I George Clark
of Oak Lea, in the borough of Sunderland, in the County of Durham, Engine Builder and Shipowner, hereby revoke all former Wills and Testamentary dispositions made by me, and declare this to be my last Will and Testament.
I APPOINT my Sons George Clark, William John Clark, John Lockie Clark, and James Henry Havelock Clark
to be the Executors and also the Trustees of this my Will, in the construction of which I declare that the expression of "my original trustees" shall mean the said Trustees hereby appointed, and the expression of "my Trustees or Trustee" shall mean the Trustees for the time being of this my Will whether by present or future appointment, or both, or by representation.
I give the following pecuniary legacies to be respectively paid within one calendar month after my decease (that is to say) unto each of my next named three daughters, namely, Ann Lockie, Catherine Jane, and Dorothy
, the sum of five hundred pounds.
I give to my old nurse, Sarah Christy
, an annuity of thirty pounds, for her life, to be paid to her quarterly out of the income of the General Trust Fund
as hereinafter defined, or out of the income of such part thereof as my trustees shall choose to appropriate, or set apart for that purpose.
I give, devise, bequeath, and appoint "my residuary property"
, that is to say, all property rights and interests, real, personal, and mixed, to which I shall be entitled beneficially, or have power to dispose of, for my own benefit at the time of my decease, and which shall remain after satisfaction of my debts and funeral and testamentary expenses, in due course, and after paying the four pecuniary legacies hereinbefore given, or such of them as shall not lapse, unto and to the use of my original trustees, their heirs, executors, administrators, and assigns respectively, upon and for the several trusts and purposes hereinafter declared of and concerning the same (that is to say) Upon trust that my Trustees or Trustee do and shall at such time or times as but not sooner than they, or he shall deem expedient, convert into money those parts of "my residuary property"
which shall not at my decease consist of ready money, and do and shall affect such conversion by such ways and means as they or he shall think fit, and accordingly with full power for them or him to sell any of the same property, of so saleable character, either together or in lots or parcels by public auction, or private contract under or subject to any special or other conditions, and to buy in all or any part of the same premises when offered for sale by public auction, and to rescind or vary either gratuitously or otherwise, any contract or contracts for the sale thereof respectively, and to accept and make any composition or other arrangements, for, or in respect of any part or parts of my "residuary property"
, for the time being consisting of credits or other choices in action and to give or allow time for the payment of such debts or choices in action, or any of them, or any composition or compositions for the same respectively, and to accept any security, or securities, real or personal, therefore respectively, and do and shall until the said trust for conversion shall be fully executed, manage the unconverted parts for the time being of "my residuary property"
in whatever manner my acting trustees or trustee shall deem expedient, they or he being hereby authorized by me to exercise as regards such management and all incidental matters, and things, and particularly as regards the grant or creation of leases or other tenancies of any duration, the acceptance of Surrenders of Leases, or other tenancies, the affecting of insurance in or of buildings, shipping, property, or other things, as full and ample powers and discretion's as I could have exercised had I been living, but as always as that so far as circumstances will permit all shipping property comprised in my residuary property shall until the conversion thereof into money be kept insured up to their full value thereof against loss by perils of the Sea, and by fire, and upon trust that subject as aforesaid my trustees or trustee do and shall pay or apply from time to time the rents, interest, dividends and other receiving produce, whether permanent or terminable of the unconverted parts for the time being of my residuary property to the persons or person or for the purposes to whom or for which respectively such rents, interest, dividends and produce would for the time being be payable or applicable under this my will, in case the same were interest or income of or derived from the General Trust Fund
, and to and shall stand possessed and interested of and in
"the general trust fund
" (meaning by that expression wheresoever it occurs in this my Will all money to arise under the trust for conversion hereinbefore contained and my ready money at my decease and the investments for the time being of or for such several moneys and of and in the income, that is to say the interest, dividends or other recurring produce of the general trust fund), In Trust in the first place therewith or thereout respectively to pay or satisfy and discharge all disbursements, costs, charges, and expenses whatever of and incidental to the execution of this my Will and the Trusts thereof, and the exercise of the discretionary powers and authorizes hereby given to my trustee or trustees with full power for them or him to apportion as they or he may consider just all or any of such disbursements, costs, charges, and expenses as between capital and income, and to pay the same accordingly.
