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IN EXCLOSION OF AN ELDHST OR ONLY SON OR ELDEST DAUGHTER ENTITLED TO SETTLED REAL ESTATE.

child, for that child;

—if more such children, for them equally.

but one child of the said A. B. by the said C. D., (other than or besides an eldest or only son or an eldest daughter so for the time being entitled as aforesaid), In trust for that one child, to be an interest vested in such child, being a son, at his age of twenty-one years, or, being a daughter, at the age of twenty-one years or day of marriage, (which shall first happen), and to be paid, transferred, or assigned to him or her on or at the same age, day, or time, if the same shall happen after the decease of the survivor of them the said A. B. and C. D., but if the same shall happen in the lifetime of them, or of the survivor of them, then immediately after the decease of such survivor; And If There Shall Be two or more children of the said A. B. by the said C. D., (other than an eldest or only son or an eldest daughter so for the time being entitled as aforesaid), then in trust for such two or more children, and to be divided between or amongst them in equal shares, the share or shares of such of them as shall be a son or sons to be an interest vested or interests vested in him or them respectively, at his or their age or respective ages of twenty-one years, and the share or shares of such of them as shall be a daughter or daughters to be an interest vested or interests vested in her or them respectively, at her or their age or respective ages of twenty-one years, or day or respective days of marriage, (which shall first happen), and to be paid, transferred, or assigned to him, her, or them respectively, at the same ages, days, or times respectively, if the same respectively shall happen after the decease of the survivor of them the said A. B. and C. D., but if the same respectively shall happen in the lifetime of them, or of the survivor of them, then immediately after the decease of such sur

when the child taking the real estate is to be excluded.

occasions, and it is only in quite modern times that the clear and compact trust now in use, (supra, p. 318), and which attains precisely the same object as the old trusts and clause, has been introduced. It might be possible (perhaps without much difficulty) to adapt the modern trust to the case in which the child who shall become entitled to the real estate is excluded; but as the editor is not aware of such an adaptation having been made in practice, he has not deemed it right to make the experiment. (See the note on the survivorship clause in the next page).

[Hotchpot clause, supra, p. 319]: Provided Al- In Exclusion Ways, and it is hereby agreed and declared between and by Ovobly'son the parties to these presents, that if there shall be more 0R ELD,T

, i . . i-iii i DAUGHTER EN

than one child ior whom portions are intended to be hereby Titled To provided as aforesaid, and any of them, being a son or sons, """ate"1,

shall die or become an eldest or only son so for the time -—; —

being entitled as aforesaid, under the age of twenty-one and accruer years, or, being a daughter or daughters, shall die or become clausean eldest daughter so for the time being entitled as aforesaid, under the age of twenty-one years, without being or having been married, then (in case no direction or appointment shall be made by the said A. B. and C. D. or the survivor of them to the contrary) as well the original share intended to be hereby provided for as the share or shares by virtue of this present clause or proviso surviving or accruing to each such son so dying or becoming an eldest or only son so for the time being entitled as aforesaid, and each such daughter so dying or becoming an eldest daughter so for the time being entitled as aforesaid, or so much thereof as shall not have been raised or applied for the preferment and advancement in the world of any such child, in pursuance of the power or authority hereinafter for that purpose contained, shall, from time to time go, remain, and belong to the survivors or survivor and others or other of such children, (other than or besides an eldest or only son or an eldest daughter so for the time being entitled as aforesaid), and, so far as circumstances will admit, shall vest in and be paid, transferred, or assigned to him, her, or them, if more than one, in equal shares and proportions, at such and the same time or times and in such and the same manner as hereinbefore is declared of and concerning his, her, or their original share and shares of and in the said trust monies, stocks, funds, and securities, and the interest, dividends, and annual produce thereof(c): And It is Hereby agreed and declared be- The eldest or

(c) As the original shares given by this form are to vest in sons at Clause of sur

twenty-one, and in daughters at that age or marriage, it might be con- v'v°f»hip and

tended that the survivorship and accruer clause, so far as it relates to the and operation

•hares of sons dying under twenty-one, and of daughters dying under of.

IN EXCLUSION OF AN ELDEST OR ONLY SON OR ELDEST DAUGHTER ENTITLED TO SETTLED REAL ESTATE.

only son or eldest daughter to become entitled in default of other children entitled.

Usual clauses.

Power to the trustees to lay out the trust monies in the

tween and by the parties to these presents, that in case there shall be only one child of the said intended marriage, who, being a son, shall attain the age of twenty-one years, or, being a daughter, shall attain that age or marry, then from and after the death of the survivor of them the said A. B. and C. D., and such default or failure of other children of the said intended marriage as last aforesaid, the said E. F. and G. H., their executors, administrators, and assigns, shall stand and be possessed of and interested in the said trust monies, stocks, funds, and securities, and the interest, dividends, and annual produce thereof, or so much thereof as shall not have become vested or been applied under any of the trusts or powers herein contained in trust for such one child. [Advancement, maintenance, and accumulation clauses, supra, pp. 319—321. Trust over in case of no child of the marriage becoming entitled under the preceding trusts, supra, p. 321]: Provided Always, and it is hereby agreed and declared between and by the parties to these presents, that it shall be lawful for the said E. F. and G. H.

