Codicil. an annuity of £, and after payment of the same as therein mentioned, upon trust as therein expressed for the said testator's son (party hereto) until he should attain the age of twenty-one years; and when he should have attained that age the said (testator) devised the said hereditaments to his said son and his heirs (3): AND WHEREAS the said testator by a codicil bearing date and likewise duly executed and attested (4), revoked the aforesaid devise to the said A. B., and declared that On the estate taken by the son. Establishment of seem as applicable since the Act as before, because the grounds for implying an estate only commensurate with the duties are just as good now as then. [The 31st section is confined to cases where the devise is without any express limitation of the estate, and therefore seems inapplicable to this case, where an express estate is given. For a like reason the 28 sect. does not apply, as that refers to devises without any words of limitation.] (3) If the devise had been merely to the trustees and their heirs until the son obtained 21, and then to him, he would have taken a vested remainder expectant on their estate, which would have been but a chattel interest, in consequence of its being bounded by fixed determinate limits. (1 B. & C. 721. 2 Brod. & B. 349.) And in the present instance it should seem clear that the trustees would not be held to take a base fee determinable by a shifting or executory devise in the son, but either a chattel interest, or, at the most, an estate pur auter vie, that being all which the trust requires. Hence, the son on attaining 21 took an equitable interest in possession, subject to the annuity, and a legal vested remainder expectant on the chattel real or descendible freehold of the trustees. (4) This statement is proper, for it has been held that every a will by a will and every codicil must be separately attested by three witnesses. subjoined (Rep. F. Holt, 742.) When a codicil is written on the same sheet of paper with the will, the attestation of the codicil by three codicil. I for sale. the said (trustee and widow) should alone be trustees for the purpose aforesaid, but in all other respects Death and confirmed his said will: AND WHEREAS the said probate. testator died soon after the execution of the said codicil, without having revoked the said will or codicil (except as aforesaid), and the same were on &c. Contract proved in the court: AND WHEREAS the said (the son) attained twenty-one years on &c., and hath since contracted with the said (purchaser) for the sale of the said hereditaments, free from all incumbrances (except as hereinafter mentioned [if any]), for the sum of £ and it was agreed that the said hereditaments should be sold, subject to the aforesaid annuity of £ the said (purchaser) being indemnified thereAgreement from by the bond of the said (son) (5): And whereas the said (trustees) have at the request of the said (son) agreed to concur herein, to convey the legal estate in the said hereditaments so vested in them as aforesaid (6) to the said purchaser to the uses hereinafter limited; and the said (widow) at the like request hath also agreed distinctly to release any right to dower in the said hereditaments which may have accrued to her as widow of the said (testator) of the trustees to convey, and of the dowress to release. , witnesses establishes the will, though not duly executed. (16 Ves. 167. 1 Ves. & B. 445.) [And the Wills Act has not made any alteration in this respect. Biddles v. Biddles, 3 Curt. 458.] (5) We have already seen, that if the annuity had been a legal rent-charge, this purpose could not have been effected by her releasing the purchased hereditaments only. The trus- (6) A good title could not be made without the concurrence of tees' conthe trustees, as they retain the legal estate during the life of the currence is necessary. annuitant. Testatum. deceased (7): NOW THIS INDENTURE WITNESSETH, of sterling money paid said (son, vendor), im that in consideration of £ by the said (purchaser) to the mediately before the execution of these presents, in full for the purchase of the hereditaments herein. after described, and the fee simple thereof, free from all incumbrances (except as hereinafter mentioned), the receipt whereof accordingly the said (vendor) doth hereby acknowledge, and from the same doth release the said (purchaser), THEY the said (trustees) (8) as such devisees in trust as aforesaid, at the request of Operative the said (vendor), by these presents Do grant, alien, and convey, and the said (vendor) DoTH grant, alien, convey, and confirm, and the said (widow), in respect of any right of dower which may have accrued to her as aforesaid, by these presents DoTH words. Right to dower negatives an actual assignment of it. Nominal tion to (7) Some gentlemen would add here, "but which hath not been assigned to her." We may omit this statement, for as the assignment completes the legal title of the dowress, and she has thereupon an actual estate (Gilb. Ten. 26), which is not releasable as a right to the owner of the inheritance, the fact which it expresses is evidently involved in the description of the subject matter, any right to dower. (8) The nominal consideration to the trustees is omitted. It considera- has no effect either at law or in equity, except in the case of a trustees not bargain and sale, of which a valuable consideration continues to necessary. form the essence, or when it alone prevents a resulting use on a conveyance operating by transmutation. By omitting the nominal consideration no apparent incongruity is introduced in the deed, for it is in point of fact, in consideration of the purchase money which is paid to the vendor, that the trustee conveys, and there is no reason why the real motive should not be the ostensible one. Habendum. Covenants by trustee and dow ress against incumbrances. Covenant for title by vendor. release (9) and confirm unto the said (purchaser) and his heirs, All (parcels). (Appurtenances and deeds, supra.) (Dower uses, as ante, p. 49, if required, if not,) TO HAVE AND TO HOLD the said hereditaments hereinbefore described, with the appurtenances, to and for the use of the said (purchaser) and his heirs. And each of them the said (trustees) as such trustees as aforesaid, and also the said (dowress) as such dowress as aforesaid, doth hereby for himself and herself, and his and her heirs covenant with the said (purchaser), his heirs and assigns, that he or she hath not made, done or suffered anything whereby the said hereditaments hereby conveyed, or any part thereof, can be in any manner incumbered or affected. And the said (vendor) doth hereby for himself and his heirs covenant with the said (purchaser), his heirs and assigns, that notwithstanding any thing made, done or suffered by the said (trustees, dowress, testator or himself), except as hereinafter excepted, they the said (trustees or vendor), or one of them, have or For good hath good right to convey the same hereditaments right to in manner aforesaid, and according to the intent of these presents. convey. For quiet enjoyment. Widow's right releasable. And that it shall be lawful for the said (purchaser), his heirs and assigns, at all times hereafter peaceably to possess and enjoy the same premises, with their appurtenances, and to receive the rents and profits thereof, without any interruption or disturbance from (9) As the interest of the widow is a mere right, not an estate, this release operates by way of extinguishment. Had the dower been assigned to her she could only have surrendered. incumbrances. the said (trustees or vendor), or any person or persons lawfully or equitably claiming any interest in the said hereditaments, or any of them, or any part thereof, through, under or in trust for the said (trustees) or any of them, or the said (testator) deceased, except Free from as hereinafter excepted. And that free from all other interests, titles, liens, or other incumbrances occasioned or suffered by the said (trustees, vendor or the said testator), or any person or persons lawfully or equitably claiming any interest in the said hereditaments, through, under or in trust for them or any of them, or by their or any of their means or default (except in respect of the aforesaid annuity of £ ). And also that they the said (trustees and vendor) and ther assur- their heirs, and every one rightfully claiming or to claim any interest at law or in equity in the said premises, or any part thereof, under or in trust for them or any of them, or the said (testator) deceased, shall (covenant for further assurance, ut supra, p. 70.) For fur ance. IN WITNESS, &c. PRECEDENT VI. Parties. CONVEYANCE BY TENANTS IN COMMON ANd their THIS INDENTURE, made &c., BETWEEN (husband of one tenant in common) and his wife, and (husband |