And as to the "general trust fund"
, and the income thereof, subject to the primary trust upon and for the several trusts and purposes hereinafter declared, of and concerning the same,
Provided always, and I Declare and direct as follows, that is to say,
- First, "my trustees or trustee" shall continue to carry on the business of an Engine Builder now carried on by me at Southwick, and Sunderland aforesaid and every other business which I shall be carrying on or engaged in at the time of my decease until the expiration of three years from the date of my decease, with power nevertheless for my acting trustees or trustee to discontinue the carrying on of each of the said businesses (all of which I hereinafter refer to as "my business") if and so soon as they or he shall be of opinion that the same is not yielding a profit or is being carried out at a loss.
- Secondly, for the purposes of the continuance as aforesaid of "my business" or any of them, my trustees or trustee may retain unconverted and use for so long as they or he shall think fit, the buildings or other hereditaments used or occupied by me for the purposes of such businesses or business at the time of my decease, or any of those buildings or hereditaments and for the like purposes of any of them may take upon lease or otherwise obtain the use and occupation of any other buildings or hereditaments.
- Thirdly, the trust for or power of management hereinafter contained shall extend to my businesses, and accordingly and particularly my trustees or trustee shall have full power from time to time to employ, dismiss, and re-employ each assistants, clerks, servants, and workmen as they or he shall think fit in and about and for all or any of "my businesses", or for any purpose of or incidental to the continuance or the winding up or discontinuance thereof respectively and to allow and pay to such assistants, clerks, servants, and workmen such fees, salaries, wages, or other remuneration, as my trustees or trustee shall think fit.
- Fourthly, the primary trust hereinbefore declared of and concerning "the general trust fund", and the income thereof, shall extend to disbursements, losses, and expenses in respect of my businesses and accordingly, my acting trustees or trustee shall have full power from time to time to apply "the general trust fund" and the income thereof, or any parts or part thereof respectively for any purpose of or incidental to the continuance or the winding up, or the discontinue of "my trustees" or any of them, and moreover and particularly if any trustees or trustee or any of them shall by any ????, mistake, or error of judgment, or other act of omission , or commission, not being intentional, fund fail in the proper performance of their or his duties, with reference to my businesses, or any of them, they or he shall be indemnified and saved harmless by and out of "the general trust fund" or the income thereof any rate of law or equity to the contrary notwithstanding.
- Fifthly, my trustees or trustee shall from time to time decide and determine what proportion of the gross receipts or earnings of my business, or any of them, are to be deemed net profits and only time to time adjust as between capital and income or profits the funds, moneys, or other properties, for the time being engaged or employed in my business, or any of them, or realized thereby, or set apart, or appropriated for any of the purposes thereof respectively, and every such decision and determination adjustment by them or him shall be final and conclusive and bind all persons being and becoming interested under this my Will.
- Sixthly, such only of the gross receipts or earnings of my businesses, or any of them, as my trustees or trustee shall from time to time decide and determine as aforesaid to be net profits shall from time to time be carried to the account and go and become part of the income of "the general trust fund" and be dealt with and disposed of under this my Will accordingly, but the time or respective times of so dealing with such net profits shall rest in the discretion of my acting trustees or trustee, who may if they or he so deem expedient, retain and accumulate for any period or periods, the said net profits, or any of them and utilize the same, or the accumulations thereof, or any of them respectively, for any of the purposes of this my Will, to which the income of the said trust fund is or may be applicable.
