2l8
THE GREEN BAG
the effect of at once giving the whole estate the character of personalty so far as the beneficiaries are concerned. This was ad visable because the rules of law regarding the descent of property, and some regarding the construction of wills, were different in the case of realty and personalty. Thus, if under any of the subsequent provisions a child of the testator should become entitled and should die before the trust terminated, the descent of the real estate would be to his eldest son or the eldest brother, while personalty would go to all his children, or to all his brothers and sisters equally. This latter was always the result desired. It was provided for very neatly, for the whole will by a direction contained in only a halfdozen words, and never, under any circum stances intended or allowed to occur, that the whole residuary estate be immediately converted into money. It is settled that the income from the trust estate shall be paid over to the widow from the testator's death. It is, of course, expected that she will sup port, maintain, and educate the children out of her income so long as they remain minors, yet the conveyancer, who left nothing to chance, gave the children a legal right to. such support, maintenance, and education, by charging the widow's income with the expense of such as she in her dis cretion might deem it proper they should have. The principal question, however, which arises in regard to the trust for the widow is: How long shall the income be paid over to her? Shall it be during the remainder of her life, or merely during her widow hood, i.e., so long as she remains unmarried? For many generations the English convey ancers seem to have had but one opinion about this — that the widow's interest should terminate with her second marriage. It is believed that in the hands of a dis passionate and unsentimental adviser, no other answer is possible. There can be only two results of continuing the whole
income to the wife after her second marriage. Either she will have more than she properly needs or the income will make up the deficiency in her second husband's income. In either event there is a distinct injustice in continuing to deprive the children who are ultimately to take. It is believed that the somewhat usual American practice of giving the income to the wife so long as 6he lives results in the testator's sacrificing his children to avoid the appearance of spite against his widow for marrying again. The English form books usually provide for a special power in the widow to appoint such part or all of the residuary estate among her children as she shall see fit. In drafting such a clause some care is required. The draughtsman must make it clear that the widow may appoint to one or more exclusively of the others, otherwise . an appointment of the whole interest which leaves not any one will be wholly void. The power must be to appoint not only to children but to more remote issue, and in such manner and form as the widow shall deem best. An abuse of the power by the widow, which apparently was not unknown in practice, gave rise to a further clause. A widow with several young and delicate children, who was not satisfied with the income merely, and who desired to obtain some of the capital of the estate might resort to this expedient. She might appoint absolutely to a child who was practically certain not to live to his majority. If, then, the child died under age the widow would inherit a portion at least of the child's interest and might call upon the trustees to pay it over to her. To circumvent this, the following rather innocent looking proviso was added to the clause creating power: "But I expressly declare that no child or children or other issue of mine shall take or acquire any descendible or transmissible estate or interest, through or by virtue of any such appointment as aforesaid, until such appointee or appointees respectively
