WIFE, HUS BAND, AND CHILDREN, WITH USUAL CLAUSES. OF STOCK, FOR under her hand, from time to time direct or appoint, and in default of and until such direction or appointment, and so far as no such direction or appointment shall extend, into the proper hands of] the said C. D., for her sole and separate use, independently and exclusively of the said A. B., and of his debts, control, interference, and engagements, but so, nevertheless, that the said C. D. shall not have power to deprive herself of the benefit thereof by any [direction, appointment, or other] disposition thereof, by sale, mortgage, charge, or otherwise, in the way of anticipation; And the receipts of the said C. D. [and her appointees] to be good and effectual discharges for the said --and after the dividends, interest, and annual proceeds (g); AND, from Trusts for the separate use of married women. Impropriety of the power preceding the proper trust for the separate use. Necessity of expressing clearly the trust for the separate use; women, (g) The law with regard to trusts for the separate use of married will be treated of ante, Vol. 1, Art. SETTLEMENTS; but it may be expedient to notice in this place one or two points of practical importance to the draftsman. The first is, that, although the usual form gives the wife, in the first instance, an express power of appointment, prior to the declaration of the proper trust for the separate use, yet this is supererogatory; for the power of disposition is a necessary incident to the simple trust for the separate use, inasmuch as the effect of such a trust is to place the wife, with regard to the settled fund, in the situation of a feme sole. (Fettiplace v. Gorges, 1 Ves. jun. 46; S. C. 3 Bro. C. C. 8; Barrymore v. Ellis, 8 Sim. 1). And the trust for the separate use of a married woman not only gives her the power of absolute disposition over the fund, by a formal charge or assignment, but renders it liable to her general engagements. (Murray v. Barlee, 3 Myl. & K. 209; and the cases cited in the arguments and judgment). The form in the text has been retained, as being nearest to the old established one; but it was framed when the nature of a trust for separate use was not fully understood, and has been generally abandoned since the decision in Barrymore v. Ellis, (8 Sim. 1), (see infra, p. 11), which necessitated either an abandonment of the power or an alteration in the form. The new form is given infra, in Precedent VIII.; but the omission of the words in the text placed within the brackets will accomplish the desired object. The trust for a separate use must be clearly expressed, as it will not be inferred or implied from vague or ambiguous expressions. (Stanton v. Hall, 2 Russ. & My. 175; Tyler v. Lake, Id. 183; Massey v. Parker, 2 Myl. & K. 174; Kensington v. Dollond, Id. 184). The best form, perhaps, is that in the text, expressly excluding the husband's right; but the expressions "separate use" or "sole use alone, or other similar expressions, will create a trust WIFE, HUSBAND, AND CHILDREN, WITH USUAL CLAUSES. death of either husband or income to the wife, to pay the survivor for life; Declaration of trust, of the AND AFTER the death of such one of them the said A. B. OF STOCK, FOR and C. D. as shall first die, do and shall pay the dividends, interest, and annual proceeds of the said trustmonies, stocks, funds, or securities to, or permit the same to be received by, the survivor of them during his or her life: AND IT IS HEREBY FURTHER agreed and declared between and by the parties to these presents, that, from and after the death of the survivor of them the said A. B. and C. D., the said E. F. and G. H., their executors, administrators, and assigns, shall stand possessed of and interested in the said trust-monies, stocks, funds, and securities, and the interest, dividends, and annual proceeds thereof, IN the death of TRUST, for all and every or such one or more exclusively of and wife; the others or other of the children of the said intended mar--for the children of the marriage, with such provision for their respective maintenance riage, as the and education or advancement, at such age, day, or time, or respective ages, days, or times, if more than one, in such parts, shares, and proportions, and with such annual sums trust-monies, income, after securities, and both husband husband and point; wife shall ap and the restraint on anticipation; for a separate use. (Adamson v. Armitage, 19 Ves. 416; S. C., G. Coop. 283; Ex parte Ray, 1 Madd. 199; Wills v. Sayer, 4 Madd. 409). This question seldom arises on marriage settlements, as the husband's right is generally clearly negatived in such instruments, but it frequently occurs in the construction of wills. In a recent case on a will, the words "inpendent of any other person" were held to create a