 W0234 LAST WILL AND TESTAMENT AND DEED OF TRUST Oct 13 1873 see original date and signatures To: [Whitehern, Hamilton, Ontario] From: Jones & McQuesten1 Law Office (Copy) 1878 4th Oct. [Copy 1 of 3]2 Know all men by these present that whereas by a certain Indenture of Declaration of Trust3 hereunto annexed made between Calvin McQuesten of the City of Hamilton in the County of Wentworth in the province of Ontario Esquire of the first part William Proudfoot of the same place Esquire Isaac Baldwin McQuesten of the same place Esquire and Calvin Brooks McQuesten of the City of New York in the State of New York one of the United States of America Physician of the second part and bearing date the thirteenth day of October in the year of our Lord one thousand eight hundred and seventy three it was amongst other things declared in words following that is to say "that if the said grantees or any of them or any trustee or trustees appointed as hereinafter provided shall die or desire to be discharged or refuse or become incapable to act then and upon every such vacancy it shall be lawful for the said party of the first part during his lifetime and for the surviving and continuing trustees or trustee for the time being after his death (and for this purpose every refusing or retiring trustee shall if willing to act in the Execution of this power be considered a continuing trustee) or for the acting executors or executor administrators or administrator of the last surviving or continuing trustee to appoint a new trustee or new trustees in the place of the trustee or trustees so dying or desiring to be discharged or refusing or becoming incapable to act as aforesaid and upon every or any such appointment the number of trustees may be augmented or reduced and upon every such appointment the trust property shall if and so far as the nature of the property or other circumstances shall require or admit be transferred transferred [sic] so that the same may be vested in the trustees or trustee for the time being and every trustee so appointed as aforesaid may as well before as after such transfer of the trust property act or assist in the execution of the trusts and powers above declared as fully and effectually as if he had been constituted a trustee by this instrument or had been a grantee under the said indenture [ ] and whereas the said William Proudfoot having been lately appointed one of the Vice Chancellors of the Court of Chancery for the province of Ontario is desirous of being discharged from his trusteeship in the trust premises above referred to (in witness whereof he has hereunto affixed his hand and seal) Now know all men by these present[s] that I the said Calvin McQuesten do not see fit to nominate and appoint a new trustee or new trustees in the place of the said William Proudfoot (who is hereby released from his trusteeship) to act along with the said Calvin Brooks McQuesten and Isaac Baldwin McQuesten the remaining trustees and I declare that the trusts hitherto reposed in the said William Proudfoot Calvin Brooks McQuesten and Isaac Baldwin McQuesten shall be henceforward carried out by the said Calvin Brooks McQuesten and Isaac Baldwin McQuesten In witness whereof I have hereunto set my hand and seal this second day of October AD 1874
Wentworth [sic] Esquire make oath and say 1 That I was personally present and did see the within Instrument duly signed sealed and executed by Calvin McQuesten and William Proudfoot parties thereto at the City of Hamilton aforesaid 2 That I know the said parties 3 That I am a subscribing witness to such Instruments
A [c . . . ?] for taking aff in [BR Rc?] in and for the County of Wentworth This Indenture made the thirteenth day of October in the year of our Lord one thousand eight hundred and seventy three Between Calvin McQuesten of the City of Hamilton in the County of Wentworth in the Province of Ontario Esquire of the first William Proudfoot of the same place Esquire Isaac Baldwin McQuesten of the same place Esquire and Calvin Brooks McQuesten of the City of New York in the state of New York one of the United States of America Physician of the second part whereas the said party of the first part is subjected to constant importunity by his wife Elizabeth Fuller McQuesten to make such a disposition of his estate as will secure to her and some of her relatives and friends the larger portion of his estate and is frequently and at short intervals harassed on the subject by her and to induce him to do so she has for a considerable period systematically systematically [sic] endeavoured to depreciate his sons the said Calvin Brooks McQuesten and Isaac Baldwin McQuesten in his estimation and to lead him to believe them to be unworthy of his affection and regard and often recurs to the subject and holds out vague intimations of her acquaintance with disreputable conduct on their part and has threatened unless her wishes are complied with to publish such an account of these matters as will affix a lasting stigma on their character and reputation. And whereas the party of the first part has every confidence in the rectitude integrity and honour of his said sons and believes them to be in every respect worthy of the regard of honest men. And whereas on the second day of September one thousand eight hundred and seventy one the party of the first part made a will and codicil disposing of his estate in a manner which he considered just and reasonable in regard to his sons according to his knowledge of their different dispositions and made a provision for the said Elizabeth Fuller McQuesten which erred somewhat by being too liberal inasmuch as it contained a bequest of an interest in a certain Northey debt which was inserted by inadvertence and contained no direction