WILLS. 7. AND in case either of my said three natural children shal No. XXVIII. happen to die in my lifetime or under the age of twenty-one years. Will, devising then as well the original as the surviving or accruing share or all Testator's Freehold Estates to Uses for Benefit of his Three Natural Children, &c. Cross limitations in favour of survivors, in case of any of natural children As to bequests woman. Although illegitimate children cannot As to gifts to illegitimate children in ventre sa mere. Where a testator bequeaths to his children by some particular woman to whom he is not then married, the construction will be governed by the circumstance of whether he is married or single at the time such disposition is made. If single, the inference will be that he contemplated a future marriage with the woman he has named, and therefore the term "children by him" (the contrary not appearing by the will), would be considered as applicable to legitimate children only; but if, on the other hand, the testator has a wife living at the time, and the language of his will is such, that after making a disposition in favour of his children by a particular woman, it is evident he contemplated both his wife and this woman would survive him, this would be so incompatible with the supposition of his contemplating marriage with the woman, as to indicate an intent to mean illegitimate children only. And although legitimate and illegitimate children cannot take as a class under the description of "children," they may nevertheless be comprehended under the same devise as designatio personarum: (Bayley v. Snelham, 1 Sim & Stu. 78.) A gift to illegitimate children, according to the early authorities, would only have included such as were born at the time at which the gift is made, as the law will not suppose that such issue should be unborn (Cro. Eliz. 409); still, this will not prevent a bastard in ventre sa mere from taking under a devise, if so described as clearly to point out the intended object; but such description must be with reference to the mother only, and not with reference to the father; for take as such where a testator bequeathed to such child or children, if more than one, as M. as a class, they may be may happen to be enceinte of by me, the bequest was holden to be void, there comprehended being no gift to the child of which M. might be enceinte, except as the child of under that term the testator (Earle v. Wilson, 17 Ves. 528); and a gift to the child with which a as designatio woman is enceinte by a particular man, whether that man be the donor himself personarum. or any body else, introduces into the description of the object a circumstance which the law treats as uncertain (a bastard being, in respect of his paternal parent at least, filius nullius), and which it cannot properly permit to be inquired into; and the devise is, therefore, unless the fact can be assumed, necessarily void: (see 2 Jarm. Wills. 150.) But where the reference to the mother is clear, and there is nothing to show that the paternal parentage should form the qualification of the gift, then it seems such gift would be good, although the testator should describe the child as his own. In Gordon v. Gordon (1 Mer. 141), where the testator recited that he had reason to believe that A. was pregnant by him, and subsequently directed that the child of which she was then pregnant (not repeating the words by me), should be sent to England, and the expense paid for by an annuity, &c., Lord Eldon, although he studiously abstained from expressing any opinion as to what it would be if the words were "to my child," decided that the words, "the child with which A. is now pregnant," were sufficient to give effect in its favour. In Evans v. Massey (8 Pri. 22), a testator who resided in India devised as follows: "Having two natural children, and the mother supposed to be now carrying a third child, I bequeath the whole of my property in England at this time, or now on the seas proceeding to England, to be divided equally between them, that is to say, if another child should be born to the mother of the other two in proper time, that such child is to have onethird of such property." The testator appointed certain persons guardians of his children, and in the bequest of the residue expressed himself thus, "after paying my natural children as aforesaid." The question was, whether the bequest to the child in ventre sa mere was made to it as the child of the testator, or whether, on the other hand, it was not to the child with which the woman was enceinte, without reference to the father as the essential part of the descrip WILLS. shares, of such child so dying, of and in the aforesaid hereditaments and premises, shall go over and remain TO THE USE of the other No. XXVIII. or others (if more than one) of my said natural children, and their respective heirs and assigns, as tenants in common, in the same manner as their original shares in the same hereditaments and premises are hereinbefore limited. Will, devising all Testator's Estates to Uses for Benefit of his Three Natural Children, &c. Freehold Provisions for maintenance out surplus shall be trusts for accumulation. 8. AND I DO HEREBY AUTHORIZE AND DIRECT my said trustees or trustee for the time being to apply so much of the rents and profits of the expectant shares of my said three natural of rents and profits, with children in the said hereditaments and premises, as my said trustees directions that or trustee shall think proper, until the said (youngest child), or the invested upon youngest of my said natural children for the time being, shall have attained the age of twenty-one years, in or towards the maintenance, education and support of my said three natural children respectively; and shall apply the surplus rents, so as they may accumulate in the nature of compound interest, by investing the same in such securities, either real or personal, as my said trustees or trustee shall deem expedient, and shall and may vary such securities whenever my said trustees may think proper; and also with full power for my said trustees or trustee to apply either the whole, or any part of such surplus moneys for the benefit or advancement in the world of my said three natural children, in such manner as my said trustees or trustee may think fit, and shall pay over such surplus accumulations to such of my said natural children from whose several shares such accumulations shall have arisen, upon their attaining their respective ages of twenty-one years. 