- Seventhly, so far as circumstances will permit, my said son George Clark, shall, if able and willing in that behalf, have the general oversight, control, and management of such of my businesses as shall for the time being be continued as aforesaid, and subject to such oversight, control, and management. My sons William John Clark and James Henry Havelock Clark, or the survivor of them, if able and willing in that behalf, shall be the managers or manager of the business at the Southwick Engine Works, while it is continued as aforesaid, and subject as aforesaid. My said son John Lockie Clark shall be the manager of my Shipping Business, while it is continued as aforesaid, and each of my said four sons shall receive and be paid out of the income of the general trust or failing the same, out of the capital thereof, such salary or remuneration in respect of his duties under the present clause as my acting trustees or trustee shall from time to time fix and determine, and as regards such duties, each of my four sons shall be deemed to be the agent of my trustees or trustee and be bound accordingly by their or his orders, or directions.
- And Eighthly, my trustees or trustee shall not under any of the provisions of this my Will, other than the present clause, sell my business of Engine Builder at Southwick aforesaid, including all property used in connection therewith, and also the goodwill thereof, until they or he shall, in writing, have offered the same respectively for sale to all of my sons, who may at the time of my death, be engaged in my said business of Engine Builder jointly, or failing their joint purchase thereof to as many of them as may be willing to purchase the same jointly, or failing any such joint purchase thereof, then to them successively according to their respective seniorities, and in each case a valuation to be made by two valuers, to be respectively appointed in writing, the one by my trustees, or trustee, (other than and except the intending purchasers or purchaser), and the other by such intending purchasers or purchaser, or if such two valuers fail to agree then at a valuation to be made by a third valuer, to be appointed in writing by such two valuers, as their umpire before they enter upon their valuation nor until after the Sons or son to whom such offer as aforesaid shall be made, shall have failed for fourteen days or upwards to accept the same offer by writing under their or his hands or hand addressed and delivered to my acting trustees or trustee, other than and except the signatories or signatory of such acceptance, but no other purchaser or intending purchaser under this my Will, shall in any wise affected by any breach of or noncompliance with this present clause or direction and should any doubt, difficulty, or question whatever arise as to the meaning or effect or mode of complying with the same clause then and in every such case, every such doubt, difficulty, or question shall be decided by my trustees or trustee, other than and accept those, or that one of my sons who may have become, or may propose to become, such purchasers or purchaser, as aforesaid, and my trustees or trustee other than and accept as last aforesaid, shall in each case, also decide what part or parts of my assets or property, shall be included in any such sales or sale as aforesaid to my said sons, or any of them, of my businesses, or any of them.
I hereby expressly declare that for the purpose of any such inclusion, any buildings, lands or other hereditaments belonging to me at my decease, for any estate or interest, and then used or occupied for the purpose of such business, may be deemed to be part or parcel thereof, and in case any of my said sons shall become as aforesaid the purchasers or purchaser of my businesses, or any of them, I authorize my trustees or trustee other than or except as aforesaid to give such time for the payment of the purchase money for the same respectively not exceeding four years, and to accept such real or other security for the payment of all or any part of such purchase money and interest therefore at the rate of five pounds percent per annum,
and with respect to the "general trust fund"
, and the income thereof, it is my Will that (subject and without prejudice to the several trusts and other provisions hereinbefore declared and contained) the same shall be held upon and for the several trusts and purposes, and with and subject to the several powers provisos following (that is to say) UPON TRUST
that my trustees or trustee do and shall at such time or times as they shall find it practicable, or deem it expedient, so to do, raise, or appropriate, out of the general trust fund
, a sum of Thirty Thousand pounds
sterling, and until such appropriation do and shall as far as the income of the general trust fund
not herein otherwise disposed of shall year by year suffice for such purpose, but not further, or otherwise raise or appropriate, also year by year, out of such income, interest up to, but not exceeding four pounds percent per annum, for or in respect of the said sum of Thirty Thousand pounds or so much thereof as shall not have been raised or appropriated as aforesaid and do or shall pay or apply the interest so raised or appropriated to the respective persons, or for the purpose to whom, or which respectively the same would for the time being be payable or applicable under the trusts and provisions hereinafter contained, in case the same had been interest or income of or derived from the said sum of Thirty Thousand pounds
, or the investments for the time being thereof
after such raising and appropriation as aforesaid of the same sum and subject as aforesaid, do and shall hold the General Trust Fund
and the income thereof IN TRUST
for my six sons, the said George Clark
, the said William John Clark
, the said John Lockie Clark
, the said James Henry Havelock Clark, Peter Lockie Clark, and Frederick Septimus Clark
, in equal shares, as tenants in common.