to deduct from the amount bequeathed to her the amount of debts she might contract in the lifetime of the party of the first part and for which his estate might be liable. And whereas the party of the first part though now in the full possession of his faculties is getting aged & is apprehensive that if he should be subjected to a long illness influences might be brought to bear on him and a course of conduct pursued that might lead him for peace's sake to say or do anything that that [sic] might be required of him or if he retained sufficient resolution to resist such influences and conduct that papers might be produced purporting to be executed by him making a disposition of his estate other than what he considers right And whereas the said Calvin Brooks McQuesten resides in New York and the said Isaac Baldwin McQuesten having recently married has gone to reside in a house of his own and the party of the first part is thus left exposed to such influences as may be brought to bear upon him by the said Elizabeth Fuller McQuesten and whereas the said party of the first part induced by these considerations has determined to dispose of his estate by deeds operative in his lifetime and reserving to himself the power to modify or alter such dispositions with such restrictions as hereinafter mentioned to prevent him from being surprised into an inconsiderate or unintentional alternation and whereas as in pursuance of such determination the party of the first part hath by an indenture of even date herewith and made between himself of the first part and the parties hereto of the second part granted to the parties of the second part their heirs and assigns certain land in the City of Hamilton aforesaid lying between Maiden Lane and Hunter Street on the west side of MacNab Street at present occupied by the party of the first part as his residence And whereas in further pursuance of such determination by another indenture of even date herewith and made between the party hereto of the first part of the first part [sic] and the parties hereto of the second part of the second part the party of the first part hath granted to to [sic] the parties of the second part their executors administrators and assigns all the goods chattels monies securities for money and personal estate of every kind belonging to the party of the first part And whereas both of the said Indentures are made & executed upon the trusts and subject to the powers and limitations and conditions hereinafter expressed and declared of and concerning the same Now this Indenture witnesseth that the said conveyances have been made upon the trusts and subject to the powers limitations and conditions following that is to say First That the said grantees their heirs & assigns shall and do stand seized and possessed of the said real estate being lots Eighty one Eighty two One hundred and one and one hundred and two in Peter Hunter Hamiltons [sic] survey of the said City of Hamilton to the use of the said party of the first part and his assigns for the lifetime of the said party of the first part without impeachment of waste and from and after the decease of the party of the first part to the use of the said Isaac Baldwin McQuesten his heirs & assigns forever Second That the said grantees their executors administrators and assigns shall and do stand possessed of the said goods chattels moneys securities for money and personal estate and personal estate of every kind so granted to them upon trust to permit the party of the first part to use and enjoy so much thereof as consists of furniture horses carriages cattle and household goods and effects during his life and to pay the dividends interest & income of so much of the said personal estate as consists of stocks money mortgages and securities for money unto the said party of the first part and his assigns during his life Third And upon and after the decease of the party of the first part the said grantees shall deliver to the said Isaac Baldwin McQuesten for his own use all of such personal estate as consists of wearing apparel plate plated articles furniture linen glass china pictures prints musical instruments books and other articles of household use and ornament except such articles as Elizabeth Fuller McQuesten aforesaid and the said Calvin Brooks McQuesten may select to the value both together of not more than five hundred dollars but such articles so selected shall not include the two oil portraits of the party of the first part one of which is to be given to the said Isaac Baldwin McQuesten and the other to the said Calvin Brooks McQuesten and shall deliver the articles so selected to the said Calvin Brooks McQuesten and Elizabeth Fuller McQuesten respectively and except also the furniture of the bedroom which the said grantees shall deliver to the said Elizabeth Fuller McQuesten if she shall so desire it for her own use or if she shall not desire to take it they shall pay to her five hundred dollars out of the said personal estate in lieu thereof and in that case the furniture of the bedroom shall also be delivered to the said Isaac Baldwin McQuesten for his own use Fourth That the said grantees after the death of the parties of the first part shall as to all the personal estate not affected by the next proceeding declaration of trust call or sell and convert into money such parts thereof as shall not consist of money and out of the the [sic] proceeds thereof shall pay the funeral expenses and debts of the party of the first part and shall pay the following sums [?] 