26. a general Power of Appointment. 1st Vic., cap. a general Manner, shall be construed to include any Real Testator has Estate, or any Real Estate to which such Description shall extend (as the Case may be), which he may have Power to appoint in any Manner he may think proper, and shall operate as an Execution of such Power, unless a contrary Intention shall appear by the Will; and in like Manner a Bequest of the Personal Estate of the Testator, or any. Bequest of Personal Property described in a general Manner, shall be construed to include any Personal Estate, or any Personal Estate to which such Description shall extend (as the Case may be), which he may have Power to appoint in any Manner he may think proper, and shall operate as an Execution of such Power, unless a contrary Intention shall appear by the Will." A Devise Words of shall be con A general gift by a will shall include property which the testator may have power under another instrument to appoint as he pleases. "XXVIII. And be it further enacted, That where any without any Real Estate shall be devised to any Person without any Words of Limitation, such Devise shall be construed to pass the Fee Simple, or other the whole Estate or Interest pass the Fee. which the Testator had Power to dispose of by Will in such Real Estate, unless a contrary Intention shall appear by the Will." strued to The Words Issue," or "die without A devise of real estate to a person without any words indicating the quantity or kind of estate or interest he is to take in it, is to be held as equivalent to a gift to him in fee simple. "XXIX. And be it further enacted, that in any Devise or "die without Bequest of Real or Personal Estate the Words 'die without Issue,' or 'die without leaving Issue,' or 'have no Issue,' or any other Words which may import either a Want or Failure of Issue of any Person in his Lifetime or at the Time of his Death, or an indefinite Failure of his Issue, shall be construed to mean a Want or Failure of Issue in the Lifetime or Issue living at the Time of the Death of such Person, and not an indefinite at the Death. Failure of his Issue, unless a contrary Intention shall appear by the Will, by reason of such Person having a prior Estate to mean die without Tail, or of a preceding Gift, being, without any implication arising from such Words, a Limitation of an Estate Tail to such Person or Issue, or otherwise: Provided, that this Act shall not extend to Cases where such Words as aforesaid import if no Issue described in a preceding Gift shall be born, or if there shall be no Issue who shall live to attain the Age or otherwise answer the Description required for obtaining a vested Estate by a preceding Gift to such Issue." This section declares that where a testator gives property contingent on a person dying "without issue," or "without leaving issue," or "having no issue," these words shall be held that there was no issue living at the person's death. an shall not lapse. "XXXII. And be it further enacted, That where any Devises of Person to whom any Real Estate shall be devised for Estates Tail Estate Tail or an Estate in quasi Entail shall die in the Lifetime of the Testator leaving Issue who would be inheritable under such Entail, and any such Issue shall be living at the Time of the Death of the Testator, such Devise shall not lapse but shall take effect as if the Death of such Person had happened immediately after the Death of the Testator, unless a contrary Intention shall appear by the Will." A devise of an estate to a person in tail shall not lapse by the death in testator's lifetime of that person, provided he leaves issue who would have inherited from him living at the death of the testator, in which case the devisee shall be held to have survived the testator, and died immediately after him. leave Issue "XXXIII. And be it further enacted, That where any Gifts to ChilPerson being a Child or other Issue of the Testator to whom dren or other any Real or Personal Estate shall be devised or bequeathed for Issue who any Estate or Interest not determinable at or before the Death living at the of such Person shall die in the Lifetime of the Testator leaving Testator's Issue, and any such Issue of such Person shall be living at the Time of the Death of the Testator, such Devise or Bequest shall not lapse, but shall take effect as if the Death of such Person had happened immediately after the Death of the Testator, unless a contrary Intention shall appear by the Will." Death shall not lapse. Although the last section requiring any notice, this is far from being of the least importance, for it enacts that no bequest, whether of real or personal estate, to a child of the testator who shall die in his lifetime leaving issue living at the testator's death shall lapse, but shall be conveyed, not to the testator's living grandchild, but to the representative of the deceased child, as if he were alive, so that as far as personal property is concerned, a grant of probate or administration will be necessary to enable his personal representative to obtain legal possession of the gift. For example-A leaves a legacy of £500 to his son, B. B dies in A's lifetime, leaving a child, C. When A dies, provided he has not altered his will, even should it be 10 years after B's death, the legacy of £500 will belong to B's estate, and pass under his will, if any, if not, to his next of kin, and probate or administration must be obtained sufficiently stamped to cover the value of this asset. Before presenting the form of a will in which shall be contained most kinds of bequests, a few observations as to who is competent to make a will, and how legatees should be described, may not be unnecessary. A will cannot be made by a minor, a lunatic, an idiot, a felon, a person attainted of treason, or an outlaw; or by a married