tical exercise of that testamentary power which the statute has so largely conferred. CHAPTER V. its whole ex The subjects, modes, and objects of testamentary dis- The impossibility of grasping position, which present themselves to the mind of the the subject in experienced practitioner, are so numerous and various, tent. as to render idle any attempt beyond that of submitting some general hints, calculated to prevent serious miscarriages under circumstances of ordinary occurrence. However inadequate these, or any other instructions may be, to meet the exigencies of particular cases, yet the mere mention of the points will appear not without its use, in awakening attention at least, when it is considered that the wills of the majority of testators do but faintly express, not to say cloud or frustrate the intention, from inadvertence, on the part of themselves, or their advisers, to some, and those among the most prominent, of the topics which we propose to notice in glancing at this infinite field. If we should succeed only in guiding the mind of the framer into some profitable trains of thought, in abating his self-confidence, and leading him to consult approved precedents-in preventing, to any extent, the recurrence of fatal errors and omissions, whether technical or popular-we shall have effected something for the peace of society, the credit of the law, and the character of the age, which all suffer from the loose and rude documents in which the last wishes of the mass of mankind are still too frequently recorded. The making of a last will may be conveniently considered with reference-first, to the general arrangement and structure of the instrument; secondly, to the subjects of disposition; thirdly, to the objects; and lastly, to some matters not easily reducible under any of the three preceding heads. Attention to form and language is, of course, material to the production of a lucid result of an instrument Proposed dis tribution of the subject. As to the genelanguage of the ral frame and will. CHAPTER V. Preamble of the will-declara funeral, debts, &c. in which the testator may at once discover whether his intentions have been fairly carried out or not, and from which those who are to take, and to act under it, may readily ascertain their interests and their duties. Where the dispositions to be made are many and various, the draft should not be commenced without a well-digested plan. The want of correct notions, in regard even to this comparatively mechanical branch of the subject, is often very obvious in the instructions given for wills. If short minutes sometimes swell into a voluminous draft, it yet more frequently happens that instructions of great verbal mass and complexity may be resolved into a few simple gifts. Precedents of all ages seem to shew, that infirmity of tion of sanity, body, sanity of mind, religious hope, burial of the remains, and the discharge of just debts, are topics popularly identified with the solemn testamentary act. On behalf of the ancient formulary, as regards the first and second of these topics, nothing can be offered; the third may be justified, and even injoined, by the station. or character of the individual, and the consequent value of the testimony. And from having touched on the two former, we may take occasion to urge the importance of completing testamentary arrangements while physical vigour co-operates with mental power; and to remark, that as the almost unlimited control over property permitted by the laws of this country, extending not merely to the disinheriting of an heir, but even to the pauperising of a wife and children (h), naturally tends, though otherwise full of political wisdom and social good, to the indul (h) 5 Ves. 444. The absolute power of the husband over his own property has induced courts of equity to guard the wife's right to a provision out of her own property, when that property is brought, by any means, under equitable cognizance, with the most vigilant jealousy. See Sturges v. Champneys, 3 Jur. 840, 1096; Sweet on Sep. Est. 63. gence of capricious schemes (i), the first duty of every testator is a firm resolve against all dispositions suggested by questionable motives, or by the mere wantonness of power. Something more, indeed, is requisite to constitute a" sound disposing mind " than bare ability to will. As to the fourth topic, the funeral, if the testator should wish to give any special direction concerning the place or mode of burial, it will properly take precedence; but the vague clauses commonly inserted neither enlarge nor restrict the discretion of the executors. Testators are not unfrequently anxious to explain or to justify the dispositions which they make, by declarations as to their circumstances, sentiments, or views; but it may be stated as a rule, not to be departed from without very cogent family or other reasons, that a will should be strictly a disposing instrument. The display of motives and feelings, while it seldom elucidates or satisfies, often raises questions of construction. So, the