OF REAL AND PERSONAL ESTATE TO BE CONVERTED INTO MONEY terest in the mean time. I GIVE AND BEQUEATH to the sum of £- -, to be paid to her within calendar months after my death, but without interest in the mean IN TRUST FOR time, for her sole and separate use, independently and exclusively of her husband (if any) for the time being, and not to be subject to his debts, control, interference, or other to the se- engagements, and so that the receipt of the said be a sufficient discharge for the same (d). I GIVE AND WIDOW AND CHILDREN. --and of an parate use of a married woman. Trusts for the men; ation of the shall Executors, Pt. II., book iii., ch. 4, sect. 4. An earlier payment would however be made, by the direction of the Court, after a suit in which it had been ascertained that there were no debts. (Garthshore v. Chalie, 10 Ves. 13). Pecuniary legacies given to infants on their attaining twenty-one, will not be accelerated by a direction that all legacies shall be paid within six months after the testator's death. (Frost v. Capel, 2 Beav. 184). (d) See the observations with respect to framing trusts for the separate use of married women, ante, Vol. 4, p. 316, n. (g); and see the recent case of Wardle v. Claxton, 9 Sim. 524. The discussions which have been for some years carried on as to the validity of trusts for the separate use of women unmarried at the creation of the trust, but who subsequently marry, appear to have been concluded by the decisions in favour of their validity, pronounced in Tullett v. Armstrong, and Scarborough v. Borman, 1 Beav. 1 & 34: confirmed on appeal, 4 My. & Cra. 377. See, too, the cases of Clark v. Jaques, 1 Beav. 36: Dixon v. Dixon, 1 Beav. 40: and Newlands v. Paynter, 4 My. & Cra. 408. It is needless to go into the subject in the present note, as the principles are fully discussed, and all the previous cases cited, in Tullett v. Armstrong; but it may be useful to present the reader with the view given by the Master of the Rolls of the present law on the subject : : "I think it right," said his Lordship, "to state, that it appears to me, as the result of the authorities, and of the constant practice of conveyancers, which great and eminent judges have considered to be no mean evidence of the law, "That property given to a woman for her separate use, independent of any husband, may, under the authority of this Court, be enjoyed by her during her coverture as her separate estate, although the property originally, or at any subsequent period or periods of time, became vested in her when discoverte. "That in respect of such separate estate, she is by this Court considered as a feme sole, although coverte. Her faculties as such, and the nature and extent of them, are to be collected from the terms in which the gift is made to her, and will be supported by this Court for her protection. "The words 'independent of a husband,' whether expressed or implied PERSONAL ES- DEVISE all and every the manors, messuages, lands, tene- OF REAL AND ments, hereditaments, and real estate, wheresoever situate, and of what nature or tenure soever, of or to which I am now or at the time of my death shall or may be seised or entitled, either at law or in equity, for any devisable estate or interest, or of which I now have power to dispose by this my will (except what I otherwise devise or dispose of by of real estate, this my will, or any codicil hereto) (e), unto and to the use General devise in the terms of the gift, mean no more than that this Court will not permit the marital power of the husband to be used in contravention of the enjoyment of the property according to the terms of the gift. "If the gift be made for her sole and separate use, without more, she has, during the coverture, an alienable estate independent of her husband. "If the gift be made for her sole and separate use, without power to alienate, she has, during the coverture, the present enjoyment of an unalienable estate independent of her husband. "In either of these cases, she has, when discoverte, a power of alienation, the restraint is annexed to the separate estate only, and the separate estate has its existence only during coverture; whilst the woman is discoverte the separate estate, whether modified by restraint or not, is suspended, and has no operation, though it is capable of arising upon the happening of a marriage. The restriction cannot be considered distinctly from the separate estate, of which it is only a modification; to say that the restriction exists, is saying no more than that the separate estate is so modified; the donor, in giving the woman, when married, some of the faculties of a feme sole, has withheld the power of alienation under the terms of the gift, and by the aid of this Court the woman is a feme sole as to the present enjoyment of the property, but no further, measuring her faculty by the terms of the gift; she is not a feme sole as to the disposition of her property in anticipation of her intended provision. If there be no separate estate, there can be no such restriction as that which is now under consideration. The separate estate may, and often does, exist without the restriction, but the restriction has no independent existence; when found, it is a modification of the separate estate and inseparable from it." The latest case on this subject is Newlands v. Paynter, in which it was held, that personal chattels bequeathed to a single woman for her separate use, though without the intervention of a trustee, cannot be seized in execution by a judgment creditor of an after-taken husband. (Newlands v. Paynter, 4 My. & Cr. 408; see, however, Carne v. Brice, 7 Mee. & Wels. 183). (e) As to what may be devised by will, see 1 Pow. Dev. by Jarm. What may be chaps. 1, 2, 3, 6, and the stat. 1 Vict. c. 26, sects. 