CHAPTER V. continue testa tled, books-debts collected, or estates managed, whether the employment of receivers and agents should not be expressly authorized (p). The eligibility of a wife, son, or other relation to the fiduciary office, must depend upon the circumstances of the particular case; but the wife's functions should generally be restricted to widowhood. It is not always the intention that the executors and trustees shall be the same persons; the testator may wish that the duties of the executorship should be discharged by a particular member or friend of the family, and that the fund, when realised and brought home, but not before, should be invested in the names of several trustees, including, perhaps, the executor among the number. If the testator should contemplate the -with power to carrying on, by his trustees or executors, of any business tor's trade. in which he may be engaged-always a difficult and onerous task-he should be liberal in regard to discretion. and indemnification. Where confidence can be reposed in the widow, or in an adult son, it may be advisable to commit the conduct of the business to such hands, without the interference, or subject only to the optional inspection and control of trustees. Care should be taken not to select persons whose duties and interests may conflict, as creditors, partners, or co-tenants of the testator; and if it be wished that a trustee should have rights not regularly consistent with his office, as that a trustee for sale should be at liberty to buy, special provision should be made. The number of trustees is matter of discretion, but it is rarely advisable to have more than three. Provision should always be made for supplying vacancies in the trusteeship; otherwise, it may become necessary to institute a suit (q). The framing of this provision, so as to ensure its ready applicability to every probable state of (1) Vide post, Illustrations, III. s. 1. (p) Hopkinson v. Roe, 1 Beav. 180. Provision for cancies in the supplying va trusteeship. CHAPTER V. Of directing the trust fund into court for safe custody. circumstances, is most material, and is, perhaps, a point in conveyancing yet to be achieved (r); but here we have space only to remark, that it seems better to give the power, as a last resource, to the executors or administrators for the time being of the testator, than to the executors or administrators of a deceased trustee, inasmuch as the personal representatives of the testator would probably stand in some kind of relationship to the trust affairs, while the personal representatives of the trustee may, except in point of law, be utter strangers; and that in giving the power to executors or administrators, the words "or either or any of them" should be added, since it has been objected that otherwise a valid appointment cannot be made without the concurrence of all or both of the executors or administrators, whether acting or refusing and renouncing (s). The dangers inseparable from the investment of a fund in to be brought private trustees, however cautiously selected, (for the property may eventually devolve upon an executor of an executor of a surviving trustee, or even upon a creditor taking out administration), has suggested to some testators the expedient of directing a bill to be filed in order that the fund may be brought into court for safe custody; and certainly the flagrant breaches of trust so frequently committed may justify even that extreme of caution; which, however, is admissible only where the affairs are in a simple state, (r) Vide post, Vol. 2, n. (60). It remains to be seen whether the courts will treat the power as given to the person or persons who, for the time being, may nominally fill a certain office, or, more largely, as given to the person or persons who, for the time being, would be competent to execute the power if it were connected with the ordinary duties of the office. and where a fixed investment in three per cent. stock (the court stock) is not deemed ineligible. Independ ently of express authority to file a bill, the rigorous exaction, in some recent cases (t), from trustees and executors of an adherence to those rules by which equity guides itself in the administration of assets, and which can be thoroughly understood only within its immediate pale, while, on the other hand, equity is slow to refuse them their costs when they ask its advice or indemnity, has a tendency to promote the institution of suits, solely for their protection-suits, which the same judicature first provokes by its severity, and then encourages by its lenity (u); both qualities conspiring to render equity, not only the ultimate (x) and occasional, but the primary and universal trustee. CHAPTER V. forfeiture gene Testators who assume to dispose of property not their of inflicting own, giving equivalent or more valuable benefits to its rally. owner, or who intend their bounty to be accepted in satisfaction of rights or claims, (whether inconsistent with the dispositions of the will or otherwise), should not fulminate forfeiture generally, but specifically enjoin the requisite acts to be done, within a limited time, for giving effect to the will, and affix the penalty of non-compliance, in the shape of a clause of cesser, or of a gift over. So, conditions against marriage, (sometimes confined to an individual, sometimes proscribing a whole race (y)), or (t) Dimes v. Scott, 4 Russ. 195; Knatchbull v. Fearnhead, 3 Myl. & C. 122; vide 1 Beav. 550. (u)"It is to be regretted that the jurisdiction of the court cannot be exercised at a less expense, but when we so frequently see suits instituted against executors, after a considerable lapse of time, and find them held personally re sponsible for acts done by them (y) Perryn v. Lyon, 9 East, CHAPTER V. Of bespeaking a benign inter will. against intercourse with relatives or friends (2), obnoxious to the testator, and other prohibitions of the like nature, commonly amount, from their vagueness and generality, to mere maledictions; nor is it often desirable that they should be legally effectual. Another popular conceit, and the last which we shall pretation of the notice, is that of bespeaking a liberal, or of deprecating a rigid interpretation of the will. Such expressions, being themselves interpreted, point of course to a construction of the will not warranted by the words. In defence, however, of the notion-a notion originating probably in some superstitious respect for the departed-that ultimate volition is of force to suspend all the rules of construction, and, by its own magic, to inform with sense and consistency every testamentary paper, may be quoted the language of the legislature (a), as well as of the judicature. On the judicature, indeed, from disregard to the universality of the rules of construction (b), this notion has long exercised a vague, variable, and unwholesome influence. Other testators, more rationally, the decision of refer, or give the trustees an option of referring, all ques Of referring questions to some law offi cer. tions to the decision of some legal functionary, as the attorney or solicitor general for the time being; but the person filling the given office may be the most incompetent of all judges, or may decline the reference; nor is it found that the opinions of a private tribunal, withdrawn from general comment, and unimpressed with the sense of public duty, are often accepted by the suitor as the decrees of justice. The obvious substitute for these, and for all similar devices, is a well-conceived and well-expressed will. The duty of leaving such a will is one of 170; and see Willis v. Hiscox, (2) See the will of the late Duchess of St. Albans. (a) 21 Hen. 8, c. 4, (Preamble). (b) Ante, 420. almost universal obligation. That duty fulfilled, the smallest amount of bounty bears its just value; neglected, the largest may be pregnant with disappointment, dissension, and ruin. CHAPTER V. After this digression, we revert to the principal subject Conclusion. of the present chapter-the new statute law relating to real property-only to dismiss it with some general remarks. In attempting to grasp a larger mass of enactments than the legislature ever before produced within so short a space, we have, for the most part, directed our attention to broad and important features. To have examined the acts more in detail-to have shewn, if that were possible, the precise application and effect of their various provisions-would not have been consistent with the limits of this work; if, indeed, the observations already hazarded do not sometimes transgress those limits. Though these measures must be regarded as the productions of individual efforts, exerted on isolated subjects, with different degrees of success, rather than as the work of many minds co-operating in a general revision of the law of real property, yet the result is an improved state of that law, effected chiefly by disburthening the system of antiquated learning. It may be thought that, in some instances, the desire of establishing principles, and of reconciling a multifarious collection of rules, inelegantly thrown together by the course of events, to the abstract severities of science, has seduced the able framers of the new statutes into the fields of speculative jurisprudence; that the removal of impediments to the ordinary dealings with property should have prepared the way for bolder innovation; and that legal, as well as constitutional history, shews that, in the pursuit of those daring improvements which philosophy and ambition most affect, the obvious paths of practical reform are |