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dicit, in any action commenced adversely, shall be deemed within its provisions; but it has been decided, as is apparent on attentively reading the clause, that it does not extend to judgments on warrants of attorney, however free from collusion they may be."
By the 61st section of the 1st and 2d Victoria, c. 110, it is provided, that no person shall, after the imprisonment of an insolvent debtor, avail himself of any execution upon a judgment on a warrant of attorney, cognovit, or bill of sale, either by seizure or sale of his property, or by sale of any property previously seized, but such person shall be a creditor for his debt under the act.
An insolvent debtor, before he is entitled to his discharge under the provisions of the insolvent act," must execute a warrant of attorney authorizing a judgment to be entered up in the name of his assigns, for the amount of the debts stated in his schedule, upon which the court will direct execution to be issued against the insolvent or his representatives, in case of his obtaining any property or leaving assets for the purpose of having what shall be so raised distributable amongst the scheduled creditors. Such warrant of attorney need not be executed as pointed out by the 9th section of the act, and is exempted from the provisions of the before-mentioned act of the 3d George IV., C. 39, and it need not be revived by sciere facias.
A wariant of attorney, by an infant, is absolutely void, even though given by him for the purpose of collusion, knowing its invalidity:
m Crossfield v. Stanley, 4 Barn. and Adol. 87, s. C. 1 New. and M. 669. * 1st and 2d Victoria, 110, see sect. 37.
Sanderson v. Marr, 1 H. Bl. 75; Selw. Nisi Pr. 153.
Form in the This is the last will and testament of me, A. B., of, beginning of a
&c., made this day of, &c. First, I give, &c.
In the name of God, amen. I, A. B., of, &c., being of sound mind, memory, and understanding, do make, publish, and declare this to be my last will and testament, in manner following; (that is to say,)
first, I give, &c. Another form. I, A. B., of, &c., do hereby revoke all wills, codicils,
and other testamentary dispositions made by me, at any time or times heretofore, and do publish and declare this to be my last will and testament, in man
ner and form following ; (that is to say.) Appointment And I nominate and appoint C. D. and E. F. exeof executors.
cutors thereof (or) of this my will. Guardians. And I appoint my said wife, during her life, [or
until she shall marry again,) and after her decease,
churchyard, at, as little expense as possible.
In the first place, I direct that all my just debts, funeral and testamentary expenses, be fully paid and satisfied by my (said] executors (hereinafter named,]
Directions as to debts.
out of my personal estate, as soon as conveniently may be after my decease.
I give and bequeath the use and enjoyment of all Use of furnimy household furniture, plate, linen, and china, to my dear wife M. B., during the term of her natural life ; and from and after her decease, I give and bequeath the said household furniture, &c., unto my two children, C. B. and D. B., their executors, administrators, and assigns, in equal shares and proportions as tenants in common.
I give and bequeath unto my wife M. B. all her We aring apwearing apparel, watches, trinkets, and other articles parel. of dress, and ornaments of her person.
I give and bequeath all my farming stock and Farming utensils whatsoever, which shall be in or about my farm at to my son J. B.
I give and bequeath unto L. M., of, &c., the debt Release of or sum of L.
which he owes to me on his bond ; and I desire my said executors to cancel and deliver up to him the said bond, or any other security
hold for the said debt; and I direct that this bequest shall, notwithstanding the death of the said L. M. in my lifetime, operate and enure for the benefit of the executors and administrators of the said L. M., and as a complete and perfect release of the said debt.
I give and bequeath to M. N. the sum of L. Money in the three per cent. consolidated bank annuities now standing in my name in the books of the Governor and Company of the Bank of England, [if it is intended
p If a debt, due to the testator, be bequeathed to the debtor, the same will lapse on the death of the legatee, and the debt will subsist; Maitland v. Adair, 3 Ves. 231; therefore, to prevent any question, it will be advisable to add, “and I direct that this bequest shall not be considered as a personal legacy, or as intended for the benefit of the said A. B. only, but that in case the said A. B. shall die in my lifetime, his representatives shall have and be entitled to the benefit thereof." (See Sibthorp v. Moxom, 3 Atk. 579; Elliot v. Davenport, 3 Vern. 521; S. C. 1 P. Wms. 83.)
Directions as to vesting.
not to be a specific legacy, add, and if it shall happen that, at the time of my decease, I shall not be possessed of that amount of L.3 per cent. consolidated bank annuities, then I direct my executors to purchase or make up the same out of my personal estate, and transfer the same to the said M. N. for his own absolute use."]
I give and bequeath unto A. B. the sum of L.
I give and bequeath the following sums to the several persons hereinafter named ; that is to say, to K. L., of, &c., the sum of L.
; to C. M. the sum of L.
&c. 'I give and bequeath to D. I. the sum of L. and I direct that the same shall become a vested interest in the said D. I. immediately upon my decease; but that the payment thereof shall be postponed till he shall attain the age of twenty-one years, [or] and I direct that the said legacy shall not vest in, or be paid to him, unless and until he shall attain his age of twenty-one years; but he shall, nevertheless, be entitled to any interest that may arise therefrom in the mean time.
I give and bequeath unto J. D. the sum of L. and I direct that the same shall be accepted by him [or not be taken] in satisfaction of any debt or sum of money that may be due and owing from me to him at the time of my decease.
I give and bequeath to each of my, servants, who shall be living with me at the time of my decease, the sum of L. over and above the
wages which may then be due to them respectively.
Legacy to creditors.
9 This bequest being of the identical stock of which the testator was possessed, would be specific, and, consequently, unless the directions here given were added, the bequest would fail in case the testator should part with his stock in his lifetime. See the cases of Ashton v. Ashton, 3 P. Wms. 384; Sleech v. Thorrington, Tez. 561 ; Gillaume v. Adderley, 15 Ves. 385; and Dummer v. Pitcher, 5 Sim. 35, and 2 M. and K. 262.
See observations on the vesting of legacies, post.
as an ac
I give and bequeath unto each of them, the said to executors. J. K. and L. M., the sum of L. knowledgment for the trouble they may have in the execution of this my will, [or] and I direct that the same shall be paid to them notwithstanding they may decline to prove this my will, or to act in the execution of the trust hereof.
I give and bequeath unto the treasurer, for the To an unintime being, of the Church Missionary Society, the corporated
society. sum of L.
to be applied by him for the purposes of such society, and I direct that the receipt of such treasurer, for the time being, shall be a sufficient discharge to my executors for the same.
And I do hereby devise all such messuages, lands, Devise of tenements, and hereditaments, as are vested solely
mortgage esin me, upon any trust, or by way of mortgage, in respect of which the equity of redemption shall be subsisting at the time of my decease, with their respective rights, members, and appurtenances, unto
their heirs, executors, administrators, and assigns, according to the nature and quality thereof respectively upon trust, to hold or dispose of the said trust-estates, in the manner in which they ought to be held and disposed of, pursuant to the trusts thereof, and upon payment of the money secured on mortgage, to convey or assign the estates in mortgage to the person or persons entitled thereto for the time being ; but I direct that the money secured by such mortgages shall be considered as part of my personal estate.
I give and devise to A. B., of, &c., and his as- Bequest of an signs, during his life, the annual sum or yearly rent. annuity, with charge of L.
deduction whatsoever, to be paid to him by four quarterly payments, and the first of such payments to be made on such of the same days as shall first happen after my
de cease; and I charge the same on [state the premises to be charged with the annuity.] And my will is, that, in case the same annual sum or yearly rentcharge, or any part thereof, shall be behind and un
a power of