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Of Glebe, more perfectly and absolutely granting and conveying in exchange the said fields, hereditaments, and premises hereinbefore expressed to be granted and conveyed in exchange by him the said D. E., unto and to the use of the said A. B. and his successors, as by the said A. B. or bis successors, or his or their counsel in the law,* shall be reasonably devised, or advised and required]. In Witness &c. (o).

(o) As to the attestations and other formalities prescribed by the statute, see supra, p. 301, and the act 55 Geo. 3, c. 147, particularly sections 1, 10, and 19. See, too, the Precedent of an exchange of charity lands, supra, Precedent XX., pp. 273 and 285.

After an exchange under this act, the incumbent is by the third section protected from eviction. This section gives all parties the same rights against the lands given by the incumbent in exchange, as they would have had against the lands taken by him in exchange if the exchange had not been effected. This is different from the case of an exchange of charity land, (see supra, Precedent XX., p. 273), and is certainly more convenient to the incumbent, though not fair towards the persons whose estate has been given in exchange by persons who, it may be, had no title at all to the estate. In the case of a charity, the commission examines and reports as to title, (see supra, p. 295), but not in the case of an exchange under this act.

As to the attestation and formalities.

The parson protected from eviction.

307

SETTLEMENTS.

law with regard to Settlements will be discussed ante, Vol. 1, Art. Settlements.

In framing settlements of personal estate, the draftsman must first in- Settlements of troduce such recitals as are necessary to shew what the property is, which personal estate, is intended to be settled; he must next state the motive of the settlement, as marriage, the desire of making provision for the settlor's family, and the like; and then set forth the agreement or intention as to the nature and terms of the settlement. The recitals must then proceed to shew that all those branches of the agreement or intention, the execution of which should precede that of the settlement, have been executed, as that stock has been transferred, or monies due on securities assigned to the trustees, or policies of assurance effected in their names. The witnessing parts, in the first place, vest in or secure to the trustees such property as has not been previously vested in or secured to them, (as by assigning any monies or securities not previously assigned to them, or by containing covenants for payment of monies to them), and then proceed to the declaration of the trusts. The first trust gives the trustees the requisite powers for the investment and laying out of the trust funds, and for varying the securities from time to time as may be desirable; and the subsequent trusts follow according to the order in which they are intended to take effect. Provisoes modifying trusts for the most part immediately follow the trusts to which they relate, but sometimes it is more convenient to place them after all the principal trusts, in order not to break the continuity of the principal declaration. This is a matter of tact, and of decision in each particular case. Covenants as to collateral acts, such as covenants relating to keeping on foot policies of assurance, and covenants as to the settlement of after-acquired property, and declarations of trust of any funds, the trusts of which it is convenient to declare by reference to the previous trusts, are usually placed towards the end of the settlement; and the last place is appropriated to those clauses (called trustee clauses) which specially relate to the powers, duties, and indemnities of trustees,

vOL. Iv. Y

and the appointment of new trustees. Thus, in an ordinary marriage settlement, (of which the first precedent is an example), the life interests of the husband and wife, and the interests of the children after the death of their parents, are declared in the first place, and are followed by provisoes and clauses modifying the interests of the children,*and providing out of the trust funds for their advancement, maintenance, and education, and regulating the disposal of any surplus income. Then come the trusts which are to take effect if there shall be no children of the marriage who shall become entitled to the funds under the preceding trusts; and the settlement is concluded by the clauses empowering the trustees to give effectual receipts, providing for the appointment, when needful, of new trustees; and for the indemnity of the trustees against involuntary losses, and for the payment of their expenses. Of course, the foregoing outline, although seldom departed from, is often greatly modified by the necessity of introducing the numerous provisoes, covenants, and stipulations which the fancies of the parties, or the peculiar nature of the property, may require. The following precedents supply many examples. Settlements of It is, for the most part, much easier to frame settlements of real than of real estate. personal estate, unless the subject of the settlement has been very much perplexed by previous dealings with it. The recitals, of course, shew the interest of the settlor, and the condition of the property, and the motive of the settlement, and the agreement as to its terms, as in settlements of personal estate. Any acts or instruments too, the performance or execution of which should precede the execution of the settlement, must be duly noticed. But commonly, the recital of the agreement is general, viz. that the estate should be conveyed to the uses, &c, afterwards limited, and nothing requires to have been done to prepare the way for the settlement. The witnessing part or parts then consist merely of appointments or conveyances, followed by a declaration of the uses and trusts. The shorter trusts, as those to preserve contingent remainders, are expressed at the same time the estate is limited; the longer, as those of terms of years, are declared separately, after the limitation of the uses is completed. Then follow the powers enabling the creation of new interests in the estate, such as powers of jointuring and raising portions, then the powers of leasing and management, and then the powers of sale and exchange. The clauses relating to the trustees conclude the settlement, as in a settlement of personalty.

