WILLS. No. III. and also to convert into money all such parts of my personal estate as shall be saleable; AND I hereby empower my said trustees or trustee to sell my real and personal estate by public Short Form of a Will devising auction or private contract, and also to enter into all such conReal and tracts respecting such sales as they or he may deem expedient, Personal Estate. and to buy in and resell the whole or any part of my said trust estate and premises, without being responsible for any loss that may be incurred in consequence; AND ALSO to convey and assure the said trust estate and premises, when sold, to the purchaser or purchasers thereof, or to such uses as he or they shall direct. upon credit. 3. AND I ALSO EMPOWER my said trustees to sell any part of Power to sell my said personal estates (except my leasehold estates) upon credit. (b) 4. AND I HEREBY DECLARE that the receipts of my said trustees Indemnity to purchasers. or trustee shall exonerate the parties taking the same from the payment of all moneys therein expressed to be received, or from seeing to the application thereof. [ADD power to change trustees, ut ante, No. I., clause 11, p. 637.] (b) This clause is an important one, for without it a trustee or executor who sells upon credit renders himself personally responsible for the debt. No. IV. DEVISE OF AN ADVOWSON, OF WHICH THE TESTATOR IS 1. Recital that testator is incumbent, and also the owner of the ad- 2. Devise of same to trustees. 3. Upon trust to present A. B. 4. In case of his death, refusal or clergyman of the age of sixty years or upwards. 5. After the party presented shall be inducted into the living, to sell the advowson. 6. Power for trustees to enter into contracts, buy in and resell the premises, and convey the same to purchasers. Recital that testator is [COMMENCE as in precedent No. I., clause 1, ante, p. 632.] 1. WHEREAS I am entitled to the fee simple and inheritance of incumbent, and the advowson or right of presentation of the rectory of parish of the advowson. church of St. P―, in the county of B——, and am also the present rector or incumbent thereof. also the owner Devise of same to trustees. 2. NOW I DO HEREBY GIVE AND DEVISE unto (trustees) and their heirs, all that the aforesaid advowson and right of presentation, with all and singular the privileges and appurtenances thereunto Practical suggestions. (a) As an advowson cannot be sold during an avoidance, the best plan, where the testator is both patron and incumbent, is to direct the trustees to present some person of advanced age, and when he is inducted into the living to seil. The trustees should be careful not to involve themselves in any simoniacal contract with respect to the resignation of any person they may present in favour of any purchaser or his nominee, as an act of this nature would be a clear breach of trust, which no pecuniary advantage that might thereby result to the trust estate would extenuate. belonging, TO HOLD unto and to the use of them, their heirs and assigns for ever, upon the trusts, and for the ends, intents and purposes hereinafter declared (that is to say), WILLS. No. IV. Devise of an Advowson, of which Incumbent. Upon trust to present A. B. 3. UPON TRUST that the said (trustees), and the survivor of the Testator is them, his executors or administrators, or other the trustees or trustee for the time being of this my will, do and shall, with all convenient speed after my decease, present my friend, the Reverend (A. B.) to the said rectory, in order that he may be instituted and inducted incumbent thereof; and in case of the death, refusal or incapacity of the said (A. B.), then to be presented to the said rectory, then death, refusal, or 4. UPON TRUST that my said trustees or trustee for the time In case of his being, do and shall before the expiration of six months from the incapacity, to time of my decease (6) present to the said rectory or parish church Proof some other fit person who shall be of the age of sixty years or upwards, so and in such manner as that such person may be upwards. instituted and inducted incumbent thereof. of clergyman of the age sixty years or the living to 5. AND I HEREBY DIRECT, that when and as soon as the said After the party presented shall (A. B.) shall be presented, instituted and inducted to the said be inducted into rectory, or in case of his death, refusal or incapacity, then and as sell the soon as such fit person as aforesaid shall be presented, instituted advowson. and inducted as aforesaid, that my said trustees or trustee for the time being shall, with all convenient speed, make sale and absolutely dispose of the said advowson and right of presentation of and in the said rectory, by public auction or private contract, for such price as my said trustees or trustee shall deem reasonable. Power for trustees to 6. AND I HEREBY AUTHORIZE AND EMPOWER my said trustees or trustee for the time being to enter into all such stipulations or enter into contracts, buy agreements as to the title, or the expenses of and incident to the in and resell deduction, examination or proof thereof, AND also to buy in and and convey the the premises, resell the said advowson, and to alter, vary or rescind the terms same to purchasers. Precautions (b) The trustees must be careful to present within the six months, otherwise, should a lapse be incurred thereby, they will be responsible for the conse- necessary to quences of their neglect. prevent a lapse. WILLS. No. IV. Devise of an Adrowson of which of any contract which shall or may have been entered into for the sale thereof, without being responsible for any loss that may be thereby incurred; AND also to execute all such conveyances and assurances as may be deemed necessary for the purpose of conthe Testator is veying and assuring the said advowson to the purchaser or purchasers thereof, or to such uses as such purchaser or purchasers shall direct or appoint. [ADD power to give receipts, ut ante, No. II., clause 7, p. 643; AND ALSO power to change trustees, ut ante, No. I., clause 11, p. 637.] Incumbent. No. V. CHARGE OF REAL ESTATE IN AID OF THE PERSONALTY.(a) 1. Direction that in case the personal estate shall prove insufficient for the payment of debts and legacy, the real estate shall be charged with the deficiency. 2. Trustees to raise the same by sale or mortgage. 3. Trustees' receipt to be a sufficient 4. Trustees empowered to raise the 1. AND MY WILL IS AND I HEREBY DIRECT, that in case my Direction that personal estate shall be insufficient for the purpose of the payment personal estate in case the (a) By the common law, the real estates of a deceased person were not liable What will to his simple contract debts, or even to his debts by specialty, excepting where charge real the heir was expressly bound; and even the claim of a specialty debtor might estate with have been defeated by devising away the lands, until the statute 3 & 4 W. & M. debts and c. 14, gave the specialty debtor a right of action against the devisee concurrently legacies. with the heir. The statute 47 Geo. 3, c. 74, also went a step further than this, by letting in the claims of simple contract creditors of a deceased owner of real estates, who, at the time of his death, was amenable to the bankrupt laws : (Hitchen v. Bennett, 4 Mad. 180); and by statute 3 & 4 Will. 4, c. 104, it is Statute 3 & 4 provided, that after the 29th day of August, 1833, when any person should die Will. 4, c. 104. seised or entitled to any real estate, which he should not by his last will have charged with or devised subject to the payment of his debts, the same should be assets to be administered in Courts of Equity for the payment of the just debts of such persons, as well debts due on simple contract, as on specialty; and that the heir-at-law, customary heir, and devisees of such debtor, should be liable to all the same suits in equity, at the suit of any of the creditors, whether by simple contract or by specialty, as the heir-at-law or devisees were theretofore liable to in respect of freehold estates at the suit of creditors by specialty, in which the heirs were bound; but the creditors by specialty in which the heirs were bound, were to be paid before creditors by simple contract, in which the heirs were not bound. In case, therefore, the real estates are not charged with the payment of debts, specialty creditors whose security binds the heirs, will be entitled to a preference over a creditor by simple contract, or by specialty not binding the heirs; but if the real estates are charged with the payment of the debts, then all classes of creditors will be entitled to payment in pari passu. Whether under a charge for payment of debts creditors As to what words will be sufficient to create a general charge for payment of debts and legacies, is a question which has been often agitated; but the What words will be sufficient |