immemorial clause which announces an intention to dispose of "all the worldly estate wherewith it has pleased God to bless" the testator, has often served only to prelude partial intestacy, and to invite litigation (k). With respect to debts, since the testator can no longer sin in his grave against his simple contract creditors, he should, unless desirous of substituting, for the liability created by law (1), a specific charge upon his real estate, (of which the effect is explained in the sequel (m)), be wholly silent. These observations dispose of the common-places which form the ordinary preamble of an inartificial will. CHAPTER V. We proceed to give some general directions as to the Order of the (i) See Thellusson v. Woodford, 4 Ves. 227, 11 Ves. 112; Cadell v. Palmer, 10 Bing. 140, 7 Bligh's Parl. Rep. N. S. 200. (k) Ibbetson v. Beckwith, Cas. T. Talb. 157; Doe v. Allen, 8 T. (1) Ante, 322. (m) Post, 422; vide ante, 323. CHAPTER V. operative clauses. Real estate. Of blending re- arrangement of the really operative clauses. In most cases, probably, the best arrangement will be to dispose, first, of the real estate, then of the personal estate :-in disposing of the real estate, to begin with specific devises, placing the more simple (as, immediate devises in fee) before the more complex, (as, devises for life, with remainders), and then winding up with a general residuary devise, (of which the sweeping effect has already been Personal estate. explained (n));—in disposing of the personal estate, to pursue a somewhat analogous course, by commencing with specific bequests, (as, bequests of articles of plate, furniture, or other effects,) then proceeding to pecuniary legacies and annuities, and again closing with a general residuary bequest. This plan will be found to accord with the more prevalent schemes of disposition; though where, as very generally happens, the testator intends his residuary real and residuary personal estate to follow the same destination, in either a converted or an unconverted state, both may be blended in one ultimate gift to the objects, or, as the case may be, to trustees for sale and conversion, with some advantage in point of succinctness, but not, perhaps, (especially where the sale and management of the real estate demand special powers and proMortgage and visions), without some sacrifice of perspicuity. The devise of estates vested in the testator as mortgagee or trustee (which, as we shall presently see, it is rarely proper to include in the general devise) may follow. After the framer shall have thus disposed of all the testator's property-ascertaining the modes in which, and the persons by whom, it is to be enjoyed-there will remain to be added some powers and provisions of a general nature, adapted to facilitate the execution of the trusts and purposes of the will, as, powers to give discharges for monies received by the trustees from purchasers and trust estates. General provisions. (n) Ante, 391. CHAPTER V. others, to supply vacancies in the trusteeship, with the usual indemnification of trustees, to compound debts, and settle the testator's affairs. The will may then close Appointment of with the appointment of executors, and of guardians of the testator's infant children, if any, and the revocation of all other testamentary writings. executors, &c. of bringing to gether matters relating to the same subject. As a general rule, all that relates to each distinct subject-matter should be placed in juxta-position, so that, upon referring to any particular disposition, we may see at once its whole bearing. Thus, if real estate be devised in strict settlement, the powers of leasing, selling, and exchanging, and other clauses relating to that estate exclusively, should be consecutive, and not interrupted by, or intermixed with, matter relating to the personal estate; and the like order should be observed in the distribution of the details. This rule, however, must be understood with some qualification; for confusion is often the result of mixing up clauses differing in form, though similar in kind, as trusts with provisions; and it may, therefore, be advisable where, for instance, a trust for infant or unborn children occurs in a series of trusts, to postpone the provisions for maintenance and advancement, till the conclusion of the series. Again, although it is desirable that Ineligibility of each gift should be complete in itself, yet the greater ex- clauses. pediency of avoiding repetition may sometimes suggest the introduction of a comprehensive clause; as, for instance, limitations by one general clause to preserve all the contingent remainders, a general direction that all the life estates shall be unimpeachable of waste, or that all the gifts to females shall be for their separate use, or general provisions for the maintenance and advancement of all the infant legatees. This course is better than that of referring from one set of limitations to another; an expedient which should, if possible, be avoided, because referential |