9. AND I DO HEREBY FURTHER DIRECT, that the same pro- Provisions for survivorship visions for survivorship and accruer, in case either of my said three and accruer to be applicable to natural children shall happen to die under the age of twenty-one accumulated years, shall be applicable to all such surplus accumulations that fund. shall accrue during his or their minority or respective minorities, tion. Richards, C. B., was of opinion that the bequest was good. He considered the case to be distinguishable from Earle v. Wilson (before alluded to), as to which, however, he observed, that he did not understand the grounds upon which it proceeded, and therefore could not entirely accede to it; that the decision excited surprise at the time, and that some of the judges had intimated upon several occasions dissatisfaction with it. WILLS. as shall not be applied in or towards his or their maintenance, No. XXVIII. education and support, and shall be paid over and transferred a the same time as their several shares in the said hereditaments and Will, devising all Testator's premises will become absolutely vested in them as aforesaid. Freehold Estates to Uses for Benefit of his Three Natural Children, &c. Bequest of legacies of nineteen 10. I ALSO GIVE AND BEQUEATH unto each of my said three natural children the sum of nineteen guineas, and I further direct, that if all, any or either of my said three natural children shall at the time of my decease be under the age of twenty-one years, guineas to each my said trustees or trustee for the time being shall apply the said legacies for the benefit of such of my said three natural children, with children respectively as shall be so under the age of twenty-one years as aforesaid, in such manner as my said trustees or trustee shall think best. of testator's three natural directions that trustees shall apply same for the benefit of such of them as are under age, Trustees to 11. AND AS TO, FOR AND CONCERNING my said leasehold get in personal estates, moneys and securities for money, and all the rest, residue estate. To stand possessed of leasehold estates and trust moneys. and remainder of my said personal estate and effects, MY WILL IS, AND I DO HEREBY DIRECT, that the said (trustees), and the survivor of them, his executors or administrators, or other my trustees or trustee for the time being, do and shall collect and get in all such part of my said personal estate as shall consist of moneys belonging or owing to me at the time of my decease (except mortgage debts, which my said trustees or trustee may permit to remain in their present state of investment or call in, as they or he may think proper), and shall invest such moneys, when so gotten in, in some of the public or parliamentary stocks and funds, or upon government securities, or in the Bank of England, or by way of mortgage upon the security of sufficient freehold, copyhold or leasehold estates, to be situate in England or Wales, but not in Ireland, which said stocks, funds and securities, it shall be lawful for my said trustees or trustee for the time being to alter, vary and transpose as they or he shall think fit. 12. AND MY WILL IS, AND I HEREBY DIRECT, that the said (trustees), and the survivor of them, his executors or administrators, or other the trustees or trustee for the time being of this my will, do and shall stand and be possessed of my said leasehold estates, stocks, funds, and securities, WILLS. No. XXVIII. all Testator's Estates to Uses Natural testator's 13. UPON TRUST to pay the rents and profits, interest, dividends and annual proceeds of my said leasehold estates, trust moneys, stocks, funds and securities, when and as the same shall become Will, devising payable, into the proper hands of my daughter (Christain and surname), the wife of (husband's name), during her life, for her sole and separate use, free from the control, debts or engagements of her present or of any future husband or husbands with whom she may at any time intermarry, and so that she may have no power Upon trust to to alienate or anticipate the growing payments thereof, her receipts pay income to alone being a sufficient discharge for the same; and after her legitimate daughter during decease, then as to all my said leasehold estates, trust moneys, her life for her stocks, funds and securities. [INSERT HERE power of appoint- separate use. ment amongst children; trust for children in default of appointment; hotchpot clause; provisions for maintenance and power of advancement, ut ante, No. XI., clauses 11 to 14 inclusive, p. 686. THEN ADD power to trustees to compound debts; refer to arbitration; to give receipts; power to change trustees, ut ante, No. VIII., clauses 5 to 8 inclusive, pp. 664, 665.] of trustees as 14. AND I HEREBY APPOINT the said (trustees) joint executors Appointment of this my will, and also as the guardians of the persons and estates executors. of my said three natural children during such time as they or either of them shall be under the age of twenty-one years. (b) [ADD clause of revocation, ut ante, No. VI., clause 25, p. 661.] IN WITNESS, &c. (b) Although, strictly speaking, a putative father has no legal right to appoint Practical guardians for his natural children, still his appointment is so far effectual, that observations. the Court of Chancery have always carried out his intent, by appointing the same persons guardians, without any reference made to the Master for his approbation (Ward v. St. Paul, 2 Bro. C. C. 583.) No. XXIX. SHORT FORM OF A WILL, BY WHICH TESTATOR, A WIDOWER, WHO HAS BEEN TWICE MARRIED, BEQUEATHS PECUNIARY LEGACIES TO A SON AND DAUGHTER OF A FORMER MAERIAGE, AND THE RESIDUE OF HIS PROPERTY, CONSISTING WHOLLY OF PERSONAL ESTATE, UPON TRUST FOR HIS FOUR CHILDREN BY HIS SECOND MARRIAGE, IN EQUAL SHARES, WHICH ARE TO BE PAID OR TRANSFERRED TO THEM ON THEIR ATTAINING THEIR RESPECTIVE AGES OF TWENTY-ONE YEARS, WITH PROVISIONS FOR SURVIVORSHIP AND ACCRUER; WITH DIRECTIONS ALSO FOR THE INVESTMENT OF TRUST MONEYS, AND THAT THE INCOME SHALL BE APPLIED TOWARDS THE MAINTENANCE AND EDUCATION OF THE CHILDREN DURING THEIR RESPECTIVE MINORITIES. ALSO POWER TO ADVANCE ANY PORTION OF THE CHILDREN'S SHARES, NOT EXCEEDING TWO-THIRDS, TOWARDS THEIR PLACING OUT IN LIFE. DIRECTION THAT TESTATOR'S SISTER SHALL HAVE THE SUPERINTENDENCE OF HIS FOUR YOUNGER CHILDREN DURING THEIR RESPECTIVE MINORITIES. WITH POWER TO ADJUST CLAIMS, COMPROMISE DEBTS, REFER TO ARBITRATION, &c. |