separate use. (Margetts v. Barringer, 7 Sim. 482). The trust in marriage settlements should never extend to any other than the immediately contemplated coverture, so that it may cease beyond dispute on the death of the husband. (See Barton v. Briscoe, Jac. 603; Jones v. Salter, 2 Russ. & My. 208). It is not necessary here to notice the recent cases on the efficacy of the restraint on the power of anticipation, as the validity of that restraint in settlements made in actual contemplation of a particular marriage was never disputed. It is only necessary to caution the draftsman to employ proper words in imposing the restraint, as nothing but a clear and express direction will be efficient. (Acton v. White, 1 S. & S. 429). If, —and of maktoo, the power of appointment be allowed to remain, care must be taken ing the rethat the restriction on anticipation extends not only to a disposition under cipation suffithe power, but also to a disposition made by virtue of the separate estate ciently comprein default of appointment; for where the clause imposing the restraint hensive. immediately followed the power, (as is the case in many forms), it was held that the power of alienation incident to the separate use was in nowise affected. (Barrymore v. Ellis, 8 Sim. 1). straint on anti WIFE, HUSBAND, AND CHILDREN, WITH USUAL CLAUSES. children, or some or one of them, and upon OF STOCK, FOR Of money and limitations over for the benefit of the said such conditions, with such restrictions, and in such manner as the said A. B. and C. D. shall, by any deed or deeds, writing or writings, with or without power of revocation and new appointment, to be by them both sealed and delivered in the presence of and attested by two or more credible witnesses (h), -and in default jointly direct or appoint; AND IN DEFAULT of such diof a joint appointment, as rection or appointment, and so far as no such direction. the survivor of or appointment shall extend, then as the survivor of them the said A. B. and C. D. shall by any deed or deeds, writing or writings, with or without power of revocation and new appointment, to be by him or her sealed and delivered in the presence of and attested by two or more credible witnesses, or by his or her last will or testament, or any codicil or codicils thereto, or any writing in the nature of, or purporting to be, a will or codicil, direct or appoint (i); AND IN DEFAULT of any such direction or appointment, and so far as no such direction or appointment shall extend, IN TRUST for all and every the children and child of the said intended marriage, who, being a the husband and wife shall appoint; —and in default of any appoint ment, for the sons attaining twenty-one, and the daugh Usual trusts for children. The objects and (h) These formalities, though not essential, are, perhaps, desirable, to prevent hasty and informal executions of the powers. No formalities should now be annexed to the execution by will or codicil. (See the act, 1 Vict. c. 26, s. 10). (i) The usual trusts for children, in marriage settlements of personalty, are those in the text, viz. for such children and in such manner as the husband and wife shall jointly by deed appoint; and subject to any such appointment, as the survivor shall by deed or will appoint; and subject to any appointment under either power, in equal shares for all the children, who, being sons, shall attain twenty-one, or, being daughters, shall attain that age or marry under it. Sometimes it is required that the daughters' marriages shall be with the consent of their guardians. The trust in default of appointment should never be for all the children to vest or be payable at twenty-one or marriage, with a clause of survivorship and accruer as to the shares of children dying under twenty-one and unmarried, except in the case when it is intended to exclude an eldest or only son, or an eldest daughter, for the time being, from taking a share in the trust funds; (see infra, Precedent X.); for the form in the text is much shorter and clearer than the other. With respect to what objects are within a power to appoint to children, OF STOCK, FOR CLAUSES. ters attaining that age or marrying, equally. Hotchpot clause. son or sons, shall attain the age of twenty-one years, or, being a daughter or daughters, shall attain that age, or marry, to be divided between or amongst such children, if more than one, in equal shares, and if there shall be but one such child, the whole to be in trust for that one child: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that no child or children taking any part of the said trust-monies, stocks, funds, and securities under or by virtue of any direction or appointment to be made by the said A. B. and C. D., or the survivor of them, in pursuance of the powers herein before contained, or either of