But as to the share of my son Peter Lockie
, I direct that my trustees shall stand possessed thereof upon trust to invest the same respectively in or upon some or one of the modes of investment hereinbefore mentioned with the like power of varying investments as is herein before declared with reference to my residuary trust estate, and to pay the annual income, interests and dividends arising therefrom to my said son Peter Lockie
for and during the term of his natural life or until he shall attempt to change, alien, encumber, or otherwise dispose of the said income or some part thereof, and from and immediately after his decease, or his attempting to charge, alien, encumber, or otherwise dispose of the said income, or some part thereof as aforesaid (whichever shall first happen), my said trustees or trustee shall stand possessed of the share of my said son Peter Lockie
UPON TRUST for the child or children of my said son as shall respectively attain the age of twenty one years, if more than one, in equal shares, as tenants in common, as if only one, then the whole to be in trust for such one child.
And in case my said son Peter Lockie
shall die without leaving any child or children who shall live to attain the age of twenty one years, then his share shall fall into my residuary estate and be divisible among my other sons and daughters in equal shares, AS TENANTS IN COMMON.
Provided always that not withstanding the foregoing trusts, my trustees or trustee may at any time or times, if they shall in their uncontrolled discretion think fit , so to so, transfer, or pay the whole or any part of the capital of the share of my said son Peter Lockie Clark
, or the trust fund representing the same unto the said Peter Lockie Clark
, for his absolute use, or otherwise apply the same for his benefit.
Provided also that my said son John Lockie Clark
shall not be entitled to any part, share or interest of or in the "general trust fund"
, without bringing into hotchpot
therewith the sum of ten thousand, five hundred pounds
, in which he is now indebted to me, or so much thereof as shall be unpaid on the day of my decease
I hereinafter refer to all moneys, which shall be raised or appropriated as aforesaid on account, or in respect of the principal or capital of the said sum of Thirty Thousand pounds
, and all investments wherein or whereupon such moneys or any of them shall after each raising and appropriation thereof respectively be laid out as "the thirty thousand pounds fund", and I hereinafter refer to the interest, dividends, or other receiving product of "the thirty thousand pounds fund" as "the income" thereof, and I declare that all interest which shall be raised or appropriated as aforesaid in respect of the said sum of Thirty thousand pounds, or so much thereof as shall not have been raised or appropriated as aforesaid shall for the purpose of the trusts and provisions hereinafter contained be deemed to be "income of the thirty thousand pounds fund", and it is my Will that "the thirty thousand pounds fund" and the income thereof shall be held as follows, that is to say:
- First, as to one equal third part of the thirty thousand pounds fund (which third part I hereinafter refer to as "my daughter Ann's portion") UPON TRUST that my trustees or trustee do and shall during the life of my daughter Ann, pay the income of "my daughter Ann's portion" into the hands for her separate use, but so as that during any her covertures for the time being she shall not deprive herself by anticipation of the benefit of such income or any part thereof, and subject as aforesaid and after her decease, do and shall hold "my daughter Ann's portion" and the income thereof upon and for such trusts and purposes being for the benefit for the next mentioned several objects or persons or any one or more of them exclusively of the others or any other of them that is to say,
The children or more remote issue of my said daughter Ann Lockie, except her daughter Jane Clark, as she my daughter Ann Lockie shall by any deed or deeds, revocably or irrevocably, or by her Will or any codicil thereto, appoint but so always as that by virtue of any such appointment and in default of and subject to every such appointment as aforesaid by my said daughter Ann Lockie, IN TRUST for such of her children except for said daughter Jane Clark, who shall being of the male sex attain the age of twenty one years, or die under that age leaving lawful issue, or being of the female sex attain the age of twenty one years or marry as tenants in common, and if but one such child, IN TRUST for that one child, and if there shall be no such child, then, subject as aforesaid, In TRUST for all my children who shall be living at the time of the failure or determination of all the trusts hereinbefore declared, of or concerning "my daughter Ann's portion", and the income thereof in equal shares as tenants in common, and if but one of my children be then living, then IN TRUST for that one or only child.
