WILLS. ding to the priority of their respective births, UPON TRUST, No. XLII. during the life of each such daughter, to preserve the contingent Will, limiting Legal Estates to each of Testator's Sons successively for Lives, &c. Courts of equity will not direct a strict settlement, unless the will discloses an words, in order to carry out more perfectly the general objects which the testator had in view. Hence, a clause exempting the ancestor from impeachment of waste (Papillon v. Voice, 2 P. Wms. 471; Lord Glenorchy v. Bosville, Ca temp. Talb. 3; Ashton v. Ashton, 1 Coll. Jur. 525); the insertion of trustees to preserve contingent remainders (Papillon v. Voice, sup.; Earl of Stamford v. Hobart, 3 Bro. P. C. edit. 1 Toml. 31; Horne v. Barton, Coop. 257); or any other clause which denies the power of barring the entail (Leonard v. Susser, 2 Vern. 525), furnishes evidence of such intention; in which case the courts, in directing a conveyance, will order a strict settlement, and, by that means, confine the estate of the first taker to a mere life interest, notwithstanding the words of limitation, if construed according to their strict technical and legal import, would have vested the inheritance in him in the case of a legal estate, or of a trust executed. But even in the instance of executory trusts, there must be some expressions in the will besides the mere limitation to the ancestor for life, to enable the court to discover that the testator meant his heirs should not take in that right, and under the strict technical import of that term; for the courts must neces sarily follow the testator's words, unless he has shown that he did not design to intent that the use them in their ordinary signification, and have never gone so far as to say, that merely because the direction was for an entail, they would execute that intention, by decreeing a strict settlement. It must also be remembered, that, in order to enable the court to interfere in directing the mode in which the trust is to be performed, it must appear, in express terms, that the trustees are to settle, convey, &c.; for a mere direction to purchase has been holden to be insufficient: (Seale v. Seale, Pre. Cha. 421; S. C., 1 P. Wms. 290; Austen v. Taylor, Ambl. 376; Blackburn v. Stables, 2 Ves. & Beav. 367.) heirs shall not take in that right. Observations doctrine. And, as on the one hand, courts of equity, in order to effectuate the testator's upon the cy pres intention, have restricted a limitation in terms sufficient to pass the inheritance to a mere life estate, so, on the other, they have, for the same cause, extended a limitation, which, in express terms, would only have passed a life estate to an estate of inheritance, in order to embrace the more remote objects of the testator's bounty, whom, from the general tenor of the will, it is evident he intended should take; but the language employed by him has been such, that if construed literally, would be contrary to law, in consequence of being limited to take effect on a contingency that must not necessarily happen within the limits prescribed by law for the vesting of an executory devise; as, where a devise is made to the issue of unborn persons as purchasers. In cases of this nature, therefore, where the intent has been manifest, the courts, rather than the intention should altogether fail, have so construed the devise as to vest the estate in the possible ancestor, and thus, in the nearest practicable way, bring all the parties to be benefited within the scope and operation of the will; and, hence it is, that this construction is termed the cy pres doctrine-a doctrine only allowed in the construction of wills (Brudenell v. Elwes, 7 Ves. 390), and applicable only to the devisees of real estates (Routlege v. Dorrill, 2 Ves. 357); or money directed to be laid out in the purchase of land, which, in the eye of a court of equity, is transmissible in the same manner as the purchased property itself would have gone, and has all the incidents of real estate: (Earl of Pembroke v. Boden, 2 Cha. Rep. 115; S. C., 2 Vern. 513; Otway v. Hudson, 3 Cha. Cas. 383; Allen V. Allen, Mosel. 123; Chaplin v. Chaplin, 3 P. Wms. 229; Sweetapple v. Bindon, 2 Vern. 536; Lechmere v. Earl of Carlisle, 3 P. Wms. 211; Lingen v. Lowras, 1 Eq. Ca. Abr. 175; S. C., 3 P. Wms. 221; Crabtree v. Bramble, 3 Atk. 650, 687; Broom v. Monck, 10 Ves. 597; D'Arcy v. Blake, 2 Sch. & Lef. 388.) Humberston v. The case of Humberston v. Humberston (1 P. Wms. 332) has generally been considered as the leading authority in support of the cy pres doctrine. In that case lands were devised to trustees in trust to convey the premises to Matthew remainders hereinafter limited; AND UPON FURTHER TRUST to pay to the same daughter the rents and profits of the said hereditaments and premises during her life, for her sole and separate use, free from the control of her husband, and so that she shall have no power to anticipate the growing payments thereof, AND after the decease of each daughter respectively, WILLS. No. XLII. will, limiting Legal Estates to each of Testator's Sons successively for Lives, fc. To the use of first and other sons of daughter 6. TO THE USE of the first and other sons of such daughter successively, according to the priority of their respective births, and the heirs of the body and respective bodies of such first and in tail general. other sons, TO THE INTENT that the elder of my said daughters, and her first and other sons in tail general, shall be preferred before the younger of my said daughters, and her first and other sons in tail general. AND on failure or determination of all the said estates, 7. TO THE USE of my own right heirs for ever. Humberston for life, and upon his death to his first