twenty-one or marriage, is superfluous. This would be to maintain, that the effect of the original trusts is exactly the same as that of the modern form, (supra, p. 318), viz. to divide the fund into as many shares as there are sons attaining twenty-one, and daughters attaining that age or marrying, and to vest the several shares in such sons and daughters respectively. Such, however, is not the construction of the trusts according to the understanding and practice of conveyancers, evinced by their addition of the clause of survivorship and accruer; for they hold that the effect of the original trusts is to divide the fund into as many shares as there are children born, and to vest so many of these shares, and no more, as there are sons who attain twenty-one, and daughters who attain that age or marry; consequently, all the shares set apart as it were at birth for sons who do not attain twenty-one, and for daughters who do not attain twenty-one or marry, remain undisposed of by the original trusts. Hence of these there would be a resulting trust. To provide against this, the clause of survivorship and accruer is added, which redistributes according to the original trusts the shares which fail to become vested under those trusts. The reference to the shares of children becoming entitled to the real estate will, of course, be omitted when unnecessary; but it must be repeated that this mode of disposition is so cumbersome and complicated, that (except in the case in the text) it has, at the present day, been abandoned for the form supra, p. 318. (See too supra, p. 435, n. (6)).

and the survivor of them, and the executors or administra- w Exclusion

. .. OF AN ELDEST

tors of such survivor, at any time or times during the lives 0R 0NLY son of the said A. B. and C. D., and the life of the survivor of ^ them, with their, his, or her consent in writing, to lay out Titled To and invest [the money to arise or be produced from the sale, SE"s.£°TE..

transfer, or disposition of the said sum of £ Bank An- purchase of

nuities, or any part thereof, or from the sale, transfer, or lands;
disposition of any stocks, funds, or securities in or upon
which the same trust monies, or any of them, or any part
thereof, shall for the time being be laid out or invest-
ed] (d), or any part of such trust monies respectively, in the
purchase of any freehold, copyhold, or customary manors,
messuages, lands, tenements, or hereditaments in England
or Wales, for any estate of inheritance (e), or any leasehold
messuages, lands, tenements, or hereditaments in England
or Wales, for any term of years, (whereof not less than
sixty years shall be to come and unexpired at the time of
such purchase), to be conveyed, surrendered, or assigned to
them the said E. F. and G. H., or the survivor of them,
and their or his heirs, executors, administrators, and assigns,
according to the nature of the estate or interest therein (/),

(d) If the fund settled be a sum of money, due on mortgage, bond, Variations

covenant, or other security, instead of the words in brackets, say— when settled

'J1 J tuna is money

"the said sum of £ , or any part thereof, or the money instead of stock.

to arise or be produced by the sale, transfer, or disposition of the stocks, funds, or securities in or upon which the said

sum of £ , or any part thereof, shall or may for the time

being be laid out or invested."

(e) It may be proper, perhaps, to add—

"or any freehold, copyhold, or customary manors, mes- Power tojrarsuages, lands, tenements, or hereditaments in England or property! ° Wales, holden for any life or lives or for any term or terms of years determinable with any life or lives."

But this might produce difficulties about the renewal of the leases on the dropping of the lives, (see supra, p. 347, n. (/), p. 350, n. (g)), and the power is seldom so extended in practice. Neither does it embrace renewable ecclesiastical leases, probably for a similar reason.

(/) When this power of purchasing land is given, a few words are Trustees do not In Exclusion Upon Trust, nevertheless, that the said E. F. and G. H., or

OF AN ELDEST - - . . . . ,

Or Only Son the survivor 01 them, or the heirs, executors, or administraOr Eldest tors 0f such survivor do and shall, by and with the consent

DAUGHTER EN- ... . 'J

Titled To in writing of the said A. B. and C. D. or of the survivor of seiebtate.eal them, during the lifetime of them or of the survivor of them, —and after the decease of the survivor of them, at the discretion

—to be held in'

trust for sale; and of the proper authority of the saidE. F. and G.H., or the survivor of them, or the heirs, executors, or administrators of such survivor, absolutely sell and dispose of the said manors, messuages, lands, tenements, or hereditaments which shall have been so purchased as aforesaid, either entirely and altogether or in parcels, and either by public auction or private contract, for such price or prices, and upon such conditions and with such stipulations as to title or otherwise, and in such manner in every respect, as the said E. F. and G. H. or the survivor of them, or the heirs, executors, or administrators of such survivor, shall think fit, with full power to buy in the said premises, or any part thereof, at any sale or sales by auction, and to rescind, abandon, or vary any contract for sale, and to resell the premises which shall be so bought in, or the contract for the sale of which shall be so rescinded or abandoned as aforesaid, without being in anywise answerable for any loss which may happen thereby —thepuTchase- respectively; And Do And Shall stand possessed of and MdYponbthe interested in, and apply the money arising from any such same trust8 as (after payment of the costs, charges, and expenses at

that laid out in !.v r J '6' 1

the purchase; tending the same), upon and ior such and the same trusts, intents, and purposes, and with, under, and subject to such

need indemnity sometimes added in the trustees' indemnity clause, to exonerate them from in respect of liability in respect of purchasing with a defective title, or the like. But a defective title, this is by no means needful: the addition is not made after the common power of sale and exchange and purchase in settlements of real estate, and there can be no doubt that trustees, exercising common discretion in their purchases under a power, would be protected by the court, though they had no special indemnity; and if they had such an indemnity, it would not help them if they should purchase without exercising that discretion which a prudent man would use in his own affairs. (See supra, p. 327, n. (c)). Trustees cannot purchase subject to special conditions of sale, (ante, Vol. 3, p. 97), and it is not desirable that they should be invested with such power, or indemnified in respect of purchases so made.

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