« ForrigeFortsett »
hereof hereinafter declared, apply all the improved yearly rents and profits of the said leasehold premises, when and as often as the same shall amount to a competent sum, or the mortgagee or mortgagees can be prevailed upon to accept the same, in, for, or towards payment and satisfaction of the money which shall be raised by mortgage as aforesaid, and the interest thereof; and subject and without prejudice to the trusts aforesaid, shall and do stand possessed of, and interested in, all and singular the said leasehold premises, and such renewed leases as aforesaid ; upon and for the trusts, intents, and purposes, and under and subject to the powers, provisoes, declarations, and agreements hereinafter expressed, declared, and contained of and concerning the same.
OBSERVATIONS ON MARRIAGE-SETTLEMENTS.
Though the subject of marriage-settlements was altogether passed over in the first edition of this work, either from having escaped the attention of the author, or from having been thought by him too extensive to be admitted into it, the editor cannot but feel that the work would be imperfect if the subject were entirely omitted ; and under this impression, therefore, he has introduced a simple form applicable to the ordinary cases, where money in the funds, or other personal estate, or the produce to arise from the sale of real estates, are the subject of the settlement, and also two forms relating to the settlement of small real or leasehold estates, one subjecting them to the same trusts as a contemporaneous settlement of personalty by means of trusts for sale, and the other where, though the property is not of sufficient value to justify its being tied up by the limitations of a strict settlement, it is nevertheless wished to preserve it in the family of the proprietor.
Where the property to be settled consists of landed property of small value, which the parties have no desire to retain, in case it should become con.
venient to convert it into money, it is generally considered advisable to convey it by a separate deed to the trustees of the settlement, upon trust for the proprietor till marriage, and afterwards upon trusts for sale with his consent, or at the request of any other parties to whom it may be wished to give the power of delaying the sale, and to stand possessed of the money to arise by such sale, upon the trusts declared by the settlement.
Such a conveyance should not disclose what those trusts are, but should contain such full powers for the trustees to receive and give discharges for the purchase-money, as would quite exonerate the purchaser from inquiring into them. The conveyance should also contain a power of appointing new trustees, a power to lease, and (in the case of renewable leaseholds or copyholds) a trust for renewal and payment of rents.
The advantage of this course on a sale of the property must be obvious, for the deed can be given up to the purchaser, and the property conveyed to him, without the concurrence of the parties interested under the trusts of the settlement; and no covenant for its production will be required, which would be the case if the property were conveyed to the trustees by the settlement itself.
If the property to be settled is at the time subject to any entail, the propriety of barring such entail by a distinct conveyance from the settlement is still more obvious, for the expense of enrolling a long deed of settlement must be very considerable. It may, indeed, be laid down as a general rule, that the real and personal estates should be settled by distinct assurances ; and though, by so doing, some small extra expense may be occasioned at the time, it will ultimately be found to be the best course, even on economical grounds alone.
Where the gentleman is actually or likely to be- Provisions come engaged in any profession or business which against bank may subject him to the operation of the bankrupt ruptoy.
laws, it is sometimes desirable to frame the trusts and limitations of the settlement with a view to preserve some provision for his wife and family, in the event of his becoming bankrupt. This may be partially effected by giving the first life estate in all the property to the wife for her separate use,* which will preserve the property for the benefit of the family during her life. As an objection is, however, (and as it appears to the editor justly,) felt against that course, the income of the property is sometimes limited to the husband, till his bankruptcy, insolvency, or voluntary alienation of it, and then to his wife, for her separate use, for the remainder of her life; but as such a limitation would be invalid as to any property that was originally his own,' the most effectual mode of gaining the proposed end appears to be, to give the first life interest in the gentleman's property to the wife, for her separate use, and limit her property to the husband till his bank. ruptcy, insolvency, or voluntary alienation. Such a limitation of the wife's property would be supported.