son for life, &c., and if no issue male of the first son, then to the second son of the said Matthew Humberston for life, and so to his first son; and in failure of such issue in Matthew, then to another Humberston and his first son for life, &c., with remainders over to other of the Humberstons for their lives successively, and to their sons, when born, for their lives, without giving any estate tail to any of them. Lord Chancellor Cowper said, that "though an attempt to make a perpetuity for successive lives be vain, yet so far as is consistent with the rule of law it ought to be complied with." He therefore, to attain this object, let in all the sons of these several Humberstons then already born, to take estates for their lives; but where the limitation was to the sons unborn, then such limitation was to be in tail male. A similar construction has also been adopted in several subsequent cases: (Hopkins v. Hopkins, Ca. temp. Talb. 44; Nicholl v. Nicholl, 1 Blackst. 115; Chapman and Oliver v. Brown, 3 Burr. 1626; S. C., in Dom. Proc. 3 Bro. P. C. edit. Toml. 269; Pitt v. Jackson, 3 Burr. 51; Mogg v. Mogg, 1 Mer. 654; Smith v. Lord Camelford, 2 Ves. 698.) Ultimate limitation to testator's right heirs. The rule in Shelley's case will operate upon copyhold or customary as well as Application of upon freehold estates. Hence the same words as would have been sufficient to the rule in have vested the inheritance in the ancestor in the case of freehold property Shelley's case, (respect being had to the different nature of the instruments) will have the same as to copy hold effect upon a surrender or devise of copyholds: a surrender operating in the or customary same manner as a deed of conveyance (Lovell v. Lovell, 3 Atk. 11; Wat. Cop. estates. 108; Co. Cop. s. 49), and a will of copyholds receiving the same construction as a devise of freeholds: (Wright v. Kemp, 3 T. R. 470, 473; Widowson v. Harrison, 1 Jac. & Walk. 532; 1 Hughes Pract. Sales, 349, 2nd edit.) No. XLIII. WILL, CREATING A RENT-CHARGE FOR TESTATOR'S WIDOW 1. General devise of testator's real | 14. To the use of first and other 5. As to testator's freehold estate, subject to rent-charge. 6. Limitation to trustees of term for 1,000 years. 7. To the use of testator's eldest son for life. 8. Limitation to trustees to preserve contingent remainders. 9. To the use of first and other sons of testator's eldest son in tail male. 10. To the use of testator's second and subsequently born sons for life. 11. Limitation to trustees to preserve contingent remainders. 12. To the use of first and other sons of testator's third and other sons successively in tail male. 13. To the use of first and other sons of testator's eldest son in tail general. daughters of testator's eldest 15. To the use of first and other sons 16. To the use of first and other 18. To trustees to preserve contingent 19. To the use of first and every other 20. To the use of her first and other 21. To the use of first and other 22. To the use of testator's subse 24. To the use of first and other [COMMENCE will, ut ante, No. I., clause 1, p. 632.] 1. I GIVE AND DEVISE all that my freehold estate (DESCRIBE General devise parcels), and all and singular other my freehold messuages, lands, freehold estates. tenements and hereditaments, whatsoever and wheresoever, whether in possession, reversion, remainder or expectancy, or over which I shall possess any disposing power at the time of my decease (excepting such estates as are vested in me in trust, or by way of mortgage), with their and every of their rights, members, privileges and appurtenances, TO THE USES, upon the trusts, and for the ends, intents and purposes, and with, under and subject to the powers, provisoes, charges, declarations and agreements hereinafter limited, expressed and declared of and concerning the same (that is to say), of all testator's testator's wife during her life. 2. TO THE USE AND INTENT, that my dear wife (name), or her Rent-charge to assigns, shall and may yearly and every year during the term of her natural life, receive and take (and in bar of all dower, thirds and freebench), the annual sum or yearly rent-charge of £ sterling (a) to be charged upon and issuing out of the lands and hereditaments hereinbefore devised, to be payable by four equal quarterly payments, on the 25th day of March, the 24th day of (a) If the wife has already a rent-charge, or any other estate or interest arising Practical out of the devised premises, secured to her by her marriage settlement, add remarks. -- "in addition to the provision made for her out of the same hereditaments and premises by our marriage settlement." WILLS. No. XLIII. Widow for June, the 29th day of September, and the 25th day of December, in every year, without deduction on account of any present or future taxes or impositions whatsoever, or otherwise howsoever; Will, creating a Rent-charge the first quarterly payment thereof to be made on such of the said for Testator's days of payment as shall happen next after my decease, and a proportionate part of the said annual sum or yearly rent-charge which may accrue due between the time of the last quarterly day of payment, up to and inclusive of the day of the death of my said wife, and to be recoverable in the same manner as is hereinafter directed concerning the arrears of the said annual sum or yearly rent-charge; Power of distress. Power of entry. Practical remarks. , 3. AND TO THIS FURTHER USE and intent, that in case any £ , 4. AND TO THIS FURTHER USE AND INTENT, that in case any (b) The words dispensing with the demand, although it is the usual practice to insert them, are not, it seems, actually necessary to confer that right: as to which, see Doe v. Horsley, 3 Nev. & Man. 567. |