver of husband's will by, 55, 56. rights of, in husband's estate, 56. ante-nuptial contract of, 54. allowances to, rights of, etc., 54 et seq. interest upon legacy to, 289, 290. duties of, before administration on husband's estate, 309. WIFE. (See Husband and Wipe; Married Woman; Widow; Will.) will of husband relative to, 54. WILL. (See Codicil; Devise and Legacy.) reasons for making, 1 et seq. validity of, which merely appoints executor, 3, 309. where it may be made, 12. change of domicile as affecting, 13. 670 TESTAMENTARY POEMS WILL (Continued) declaration of domicile in, 14. effect of, in foreign jurisdictions, 14 et seq. limiting application of, 16. treaties providing for, 18-47. questions which arise in probate of, 48 et seq. must be in writing, 128. what probate establishes, 128. custody of, 479. lost or destroyed, 480. obligation to probate, 480. larceny or destruction of, 480. Who May Make, any person of full age and sound mind, 48. but not when influenced by fraud, 48. old age is no disqualification, 49. alien, 50. single man, 51. married man, 51. single woman, 51. married woman, 58. Form of, in general, 128. chirography, 128. - punctuation, 128, 129. paragraphs, 128. uniformity, 128. when court will look at original will, 129. paper referred to, when incorporated, 129. instructions distinct from will, 130. commencement, 137. Different Kinds of Wills, holographic, 139. nuncupative, 139. mutual and joint, 139. conditional, 140. concurrent, 142. agreement to make, 143. codicil, 143-146. WISHES. (See Recommendations.) WITNESS. (See Execution or Will.) devise or legacy to, or to husband or wife of, void, 116, 126. to revocation of will, 304. number of, required, 471. who must be, 471. selection of, 471. INDEX 671 WITNESS (.Continued) who should not be, 471, 472. opinions by, as to testator's mental condition, 472. when document not incorporated in will invalid without, 129, 472. publication to, 473. should see the testator sign, 473. should sign in presence of testator and after he has signed, 473, 474. witnesses should sign in the presence of one another, 474. writing place of residence opposite name, 474. in case of blind or illiterate testator, 475. aged or feeble one, 475. deaf or dumb one, 475. WORDS, taken in their ordinary and grammatical sense, 493. supplying and transposing of, etc., 493. use of technical, 494. repetition of, 494. WRITING, will must be in, 128. what it includes, 128. consent to sale should be in, 338. WURTTEMBERG, treaty with, as to disposing of property, 47.