Provided always and I declare that it shall be lawful for my trustees or trustee, at any time or times, after the decease of my daughter Ann Lockie, or at any time or times previously with the consent in writing to apply either personally or vicariously all or any part of the income (including accumulations thereof or accretions thereto) or any part or parts not exceeding one equal third part of the capital of the expectant presumptive or vested share or interest for the time being under the trusts aforesaid of each or any child of my daughter Ann Lockie of or in "my daughter Ann's portion" for or towards the maintenance, education, advancement or preferment in the world of the same child or otherwise for his or her benefit in any manner deemed expedient by my trustees or trustee,
- and Secondly, as to one other equal third part of "the Thirty Thousand pounds fund" (which third part I hereinafter refer to as "my daughter Catherine's portion") UPON and with the same or like trusts and powers as those hereinbefore declared of or concerning "my daughter Ann's portion", but with the substitution in and throughout those trusts and powers of the name of my daughter Catherine Jane for or in lieu of the name of my said daughter Ann Lockie, and the words "my daughter Catherine's portion" for or in lieu of "my daughter Ann's portion",
- and Thirdly, as to the other or remaining one equal third part of "the Thirty Thousand pounds fund" (which third part I hereinafter refer to as "my daughter Dorothy's portion", UPON and with the same or the like trusts and powers as those hereinbefore declared of or concerning "my daughter Ann's portion", but with the substitution in and throughout those trusts and powers of the name of my daughter Dorothy for or in lieu of the name of my said daughter Ann Lockie, and the words "my daughter Dorothy's portion" for or in lieu of the words "my daughter Ann's portion".
Provided always and I declare that such share or greater interest as under any of the trusts hereinbefore expressly and referentially declared, any of my said three daughters or her executors or her administrators, would but for this proviso become absolutely entitled of, or in "the Thirty Thousand pounds fund", shall not belong to her or them absolutely, but on the contrary shall be held, in the case of my said daughter Ann Lockie
upon and with the same or the like trusts and powers as those hereinbefore declared of and concerning "my daughter Ann's portion", and in the case of my daughter Catherine Jane
, upon and with the same or the like trusts and powers as those hereinbefore referentially declared of and concerning "my daughter Catherine's portion"
, and in the case of my said daughter Dorothy
, upon and with the same or the like trusts and powers as those hereinbefore referentially declared of or concerning "my daughter Dorothy's portion"
Provided always, and I do hereby expressly declare that the interest created by this my Will in the said sum of Thirty Thousand pounds, in favor of my said daughter Ann Lockie
, is made upon the express condition
that she shall not at any time hereafter return with cohabitation with her late husband Cuthbert Vaux
, and upon violation of this condition
, such interest and the power of appointment thereover hereinbefore given to her, shall immediately cease, and determine, and I direct that my said trustees or trustee shall stand possessed of the same, and the income thereof for all the children of my said daughter in the like manner and proportions as is hereinbefore expressed concerning the same in case of default of appointment by my said daughter
I authorize my trustees or trustee to invest from time to time in their or his names, all principal or capital moneys coming to their or his hands in the capacity of such trustees or trustee, for any of the several purposes of this my Will, and not required to be forthwith paid away or parted with by them or him, and also all income needing investment for safe custody accumulation or any other purpose in or upon any of the several investments or securities following, that is to say, the parliamentary stocks or public funds of Great Britain not being determinable annuities, the stocks of the governor and company of the Bank of England East India, stock of any class or description, mortgages, bonds, or debentures, or debenture, stock granted, issued, or created, any commissioners, trustees, or other authority, for general municipal, or local purposes, in pursuance, or alleged pursuance of powers created by Act of the Parliament of the United Kingdom, or by Act of the Legislature of any British Colony, or possession, or guaranteed stock of, or share fully paid up in any company or companies officially incorporated by any such act of Parliament, or Act of Legislature, mortgages, Bonds, or Debentures, or Debenture, stock granted, or issued by any such company or companies in pursuance, or alleged pursuance of the statutory powers thereof and mortgages or charges whether legal and equitable, or equitable only of or upon hereditaments of any inure in England and Wales or Ireland, but if of the inure of leasehold for years held for not less than Sixty years unexpired, and I authorize my trustees or trustee, from time to time to vary and transpose all or any of the investments or securities to be acquired by them or him at their or his discretion.
