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Will of Michael Dwyer
I Michael Dwyer of the City and County of Halifax Merchant do make and publish this my last Will and Testament.
First: I revoke and make void all wills and testamentary writings heretofore made by me.
Second: I nominate and appoint my faithful chief Clerk A. E. Lawlor, The Eastern Trust Company and Hector McInnes of the City of Halifax Solicitor my executors and trustees hereunder and hereinafter called my executors and I appoint the said persons and said Corporation guardians of the estate of my infant children.
Third: My executors shall as soon as possible after my decease pay all my just debts.
Fourth: I give and bequeath the following legacies:
Fifth: The proceeds of the Life Insurance policies in the New York Mutual Life association made payable to my four daughters Mary, Kathleen, Laura and Aileen will be considered as their absolute property and are not to be taken into consideration in any division of my estate. My executors shall get in the remaining policy of twenty thousand dollars issued by said Company and invest the same in good and safe securities and pay the income arising therefrom to my wife during her life and at her death the said sum shall form part of my estate.
Sixth: I give and devise my lands and premises at St. John’s Newfoundland to my said executors who shall permit my brother John Dwyer to use and occupy the same during his life subject to the same conditions as are expressed in the Lease under which he now holds said premises and at his death my said executors shall permit my sisters Margaret Dwyer and Bridget Dwyer and the survivor of them to use and occupy said lands without charge during the term of their natural lives and the life of the survivor of them and on the death of the survivor of the said John Dwyer Margaret Dwyer and Bridget Dwyer my executors shall sell said farm and the proceeds thereof shall form part of my estate.
Seven: I give and bequeath my household furniture silverware, piano, pictures books and china and things of like nature to my dear wife Mary H. Dwyer together with my horses, carriages, sleighs, cows, stable furniture and the contents of my green houses and conservatories.
Seventh: I am desirous that the old established business carried on by me under the name of John Tobin & Company shall be continued after my death with a view of the same being eventually owned by my sons and to attain that object if possible I authorize my executors in their discretion to continue my said business until my youngest son attains twenty one years of age or until the death of my wife whichever event shall last happen but of my estate not more than One hundred and twenty thousand dollars shall be employed in said business as its capital though due prudence may be exercised by my executors in withdrawing the capital employed in said business until it is reduced to said amount while said business is being carried on hereunder my executors shall retain as the share of the profits coming to my estate three per cent on the capital employed in said business and the balance of the profits after paying all expenses of management and allowances in the nature of salary to such of my sons as may be engaged in carrying on said business shall be divided equally among my said sons. On my youngest son attaining twenty one years of age or on the death of my wife whichever event shall last happen my executors may transfer said business to my said sons (or such of them as may be willing to accept the same and my executors deem it advisable to transfer said business to the several sons willing to accept) at a valuation and a pro rata amount of the valuation of said business which any of my sons shall thus obtain by said transfer shall be deducted from his share of the capital of my estate hereinafter directed to be invested for my children after the death of my wife. My said executors shall continue to divide the profits among my said sons paying each one an equal share thereof until any of my sons so conducts himself as in the judgment of my executors is calculated to prejudice the successful carrying on of said business or is likely to make him an undesirable partner in a future copartnership or so conducts himself that he is a source of annoyance to his family my executors may after giving said son three months notice of their intention so to do at the termination of said period discontinue the payment to such son of any share of the profits of said business and my executors have a discretion to deprive such son of said profits for any term of years and if his conduct shall at any time justify it the executors may again pay him said profits. And the exercise of the said discretionary power at any time shall not be deemed to exhaust the right of my executors to exercise it in the case of any of my sons as they may deem advisable. In the case of the payment of the income or profits being discontinued as hereinbefore provided said profits shall form part of my estate. The privilege given to my said sons to take over said business shall not be enjoyed by their children or their personal representatives in case any of my said sons die before said business is transferred and should any of my said sons die or refuse to join his brothers in taking a transfer of said business from my executors or in case any of my said sons is deemed unworthy by my said executors to have a part of said business transferred to him my executors may nevertheless convey said business to such of my sons as may be willing to accept the same or to such of my sons as they may think it advisable to transfer said business but my executors shall not allow any son a credit of more than twenty thousand dollars on his share of my estate in effecting said intended transfer. Notwithstanding the power herein given to carry on said business my executors may in their uncontrolled discretion if they consider it in the interest of my estate wind up said business at any time and its proceeds shall then form part of my estate. My executors while carrying on said business with a view to its transfer to my sons shall make no deduction from the profits for rental for the stores wharves wharehouses or office furniture so long as the business is conducted in my premises but shall deduct from said profits premiums of insurance, repairs taxes rates and all outgoings and charges of like nature to maintain in thorough repair and preserve said business premises. My executors however may sell the whole or any part of the premises stores or wharves belonging to me at any time even if they are carrying on the business therein.
