ERS. the settled lands; of the awarded lands being tithe free; -of will settling other lands, with a power of exchange; UNDER POW- allotted, and awarded in exchange respectively, to the said A. B., as aforesaid, in respect of parts of the hereditaments spect of part of comprised in the hereinbefore recited indentures of lease and release [the settlement]: AND WHEREAS, under the provisions of the said Inclosure Act, the said allotments, made by the award as aforesaid, are freed and discharged from all tithes whatsoever: AND WHEREAS, &c. [recites will of N. M., devising estates to trustees upon certain trusts, until L. M. (then L. R.) should attain twenty-four, then to him for ninety-nine years, if he should so long live -remainder to the trustees to preserve contingent uses, -remainder to the first and other sons of L. M. in tailwith similar remainders over to other persons for terms of ninety-nine years, determinable with their lives, and to trustees for their lives, and to their first and other sons in tail [b]: AND the said testator did thereby declare his will to be, that it should be lawful for the said E. F., P. Q., [the trustee since retired, and to whose place G. H. has been appointed], and I. K., and the survivors or survivor of them, and the heirs of such survivor, at any time or times, with the consent of such of the said devisees for ninety-nine years, as should for the time being be in possession of or entitled to his said estates thereby devised, such consent to be testified by any writing or writings sealed and delivered by the consenting party, in the presence of, and to be attested by, two or more credible witnesses, to convey in exchange for and in lieu of other manors &c. [power of exchange recited at full length]: AND WHEREAS the said N. M. died on the day of without having revoked or altered his said will: AND WHEREAS the said L. M., (then L. R.), shortly after the death of the said N. M., obtained his Majesty's license to take, use, and bear the surname and arms of M., in compliance with a direction in that behalf contained in the said will, and hath since used and borne the said surname and arms of M.: AND WHEREAS the said L. M. attained his age of twenty-four years on the day of, [recital of the appointment, under a power in the will, of G. H. to be a trustee in the room of P. Q., the -of death of testator; -of the devisee, tenant for life, having taken the name and arms of the testator; -and having ment of a new will; (b) See the references, supra, n. (a). UNDER POW ERS. ment for the exchange. retiring trustee, and of the conveyances of the devised estates to E. F., G.H., and I. K., to the uses &c. of the will]: AND WHEREAS it has been agreed between the said A. B., of the agree party hereto, at the request, and by and with the consent and approbation of the said C. D. (signified by this writing under his hand and seal) of the one part, and the said E. F., G. H., and I. K., with the consent and approbation of the said L. M., (testified by this writing under his hand, and sealed and delivered by him in the presence of, and attested by, the two credible persons whose names are intended to be hereupon indorsed as witnesses to the execution of these presents by him the said L. M.), of the other part, that an exchange shall be made in manner hereinafter mentioned, under the respective powers of exchange hereinbefore recited, of the said messuage or tenement, farm, lands, tithes, and other hereditaments of freehold tenure comprised in the hereinbefore recited indentures of the and Revocation of the uses of the days of, [the settlement], and of the said pieces or parcels of land allotted and given in exchange respectively to the said A. B., by the hereinbefore in part recited award, for the said messuage, farm, lands, and other hereditaments, called or known by the name of Farm, hereinafter more particularly mentioned, and the tithes thereof, being part of the hereditaments devised by the said N. M. to the uses and in manner hereinbefore mentioned: NOW THIS INDENTURE WITNESSETH, that, in Witnesseth. pursuance of the said agreement on the part of the said A. B., party hereto, and in consideration of the conveyance settlement. in exchange intended to be hereinafter made by the said E. F., G. H., and I. K., and pursuant to, and by force and virtue, and in exercise and execution of the power or authority to the said A. B., party hereto, by the said indenture of the day of, [the settlement], for this purpose given, as hereinbefore is mentioned, and of every or any other power or authority in anywise enabling him in this behalf, he the said A. B., with the consent and approbation of the said C. D., signified as hereinbefore is mentioned, doth by this present deed or instrument in writing, sealed and delivered by him in the presence of, and attested by, the two credible persons whose names are ERS. UNDER POW- intended to be hereupon indorsed as witnesses attesting the sealing and delivery of these presents by him the said A. B., revoke, determine, and make void, all and every the uses, trusts, powers, and provisions, in and by the said indenture of the day of, [the settlement], limited, expressed, and declared of and concerning the messuage or tenement, farm, lands, tithes, and other hereditaments hereinafter appointed by him the said A. B., party hereto, or expressed and intended so to be: AND (c) [THIS INDENTURE ALSO WITNESSETH, that, in further pursuance of the said agreement on the part of the said the lands in the A. B., party hereto, and in consideration of the conveyance in exchange intended to be hereinafter made by the said E. F., G. H., and I. K., and pursuant to, and by force and virtue, and in exercise and execution of the power or authority to the said A. B., by the said indenture of the Witnesseth further, appointment of settlement to will. day of day of, [the settlement], and all the said several pieces or parcels of land by the said award respectively set out and allotted, and awarded in exchange respectively to Except certain the said A. B., as hereinbefore is mentioned, (save and except specified lands; out of this present appointment, all such and so many, and such part and parts of the said hereditaments and premises particularly mentioned and comprised in the said indenture Revocation and appointment may be by one witnessing part. (c) The revocation and appointment need not be by separate witnessing parts, unless they are to be exercised with different formalities. (See supra, p. 262, n. (b)). If they be by the same witnessing part, the reference will be to the "powers or authorities," and the words in brackets will be omitted. of the day of ERS. [the settlement], as, under and by UNDER POWvirtue of the said Inclosure Act, have been allotted or awarded or given in exchange to any person or persons other than the said A. B., and also save and except all those several closes, pieces, or parcels of land, commonly called or known by the several and respective names of tithes. and also, save and except all the tithes, tenths, and and the profits, and parts, pur-parts, and portions of tithes, tenths, and profits yearly coming, growing, renewing, happening, or increasing in, upon, or out of the said several excepted lands and hereditaments), all which said messuage, tenement, or farm, lands, and other hereditaments herein before appointed and released, or expressed and intended so to be, are particularly mentioned according to their modern names and descriptions in the first schedule to these presents, [general words] (d), shall henceforth go, remain, and be to and upon such and so many of the uses and trusts, and to and for such and so many of the intents and purposes, and under and subject to such and so many of the powers, provisoes, and declarations by the hereinbefore recited will of the said N. M., limited, expressed, and declared of and concerning the said estates and hereditaments thereby devised, as are now subsisting undetermined, or capable of taking effect, IN EXCHANGE for the messuage, farm, In exchange. lands, tithes, and other hereditaments hereinafter conveyed in exchange by the said E. F., G. H., and I. K., or expressed and intended so to be (e): AND THE SAID A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said E. F., G. H., and I. K., and (d) The "all the estate" clause is omitted. (See ante, Vol. 3, p. 232, n. (n)). Covenant by the donee of he has done no the power, that (e) This clause, "In Exchange" &c., is probably added to comply As to the adwith the terms of the power intended to be exercised; i. e. a power dition of the words" In Exof exchange. Of course it is clear that the transaction is not a change." proper exchange, and many of the incidents of a proper exchange could not be annexed to it; but perhaps the expression of the intention may cause such of the incidents of an exchange as are practicable to attach to the transaction, at least in equity. As to the disadvantages of some of these incidents, see supra, p. 260, and p. 263, n. (d). their heirs (ƒ), that he the said A. B., party hereto, hath day of (f) These covenants will not run with the land. (See ante, Vol. 3, p. 232, n. (o); Vol. 1, Art. COVENANTS). |