Page:The Green Bag (1889–1914), Volume 19.pdf/240

 THE WILL OF AN ENGLISH GENTLEMAN family settlements. To the American law yer the names of Fearne, Preston, Butler, Smith, Hayes, Davidson, Bythewood, and Jarmen, and such Chancellors as Lord Hardwick, Lord Eldon, and Lord St. Leonards, are familiar. We are to consider then what this evolu tionary process has settled as the best course for a typical testator to take. This typical testator I have called an "English gentle man of moderate fortune." This is what the more old-fashioned form books call him when they write his prescription. He is to be distinguished from the nobility or great landed proprietors. Their estates were lim ited in what is known as a "strict settle ment" — a form adopted to a system of inheritance according to the rule of primo geniture. Of it Sir Frederick Pollock says, in a little book on the Land Laws,1 written, I ought to emphasize, for the intelligent lay men: "There is nothing, perhaps, in the institution of modern Europe which' comes so near to an imperiun in iniperio as the settlement of a great English estate. The settler is a kind of absolute law giver for two generations; his will suspends for that time the operation of the Common Law of the land, and substitutes for it an elaborate constitution of his own making." It is not of this that I shall attempt a description; nor yet is it of the provisions of the will of that opposite type — the tradesman of wealth whose fortune has been made in and exists at the time of his death almost wholly in a prosperous business which must be carried on for a time at least after his death for the benefit of his family. The typical testator of whom I speak is one who has, either from being descended from younger sons or daugh ters of nobility ceased to belong to that class, or whose ancestors having made a for tune in trade, has ceased to be a tradesman. He is a man of leisure, or he may have an occupation. Formerly it was a profession, as the army, the law, the church, or politics. To-day the field of activity has broadened 1 Page 11 a.

215

so that it may be almost anything. In any event he is a man of moderate fortune. He has at least a country house. So charac teristic is this that some of the form books describe him as a "Country Gentleman." Perhaps he has also a town house. The capital of his estate consists of land and per sonal property in suitable proportions. A proper proportion of the real estate is pro ductive, and the personal estate is invested suitably in consols, mortgages, bonds of rail way corporations — perhaps some stocks, etc. Formerly the stocks of the great trad ing companies like the East India Company were favorite forms of investment. Our typical testator is forty years of age. He is neither a bachelor nor a widower. Both are abnormal variations at this age. Fur thermore, there is no question of race suicide. He is the father of three young children'— two boys and a girl. He has a fair prospect of more of each kind. I have selected this typical English testa tor because in many ways he approximates a constantly increasing class of typical testators in this country. In fact, here, the very rich being cut off from anything like a "strict settlement" may with some modifications properly resort to the form which I am about to introduce you to, while those who have a fortune "in trade" now usually hold it in the shape of stock in a corporation which may be handled by trus tees apart from the business itself. In fact, I was in some doubt for a time whether to entitle this paper "The will of an English man of moderate fortune" or "The will of an American gentleman." The general outline of the will under these circumstances has long since been settled. After the gift of specific legacies, the wife shall have an interest in the whole of the residue for her life or until she marries again, and after her death or re-marriage, the whole property shall be divided equally among the children of the marriage. Nothing could be more direct and simple than this, and yet the infinite care and attention to detail with