The very great length to which settlements of real estate generally extend, has precluded the insertion of a numerous selection of them in these volumes. But this is of less consequence, on account of the usual uniformity of their limitations and powers; and it is hoped that examples of most of the ordinary forms will be found in the following Precedents.

[graphic]

SETTLEMENT on Marriage of a Sum O/stock, or Stock, For with the usual Power for Varying Securi- B^d'.ynd Ties. 'Hie Dividends during the Joint Lives Children,

, WITH USUAL

of Husband and Wife to be paid to the Wife for Clauses.
her Separate Use, with a Restriction on
Anticipation; after the Death of One of
them, to the Survivor for Life; after the Death
of the Survivor, the Stock and Dividends to
be for the Children as the Husband and
Wife or the Survivor shall Appoint, and in
Default of Appointment for Sons attaining
Twenty-one, and Daughters attaining that
Age or Marrying, equally. Hotchpot, Ad-
Vancement, Maintenance, and Accumula-
Tion Clauses. In Default of Children, the
Fund is given to the Wife or her Next O/"kin,
so as to Exclude the Husband. Trustees're-
Ceipt Clause. Power to appoint New Trus-
Tees. Clauses for the Indemnity of the
Trustees and the Payment of their Expenses.

THIS INDENTURE, made &c. Between A. B., of&c, Parties.
[intendedhusband], of the first part; C. D., of &c, [intended
wife], of the second part; and E. F., of &c, and G. H.,of &c,
[trustees], of the third part: Whereas the said C. D. is en- Recital of the

titled to a sum of £ , —l. (a) per cent, {b) Bank 0neien"g ^esLd

Annuities, lately standing in her name in the books of the °tf aksum oi Governor and Company of the Bank of England: And _0ftheagreeWhereas a marriage hath been agreed upon, and is in- mem for the

marriage;

(a) The rate of interest of the stock, as 3/., 3/. 10*., &c.

(6) The denomination (if any) of the stock, as Consolidated, Reduced, &c.

Of Stock, For tended to be shortly had and solemnized, between the said

Band, And A. B. and C. D. (c): And Whereas, upon the treaty for

Children, tnc intended marriage, it was agreed that the said sum of

WITH USUAL °' °

Clauses. £ , —l. per cent. Bank Annuities, should be trans

—of the agree- ferred into the names of the said E. F. and G. H.; and that mentto transfer the said E.F. and G. H., their executors, administrators, and

the stock to

trustees on the assigns, should stand and be possessed of and interested in dared by'the same, and ^e dividends and annual produce thereof,

present deed; upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations hereinafter declared, expressed, and contained —of the transfer of and concerning the same respectively: And Whereas, in made.8 ^ pursuance of the said agreement, the said C. D. hath, with the privity and consent of the said A. B., (testified by his being a party to and executing these presents (<?)), trans

In what place (c) It is the practice of many draftsmen to commence marriage settle

the agreement me„ts w[th this recital, so that it precedes the recitals stating the property for the marriage ... . . , , ,

should be recit- '° De setued. But this is not in accordance with the general rule ob

ed. served in other instruments, that the statement of the property to be dealt

with should always form the commencement of the draft, as being the first in order of date. Thus, in the present case, the wife was possessed of the stock before the marriage was agreed upon.

Invalidity of (d) To all settlements made before marriage of any of the wife.s prodispositions perty, the husband is made a party, and usually his assent is expressly wife of her pro- noticed, as in lhe text- The reason of this is, that a disposition made by perty after a the wife, either in favour of strangers or of herself, after an agreement for

marriage has marriage has been entered into, without the privity of her husband, is been agreed on, ..., , ., , /. > , . , .

unless the hus- 'lable to be set aside, at the suit ot the husband, as a traud on his legal

band be privy right to the wife's property. Most of the cases on this head are cases of S* disposi- actual fraud on the part of the wife; but in the modern case of Goddard v. Snow, 1 Russ. 484, a woman, ten months before her marriage, settled a sum of money so as to exclude any husband she might take from all right to it. This settlement was made after the commencement of an intimacy, which led to her marriage, and probably, though not certainly, after a marriage had been agreed upon; the husband did not know, till after his wife.s death, either of the existence of the money settled, or of the settlement; and it was held, on a bill filed by him, that the settlement was void, and that the money belonged to him. The authority, however, of Goddard v. Snow can hardly be relied on ; for it appears to be at variance with Lord Eldon.s decision in De Manneville v. Crompton, 1 Ves. & B. 354, and with the case of Thomas v. Williams, 1 Mosely, 177; see, too, 1 Myl. & K. 622. The most recent case on the subject is St. George v. Wake,

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