such investments into or for others of any nature hereby authorised at their or his discretion; AND SHALL pay the PRECEDENT I. WILL OF REAL AND PERSONAL ESTATE IN TRUST FOR WIDOW AND CHILDREN. ment of income securities to bearer, see the same Act, s. 21. It may be convenient here to mention that the statutory powers of investment include 10. for payall the permanent public funds and government securities of the United Kingdom, freehold and copyhold securities in England, Wales, and Ireland, real securities in Scotland, the stock of the Banks of England and Ireland, India stock, and "securities the interest of which is guaranteed by Parliament," all of which appear to be in all cases open to trustees unless expressly forbidden; and the powers of trustees would also in most cases, in the absence of prohibition, extend to the consolidated stock of the Metropolitan Board of Works, charges created under the Improvement of Land Act, 1864, and debentures issued under the Mortgage Debenture Act, 1865, (as to which see Vol. iii., p. 710, note (i)), and the Local Loans Act, 1875. The form of investment in the text, with the omission of the part in brackets, may be regarded as the standard form (see ante, Vol. iii., p. 16). If it is desired to insert a very comprehensive 9a. Comprehenpower, the following addition, or some part of it, may be made to sive power of the form in the text: "Or in or upon the stocks, funds, bonds, shares, mortgages, or securities of any foreign government, country, or state, or of any corporation, company, or public body, municipal, commercial, or otherwise, in any foreign country, or upon heritable real or leasehold security in Scotland or India or any other colony or dependency of the United Kingdom or any foreign country, or on the security of any interest for or dependent on a life or lives or otherwise determinable in real or personal property in the United Kingdom or abroad, together with a policy or policies of assurance on such life or lives, or having reference to the event or events on which the interest is determinable, or upon chattel personal security in the United Kingdom or abroad." The following form is believed to have been frequently approved in practice in cases in which it was desired to give a fair range, but not the full latitude allowed by the power in the text:— investment. "IN ANY of the public stocks or funds or government) Form giving securities of the United Kingdom or India, or in stock of investment. a fair range of PRECEDENT I. WILL OF REAL AND PERSONAL ESTATE IN TRUST FOR WIDOW AND CHILDREN. to testator's wife during widowhood. 9c. Another form giving a limited range. 9d. Short form comprising statutory securities only. 9e. Power to income of the said residuary monies, and of the stocks, funds, shares, and securities from time to time represent the Bank of England, or upon real securities in England or Wales, or in or upon the debentures or the debenture guaranteed or preference stocks or shares of any company in the United Kingdom or India incorporated by special act of parliament, upon or in relation to which a fixed or minimum interest or dividend or rent or rent-charge shall be secured or guaranteed by the same or some other company or by the Government of India or in or upon the bonds debentures or securities of any public municipal or local body or authority in the United Kingdom (but not in any other mode of investment) [power to vary]." The following is another form giving a limited range:"IN ANY of the permanent stocks or funds of the United Kingdom or upon real securities in England or Wales, or in or upon the debentures, debenture stock, or securities or the rent-charge guaranteed or preference stock or shares of any company in the United Kingdom which shall have paid dividends of not less than 3 per cent. per annum on its ordinary stock for a period of at least 3 years prior to the time of investment (but not in any other mode of investment) [power to vary].” The following short form may be adopted where it is desired to confine the range to the statutory securities:: "IN OR upon any stocks, funds, or securities, in or upon which trust funds or cash under the control of the Chancery Division shall for the time being be authorised by law to be invested (but not in any other mode of investment) [power to vary]." Power is occasionally given to invest on contributory mortgages (as to which see ante, Vol. iii., p. 40). If so desired, the following addition may be made for that purpose to the investment clause, the words "in the names or name, or under the legal control of the said trustees or trustee " at the commencement of the clause being of course omitted: AND WITH power to make any such investment on real ing the same to my said wife so long as she shall continue PRECEDENT I. WILL OF REAL AND PERSONAL FOR WIDOW AND invest on contributory mort or leasehold security in conjunction with any monies to ESTATE IN TRUST be lent by any other person or persons as or by way of contributory loan, and to accept the security for the same in the names or name of the said trustees or trustee alone or in conjunction with any other person or persons, or to permit the same to be taken exclusively in the names or name of any other persons or person or otherwise as the said trustees or trustee shall deem expedient." The following is a form prohibiting investments in securities to bearer, which, if inserted, should be substituted for the usual words of prohibition. Such a clause is occasionally inserted on account of the risk attached to such securities (see ante, Vol. iii., p. 53). It may be useful to point out, however, that the risk of fraudulent dealings with securities of this description may generally be, in a great measure, obviated by depositing them in the joint names of the trustees with their bankers, who will collect the dividends, while the securities can (if so directed) only be withdrawn with the concurrence of all the trustees : “(BUT not in any securities to bearer or which are transferable by mere delivery or delivery and endorsement, though coming within the general description of the investments herein before authorised, and not in any mode of investment other than those hereinbefore authorised)." The duties of executors and trustees under a will to convert and invest the testator's estate, are usually, of course, much more onerous than any duties of the like character incident to the office of trustees of a settlement. The leading doctrines as to the duties of executors and trustees in these respects will be found in Lewin on Trusts, ch. xiv., "The duties of trustees of chattels personal," ss. i.