On referring to the cases cited in support of these positions, it will be observed, that such limitations as are here recommended are construed with great strictness. Thus, if the limitation over is made to depend upon any attempt to alien, incumber, or charge by the party himself, an alienation by act of
* If not given to her separate use, the gentleman would be entitled to dispose of it for the term of their joint lives ; and to that extent it would consequently vest in bis assignees, in the case of bankruptcy or insolvency; but whether the husband's power extends beyond his own life, so as to affect his wife's interest as survivor, appears to be yet unsettled. Stiffe v. Everitt, 1 M. and Cr. 37.
Higinbotham v. Holme, 19 Ves. 88. ? Brandon v. Robinson, 18 Ves. 429; Ex parte Hodgson, 19 Ves. 206; and see Id. 92, Wilkinson v. Wilkinson, 3 Swanst. 515 ; Lear v. Legget, 2 Sim. 479; 1 Russ. and M.
law, as on bankruptcy, is not considered within the terms of the provision," and a restraint upon alienation upon a gift to a man for life, without any gift over on such event, is entirely inoperative.b
Where it is wished to give a woman any interest, Restraint on for her separate use, it must be remembered that alienation. the ordinary limitation for that purpose not only deprives her husband of all power over it, but puts her in the situation of a feme soled as to such property, and consequently enables her to make any disposition of it she pleases. If, therefore, it is desired to provide against the exercise of that moral influence which a husband generally has over his wife, and under which she may be induced to part with her separate property, her power over it should be taken away by an express provision, ordinarily termed a restraint upon anticipation, which, united with the limitation to her separate use, will effectually secure to her the enjoyment of that provision which was intended for her.f
Great care should be taken, in framing a settle- Period of ment, to express clearly the events upon which the vesting. interests of the children are to become vested. The ordinary and best course is to declare, that all the sons of the marriage who attain twenty-one, and all the daughters who attain that age, or previously marry, (with consent of parents, if so wished,) shall take vested interests, and that without reference to their surviving their parents.
If the period of vesting is postponed to the age of twenty-five, or any other period later than twentyone, such a limitation, in any antenuptial settlement
See also Whitfield v. Prickett, 2 Keen, 608. o Woodmeston v. Walker, 2 Russ. and M, 204.
For a form of a trust of this sort, see ante, p. 55. d Sturges v. Corp, 18 Ves. 190.
Brandon v. Robinson, 18 Ves. 434. 'Woodmeston v. Walker, 2 Russ. and M. 205 ; see Tullett v. Armstrong, 1 Beav. 1, and L. J. N. S. 41 Ch., in which the points as to separate estate are fully considered.
as to all the children, and in a postnuptial settlement as to those not born at its execution, would be void ;5 for the vesting of any real or personal estate under such circumstances cannot be postponed to a period or event which may possibly not happen till after twenty-one years from the death of the parentsthe greatest time allowed by law for postponing the vesting of any estate being a life or lives in being, and twenty-one years, and a period for gestation afterwards.
A marriage-settlement should always be executed before the marriage actually takes place ; for if it were executed afterwards, it would be considered as voluntary, unless made in pursuance of a written antenuptial agreement, in which case, so far as its provisions are in conformity with the terms of the agreement, it would have the same validity as if made before marriage.
Where government or other stock, or shares in any company, are the subject of a settlement, care should be taken to vest it in the trustees, in the mode required for the transfer of such particular kind of property. Thus, an actual transfer in the books of the Bank of England as to any government stock, or in the books of any company, as to any shares in, or property under, the control of such company, should always be obtained previous to the marriage; and where money is settled, the trustees should require either that it be paid to them, or invested in their names, and should obtain possession of the securities; but if reversionary or other property, which does not, at the time, admit of being legally vested in the trustees, be settled, all the precautions of which the case may admit should be taken for preventing the party to whom the property belonged from continuing to deal with it afterwards as his own. Thus, if trust-property, or a
& Lord Southampton v. M. of Hertford, 2 Ves. and B. 54 ; Leake v. Robinson, 2 Mer. 362; and see p. 388.