WILLS. Testatrix said deceased husband and myself during the term of our joint No. XXXV. lives and the life of the survivor of us; and after the decease of Appointment by such survivor, to such uses, and upon such trusts, for the benefit of Freehold of all and every or any one or more of our children or other issue, Property to her in such parts, shares and proportions, and for the benefit of any one or more to the exclusion of the other or others of them, and in such manner as my said deceased husband and myself, or the survivor of us, should by deed or will appoint. Eldest Son in Fee. Of death of husband 3. AND WHEREAS my said husband died on or about the without having day of without having exercised the said joint power of appointment limited by the said hereinbefore recited indenture of settlement. exercised the power. That testatrix has five children living. That testatrix has not 4. AND WHEREAS I have now five children living by my deceased husband; (that is to say,) [INSERT names.] said 5. AND WHEREAS I have not yet exercised the said power of exercised her appointment which is now vested solely in me as the survivor of my said deceased husband. power of appointment. Appointment of freehold premises to testatrix's 6. Now IN PURSUANCE AND IN EXERCISE OF THE AFORESAID POWER, and of every other power enabling me in this behalf, I DO eldest son in fee. HEREBY BY THIS MY LAST AND ONLY WILL APPOINT, that all and singular the freehold hereditaments and premises mentioned and comprised in the said hereinbefore recited indenture of settlement, with their appurtenances, shall from henceforth be and enure TO THE USE of my said eldest son, the said (name), his heirs and assigns for ever. Appointment of copyhold and leasehold trust for testatrix's four younger 7. AND IN FURTHER PURSUANCE AND EXERCISE OF THE AFORESAID POWER, and of every other power enabling me in premises upon this behalf, I DO HEREBY, BY THIS MY WILL, FURTHER APPOINT, that the said (trustees of settlement), and the survivor of them, his heirs, executors or administrators, do and shall stand and be possessed of all and singular the copyhold and leasehold tene ments, hereditaments and premises mentioned and comprised in the said hereinbefore recited indenture of settlement, UPON TRUST for my said four younger children (names), and their respective children as tenants in common. WILLS. eirs, executors, administrators and assigns, according to the espective natures and qualities of the said premises, in equal No. XXVI. mares as tenants in common. Appointment by Cross executory 8. BUT in case any or either of my said four younger children all die in my lifetime, or under the age of twenty-one years, ithout leaving issue living at the time of his, her or their death - deaths, then the share or shares of such children so dying as trusts in favour oresaid, as well accruing as original, shall be UPON TRUST for case either of e survivor or survivors of them, his, her and their heirs, execu- the four rs, administrators and assigns, according to the respective natures children die in ad qualities of the said premises, in equal shares as tenants in lifetime, or mmon. of survivors, in younger testator's under twentyone, without leaving issue. IN WITNESS, &c. No. XXXVI. WILL, DEVISING REAL PROPERTY TO DEVISEE FOR LIFE, 1. Devise to tenant for life without 2. Remainder to trustees to preserve 3. Power for devisee for life to appoint 4. In default of appointment, to the 5. Cross limitations to survivors in 6. Hotchpot clause. 7. Provisions for maintenance. 8. Unapplied surplus to be invested to accumulate, and either to be applied for the benefit of childre during minority, or paid over t them on their coming of age. 9. Ultimate limitation to the right heirs of testator. 10. Power to grant leases at rack rent. Devise to tenant for life without [COMMENCE will, ut ante, No. I., clause 1, p. 632.] 1. I GIVE AND BEQUEATH unto (devisee for life), and his assigns, impeachment of all that my freehold estate [DESCRIBE parcels], TO HOLD the same, waste. ith the appurtenances, unto and to the use of the said (devisee for fe), and his assigns, for and during the term of his natural life, ithout impeachment of waste; (a) and after the determination of at estate by any means in his lifetime, 2. TO THE USE of (trustees) and their heirs during the life of he said (devisee for life), UPON TRUST to preserve the contingent WILLS. No. XXXVI. Will, devising to Devisee for Life, with Remainder to Trustees. Remainder to trustees to preserve (a) Whenever estates for life are to be given, it should be ascertained whe- contingent herthe testator intends such estates to be with or without impeachment of remainders. vaste, as a tenancy for life, if without impeachment of waste, confers. many Practical mportant privileges which an ordinary tenant for life does not possess, who suggestions. s equally liable to impeachment for waste as a tenant for years, or of any other hattel interest. waste. It was in ancient times considered, that a tenant for life without impeach- Of the powers nent of waste was only exempted from the penalties imposed by the Statute of of tenant for Gloucester (6 Edw. 1, c. 5), but it has long since been settled that the clause life without without impeachment of waste gives the property itself: (Lewis Bowles' case, impeachment of 11 Rep. 97; Alston v. Alston, 2 Ves. 265, 266.) Still, for all this, courts of equity will grant an injunction to restrain a tenant for life from any act of waste that is likely to prove of permanent injury to the inheritance: (Vane v. Lord Barnard, 2 Vern. 738: S. C., Pre. Cha. 454; 1 Ves. sen. 625; Abrahall v. Bubb, 2 Freem. 