CHAPTER V. Schemes for equalizing the distribution, where children an interest which the object is destined under all circumstances to enjoy-is necessarily an alienable interest. But the position that a strictly personal trust, even for the maintenance and support, in some given mode, of a male or an unmarried female, can no longer be directly created by any form of words, though every other modification of interest, within the line of perpetuity, is tolerated, must not be admitted without hesitation (a). Testators who, in their lifetime, have advanced children disproportionately, or who, by their wills, instead of have been par- throwing their property into one common fund, distribute tially advanced. it in specie among the children, sometimes, from a laudable anxiety to carry out the maxim that "equality is equity," impose a difficult duty upon their trustees, and embarrass the titles to their estates, by directing accounts and valuations, with a view to equalization, but without furnishing any accurate data. If a parent intends that advances shall be brought into hotchpot, he should be careful to keep correct entries; and if desirous of reconciling a fair division with the preservation of his real estates, as land, he should fix the value, or specify the mode of ascertaining it. The object of continuing the estates in the family may require only that rights of preemption, on specified terms, and to be exercised within a limited time, should be given to one or more of the children. Simplicity and certainty in testamentary arrangements, especially family arrangements, cannot be too strongly recommended. While favouritism, always a weakness, if not a vice, is injustice to some, complication is an injury to all. And with respect to partial provisions for children, made in the testator's lifetime, but subsequently to the will, we may add that, in order to exclude the perplexing questions which often arise (a) See Twopenny v. Peyton, 4 Jurist, 456; but see Snowden v. Dales, 6 Sim. 524. upon the effect of advancements, in adeeming or satisfying the testamentary provision (b), testators should, after advancing a child in marriage or otherwise, remake their wills, with reference to the change of circumstances, which may require the previous provision to be omitted or reduced in amount, or perhaps subjected to the trusts of some previous settlement of the advanced portion. CHAPTER V. miscellaneous IV. The concluding head of miscellaneous suggestions As to some might be extended indefinitely, but we have already matters. been too diffuse. pression; the decrease; Thus pages might be filled with the mere enumeration Errors of exof miscarriages arising from the use of vulgar, or the abuse of learned phraseology. But as it may be hoped -probably on that the prudence and intelligence by which wealth is acquired are rapidly extending their influence to the last dispositions of the owner, and that the judicature will be less and less occupied with mere questions of construction, arising out of ill-drawn testamentary instruments, we shall not attempt to catalogue the errors which have so often given to property a direction totally at variance with the intention. We may, however, usefully instance (among errors of the verbal class) a very common source of ambiguity in the use of the words “ survivors,”“surviving”“then living," and similar expressions, without ascertaining the period or event to which the words are intended to apply (c). Among errors, referable less to verbal inac (b) See Davys v. Boucher, 3 You. & C. 397; Pym v. Lockyer, 3 Jurist, 864. (c) Cromek v. Lumb, 3 You. & C.565; Ex parte Hunter, Id. 610; Wordworth v. Wood, 3 Jurist, 453, Id. 1142, (affirmed by the some of the errors indicated. most common CHAPTER V. Investment of trust monies; curacy, than to ignorance of legal rules, the most prominent is one to which we have already alluded—that of devising real estate, intended to be strictly entailed, in terms which enable the first taker to alien the fee at pleasure (d). We may also notice the failure to discriminate between gifts to children (e), (and of course gifts to grandchildren, brothers, sisters, nephews, nieces, &c., fall equally within this remark), as a class and gifts to children nominatim or individually, (the effect of the two modes, particularly with reference to the doctrine of lapse, being very different (f)),-between vesting in possession, and vesting in point of interest-between vesting, subject to be divested, and mere suspense or contingency (g); also the failure to mark, accurately and distinctly, the periods of vesting (h), and of payment, observing, however, that, in regard to vesting, the point is rather to avoid expressions which would suspend the vesting, contrary to the intention, than to clog the gift with express vesting clauses (i), which sometimes elaborately raise a doubt, where otherwise the gift would certainly have vested by the tacit operation of law; and the