Gifts to illegitimate children (n). Gifts to future illegitimate children. The case of gifts to children of doubtful legitimacy, or, where, though they are clearly bastards, the testator wishes to conceal the facts, presents very considerable difficulty to the draftsman, owing to the rule of construction that any such words as "sons," "children," or "issue," prima facie mean legitimate sons, children, or issue (o), though the words may, under the circumstances, or from the context, be construed to mean bastards (p). If, therefore, the testator wishes to provide for an illegitimate child of his own, or of any other person, he must mention the child by name, or otherwise clearly designate him or her. Where some or all of the testator's children are bastards, but it is thought desirable to conceal the fact, the best course appears to be to mention all the children nominatim the first time that they are mentioned as a class: thus, "I give to my children, John, aged eight years, Thomas, aged four years, and Mary, aged one year." In subsequent parts of the will, when mentioning them as a class, it will be sufficient to describe them as "my said children" (q). It was formerly considered that a gift could not be made by will to a bastard unborn at the date of the will; but it has been decided that this does not apply to bastards born after the date of the will in the testator's lifetime, or en ventre sa mère at the date of his death, though such a gift is void as to children not in existence at the testator's death. (n) See 2 Jarm. Wills, 1076 et (0) Dorin v. Dorin, L. R. 7 (p) Holt v. Sindrey, L. R. 7 Eq. 10 Eq. 160; Crook v. Hill, L. R. 6 Ch. 311, S. C. sub nom. Hill v. Crook, L. R. 6 H. L. 265; Laker v. Hordern, 1 Ch. D. 644; Re Harrison (1894), 1 Ch. 561; Re Plant, 43 Sol. J. 63. There are a few exceptions to the general rule, which are discussed in Hawk. Wills, 80. (q) For the effect of using the word "children" only in the subsequent part of the will, see Hawk. Wills, 84. ILLEGITIMATE CHILDREN-TRUSTEE CLAUSES. The result of the authorities appears to be that illegitimate children, born between the date of the will and the testator's death, may take under a gift in which they are sufficiently described; as where the gift is to reputed children, and the fact of reputation is established; and a child en ventre sa mère may take if particularly referred to by the testator; but that if the illegitimate children are defined solely with reference to their paternity, as distinguished from the reputation of paternity (e.g., as the children of the testator by a named woman, or the children of A. by a named man), the gift fails, because the law forbids inquiry into the fact of paternity in such cases (r). To avoid all risk, it appears proper that a testator whose marriage is invalid should, immediately after the birth of each child, make a codicil or fresh will providing for it. There are several methods in which this can be done. If the testator wishes to provide for his bastard children as a class, probably he might declare that in his will the phrase "my children" should mean John, aged eight years, Thomas, aged three years, &c., now residing with me Then on the birth of another child, Mary, he might declare by codicil that the phrase "my children " in the will should mean John, Thomas, and Mary. at Whenever a gift is made to a bastard under the age of twenty-one years, a gift over should be made on the event of his death under twenty-one, so as to exclude the title of the Crown. Where the residue is given on such trusts that no person sui juris immediately becomes the owner of it, and part of it consists of real estate or leaseholds, it is proper to insert powers of leasing, unless some person is a tenant for life within the meaning of the S. L. Acts and the statutory powers are relied on. The trustee and executor clauses consist of:-(s) (r) Occleston v. Fullalove, L. R. 9 Ch. 147, explained in Re Bolton, 31 Ch. D. 542; and Re Hastie, 35 E.I.C. Ch. D. 728. (s) See for other clauses, 2 K. & E. 815, et seq. 31 481 Power of leasing. Trustee clauses. 