1 To Margaret N McQuesten a sister of the party of the first part an annuity of one hundred dollars during her life 2 To Eliza Varnum a sister of the party of the first part a like annuity of one hundred dollars during her life 3 To Edward Varnum a sum of one hundred dollars 4 To Hannah Varnum a sum of one hundred dollars 5 To Jonas P Varnum a sum of one hundred dollars 6 To the widow of Samuel F Sawyer a nephew of the party of the first part a sum of one hundred dollars 7 To John Knox McQuesten a sum of one hundred dollars 8 To Charles F G McQuesten to be paid to himself in person and not otherwise a sum of one hundred dollars 9 To Mrs Eliza Hobson a sum of fifty dollars 10 To the widow of David McQuesten a brother of the party of the first part a sum of fifty dollars and (11) to her son John a sum of one hundred dollars and (12) to her daughter Lucretia a sum of one hundred dollars and (13) to her daughter Jane a sum of one hundred dollars (14) To the servant of the party of the first part Peter Sinclair a sum of one hundred dollars 15 To Stephen Payson Sawyer a nephew of the party of the first part a sum of Two hundred dollars in trust for the sole and separate use of his sister independently of her husband for the time being and of his debts control and engagements this sum is to be applied by Stephen Payson Sawyer as he shall judge best for the advantage of his sister and he is to allow her interest for so much of it as may be from time to time in his hands 16. To the Reverend Robert Fuller the brother of the said Elizabeth Fuller McQuesten two hundred dollars dollars [sic] per annum for the term of twelve years after the decease of the party of the first part if he shall so long live and if he should not live so long and his present wife should survive him then to pay to her one hundred dollars per annum for the unexpired portion of the said twelve years 17 To Elizabeth Fuller McQuesten aforesaid one thousand and five hundred dollars within three calendar months after the death of the said party of the first part and 18 To the said Elizabeth Fuller McQuesten an annuity of one thousand and five hundred dollars during her life payable quarterly in advance the first payment thereof to be made three months after the decease of the party of the first part and the said grantees are to invest a sum of Thirty Thousand dollars in real securities mortgages government securities County debentures or Bank Stock and the interest after deducting expenses and changes concerning the said investment is to be appropriated by them to the payment of the last mentioned annuity for the second and following years thereof If the interest exceeds what is acquired to pay this annuity the excess shall be added to the principal and if at any time the clear income of the said Investment of Thirty thousand dollars shall be insufficient to answer the said annuity the accumulated fund which shall have been produced from previously accrued surplus income of that sum shall be from time to time resorted to for making good the deficiency and if that shall not suffice for that purpose subsequent accumulations may be resorted to and if absolutely necessary the principal of the sum so invested may be applied to the extent of five thousand dollars to make up up [sic] such deficiency If from losses or otherwise the said invested sum shall be reduced to [barely?] five thousand dollars and any further loss occur the income of the fund shall be applied towards payment of the said annuity and towards replacing the sum lost but so that not less than Seven hundred and fifty dollars shall be paid for the said annuity and so far as the said annuity shall not be raised out of the said investments by means before mentioned it shall [s ?] and the parties of the second part shall not raise it or make it good. Fifth and as to the remainder of my personal estate of which trusts have not been hereinbefore declared and including therein such of the previously mentioned sums as may not require to be paid from the [ces que?] trustent dying before the said party of the first part the said grantees shall after the decease of the party of the first part pay in half thereof to the said Isaac Baldwin McQuesten his executors administrators or assigns for his and their own benefit But the said invested sum of thirty thousand dollars and the accumulations shall not be divisible or payable until after the death of the said Elizabeth Fuller McQuesten Sixth and as to the other half of the said remainder of the personal estate of the said party of the first part the said grantees shall invest the same in their names or under the legal control of them or of the trustees or trustee for the time being in any of the public stocks or government securities of the Dominion of Canada or of the province of Ontario or of the United States of America or upon freehold or chattel real securities in Ontario or in or upon the stocks funds shares debentures debentures [sic] mortgages or securities of any corporation company or public body municipal commericial or otherwise in the Dominion of Canada (but not in any other mode of investment) and may from time to time vary or transpose such stocks funds shares and securities into or for others of any nature hereby authorized at his or their discretion and shall out of the interest dividends and income of the said half of the remainder of the said personal estate pay to the said Calvin Brooks McQuesten the sum of one thousand dollars per annum while he continues unmarried and if he shall marry then to pay to him two thirds of the net income thereof for the first ten years of his married life and three fourths of such net income for the second ten years of his married life and for the remainder of his married life the whole of such net income and should the said Calvin Brooks McQuesten become a widower without children then to pay to him such sum per annum as he would have been entitled to have he continued unmarried but if a widower