—v. (6th ed., pp. 254, et seq.), and in 2 Lead., Cas. Eq., notes to Townley v. Sherborne, and Brice v. Stokes (5th ed., pp. 885, et seq.); and the distinctions as to the rights inter se of successive takers of settled property, will be found in the references in p. 7, note supra. It is thought that the clauses at pp. 48, et seq. infra, authorising the trustees to postpone the sale and conversion of the real and personal estate, and giving them extensive powers of intermediate management, and providing for the application as income according to the will (as well during the first year from the testator's death as afterwards) of the income of the estate, in its actual state of investment, will (especially with the aid of the supple gages. 9. Form prohibiting securities to bearer. Duties of exe cutors and trustees to convert and invest PRECEDENT I. WILL OF REAL AND PERSONAL ESTATE IN TRUST FOR WIDOW AND CHILDREN. 11. Trust after or future marriage for the testator's issue, as the wife during widow. hood shall ap point. my widow (k), and after her death or future marriage shall stand possessed of the same trust premises, and the income thereof; IN TRUST for all or such one or more exclusively of the others or other of my children or remoter issue born or to be born during the life of the wife's death my said wife, or within twenty-one years after her death, at such age or time or respective ages or times, if more than one in such shares, and with such future or executory or other trusts for the benefit of the said issue, or some or one of them, with such provisions for their respective advancement (either in the lifetime of my said wife or after her decease), maintenance, or education, at the discretion either of the said trustees or trustee or of any other persons or person, and upon such conditions, with such restrictions and in such manner as my said wife shall, while she shall continue my widow, by deed with or without power of revocation and new appointment, or, in case she shall continue my widow till her death, by will or codicil Gifts during celibacy or widowhood and conditions in restraint of marriage. mental provision enabling the trustees to determine in cases of doubt whether money is to be treated as capital or income) in general obviate the difficulties attendant upon the conversion of the estate, and the adjustment of the rights of the parties to the income accruing before the property is duly invested according to the will, so far at least as these difficulties depend on rules of law or construction, and are therefore capable of being dealt with by the terms of the will. (k) A gift during celibacy or during widowhood is clearly good (see the observations of Vice-Chancellor Wigram in Morley v. Rennoldson, 2 Hare, 580-581; of Lord Cottenham in Webb v. Grace, 2 Phil. 702; and of Lord Justice Knight Bruce in Heath v. Lewis, 3 De G. M. & G. 956); but though a limitation until marriage is good, a condition subsequent purporting to defeat upon marriage a gift not in its inception terminable upon that event, is void as being contrary to the policy of the law, in the case at least of personal estate, or a mixed fund arising from the sale of real and personal estate (see Bellairs v. Bellairs, L. R. 18 Eq. 510; and see as to real estate, Jones v. Jones, 1 Q. B. D. 279). A recognised exception has long existed with reference to a testator imposing a condition of this description on his own widow, it being considered that a husband has "such an interest in his wife's widowhood as to make appoint (1); AND IN DEFAULT of such appointment, and so far as no such appointment shall extend, in trust for all my children or any my child who being sons or a son shall have attained or shall attain the age of twenty-one years, or being daughters or a daughter shall have attained or shall attain it lawful for him to restrain her from making a second marriage, by imposing a condition that on such marriage any provision he may have made for her shall cease (per Lord Cranworth in Lloyd v. Lloyd, 2 Sim. N. S. 263), and it has been recently determined that the rule prohibiting such conditions is one restricted to single persons, and has no application to the case of any widow (Newton v. Marsden, 2 Johns. & Hem. 356) or widower (Allen v. Jackson, 1 Ch. D. 399). See also as to conditions in restraint of marriage, 2 Jarm. Wills, 3rd ed., pp. 38, et seq.; and Scott & Tyler, 2 Bro. C. C. 431, 2 Dick. 712, 2 Lead. Cas. Eq., 5th ed., p. 115, and the notes thereto, p. 179, et seq. () As to the frame of the power of appointment, and various points connected with its operation, see ante Vol. iii., Settlements, pp. 142-166, and notes; as to the power being extended not only to children but remoter issue, see p. 144; and as to the restriction of the class of issue with reference to the requirements of the rule against perpetuities, see p. 154, and notes. In connection with the observations at p. 144, et seq., as to the power authorising an exclusive appointment, see now the Act 37 & 38 Vict., c. 37, enacting that no appointment made in exercise of any power to appoint any property, real or personal, amongst several objects, shall be invalid on the ground that any object has been excluded, but the Act is not to affect any provision in the instrument creating the power fixing the minimum share or shares of any of the objects. It is, therefore, no longer essential that the power should be in terms exclusive, though it is considered better that this should be expressed. The words in the power expressly authorising advancements to be made in the lifetime of the widow (as to which see Vol. iii., p. 160) are inserted in the power in the text, although they are probably in this case superfluous, as the donee will necessarily be a feme sole, and could therefore, it is conceived, effect this object without express power. As the life-interest in this case is during widowhood, the power of appointment, whether by deed or will, is confined to that period, and as regards the testamentary power, in order to exclude all question, it is expressly provided that it is to be exercised by a will not only executed, but also taking effect by the death of the testatrix during the widowhood, since a will made during widowhood in PRECEDENT I. WILL OF REAL AND PERSONAL ESTATE IN TRUST FOR WIDOW AND CHILDREN. 12. In default of ing 21, and As to frame of power of appointment among issue. As to confining the power to the widowhood of the donee. |