Terms to raise debts. of similar limitations in a marriage settlement, with the following exceptions: (a), as it is unnecessary to raise a seisin on which the uses are declared, the devise may be made directly to the uses; (B), the usual form of a gift in tail is "to the use of A. B. in tail," instead of "to the use of A. B. and the heirs of his body"; (y), the successive limitations are generally introduced by the words "with remainder "; (8), as the will speaks from the death of the testator, and therefore time has to be calculated from that moment with respect to the rules against perpetuities, a proviso may be inserted cutting down the estate tail given to any person born in the testator's lifetime to an estate for life, with remainder to his children successively in tail (see form in 2 K. & E. 794); or this may be done by direct limitation. In cases where a devise is made in strict settlement, and money for any doubt exists as to whether the testator's personal estate will be sufficient to satisfy his funeral and testamentary expenses, debts, and legacies, it is a convenient course to limit a term, preceding the first estate for life in the realty, to the use of trustees in trust to raise such sum of money in aid of the personal estate as may be required for such purposes. It should be declared that no person advancing money on the security of the term shall be bound to inquire as to the deficiency of the personal estate; and that the statement in writing of the trustees that no more will be required for the purposes of the term shall be conclusive. (See 2 K. & E. 804.) Possibly the provisions of the L. T. A. 1897, s. 2, may render this provision unnecessary. Executory and executed trusts. Sometimes a testator directs land to be purchased, and to be settled for the benefit of certain persons, or a certain class of persons. The question then arises whether he has left it to the trustees to discover from his general expressions what uses and trusts are to be inserted in the settlement, or has definitely stated such uses and trusts. Has he been, as it is sometimes called, his own conveyancer? To use technical language, are the trusts DEVISE IN STRICT SETTLEMENT-FOREIGN LAND. executory or executed? (q) Generally speaking, it is more convenient to frame the will so that the trusts are executed; but occasionally, when it has to be prepared in a hurry, this cannot be done; and then the order of the limitations should be stated with at least the same degree of accuracy as in carefully framed instructions for a will. Any powers for the benefit of any particular person or class of persons, such as powers to jointure or to raise portions, must be mentioned, and the amounts chargeable specified. It will seldom be necessary to mention powers of leasing and sale, &c., as they may in ordinary cases be omitted in reliance on the S. L. Acts; but any provisions extending or supplementing these powers, such as the clauses as to the mansion house, or as to notices, ante, p. 416 et seq., must be expressed. 461 divided. Where land is to be settled by will upon trusts resembling Land to be those of a settlement of personalty, it should be devised to trustees upon trust for sale, and the trusts should be declared of the proceeds. This plan should always be adopted where the scheme of the will is for the division of any particular land between the testator's children (ante, p. 311). country. The practitioner must not attempt to make a devise of Land in foreign land situated in a country where the law is different from the law of England: for the questions whether such land can pass by a will, and if so what must be the manner of executing the will, and what construction will be put on any technical words employed in the will, are regulated by the law of the country where the land is situated. If, therefore, the testator has such land, the proper course is for him to dispose of it by a separate instrument in conformity with the law of the place where it is situated. If he is in extremis and it is absolutely necessary for him to make a will of land out of England, he should sign a dated holograph instrument, i.e., one entirely written by him, or a (9) See the notes to Lord Glenorchy v. Bosville, 2 W. & T. L. C.; 3 Dav. Prec. 329, note; Thompson v. Fisher, L. R. 10 Eq. 207; Stanley v. Coulthurst, L. R. 10 Eq. Residue (r). Lapse. Devise in tail. mystic testament (qq) (either of which will be valid in most countries where the law is founded on the Civil Law), in the presence of three witnesses, all signing in the presence of the testator and each other, so as to render it valid in any place where the old or existing English law is in force, affecting the foreign land only, giving it in trust for sale and directing the payment of the proceeds to the trustees of the general will. The principal will should contain a clause putting all persons to their election to confirm the foreign will. (2 K. & E. 857.) See this subject discussed in 2 Jarm. Wills, 1668. A gift of residue (whether the word "residue " be used or not) is construed so as to pass all the testator's property not otherwise effectually disposed of. It