3, 26, 27. See, devised by will. PERSONAL ES TATE TO BE INTO MONEY In trust for sale. OF REAL AND of E. F. of &c., G. H. of &c., and I. K. of &c., their heirs, executors, administrators, and assigns, according to the nature and tenure thereof, UPON TRUST that they the said E. F., G. H., and I. K., and the survivors and survivor of them, and the heirs, executors, and administrators respectively of such survivor, do and shall, as soon as conveniently may be after my death, absolutely sell and dispose of the said manors, messuages, lands, tenements, hereditaments, and real estate, either entirely and altogether, or in parcels, and either by public auction or private contract, for such price or prices, or sum or sums of money, as the said E. F., G. H., and I. K., or the survivors or survivor of them, or the heirs, executors, or administrators respectively of such survivor, shall think reasonable, with power to buy in the said premises, or any part thereof, at any sale or sales by auction, and to rescind, abandon, or vary any contract for sale, and to resell the premises which shall be so bought in, or the contract for the sale of which shall be so rescinded or abandoned as aforesaid, without being in anywise answerable for any loss which may happen thereby respectively, and also with power to insert any special or other stipulations in any contract for or conditions of sale, either as to title, or evidence of title, or otherwise, and with power to enter into, make, execute, do, and perform all such contracts, agreements, conveyances, assurances, acts, deeds, matters, and things, as to them the said E. F., G. H., and I. K., or the survivors or survivor of them, or the heirs, executors, or administrators respectively of such survivor, shall seem meet (ƒ); AND DO AND SHALL stand possessed of and interested in the purchase-money to arise from the sale and sales aforesaid, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, and declarations hereinafter declared, expressed, and contained of and concerning the same. I GIVE AND BE too, as to devises of rights of entry-Culley v. Doe d. Taylerson, 3 Per. & Dav. 539. (f) See as to trusts for sale, the notes ante, Vol. 3, pp. 290-292; Lewin's Law of Trusts, ch. xix. PERSONAL ES- WIDOW AND General be quest of person alty. In trust for sale and conversion into money. QUEATH all the money, securities for money, goods, chat- OF REAL AND tels, rights, credits, and other personal estate whatsoever and wheresoever, of or to which I am now or at the time of my death shall or may be possessed or entitled, either at IN TRUST FOR law or in equity, for any estate or interest which can be bequeathed by will, or of which I now have power to dispose by this my will, (except chattels real included in the general devise hereinbefore contained of real estate (g), and except what else I otherwise bequeath or dispose of by this my will, or any codicil hereto), unto the said E. F., G. H., and I. K., their executors, administrators, and assigns, UPON TRUST that they the said E. F., G. H., and I. K., and the survivors and survivor of them, and the executors or administrators of such survivor, do and shall, as soon as conveniently may be after my death, call in, sell, dispose of, and convert into money, all such, and so many, and such part and parts of the said money, securities for money, goods, chattels, rights, credits, and other personal estate, as shall not consist of ready money, AND DO AND SHALL stand and be possessed of, and interested in, the money to arise from such calling in, sale, disposition, and conversion into money, and of and in the ready money of or to which I shall be possessed or entitled at the time of my decease, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, and declarations hereinafter declared, expressed, and contained of and concerning the same; And I hereby DECLARE my will to be, that the said E. F., G. H., and I. K., and the survivors and survivor of them, and the heirs, executors, and administrators respectively of such survivor, do and shall stand possessed of and interested in the monies to arise from the sale or sales of the said manors, messuages, lands, tenements, hereditaments, and real estate hereinbefore devised (9) See supra, note (e). A general devise of real estate will now pass leaseholds and copyholds as well as freehold estate, reversing the ancient rule of law at least as to leaseholds for years. 1 Vict. c. 26, sect. 26; 2 Pow. Dev. by Jarm. chaps. 7, 8. Doe d. Clarke v. Ludlam, 7 Bing. 275: Doe d. Smith v. Bird, 5 B. & Ad. 695: Doe d. Edmunds v. Llewellin, 2 Cro. Mee. & Ros. 583: Weigall v. Brome, 6 Sim. 99. Declaration of the trusts of the money produced by the al estate. real and person General devise passes lease holds and copyholds. PERSONAL ES TATE TO BE INTO MONEY WIDOW AND CHILDREN. and testament ary expenses, cies; OF REAL AND in trust for sale, and from the calling in, sale, disposition, and conversion into money of all such, and so many, and such part and parts as are herein before directed to be called IN TRUST FOR in, sold, disposed of, and converted into money, of the said money, securities for money, goods, chattels, rights, credits, and other personal estate lastly hereinbefore bequeathed, and of and in the said ready money of or to which I shall be possessed or entitled at the time of my death, To pay funeral UPON TRUST that the said E. F., G. H., and I. K., and the survivors and survivor of them, and the heirs, exdebts, and lega- ecutors and administrators respectively of such survivor, do and shall, by and out of the same, pay and discharge my funeral and testamentary expenses and debts, and the costs and expenses to be incurred in or about the sale or sales, calling in, disposition, or conversion into money aforesaid, or otherwise, in or about the execution of the trusts aforesaid, or in relation thereunto, and the legacies bequeathed by this -and to invest my will, or any codicil hereto (h), AND DO AND SHALL lay out and invest the surplus or residue of the said monies in the names or name of them, the said E. F., G. H., and I. K., or the survivors or survivor of them, or the executors or administrators of such survivor, in the purchase of a competent share or shares of any of the parliamentary stocks or public funds of Great Britain, or at interest upon government or real securities in England or Wales, but not in Ireland (i); AND I DECLARE my will to be, that the said E. F., G. H., and I. K., and the survivors and survivor of them, and the executors and administrators of such survivor, do and shall from time to time, (if and when they or he shall think fit so to do), alter, vary, and transpose the said stocks, funds, and securities, into or for other stocks, funds, or securi the residue; -with power to vary the investments; Order of pay. ment. (h) The direction in the text as to the order of payment follows the rule of law which directs the payment, in the first instance, of funeral expenses; then of the expenses of probate or administration; then of the testator's debts; and then of his legacies. (2 Wms. Law of Executors, Part I., book ii, chs. 1, 2; Book iii., Introd.). (i) As to the necessity of an express restriction against lending monies on real securities in Ireland, see ante, Vol. 4, p. 312, n. (e). |