woman without the consent of her husband unless under a power contained in some other instrument. In describing legatees it is always as well to avoid any other name than the proper Christian and surname of the legatee; "pet names," not unusual in families, are very apt to lead to mistakes, and consequent litigation, and had better not be used. So with illegitimate children, great care should be taken to describe them properly, as, "Jane, the daughter of Sarah Foat," or, the "child with which Sarah Foat is now pregnant." As previously stated, the plainer and more concise the language in which the willis written the better; there is no absolute necessity for the use of legal terms; a letter written to a friend, provided it be signed and witnessed in accordance with the pro visions of the Act, asking him to divide the writer's property in a particular way would be admitted to probate by the Court. In describing the executor care should be taken that all the Christian names, if he have more than one, are correctly inserted, and that his surname be correctly spelt, as an omission in this respect may put him to considerable inconvenience in proving his identity when he applies for probate of the will before the Registrar. In order to avoid the slightest chance of litigation it is advisable to follow the form which is in general use, and which mostly begins with the words, "This is my last will and testament," or, "I, George Hale, make this, my last will and testament, as follows." Thus commencing, and having ascertained which of his friends will be willing to act as his executor, we will presume the testator will dispose of his property in the following manner : THE FORM OF A WILL. I, George Hale, of No. 34, Eaton Place, Belgrave Square, make this my last will and testament, as follows: I appoint my friend Job Thornton to be my executor, and I desire him to bury me in a plain and inexpensive manner. I direct him to pay all my just debts, including therein the Payment of mortgage debt now existing on my Hornbeam property, out Debts. of my personal estate. Should my executor act in that capacity, and prove my will, I leave him a legacy of £100 for Gift to his trouble. I desire all the legacies and annuities given by Executor. this my will to be paid free of duty. I leave to my dear wife Amelia all my furniture, plate, linen, china and other household effects in my house in Eaton Place, together with Furniture all the pictures, books and objects of vertû therein for her absolutely. own absolute use and benefit.. I leave all the household Gift of furniture, plate, pictures, books and objects of vertû in my house at Hornbeam to my executor upon trust to hold the Gift of Heirsame as heirlooms to go along with my estate of Hornbeam looms. hereinafter devised. I leave to my wife a legacy of £300, to all my indoor servants £10 each, to my coachman £19. 19s., Legacies and to all my servants a suit of mourning each. I direct the before-mentioned legacies to be paid within one month after my death. I leave to my daughter Mary, the wife of John. under £20 in value. Gift to a Sum to be invested. stranger. Jameson, a legacy of £500, to be paid to her for her own separate and absolute use. I leave to my executor the sum of £5,000 upon trust, to invest the same upon real security, The Gift of a or in the public funds, and to pay the interest or dividends thereof to my daughter Mary Jameson, for her own sole use and benefit during the term of her natural life, and after her death to her husband the said John Jameson for his natural life, and on the death of the survivor of them, I direct my executor to call in and realise the capital sum of £5,000, and divide the same equally among the children of my said daughter Mary, who shall attain twenty-one years of age, or to the survivors of them, or to the issue, if any, who shall have died in the lifetime of my said daughter and her husband, such issue to take the share to which their parents would have been entitled had they survived, but should my said daughter die without leaving any children, or leaving such they should all die under twenty-one, and without issue, then and in such case I give my daughter power to appoint the same among such persons, and in such manner, as she may think proper by deed or will. I leave to Jane Topham, A Legacy to a the daughter of Mary Topham, by my late son Andrew, the sum of £1,000 £3 per Cent. Consolidated Bank Annuities. I leave the treasurer of the Hornbeam Orphan Asylum £100 for the benefit of that institution. I leave £500 to repair A Bequest to the tower of the Church of St. Michaels, in the parish of Hornbeam. I leave to the Greycoat School at Hornbeam the sum of £50; also I leave to Hornbeam Hospital a legacy of £50, and I direct all these my charitable bequests to be paid in priority out of such part of my personal estate as is applicable by law for the payment thereof. Forgiveness Whereas my old friend Richard Barton is indebted to me in the sum of £200 on bond, now I hereby forgive and release the said Richard Barton from the payment of this bond, and I direct my executor to deliver up the bond to the said A Bequest to Richard Barton cancelled. I give and bequeath to my two two Persons in aunts, Bridget and Emma Caitlin, the leasehold house No. 16 joint tenancy. North Audley Street, Grosvenor Square, to be held by them as joint tenants. I leave my god-child, Charles Astley, the eldest son of my sister Mary Astley, an annuity of £50, payable on the usual quarter days, the first quarterly payment to be made on the first quarter day next after my death. I leave to my sister Mary Astley the sum of £400, A Bequest of £3 per Cent. Consolidated Bank Annuities, to be transferred to her out of the larger sum of the same stock standing in Charities. of a Debt. A Gift of an Funds, Stocks, and Shares. |