Ninth: Whilst not intending to fetter my executors in carrying on my said business with any directions that appear to cut down the absolute discretion vested in them I recommend them to retain the services of R. F. Merlin and Joseph L. Heatherington and in the event of these trusted employees of mine or either of them remaining on the staff for at least three years after my death at the same salary they may be receiving at my death the advances charged against them or either of them on my books shall not be collected by my estate and the mortgages upon their respective houses shall be paid out of my estate and releases of said mortgages obtained for and delivered to each of them, should my business be wound up before said period of three years the advances charged against them as aforesaid shall be released to them by my executors.
Tenth: All the rest and residue of my estate my executors shall convert into money and pay all the income arising therefrom including the profits from the business if carried on as hereinbefore provided to my dear wife Mary H. Dwyer semi annually, during her life and while she remains unmarried and my widow the first payment to be made within three months after my decease and future payments each successive period of three months thereafter and upon her death or marriage again the principal fund shall be divided into as many equal shares as there are children of mine living at her death and children of mine who may have married and died before their mother leaving a child or children then surviving my intention being that a child or children of any child of mine who may have died before my wife shall take the share its or their parent would have taken if living and my trustees shall invest and keep invested each respective share of said principal fund and in the case of my daughters and the child or children of any deceased child pay the income semi annually to said daughters and the child or children of such deceased child and on the death of any of my said daughters shall pay said equal share from which her income was derived to such person or persons as such daughter may by her last will appoint and in default of such appointment to such persons as would be my next of kin if such child had died immediately before my death and in the case of any child dying before my wife leaving a child or children shall pay the share of the principal fund its or their parent would have been entitled to if living to and amongst such child or children in equal shares on their attaining the age of twenty one years. And in the case of my sons my executors shall pay the income from the shares of the principal estate set aside for such of them to each son until any of my said sons shall become bankrupt or assign charge or encumber the same or any part thereof or do or suffer something whereby the same or some part thereof would by operation of law or otherwise if belonging absolutely to him become vested in or payable to some other person or persons and after the failure or determination of the trust for said son in his life time shall during the remainder of the life of such son pay or apply so much of the said income as my executors in their absolute and uncontrolled discretion shall think proper to and for the benefit of my said son and his issue if any for the time being in existence and shall during the remainder of the life of my said son accumulate all the residue not applied under the aforesaid discretionary trust in the way of compound interest by investing the same and the resulting income thereof with power to resort to the accumulated fund and the income thereof at any time for the benefit of the aforesaid objects of the said discretionary trust or some or one of them in such manner as my trustees shall think fit And I declare that after the death of any of my said sons my executors shall hold the said share so set aside for such son and the investments representing the same (including so much of the accumulated fund as shall not have been resorted to as aforesaid) and the income thereof respectively In Trust to pay the same to such person or persons as any son whose interest has not failed or terminated in the said share of the principal fund may by his last will and testament appoint and in default of appointment to his issue and in default of issue to such person or persons as would by my next of kin if my said son had died immediately before me and In Trust in the case of the amounts or shares set aside for any son whose shares or interest in my estate may have failed or terminated to pay said shares and the accumulation thereof to the child or children of such son and in case he dies childless then to such person or persons as would by my next of kin provided such son died immediately before me.
Eleventh: Notwithstanding the direction to my executors to sell and convert all my estate and I hereby declare that I give devise and bequeath it to them for that purpose) my executors shall not sell any part of my property on Spring Garden Road during the life time of my wife and while she remains unmarried without her consent and my executors shall permit her to live there as a home for herself and my family free of rent during her life.
Twelfth: My executors may in their discretion retain any of the securities or investments which form part of my estate at my death as investments for my estate and shall not be liable as for a breach of trust in case of any depreciation therein.
Dated the fourteenth day of March A.D. 1900.
Signed published and declared by the said testator as and for his last will and testament in the presence of us who in his presence and that of each other have signed our names as witnesses at his request the words ‘to each son” being interlined in page 6 and the word “estate” in page 7 before signature.
Hector McInnes 35 Bedford Row Halifax Solicitor
W. Harry Waddell
(Listed in the margin next to this will the following)
Page Contributed by Judy Benson & Ivy F. Benoit
Page Revised by Ivy F. Benoit (Wednesday February 20, 2013)
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