432 Devise of trust and mortgage estates. Property countries. WILLS. specific bequests, to apportion blended trust funds, and to settle questions (see ante, p. 333). (b) A receipt clause (see ante, p. 332). (c) A power to appoint new trustees (see ante, p. 357). (d) Clauses for indemnity and reimbursement of the trustees (see ante, p. 363). (e) Appointment of executors. (1) Power to executors to arrange and compromise (see ante, p. 333). (g) Power to executors and trustees to charge for business done professionally. Clauses (b), (c), (d), and (ƒ) may be omitted in reliance on the statutory powers. (See ante, chap. xi., SETTLEMENTS.) In wills before 1882 it was the practice to make a devise of trust and mortgage estates so as to avoid the inconvenience that might occur in case of the legal estate descending to an infant heir. This should now never be done, except where the testator has mortgage or trust estates in colonial property vested in him, or has been admitted to copyholds which he holds as trustee or mortgagee. (See the C. A. 1881, s. 30, and the Copyhold Act, 1894, s. 88, replacing the Copyhold Act, 1887 (50 & 51 Vict. c. 73), s. 45, ante, p. 148.) In Where the testator has personal property in different in different countries, e.g., some in England and some in a British colony, it is convenient to appoint different executors with respect to the property situated in the different places. such a case, if the property is to be vested in trustees, it is desirable to authorise distinct sets of trustees to act in respect of the different properties. Either of the following plans may be adopted :-First, different sets of trustees may be appointed for the property in the different countries; but there is a disadvantage in adopting this plan, where part of the property is in a colony, owing to the fact that colonists often leave the colony and return to England, so that frequent appointments of new trustees of the property in the colony may become necessary. Second, the trustees for PROPERTY IN DIFFERENT COUNTRIES-CODICIL. the time being in either place may be authorised to act with respect to the property there as if they were the only trustees, with power to the trustees in either place to give a power of attorney to those in the other place to execute leases, conveyances, &c., in the names of the former, without being responsible for any loss occasioned by any improper exercise of the power. 483 A codicil should never be used for the purpose of making Codicil (). extensive alterations in a will, on account of the difficulty in framing the dispositions made by it so as not to be inconsistent with those of the will; but it may be properly employed for such purposes as substituting one person for another as trustee or executor, giving a legacy to a person not taking any benefits under the testator's will, or revoking, or altering the amount of a legacy given in the will. In the last case care should be taken to state expressly whether the gift made by the codicil is in addition to, or in substitution for, that made by the will; for the rule of construction is that, in the absence of special directions, the legatee is entitled to both gifts (Hawk. Wills, 303; Theob. Wills, 122). It is hardly necessary to observe that no draftsman ought ever to attempt to prepare a codicil to a will unless he has the will before him. It may be noticed that any person to whom, or to whose Gift to attesting wife or husband, any benefit is given by a will (or codicil) witness. should not be an attesting witness to the will (or codicil): for this would make the gift void (u). (t) M. L. R. P. 391, 401. (u) The Wills Act, 1837, ss. 14, 15. CHAPTER XIII. Any per son may disclaim. Accepting trustee cannot disclaim. PART I.-DISCLAIMER. "THE law is not so absurd as to force a man to take an estate against his will. Primâ facie, every estate, whether given by will or otherwise, is supposed to be beneficial to the party to whom it is given. Of that, however, he is the best judge, and if it turn out that the party to whom the gift is made does not consider it beneficial, the law will certainly by some mode or other allow him to renounce or refuse the gift;" (per Abbott, C.J., Townson v. Tickell, 3 B. & Ald. 31 at p. 36; Peacock v. Eastland, L. R. 10 Eq. 21), but not after he has accepted it (Hurst v. Hurst, 21, Ch. D. 278). Acceptance of a gift is presumed in the absence of evidence of refusal or disclaimer (Standing v. Bowring, 31, Ch. D. 282; London & Co. Bkg. Co. v. London & River Plate Bk., 21 Q. B. D. 535; Re Arbib and Class, (1891)1 Ch. 601. In practice the ordinary case of disclaimer is that by a trustee or executor; and it will be convenient to consider these cases separately. The words "disclaim" and "renounce" are used indifferently with reference to property and to an office. A person who has once accepted a trusteeship will not be allowed afterwards to disclaim any of the trust property; afterwards for the very fact of his accepting the office (as, for instance, by his executing a deed by which he is appointed trustee, or by which some of the trust property is conveyed to him) indicates his willingness to accept the property, which, when it has once vested in him, can only be taken out of him by the appropriate method; and therefore it is always desirable to procure the execution of a trust deed by all the |