I declare that if any of the aforesaid several trust premises shall be intermixed when or after there shall be any severance of the equitable title thereto respectively, it shall be lawful for my trustees or trustee to partition such intermixed premises and allot or appropriate specific or other parts thereof to such respective titles, or any of them at such estimates of value in such proportion and in such manner generally as they or he shall consider just and expedient.
I expressly declare that in priority to all or any of the trusts and powers hereby declared and created, my trustees or trustee may repay themselves, or himself, out of my residuary property, and the general trust fund
, and the income thereof, or any part or parts of the same respectively, not only all their or his disbursements and expenses, but also all loss and damage which they or he may incur or sustain otherwise, when by reason or in consequence of intentional fraud, and that they or he shall not under any circumstances be responsible for any delay, neglect, or omission not being intentional fraud, in performing any of their or his duties as such trustees or trustee, or for any fraud of title to or any deficiency of the title to or value of any such investments or securities as aforesaid,
and I DECLARE that my trustees or trustee may postpone the sale and conversion of my real and personal estate, or any part thereof, for as long as they shall think proper, and that, not withstanding that the property, the sale or conversion whereof shall be so postponed, may be of leasehold tenure, or may be otherwise of a perishable or wearing out nature, and if any part of my estate shall be of a reversionary nature, the same shall not be sold, or converted into money, until it falls into possession, unless my trustees or trustee shall think it probable that a loss will arise to my estate by postponing the sale and conversion thereof,
and I DECLARE that the rents, profits, and income to accrue from and after my decease, of and from such part of my real and personal estate, as shall for the time being remain unsold and unconverted, shall after payment thereout of all incidental expenses and outgoings be paid and applied to the person or persons, and in the manner to whom and in which the income of the moneys produced by such sale and conversion, would for the time being be payable or applicable under this my Will, if such sale and conversion had been actually made.
I DECLARE that every legacy or interest taken or acquired under this my Will, by any person of the female sex shall be for her separate and (except where hereinbefore otherwise provided) absolute use.
In witness whereof, I have to this and the eleven preceding sheets of paper set my hand this nineteenth day of February, one thousand eight hundred and eighty three.
Signed by the said testator George Clark, as and for his last Will and Testament, in the presence of us, who in his presence, at his request, and in the presence of each other, have hereunto subscribed our names as witnesses:
Proved at Durham on the 31st day of March 1885, by the oaths of George Clark of No 1 Thornhill Terrace Sunderland Engine builder, William John Clark of No 7 Park Terrace Sunderland Engine builder, John Lockie Clark of Southampton Lodge Oakleigh Park in the Parish of Whetstone in the County of Middlesex Shipowner, and James Henry Havelock Clark of Oak Lea Engine builder, the sons of the said deceased, the Executors named in the said will, to whom administration was granted.
Thomas Steel, Solicitor, Sunderland|
Herbert S. P. Maitland, his clerk
The Testator, George Clark was late of Oak Lea in the Borough of Sunderland, in the County of Durham, Engine Builder and Shipowner, and died on 15th January 1885 at Oak Lea aforesaid
Gross Effects £252,846 17 2