53; Perrott v. Perrott, 3 Atk. 95; Robinson v. Litton, 3 Atk. 210.) The acts which a court of equity has restrained a tenant for life without im- What acts of peachment of waste from committing, are the cutting down of ornamental waste a court timber (Packer v. Bolingbroke, referred to, 1 Mad. Pract. 141, 2nd edit.; of equity will Packington v. Packington, 3 Atk. 315; Aston v. Aston, 1 Ves. sen. 264; O'Brien restrain a tenant for life, v. O'Brien, Ambl. 107; Strathmore v. Bowes, 2 Bro. C. C. 88); and all timber without trees, planted for ornament will be so considered, without any regard to the good or impeachment bad taste of the person who so planted them (Mohun v. Lord Stanhope, Rolls, of waste, from 9 March, 1808; referred to, 1 Mad. Pr. 143, 2nd edit.); nor will it make any committing. difference that the trees were planted for that purpose by the tenant for life himself: (————— v. Copley, referred to, 1 Mad. Pr. 144, 2nd edit.) But the mere circumstance of the timber being ornamental to the property, will not of itself be sufficient to constitute what in the eye of a court of equity is considered as ornamental timber. To render it so, it must have been planted for that express purpose; such as vistas, or avenues, or trees planted for the purpose of excluding unsightly objects from view : (Burgess v. Lambe, 16 Ves. 183; Day v. Merry, 16 Ves. 375; Coffin v. Coffin, 1 Jac. 70.) In other respects, a tenant for life without impeachment of waste may cut down timber generally, treating it in a husbandlike manner, with due regard to the beauty of the place (Burgess v. Lambe, sup.); still this will not empower him to cut down trees which have not arrived at a proper degree of maturity, though he may doubtless thin them in such a manner as will assist the growth of the rest: (Perrott v. Perott, sup.) A tenant for life without impeachment of waste may be restrained from As to mines opening mines or quarries (Whitfield v. Blewett, 2 P. Wms. 342; Tracey v. and quarries. Hereford, 2 Bro. C. C. 128); but not from working mines or quarries already opened (Saunder's case, 5 Rep. 12); and even new pits may be opened for the purpose of working old mines: (Clavering v. Clavering, 3 P. Wms. 388.) An injunction will also be granted to restrain a tenant for life without impeachment impeachment for waste from pulling down old family mansion houses or of waste, may other buildings (Vane v. Lord Barnard, sup.); or suffering them to remain be restrained uncovered (Abrahall v. Bubb, 2 Freem. 53; and see 1 Hughes Pract. Sales, from pulling 476 to 478, 2nd edit.); or allowing them to become ruinous for want of proper down houses, reparations. Tenant for life, without &c. WILLS. remainders hereinafter limited ; (b) and after the decease of the said No. XXXVI. (devisee for life), 3. TO THE USE of such one or more of the children or more remote issue of the said (devisee for life), and for such estate or estates, interest or interests, in such parts, shares or proportions, and subject to such provisions for maintenance, and other powers and provisoes in favour of any one or more of such children or more remote issue, and in favour of any one or more exclusively of the other or others of them, as the said (devisee for life) shall, from time to time, or at any time, by any deed or deeds, with or without power of revocation and new appointment, or by his last will in writing, appoint; and in default of such appointment, and so far as any such appointment, if incomplete, shall not extend, 4. TO THE USE of all and every the child and children, if more than one, of the said (devisee for life), begotten or to be begotten, and his, her and their heirs and assigns for ever, in equal shares as tenants in common. 5. AND in case any of the said children shall happen to die under the age of twenty-one years, then the share or respective shares of such child or children so dying respectively, as well original as accruing under this cross executory limitation, of and in the said hereditaments and premises, shall be and enure TO THE USE of the survivors and survivor of such children, and their, his or her heirs or assigns for ever, if more than one, in equal shares as tenants in common. Trustees to preserve contingent (b) It is not now, as it formerly was, necessary to insert limitations to trustees to support the contingent remainders, in order to preserve them from destruction, by the determination of the preceding estate for life before such remainders remainders, not become vested, it being enacted by statute 8 & 9 Vict. c. 106, that contingent now actually remainders existing after the year 1844 are not to fail by the destruction of the necessary, but prior particular estate (sect. 8); still, so little reliance seems to have been placed by the profession upon the operation of this statute, which altogether seems rather obscurely worded, that the clause still retains its usual place in settlements of real property, whether made by deed or will. still the practice to continue them. How limitations to preserve contingent If several life estates precede the contingent remainders, the limitations to preserve the whole of the contingent remainders may, whenever brevity is desirable, be all contained in one and the same clause, by simply limiting the remainders may estate upon the determination of each estate for life to the use of the trustees to be penned. preserve, &c., a form of which will be supplied in some of the forms relating to strict settlement of real estate. |