follows that lapsed and void legacies pass under the residuary bequest; and (in wills made since the passing of the Wills Act, 1837) lapsed and void devises pass by the residuary devise. The result is that, even where a testator believes that the gifts in his will have so far exhausted his estate as to leave but little to fall in the residue, it may happen, owing to the death of some of the objects of his bounty, or owing to his saving money, that the residuary gift may eventually become of importance; and for this reason it requires some consideration to whom the gift of residue should be made. In the ordinary case where the executors are the persons to whom the testator leaves the bulk of his property, it is convenient to make them the residuary legatees; for this may save trouble in making up the accounts of the testator's estate. The general rule is that, if any devisee or legatee dies in the lifetime of the testator, the gift to him lapses and falls into the residue. This rule is subject to the following exceptions: First. Where any person to whom any real estate is devised for an estate tail, or an estate in quasi entail (rr), (77) As to a mystic testament of French law, see Code Civil, s. 976 et seq. (r) See as to the income of resi due, 37 Sol. J. 263, 281. (rr) I.e., an entail in an estate pur autre vie. RESIDUE-LAPSE. dies in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue is living at the death of the testator, the devise does not lapse, but takes effect as if the death of such person happened immediately after the death of the testator, unless a contrary intention appears by the will (Wills Act, 1837, 7 Will. 4 & 1 Vict. c. 26, s. 32). 463 testator's issue. Second. A gift to one of the testator's issue is sometimes Gift to prevented from lapsing by the Wills Act, 1887, s. 33, which enacts, that "Where any person being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator leaving 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." The effect of this section is not to substitute the issue of the deceased legatee or devisee for him, but to render the property left to him his own property (s), so that it passes by his will, or, if he die intestate as to it, goes to his heir or administrator, as the case may be, being in either case liable to his debts in due course of administration. Where a father made a devise to his son who died in his lifetime leaving issue and having devised all his property to the father, it was decided that the will of the son was to be construed as if he had survived the father, i.e., the latter did not take. (Re Hensler, 19 Ch. D. 612.) But the Act does not apply where the gift is to a class, as to "such of my children as attain twenty-one," and a member of the class dies in the testator's lifetime; for in that case there is no lapse, as no child dying before the testator is included in the class. (s) Johnson v. Johnson, 3 Ha. 157; Eager v. Furnivall, 17 Ch. Thus, suppose a testator Gift under power. having a son John and other children bequeaths £10,000 to John and £20,000 to be divided between his, the testator's, children. John dies in the testator's lifetime, leaving issue, and some of his issue survive the testator. The legacy of £10,000, which would have lapsed had John not come under the saving contained in the section, passes to John's executor, or administrator, as the case may be. As to the £20,000 there is no lapse, for the will speaks from the testator's death, when John is not one of his children, so that no part of it is given to John, or passes by his will. If therefore, where the gift is to the testator's children as a class, it is intended to prevent lapse in the case of any child predeceasing the testator, the definition of the class should be extended so as to include the children who die before the testator leaving issue who survive him. But, although this will be sufficient in the case of the testator's children, it would not suffice in the case of a gift to the children of another person, not being the testator's issue; for the section of the Wills Act, 1837, now under consideration would not apply, and it would therefore be impossible to give anything to a child dying before the testator (t). It will therefore be necessary, in this case, to add a few words giving it to the personal representatives of the child dying before the testator, as part of his personal estate (u). (See form in 2 K. & E. 750.) It should be observed that although, where the parent's will exercises a general power to appoint by will, the 33rd section of the Wills Act, 1837, applies (Eccles v. Cheyne, 2 K. & J. 676), it does not apply where the will exercises a limited power to appoint to children (Griffiths v. Gale, 12 (t) Re Coleman & Jarrom, 4 Ch. D. 165. (u) See Trethewy v. Helyar, 4 Ch. D. 53, for an instance of a gift to the executors of A." The 66 effect is that the property so given entitled to the estate of A., whether as creditors or beneficiaries; but it does not form part of A.'s estate within the meaning of the Acts imposing probate and legacy duties. Lord Advocate v. Bogie (1894), A. C. 83 and see A.-G. v. Lloyd, (1895) 1 Q. B. 496. |