with a child or children then to pay such sum as he would have been entitled to if married and after his death to pay one third of such net income to his widow for her life and to pay or apply the remaining two thirds of such net income to or for the benefit of any child or children the said Calvin Brooks McQuesten may leave during the life of his said widow and from and after her death the said parties or the trustee or trustees for the time being shall stand possessed of the said half of the said remainder of personal personal [sic] estate in trust for all the said Calvin Brooks McQuestens [sic] children or any his child who being sons or a son shall attain the age of Twenty one years or being daughters or a daughter shall attain that age or shall marry under that age and if more than one in equal shares and if the said Calvin Brooks McQuesten shall die without leaving a child or children who shall attain the respective ages mentioned then the said grantees or the trustee or trustees for the time being shall pay the said half of the remaining personal estate and all investments and accumulations thereof to the said Isaac Baldwin McQuesten his executors and administrators absolutely for his own benefit Seventh the said grantees or the trustees or trustee for the time being shall have power if the said Calvin Brooks McQuesten shall require it to invest in business to advance to him out of the net income of the said half of the remaining personal estate any sum not exceeding six thousand dollars and if such income and the accumulations thereof shall not suffice for that purpose then resort may be had so far as the said income shall not suffice to the principal or capital so invested Eighth The said grantees or the Trustees or Trustee for the time being shall invest so much of the income of the said half of the remaining personal estate as shall not be required for the payments before mentioned to the said Calvin Brooks McQuesten his widow or children and shall invest the resulting income in or upon any such stocks funds shares or securities as are before mentioned for the benefit of the person or persons who under the trusts herein herein [sic] declared shall become entitled to the principal funds Ninth And as to the whole of the personal estate which consists of money stock shares or securities for money the said grantees or the trustees or the trustee for the time being shall during the lifetime of the party of the first part have power to permit the same to remain in its natural state of investment or at any time or times with the consent of the said party of the first part to call in sell or invest the said and invest the revenues produced thereby in the names or name or under the legal control of the grantees or of the trustees or trustee for the time being in any of the public stocks or government securities of the Dominion of Canada or of the province of Ontario or of the United States of America or upon freehold of chattel real securities in Ontario or in or upon the stocks funds shares debentures mortgages or securities of any corporation company or public body municipal commercial or otherwise in the Dominion of Canada (but not in any other mode of investment) and may from time to time vary or transpose such stocks funds shares and securities into or for others of any nature hereby authorized at their or his discretion Tenth And it is hereby declared that the receipt of the said grantees or of the trustees or trustee for the time being shall for any money paid to them and for any stocks funds shares or securities transferred to them or him in the execution of the trusts or powers hereinbefore declared and given shall effectually discharge the person or persons paying or transferring the same therefrom and from being bound to see to the application or being answerable answerable [sic] for the loss or misapplication thereof Eleventh It is hereby also declared that the trusts hereinbefore declared in favor of Elizabeth Fuller McQuesten are to be in lieu of all dower to which she might be entitled out of the estate of the said party of the first part and shall only become operative upon her declaring her election to accept the same in satisfaction thereof and in case she shall not so elect then the sum appropriated for the trusts in her favor shall be divided in the manner above directed as to the the remainder of the personal estate of the party of the first part subject to the like trusts and powers herein declared concerning it And it is also further declared that if it shall be found after the death of the said party of the first part that the said Elizabeth Fuller McQuesten has incurred debts for which his estate shall be held liable that the amount of the same shall be deducted from the sums of which trusts are hereinbefore declared in her favor the said Elizabeth Fuller McQuesten having an ample allowance made to her for housekeeping and her own expenses and having agreed to incur no debts for which the said party of the first part shall be liable Twelfth And for enabling the grantees and trustees and trustee for the time being more effectually to perform the trusts hereinbefore declared the said party of the first part doth hereby appoint the said parties of the second part and the survivors and survivor of them & the executors and administrators of such survivor and their or his assigns the attorneys & attorney of him the said party of the first part in his name name [sic] as occasion may require to demand call in and receive the monies securities for money stocks funds and personal estate of every kind subject to the trusts of these presents from all persons liable or entrusted to pay or deliver the same respectively and to give effectual receipts and discharges for the