failure to confine gifts in favour of classes (k), as children or grandchildren, and, indeed, testamentary dispositions generally, within the limits of the rule as to perpetuity (7). One of the most important, perhaps, of the points not (d) Harvey v. Harvey, 3 Jurist, 949; Eyre v. Marsden, 4 Myl. & C. 231. (e) Ante, 119; and see Smith v. Parr, 3 You. & C. 328; Pearce v. Edmeades, Id. 246; Butler v. Lowe, 3 Jurist, 1143; Scott v. Earl of Scarborough, 1 Beav. 154; Barber v. Barber, 3 M. & C. 688; Shuttleworth v. Greaves, 4 Id. 35. (ƒ) Ante, 406. (g) Ring v. Hardwick, 4 Jur. 242. (h) Chaffers v. Abell, 3 Jur. 577; Vivian v. Mills, 1 Beav. 315. (i) Ring v. Hardwick, 4 Jur. 242. (k) Doe v. Ward, 1 Per. & D. 568; Cromek v. Lumb, 3 You. & C. 565. (1) Post, Illustrations, IV. The CHAPTER V. vary the invest yet noticed, is the investment of trust money. testator should seriously consider whether he will confine the investment to the public funds, and to any and what particular denomination of stock, (as permanent three per cent. stock), or give an option to invest, either in the funds or on government securities generally, or on real securities, and, if on real securities, then on estates of what tenure, as freehold only, or either freehold, copyhold, or leasehold, and where situate, as in England and Wales only, or in England, Wales, or Ireland,-Ireland requiring for its exclusion, express words (m). Unless a fixed invest--with power to ment be contemplated, the usual power of transposing ment. the investment should be given; and it must be considered under what restrictions, in regard to the consent of interested parties or otherwise, the investment is to be originally made or afterwards varied. In deciding upon these matters, the testator should weigh the disadvantages of a permanent funded investment, with the chance of loss from depreciation, at the termination of the trust, without the means of realising an advance in the interval, against the risk of a discretionary power;-of bad securities, and of such changes in the state of the investment as consult less the benefit of the fund, than the interest or convenience of trustees or of tenants for life; and where the intended beneficiaries, (being females, infants, or imbeciles), cannot be expected to exert an efficient superintendence; that circumstance should also be thrown into the scale. Sometimes a testator, from having been much in the foreign stock and share market, has contracted a taste for the things there dealt in, which he is anxious to transmit and diffuse; and sometimes, from family or friendly motives, the testator may wish advances to be made on personal securities-in either case, the trustees should be specially empowered and indemnified. (m) 4 & 5 Will. 4, c. 29. CHAPTER V. guardians; -of trustees and executors; If the testator have infant children, he would probably Selection of wish to appoint his wife sole guardian, during widowhood at least, and on her death or marriage, to commit the guardianship to the same persons whom he appoints trustees and executors. The prudent selection of trustees and executors, on which the success of the whole testamentary scheme may virtually depend, is of the last importance. Here the true qualifications are comprised in par negotiis neque supra; the choice should generally fall on plain, prudent, diligent men of business, whose habits and understandings are level to the duties of the office, rather than on the witty, the learned, or the great. It has happened that chancellors and judges have been named, because the testator was once the friend or playmate of those high personages, and would wish the world to know it-it has also happened that his former associates have disclaimed the appointment, and thus created a blank in the will, only to be supplied, perhaps, by the court over which they presided (n). The testator-where, at least, the duties are likely to become onerous-should ascertain from the selected individuals (communicating to them the contents, or the general effect of the intended will) whether they are willing to officiate or not, and should consider whether they ought, in justice or policy, to receive any and what remuneration for their time and trouble (0); and where accounts are to be set (n) This occurred more than once in the instance of Lord Eldon; whose northern friends sought to involve him in colliery management. On the first occasion, his Lordship declined to execute a deed of disclaimer, (intimating upon the draft a doubt, grounded on Butler's and Baker's case, 3 Co. R. 26, whether an estate of freehold could be so disclaimed), till Mr. Butler had certified the practice of conveyancers to be in favour of such deeds; (and see Townson v. Tickell, 3 Barn. & A.31; Niclosonv. Wordsworth, 2 Swanst. 365; Begbie v. Crook, 2 Scott, 128); at the same time questioning the soundness of Crewe v. Dicken, 4 Ves. 97, (as to which, see 2 Swanst. 371). (0) Sce Willis v. Kibble, I Beav. 559. |