PRECEDENT V. WILL OF A TRADER, WITH SPECIAL CLAUSES. reimbursement by law given to trustees) the said trustees or trustee shall be at liberty to dispense wholly or partially with the investigation or production of the lessor's title, on purchasing (r) or lending money on the security of leaseholds, or otherwise to purchase or lend on the security of any hereditaments with less than a marketable title, and shall not be answerable for any loss thereby occasioned. [Declaration as to devolution of trustees' powers, supra, p. 56. Devise of trust and mortgage estates, supra, p. 58. Appointment of executors, supra, p. 61.] AND I HEREBY DECLARE, that in respect to any trade or trades, business or businesses, in which I may be engaged at the time of my death, and which I may by business which, articles of partnership or otherwise have bound my executors to continue, it shall be lawful for the acting execu 42. Power for executors to agree with partners to wind up any according to articles, ought to be carried on. the income of two third parts whereof is to be paid to or received by my said wife as aforesaid, and every sum which any of my said children will have to bring into hotchpot as aforesaid shall in the first instance be brought into hotchpot against the third part devolving upon such child in the lifetime of my said wife of the share of such child in such my residuary estate, and if in excess of such third part shall to the extent of such excess be brought into hotchpot against the other two third parts of the share of such child in such my residuary estate, but as to any such excess as last aforesaid, the income corresponding to such excess shall not be payable to my said wife, but shall sink during her life in the same manner as if the amount of such excess had been advanced under the power of advancement hereinbefore contained to the child accountable for the same in the way of hotchpot as aforesaid." (r) See supra, p. 55, note (a). It will be seen that this clause corresponds with that at p. 55 supra, except that the provision as to the indemnity of the trustees extends to hereditaments purchased as well as those taken on mortgage, as the will contains a power to invest in the purchase of land. tors or executor for the time being of this my will either to continue the same or any of them after my death for the full period agreed upon or for a less period, or not to continue the same at all, as such executors or executor and the partner or partners engaged therein may at any time or times agree upon; AND I EMPOWER my said acting executors and executor in case of such trade or trades, business or businesses being so continued, to continue the same, and on the same being discontinued to wind up and close or dispose of the same, upon such terms as to the employment of my capital therein and the general management of such trade or trades, business or businesses, during the continuance thereof, and as to the drawing out and the securities for the payment out of the capital at the expiration thereof, and in other respects, as may have been agreed upon by the articles of partnership or agreements subsisting between me and my partner or partners, or upon such other terms as my said acting executors or executor and the said partner or partners engaged therein may at any time or times agree upon. AND I DIRECT my said acting executors or executor forthwith after my death to wind up and close or dispose of any concern or concerns in which I may be engaged at the time of my death and which I may not have bound my executors to continue, upon such terms in every respect as such my executors or executor may think expedient, but without prejudice to the rights and interests of any partner or partners who may be engaged with me therein (s); PROVIDED ALWAYS, and I hereby further PRECEDENT V. WILL OF A TRADER, WITH SPECIAL CLAUSES. 43. -and to make arrange ments for consuch business. tinuing or closing 44. Direction shall wind up any business the that executors testator may not be bound to carry on; executors carrying on business. (8) See in Precedent II., p. 97, supra, the clause authorising Responsibilities executors to wind up the testator's partnership business, and the of trustees and extensive powers contained in the next Precedent, enabling the trustees to carry on the testator's business, and make arrangements in relation thereto with a view to the admission of the testator's sons. As to the responsibilities of trustees concerned in VOL. IV. M WILL OF A TRADER, WITH SPECIAL CLAUSES. 45. but with power for that object and with certain consents to carry on the business; PRECEDENT V. declare, that in order that any trade or trades, business or businesses in which I may be engaged at the time of my death, and which I either may or may not have bound my executors to continue, may be closed or disposed of to greater advantage, it shall be lawful for my said acting executors or executor, but without prejudice to the rights and interests of any partner or partners who may be engaged with me therein, and so that all my children who may for the time being be living and of age consent thereto in writing, to continue every or any such trade or business after the period when my executors or executor are or is herein before directed to close or dispose of the same as aforesaid, for such time or times and in such manner in all respects as they or he may think expedient, and that either alone or in conjunction with any partner or partners who may be engaged with me therein or in conjunction with any other person or persons; AND I HEREBY DECLARE, that for the purpose and employ the capi- in the course of continuing under any of the provisions aforesaid every or any such trade or business as hereinbefrom the general fore is mentioned, it shall be lawful for my said acting executors or executor, at any time or times of their or his proper authority, and at their or his sole discretion, to use and employ any capital which may be employed therein at the time of my death, and in case such consent of my children as last aforesaid be given, then in like manner to use and employ any money part of my general estate over and above such capital; BUT in every case interest at the rate of £5 per cent. per annum shall be allowed and paid out of such trade or business half-yearly on 46. and to tal already therein and fresh capital estate; 47. -paying interest for the same; their fiduciary character in carrying on a business, see Peachey, Settlements, p. 873, note (h), and the authorities therein referred to; and see the remarks of Lord Eldon, C., in Ex parte Garland, 10 Ves. 119, with reference to the liability of an executor who enters into trade. See also as to executors continuing the testator's business, Lindley, Partnership, Vol. ii. pp. 1060 et seq., 4th ed. the capital or money so to be used and employed; AND such gains and profits arising from the continuance of every or any trade or business under any of the provisions aforesaid as shall belong to my estate over and above the interest of the capital or money employed therein belonging to my estate, shall form part of and from time to time be added to the capital or principal of my general residuary estate, and any losses to be sustained in the course of continuing the same, and which shall not fall on any partner or partners, or other person or persons who may continue the same with my said executors or executor, shall be borne out of the capital or principal of my general residuary estate. AND I FURTHER DECLARE, that for the purpose and in the course of the continuing and winding up respectively of every or any trade or business as aforesaid, and for other purposes relating to my estate, it shall be lawful for my said executors or executor to employ such clerks, travellers, servants, agents, accountants, and other persons at or for such salaries, wages, or remuneration as they or he may deem proper. PROVIDED ALWAYS, and I hereby declare, that the appointment of my said sons and as executors, or any of the bequests and dispositions hereby made, shall not affect any debts owing or which PRECEDENT V. WILL OF A TRADER, WITH 48. and the fall into, and surplus profits to losses to be borne by, the general residue. 49. Power for executors to employ clerks, servants, &c. 50. Appointment of executors and dispositions of will not to affect debts owing by or to executors and may be owing to or from me by or to such sons or any of legatees. 51. Executors to have unlimited discretion, sub (t) As the appointment of a debtor of the testator as executor would not extinguish the debt (see supra, p. 121, note), the express provision in the text is in this respect unnecessary; but the general exclusion of the doctrine of the satisfaction of debts by legacies (see note, p. 76) may be of service. PRECEDENT V. WILL OF A TRADER, WITH SPECIAL CLAUSES. ject to the consents expressly required. trusts and powers herein contained, in those cases in which I have not already expressed myself to this effect, the trustees or trustee for the time being of this my will, and my acting executors or executor for the time being respectively, shall have the most full and entire discretion, subject (in all cases where I have so provided) to such consent being given as herein before is mentioned. [Appointment of the executors as guardians of the testator's infant daughter L. B. during her minority, see p. 62, supra.] IN WITNESS, &C. VI. PRECEDENT VI. WILL GIVING DETERMINABLE AND PROTECTED LIFE INTERESTS. WILL disposing of RESIDUARY estate in favour of tes- |