same and to do and execute all acts and instruments which may be necessary or expedient for or in relation to any of these purposes Thirteenth and it is hereby declared that if the said grantees or any of them or any trustee or trustees appointed as hereinafter provided shall die or desire to be discharged or refuse or become incapable to act then and upon every such vacancy it shall be lawful for the said party of the first part during his lifetime and for the surviving and continuing trustees or trustee for the time being after his death (and for this purpose every refusing or retiring trustee shall if willing to act in the execution of this power be considered a continuing trustee) or for the acting executors or executor administrators or administrator of the last surviving or continuing trustee to appoint a new trustee or new trustees in the place of the trustee or trustees so dying or desiring to be discharged or refusing or becoming incapable to act as aforesaid and upon every or any such appointment the number of trustees may be augmented or reduced and upon every such appointment the trust property shall if & so far as the nature of the property or other circumstances shall require or admit the transferred so that the same may be vested in the trustees or trustee for the time being and every trustee so appointed as as [sic] a foresaid [sic] may as well before as after such transfer of the trust property act or assist in the execution of the trusts and powers above declared as fully and effectually as if he had been constituted a trustee by this instrument or had been a grantee under the said Indenture Fourteenth Provided always and it is hereby declared that it shall be lawful for the said party of the first part from time to time and at any time during his life by any deed or deeds writing or writings sealed & delivered in the presence of the said William Proudfoot Isaac Baldwin McQuesten and Calvin Brooks McQuesten or if any one or more of them shall not attend for the purpose of witnessing the execution and delivery of such deed or deeds writing writings [sic] at the earliest possible moment after a notice requesting their or his presence and mailed to them or his last known address or residence shall have been sent then in the presence of others or other of the said William Proudfoot Isaac Baldwin McQuesten & Calvin Brooks McQuesten (but without prejudice to any previous exercise of any of the powers hereinbefore declared) to vary or revoke all or any of the uses estates powers and trusts hereinbefore limited and declared of & concerning the said hereditaments and personal estate hereinbefore recited to have been granted and assigned to the said grantees or any of them or any part or parts thereof and by the same or any other deed or deeds to declare any [new?] or other uses estates trusts or powers of and concerning the said hereditaments and personal estate the uses or trusts whereof respectively respectively [sic] shall be as varied or revoked as aforesaid Fifteenth provided always and it is hereby declared that it shall be lawful for the said party of the first part from time to time and at any time during his life by any deed or deeds writing or writings sealed & delivered in the presence of any two credible witnesses not taking a benefit thereunder to appoint and direct payment of any sum or sums of money out of the said personal estate to an amount in the aggregate not exceeding the sum of Five thousand dollars in witness thereof the parties hereto have hereunto set their hands and seals the day and year first above written Signed Sealed and delivered in presence of the word "liberal" having been underlined between the 12th and 13th lines from the bottom of the first page and the words "of the party of the first part" having been [underlined?] at the commencement of clause numbered 14 on the 4th page and the words "which consists of money stock shares or securities for money" being underlined between the 6th & 7th lines from the bottom and the words "with the consent of the said party of the first part" between the [2nd] and [3rd] lines from the bottom of the 6th page before execution and the words "she having threatened to contract such debts unless her wishes were complied with" on the first page having been erased before execution S . . . I D Macdonald S . . . C. K. Chimay S . . . James Turner S . . . John S Mullin S . . . W D Booker [Page] 18
Secretary make oath & say 1 That I was personally present and did see the written Instrument duly signed sealed and executed by Calvin McQuesten one of the parties thereto at the City of Hamilton aforesaid 2 That I know the said Calvin McQuesten 3 That I am a subscribing witness to the said Instrument
I certify that the foregoing are correct copies of two certain Instruments duly entered and Registered in the Registry office for the County of Wentworth at Three o clock forty minutes [and Three o clock and forty one minutes (inserted above)] PM of the Tenth day of December AD 1877 in Book for General Register as Nos 611 and 612 and for City of Hamilton as No 17525 D.J. Jeffrey [?] Dep. Reg. Fees $5.70 Registry office Hamilton 4th Oct AD 1878 DJJ [outside page] Copy Calvin McQuesten To Wm Proudfoot Isaac B McQuesten Calvin B McQuesten Declaration of Trust Oct 13, 1873 $5.70 Jones & McQuesten 1 The law office of Jones and McQuesten: John Williamson Jones & Isaac Baldwin McQuesten. 2 This document dated October 4, 1878, is a copy of the original which is dated October 13, 1873. The document is handwritten and completely without punctuation. In the Calendar it is 8 pages long, no.'s 234 to 252. 3 See W-MCP5-6.351 for Elizabeth Fuller McQuesten and links about this document. |
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