Page:The Green Bag (1889–1914), Volume 19.pdf/244

 THE WILL OF AN ENGLISH GENTLEMAN shall have attained the age or respective ages of twenty-one years or shall marry." The existence in the will of a power in the widow made necessary, at a later stage of the will, what is known as a "hotch pot clause." According to the usual course, the widow appointed something to the daughters when they married, or to the sons when they reached twenty-one or twentyfive. It not unfrequently happened, there fore, that out of a family, say of four, the first three had received appointments at the death of the widow. Let us suppose that these appointments had amounted to £4000 apiece and that at the death of the widow there is a balance of,£12000 in the estate. This latter sum must be divided among all the four children so that the three who have already recieved appointments will have altogether £7000 apiece, while the youngest child must be satisfied with only £3000- This is neither what the testa tor intended nor as the widow planned. It was an accident merely that the youngest did not receive an equal share by appoint ment with all the others. In that case the balance would have been equally divided and all would have shared equally. The hotch pot clause was designed, under the exigencies described, to effect this result as nearly as possible. It, therefore, provided that no one who took by appointment should (in the absence of an express direc tion in the appointment to the contrary) share in the unappointed part without bringing his appointed share into the general fund, — that is, into hotch pot — to be distributed as in default of appoint ment. As to the expediency in general of giving the widow this power of appointment, opinions may differ. It's use may be most salutary. It enables the widow to attain control over the children. She may alter the disposition according as events turn out. If the daughters marry well their shares may be reduced. If a son is wild and stays wild and unregenerate his portion

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may be cut down to a life estate, with clauses which will save the estate from the sons creditors and provide for his wife and children. On the other hand, if the testa tor's children are fairly normal individuals, but the widow is inclined to follow her own judgment and unused to relying upon the advice of a well tried family solicitor, or proves flighty or partial, or lives to a great age and falls under the influence of some single child who lives with her when all the others have moved away, great disturbance in the family may result from the existence of the power. Suspicions, bitternesses, and strife may be engendered between brothers and sisters, and if by any chance the power be actually exercised otherwise than to make an equal division, the whole estate is likely to be thrown into the courts by the disappointed ones, to the loss and misfor tune of everybody. The American tendency has been, I think, to omit the power unless there is some very likely reason for it. When it appears it will not infrequently be found to have been carelessly inserted. As a consequence the existence of the power in American wills seems often to turn out badly. The only remaining beneficial interest to be inserted is the gift in default of appoint ment to the children of the testator after the termination of the widow's interest. The testator is apt to think of only a simple direct gift to his children. The moment, however, that he is reminded that his family is a young and growing one, it will occur to him that the trust must not terminate for each child till he or she comes of age. Perhaps a moment's further reflection causes him to desire that it shall not end for the different shares except as the children reach twenty-five. A few questions will develop that should any of the children die under twenty-five, their children, if any, are to take the parent's share. If such deceased children of the testator die before reaching twenty-five without chil dren then the other children are to divide