decided cases the rigour of the standard there resorted to for measuring the income of tenants for life, and the still harder equity there dealt out to trustees (t), lapsing into well-intentioned and even well-calculated deviations from arbitrary rules-prove its importance, they have hitherto exerted little influence on the structure of residuary clauses.

III. From the general disposition of the property we proceed to the particular interests to be impressed upon it in favour of the different objects. But in order to reduce this head within moderate and therefore useful limits, we will suppose the testator to be a family man, and confine our remarks to those objects who have just or natural claims upon his honesty or bounty-his creditors, wife, and children.

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carefully framduary clause.

ing the resi

As to testamentions, with reobjects.

tary disposi

ference to the

debts;

powers to raise

debts.

With respect to creditors, the law, by subjecting the Creditors; real estate of every deceased owner to his simple contract debts, has deprived a charge of debts upon the realty of charge of nearly all the merit which it arrogated in more feudal times. Yet even now such a charge is not without its effect (u). But in order to render it really available, it trusts and should assume the form of a trust or power to raise money by sale or mortgage, and the purchaser or mortgagee should be exonerated from all responsibility as regards the necessity or propriety of executing the trust or power, or of executing it to the proposed extent. The limitation of a long term of years, upon trusts for raising the requisite amount by sale or mortgage, is sometimes adopted; but a power, extending to the fee, seems preferable, as it is adapted to call into existence whatever quantity or kind of interest circumstances may require, and (t) See, particularly, Dimes v. Scott, 4 Russ. 195.

CHAPTER V.

Wife's provision-what points to be considered.

stores; and le

expenses;

that only if, and as it may be wanted;-an observation which applies also to other cases. We may add that when a term is created for raising money, the testator should not authorize a sale, for it can never be intended that the estate (especially an old family estate strictly entailed) should be sold for a term of one hundred or five hundred years for raising a widow's jointure or younger child's portion; yet, under the ordinary trusts, this may occur, and, indeed, actually has occurred.

The modes of providing for a wife are various. The means of equipping a suitable establishment, and of meeting immediate exigencies, as well as the means of future sustenance, and that whether during life, or only during widowhood, and whether with or without the charge of maintaining and educating children, are all points to be -consumable considered. To bequeath to the wife the consumable gacy for current household stores (exclusive, perhaps, of wines) absolutely, and a pecuniary legacy, payable immediately, for current -furniture, &c. expenses, is usual, and in most cases expedient. As to the furniture, plate, and other comparatively durable articles, if these should not also be given to the wife absolutely, she may be allowed to have the use, during life or widowhood, of the whole, or to have the selection, either for such limited use, or as her absolute property, of articles to a given amount in value; and if the use only be given, it must be considered whether, on the determination of her interest, the property shall go in specie to the children, or fall into the general residue, either subject, or not subject, to a power in the wife of -provision by testamentary distribution. The future support of the wife may be provided for by means of a life annuity, which may either be absolute, or be determinable or reducible on marriage; or by means of a life interest in a definite fund, or in the whole, or some share of the resi

way of annuity,
or otherwise,
for life or during
widowhood.

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duary estate, which provision also may be either absolute or be determinable on marriage, with or without, in the latter event, some substitute provision; or by the bequest of a capital sum, or by permitting her to participate, equally or unequally, with the children, in the corpus of the residuary estate. The views of most testators, having a wife and children, point to a provision for the wife in the shape of income only, of which the amount, where the support and education of children are thrown upon her, may be adjusted with reference to that charge. If the provision made for her be not determinable on marriage, it may be proper to place it, as far as possible, beyond the control of a future husband. Whatever be the species of the wife's provision, it should be considered whether such provision is to be taken in addition to, or in satisfaction of any provision aliunde, to which she may be entitled by settlement or by law. Sometimes, Maintenance of the testator is desirous that his household establishment tablishment for a limited time. should be maintained, without alteration, for a certain period after his death, at the expense of his general personal estate, for the benefit of his wife and family, and such an intention may slightly modify the provision suggested as proper to be made for the wife.

may

testator's es

In attempting a discussion of the various modes in Children; which a testator may dispose of his property among children, we should merely lose ourselves in endless speculations. Some general remarks must suffice. The design is, either to give absolute interests, or to make a settlement more or less strict. We will take the case of a general residue, to be converted and divided between sons and daughters, either immediately, or on the death or marriage of the wife. The shares of sons are com--sons' shares; monly vested in them absolutely at twenty-one, or at twenty-one or marriage, or at twenty-one or on death

when taking a general resi

due distributively;

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-daughters'

shares ;

-points to be settling daugh

regarded in

ters' shares.

Ineligibility of

a power in

tle daughters' portions.

under that age leaving issue, according to the fancy of the testator, with provisions for maintenance and advancement during minority. But as to daughters, it is the common and natural wish of a parent, that their shares should be at least withdrawn from marital interference, if not strictly settled on them and their issue; though, in pursuing this object unadvisedly, the testator is apt to push his jealousy of a, perhaps future unknown, husband beyond the limits of prudence and policy. A judicious settlement upon the daughter and her future family-such a settlement as, while it protects her pecuniary interests from the consequences of an improvident or unfortunate union, and from the sometimes not less ruinous results of a future ill-digested deed, yet leaves her still the means of purchasing (if we may use a term so mercenary) an advantageous establishment in life— may almost be said to double the value of her portion.

Sometimes the testator confides to trustees the trustees to set-power (x) of settling the fortune of a daughter on marriage; but an expedient so invidious, so precarious, and so liable to abuse, is seldom admissible, even though the discretion be confined to selected individuals of known

A specific plan prudence. Two plans of settlement present themselves,

of settlement

suggested.

the one expressly contemplating, the other not so contemplating, the issue of the daughter. According to the first plan, the trusts (after the usual trust for investment) will be for the daughter's separate use for life, with the usual clause against anticipation, and then for her children or more remote issue, or any of them, as she shall by deed or will appoint, and in default of appointment, for her children equally, with the usual cross limitations between them, and if no child should acquire a vested interest, then for such persons as she shall by will ap(x) Laing v. Laing, 3 Jurist, 1119.

CHAPTER V.

point, (the power being confined to an appointment by will, in order to prevent an irrevocable appointment at the instance of the husband), and in default of appointment, either for her next of kin, or, by way of cross limitation, for the testator's other children. According to the Another plan. second plan, the capital of the fund is placed at the daughter's absolute disposal by will, and the trusts in favour of her children and issue are either omitted or postponed to her testamentary power. In either case, it may be expedient that the daughter should, with a view to her better advancement in marriage, be empowered by deed, as well as by will, to appoint a life interest in favour of a husband surviving her, and unless her portion be of small amount, to appoint, in the event of marriage, or, without regard to that event, part of the capital. If the daughter should happen to be a minor, a provision for maintenance should of course be added. As the clause against anticipation will not prevent the daughter, before marriage or during widowhood, from disposing of her life interest (y), the trust may be, but ordinarily is not, subjected to a clause of cesser, or to a gift over, on alienation during discoverture.

So, cesser, or a gift over, or (what is virtually a gift of providing for a profligate over) a discretionary power in trustees of diverting the or imbecile. income into a new channel, has, in modern practice, been treated as the only species of protection which the law of this country permits a father to extend, when desirous of securing a pecuniary provision for his weak or profligate child, not being a married daughter (≈). The anomalous case of a woman under coverture, with income settled to her separate use, and subjected to an express restriction on anticipation, is supposed to furnish the single exception to the rule, that a continuing interest(y) Post, Illustrations, V. (2) Post, Illustrations, I.; Id. V.