APPENDIX.

SUGGESTIONS TO PERSONS TAKING INSTRUCTIONS FOR WILLS.

FEW of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and wellinformed judgment, than that of taking instructions for wills. It frequently happens, that, from a want of familiar acquaintance with the subject, or from the physical weakness induced by disease, (where the testamentary act has been, as it too often is, unwisely deferred until the event which is to call it into operation seems to be impending), testators are incapable of giving more than a general or imperfect outline of their intention, leaving the particular provisions to the discretion of their professional adviser. Indeed, some testators sit down to this task with so few ideas upon the subject, that they require to be informed of the ordinary modes of disposition under similar circumstances of family and property, with the advantages and disadvantages of each; and their judgment, in the selection of one of these modes, is necessarily influenced by, if not wholly dependent on, professional recommendation. To a want of complete and accurate information as to the consequences of their proposed schemes, must be ascribed many of the absurd and inconvenient provisions introduced into testamentary gifts; to say nothing of the obscurities and inconsistencies which frequently throw an impenetrable cloud over the testator's real intentions. It may be useful to mention some particulars on which information should be obtained in taking instructions for a will, most of the inquiries being suggested by the various classes of cases discussed at large in this work, and being framed with a view to prevent such questions as

Description of lands.

Immediate profits.

Mortgaged lands.

Payment of

&c.

those cases present. It will be obvious, that the nature of the inquiries in every case must be greatly regulated by the situation in life and other circumstances of the testator. They may be distributed into those that relate-first, to the subject, and secondly, to the objects of testamentary disposition, including in the former some general points.

1. Where lands specifically devised are described by their local situation and occupancy, (though a reference to occupancy is in general better omitted, unless it form a necessary discrimi nating feature in the description), it should be carefully ascertained, that the whole of the land answering to the locality, answers also to the occupancy, or, in other words, that both parts of the description are co-extensive, to avoid any question as to the less comprehensive term being restrictive.

2. Where there is an immediate devise to a class of persons, who may not be in existence at the death of the testator, as to the children of A., who may then have no children, it should be ascertained, what, in this event, is to become of the intermediate profits. In the absence of any provision of this nature, they will go to the residuary devisee or heir-at-law.

3. Where the subject of devise is a mortgaged estate, inquiry should be made, whether the devisee is to take it subject to the mortgage; and, if so, words should be used negativing his right to have it exonerated out of the assets, for which, it will be seen, the devising the property subject to the mortgage debt is not alone sufficient.

4. Another question which may be proper, under some cirdebts, legacies, cumstances, is, whether any specific fund, constituted of real or personal estate, is to be appropriated for payment of debts, funeral and testamentary expenses, and legacies; and it should always be stated, whether a fund so appropriated, is to exempt the general personal estate from being first applied, as is generally intended, though the intention frequently fails for want of an explicit expression of it.

Provision for wife and children.

II. In relation to the objects of gift.-When a testator proposes to make a disposition of his property in favour of his wife and children, (naturally the first objects of his regard), several modes of disposition present themselves. One is, to give the income to the wife for life, clothed or not with a trust for the maintenance of the children, and to give the inheritance or capital

to the children equally, subject or not to a power in the wife of fixing their shares, or limiting the property to some in exclusion of others, as she may think proper. Another mode is, to give the wife and children immediate absolute interests in the property in certain proportions, according to the nature of the distribution of personal property under the statute in case of intestacy; but this mode of disposition is less frequently adopted than the former. To empower the widow to regulate the shares, is often found convenient, not only as it preserves her influence over her children, but because it enables her to adapt the disposition of the property to their various exigencies at the period of her death, and it has, moreover, a salutary effect in restraining the children from disposing of their reversionary interests. Where the children do not take absolutely vested interests until their majority or marriage, it is useful to confer a power on the trustees, with the consent of the widow, or other person taking the prior life interest, to advance some proportion (the maximum of which is usually fixed at half or one-third) of their presumptive shares, in order to place out the sons as apprentices, &c. or for other such purposes. Even where the children take vested (i. e. absolutely vested) interests at their birth, a power of advancement may be requisite where the prior legatee for life is a married woman restrained from alienation, and, therefore, incompetent to accelerate the payment of the shares by relinquishing her life interest. In no other case can the power be wanted under such circumstances.

1. The obvious inquiries (in addition to those immediately In regard to suggested by the preceding remarks) to be made of a testator, of children, &c. whose bounty children are to be objects, are-at what ages their shares are to vest;-whether the income or any portion of it is to be applied for maintenanee until the period of vesting, and if not all applied, what is to become of the excess? whether, if any child die in the testator's life-time, or, subsequently, before the vesting age, leaving children, such children are to be substituted for the deceased parents. If the vesting of the shares be postponed to the death of a prior tenant for life, or other possibly remote period, the necessity for providing for such events is of course more urgent; and in that case it should also be ascertained, whether, if the objects die leaving grandchildren, or more remote issue, but no children, such issue are to stand in the place of their parent.

2. If any of the objects of the gift (whether of real or per- Daughters' or

other females' shares.

Uses to prevent dower.

Survivorship.

To what period referable.

Suggestion as to clauses of survivorship.

As to vesting.

sonal property) be females, or the gift be made capable of comprehending them, as in the case of a general devise or bequest to children, it should be suggested, whether their shares are not to be placed out of the power of husbands; i. e. limited to trustees for their separate use for life, subject or not to a restriction on alienation, (which, however, is a necessary concomitant to give full effect to the intention of excluding marital influence), with a power of disposition over the inheritance, or capital, as the case may be; and if it be intended to prevent that power of disposition from being exercised, under marital influence, without the possibility of retractation, it should be confined to dispositions by will, which, being ambulatory during her life, can never be exercised so as to fetter her power of alienation over the property.

3. If the devise be of the legal estate of lands of inheritance to a man, it should be inquired, (though the affirmative may be presumed in the absence of instructions), whether they are to be limited to uses to bar the dower of any wife to whom he was married on or before the 1st of January, 1834.

4. If a gift be made to a plurality of persons, it should be inquired whether they are to take as joint tenants, or tenants in common; or, in other words, whether with or without survivorship; though it is better in general, where survivorship is intended, to make the devisees tenants in common, with an express limitation to the survivors, than to create a joint tenancy, which may be severed.

5. In all cases of limitations to survivors, it should be most clearly and explicitly stated as to what period survivorship is to be referred; that is, whether it is to go to the persons who are survivors at the death of the testator, or at the period of distribution. It should always be anxiously ascertained, that the testator, in disposing of the shares of dying devisees or legatees among surviving or other objects, does not overlook the possible event of their leaving children or other issue. There can be little doubt that in many cases of absolute gifts to survivors, this contingency is lost sight of. This observation, in regard to the unintentional exclusion of issue, applies to all gifts in which it is made a necessary qualification of the objects, that they should be living at a prescribed period posterior to the testator's decease, and in respect of whom, therefore, the same caution may be suggested.

6. It may be observed, that where interests not in possession are created, which are intended to be contingent until a given