Devise of general real and personal estate to be converted into money. trusts of the residue from being embarrassed by special directions and declarations. The same observation holds good with respect to annuities; they should be given independently, and in declaring the trusts of the residue, there should be a general direction to appropriate sufficient funds to answer these annuities. By this means both the gift of the annuities and the trusts of the residue are more clear and distinct. Care should be taken that subject to the payment of the annuities, the appropriated funds shall again fall into the residue. The devise to trustees of the residuary real estate, or of any real estate which is intended to be sold and converted into money, will be next in order, followed by the appropriate trust for sale and conversion. Then will come the general bequest to the trustees of personal estate, followed by the proper direction for selling and converting into money such part of it as does not consist of money. And here it should be remarked that there is no occasion to exclude from the trust for conversion such stocks or funds as the testator may think fit to direct the residue to be be invested in, because the general direction to convert will not render it compulsory on, or even, perhaps, authorize, the trustees to convert funds which are not wanted for payment of funeral or testamentary expenses, debts, or legacies, and are of the kind in which the testator directs the residue to be invested. And it is obvious, that in directing payment of the funeral and testamentary expenses, debts, and legacies, and in disposing of any parts of the residue which it is not intended to invest, it is much more convenient to treat the whole fund as money, than to treat it as a mixed fund of money and securities. Trusts of the money to arise conversion. The will proceeds to direct that out of the money produced by the sale of the real estate devised in from such trust for sale, and by the sale and conversion of such of the general personal estate as does not consist of money, and out of the testator's ready money, his trustees shall pay his funeral and testamentary expenses, debts, and legacies, and appropriate funds to satisfy any annuities he may have given, and then disposes of the ultimate residue either absolutely or upon trusts. The trusts (if there are any) will usually be to invest the fund, pay the income of it to some person or persons for life or a less period, and then divide the principal among children or other persons by name or as a class. This will usually require the addition of advancement, maintenance, and accumulation clauses as in an ordinary settlement of personalty. A power or powers to lease the real estate until it is sold, and a direction that until a sale the rents shall be applied in the same manner as the income of the funds upon which the purchase-money is to be invested would be applied, usually succeed. It Then comes a devise of estates vested in the testator upon trusts or mortgage, and the appointment of guardians to his infant children, if he has any. should be remembered, however, that the only person who can appoint guardians by will is the father of Powers appli cable to the real estate until sold. Devise of trust and mortgage estates, and appointment of guardians. Appointment of executors. Trustee clauses. Reference to precedent. Devise of real estate in strict settlement. the children (a),—a point which, in giving instructions, seems to be often overlooked. The next thing is to appoint the executors, and give them sufficient powers to arrange and settle accounts and disputed matters. It is a most essential point that the same persons, and those persons only, should be appointed executors, who are also made trustees of the residuary estate, because the duty of the executors is the same as that of the trustees, viz. to get in and convert the general personal estate, and pay the funeral and testamentary expenses, debts, and legacies. And it is obvious, that the testator should not affect to impose this duty, which the law imposes on the executors, on any other persons. Lastly are placed the power for the trustees to give receipts, the power to appoint new trustees, and the clauses for the indemnity of the trustees, and the re-imbursement of their expenses. The above is an outline of a will of the simplest and most ordinary description, and one of which an example will be afforded by the first precedent of wills (6). The other precedents in the fifth volume will furnish sufficient examples of more special and complicated wills. If there be a devise of real estate in strict settlement, this with all its powers and clauses may be inserted in any part of the will which is most convenient; but wherever it is inserted, it should be kept (b) Vol. v. p. 1. (a) See vol. v. p. 14, n. (v). quite distinct from the rest of the will, except in respect of the common trustee clauses which usually apply to the whole will. wills. Some observations with respect to the execution of Execution of wills will be found in vol. v. (a). (a) Page 19, notes (aa) and (bb). CHAPTER VIII. OF APPOINTMENTS OF NEW TRUSTEES. References to the works on the subject. Vacancies should be filled not with a greater or less number of trustees than the number of vacancies. THE law with respect to the appointments of new trustees is so fully explained in the works of Sir Edward Sugden and Mr. Chance on Powers (a), (one or both of which must be in the hands of every conveyancer), that it would be superfluous to introduce a treatise on the subject into the present work. Some points have already been briefly noticed in up exactly, and the notes to the precedents (b), but one of some practical importance in preparing appointments of new trustees may be adverted to here. It is this,that under any ordinary power more trustees should never be appointed than there are vacant places among the original trustees (c), and that, if possible, all the vacancies which may exist should be filled up (d). The latter recommendation is, however, very often incapable of being fulfilled, because (a) 2 Sugd. on Powers, ch. (6) See particularly vol. iv. and p. 264, n. (e). (c) See 2 Chance on Powers, art. 2568; and Suppl. 2568 (a), 2568 (b). (d) 2 Chance on Powers, art. 2569; and Suppl. 2569 (a), 2569 (b). |