them, shall have or be entitled to any further or other share of or in that part of the said trust-monies, stocks, funds, and securities, of which no such direction or appointment shall have been made as aforesaid, without bringing his, her, or their appointed share or shares into hotchpot, and accounting for the same accordingly (k): PROVIDED ALWAYS, and it is hereby agreed and declared Advancement between and by the parties to these presents, that it shall be lawful for the said E. F. and G. H., and the survivor of and the extent of the power generally, see 2 Sugd. Pow. ch. xv., ss. 1 & 2; and ante, Vol. 1, Art. SETTLEMENTS. The following recent cases do not appear in Sugden :—A power to appoint to children does not authorize an appointment to grandchildren; but an alternate gift to other children in default of grandchildren is valid. (Hewitt v. Lord Dacre, 2 Keen, 622). And the same case confirms the right to appoint to the husband of an object of the power. (See, too, Thornton v. Bright, 2 Myl. & C.230). An appointment to the separate use of a daughter for life, and after her decease as she shall appoint, and, in default, to her executors and administrators, is valid, and will vest the fund in an appointee under the daughter's will. (Bray v. Bree, 2 Clark & Fin. 453). An appointment to the trustees of a daughter's marriage settlement, which had expressly disposed of any interest the daughter might take under such appointment, is good. (Limbard v. Grote, 1 Myl. & K. 1). The judgment in Thornton v. Bright, 2 Sugd. Pow. 652, has been reversed on appeal, (1 Myl. & C. 230), thereby establishing, that an appointment of real estate to trustees, upon trust, for the separate use of a daughter during the joint lives of herself and her husband, is valid. clause. extent of a power to appoint to child ren. (k) An object of a power to whom a share is appointed, is not exHotchpot cluded from taking another share of the unappointed funds. (2 Sugd. clause. Pow. 238, and the cases there cited, note (n)). Hence, it is usual to in WIFE, HUS BAND, AND CHILDREN, WITH USUAL CLAUSES. OF STOCK, FOR them, and the executors and administrators of such survivor, at any time or times after the decease of the survivor of the said A. B. and C. D., or in the lifetime of them, or of the survivor of them, in case they, he, or she shall so direct, by any writing or writings under their, his, or her hands or hand, to levy and raise any part or parts of the then expectant or presumptive, or vested share or shares of any child or children of the said intended marriage, under the trusts hereinbefore declared, not exceeding in the whole for any such child one moiety or equal half part or share of his, her, or their expectant or presumptive, or vested share, and to pay and apply the same for his, her, or their preferment, advancement, or benefit, in such manner as the said E. F. and G. H., or the survivor of them, or the executors or administrators of such survivor, shall in their or his discretion think fit: AND IT IS HEREBY FURTHER agreed and declared between and by the parties to these presents, that the said E. F. and G. H., and the survivor of them, and the executors and administrators of such survivor, Maintenance clause. Power of advancement. sert in settlements the clause in the text, (called the hotchpot clause), expressly providing that no child to whom a share is appointed shall take any share of the unappointed part, until each of the other children shall have received a share equal to that appointed to him or her. (1) The power of advancement is usually confined to sons, on the supposition that daughters cannot need money to advance them in any business or occupation. This, however, is by no means true, in reference to the daughters of the poorer or middling classes, and, therefore, the clause in the text embraces daughters as well as sons. Neither should the power be, as it sometimes is, confined to expectant shares; for, after shares have become vested, subject only to be partially divested by other children attaining a vested interest, i. e. have become presumptive, it is impossible, under common settlements, to apply any part of such shares until the death of one of the parents determines the trust for the separate use and the restraint on anticipation. And if there be no clause for the separate use, the husband and wife cannot, it seems, effectually dispose of her interest, if she takes a life estate; because such part of that life estate as may possibly be enjoyed by her after the husband's death, is a contingent reversionary interest in personal estate, and consequently inalienable during coverture, according to the well-known rule established in Purdew v. Jackson. (Stiffe v. Everitt, 1 Myl. & C. 37). The word "vested" is perhaps unnecessary, as no child can get any other than a pre |