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lease declared and contained; And It Was by the said in- Appointment denture of release declared, that the said term of —— Ter.s Portion, years was so limited to the said , and their executors, Ihcontempla
. . i . r T10N OF HEtt
administrators, and assigns, as aforesaid, Upon Trust that Marriage. &c, [recites at full length the trusts for securing the sum of
£ ,for the portions of the younger children of A. D.
and E. D., to be divided among them as A. D. should appoint]; And Whereas the said E. D. is dead; And —of the death
Whereas there are children, all now living, of the or.^wife.^nd'of
body of the said A. D. on the body of the said E. D. be- number of gotten (c), other than and besides the eldest Son and heir children of the apparent of the said A. D.; And Whereas C. D. is one of marnaBe; the said younger children, and a marriage has been agreed ed marriage; on, and is intended to be shortly had and solemnized between the said C. D. and A. B.; And Whereas, upon the —of the agreetreaty for the said intended marriage, it was (among other ^"ntment inP" things) agreed that the said A. D. should make such ap- favour of the pointment to or in favour of the said C. D. as is hereinaf- ln e" "eter contained (d). NOW THESE PRESENTS WIT- witne..eth, NESS, that, in pursuance of the said agreement, and pur- of his"TM" suant to and by force and virtue and in exercise and exe- ^wer|. l£e .fa" cution of the power or authority to him the said A. D. for tended wife ap
this purpose given by the said indenture of the day of P°m^f1"^6^*
, and of every or any other power or authority in any- ney raisuble wise enabling him in this behalf, he the said A. D, doth, tZS"* by this present deed or instrument in writing, by him sealed and delivered in the presence of and attested by the two credible persons whose names are intended to be hereupon indorsed, as witnesses attesting the sealing and delivery of these presents by him the said A. D., direct and appoint (e)
(c) The expressions of the recital should, of course, be those of the original trust.
(d) If an absolute appointment be desired, a recital of the appointor.s desire to exercise his power "for the purpose and in manner hereinafter mentioned " may be substituted for the recitals of the agreement for the marriage and the agreement to appoint.
(e) With respect to the manner of exercising a power, see ante, Vol. 3, p. 211. The case of Doe d. SpiUbury v. Burdett has since been reversed, 1 Per. & Dav. 670.
APPOINTMENT OF A DAUGHTER'S PORTION, IN CONTEMPLATION OF HER MARRIAGE.
Proviso vacating the appointment, if the marriage do not take effect in a given time.
that the sum of £ , part of the sum of £ , or other
the sum which is or shall be raisable under the trusts of
the said term of years, shall, immediately upon the
sealing and delivery of these presents, go and belong to and be vested in the said C. D., and that the same shall be paid to her the said C. D., her executors, administrators, or assigns, immediately after the death of the said A. D.: Provided Always, and the said A. D. doth hereby declare, that the said C. D. shall not have or be entitled to any further or other share of or in that part of the said
sum of £ , or of or in the sum which is or shall be
raisable under the trusts of the said term of years,
of which no direction or appointment shall have been made under the said power hereinbefore expressed to be exercised, without bringing her said appointed share of £ ■
into hotchpot, and accounting for the same accordingly (/): Provided Also, and it is hereby declared, and the said A. D. doth hereby appoint, that in case the said intended marriage between the said A. B. and C. D. shall not take effect before the expiration of six calendar months from the date of these presents, then and in such case, and from and immediately after the expiration of the said six calendar months, this present appointment and every thing herein contained shall be void(^). In Witness &c.
(f) A hotchpot clause is inserted, because the original settlement contained none. (See supra, p. 319, n. (k).
(g) If an absolute appointment be desired, this proviso will be omitted. III.
ASSIGNMENT to Trustees, in contemplation Assignment of Marriage, and upon Trusts to be declared Incontemplaby a Settlement of Even Date, of a Sum of TI0N 0F MAR
J * * "RlAgE,0F8UMS
Money secured by a Mortgage of Lease- Of
Fire, of another Sum secured by a Mortgage
THIS INDENTURE, made &c, Between A. B., of Parties.
(a) When part of the property to be settled is money owing to the Monies secured settlor on any real security, both the money and the security should on land should be assigned and transferred to the trustees by one or more deeds of jhVtrastee8 by even date with, but executed before, the settlement. The trustees should separate deed be empowered by the deed of assignment to give receipts for the money, or deeds of even and they should be directed to hold the money upon the trusts declared execute'dbefore by the settlement, which is referred to as being already prepared and the settlement, engrossed; see infra, p. 336. The object of the assignment by a separate deed is to enable the trustees to make out the title to the money, without producing the settlement, or being obliged to furnish copies of it, or covenant for its production. All the person paying the money need look to, is the power for the trustees to give effectual receipts for it; and, being satisfied of this, the trusts of the settlement are to him of no consequence. It has, however, been suggested, that a purchaser of property, in respect of any charge on which such a transaction has taken place, has a right to see the settlement, in order to satisfy himself that it discloses no other matter affecting the title beyond that which appears in the assignment; for if the settlement did contain any such matter, the purchaser, having notice of the settlement, would have constructive notice of the matters disclosed in it. And it has been proposed, in order to meet this ob
ASSIGNMENT TO TRUSTEES, 1NCON TEMPLATION OF MARRIAOE, OF SUMS OF MONEY OUTSTANDING ON SECURITIES.
Recitals of the instruments creating the interests to be assigned;
—of the agreement for the marriage;
—of the agreement to assign the mortgage monies;
tended wife], one of the daughters of A. D., of &c, of the second part; and E. F., of &c, and G. H., of &c, [trustees], of the third part: [Recitals of a lease for a term of years, see ante, Vol. 3, p. 333; of a mortgage of the lease and of a policy of insurance against fire; of the transfer of the mortgage to A. B.; of a mortgage of freeholds to A. B., see ante, Vol. 3, p. 250; of the creation of a life interest in certain funds, and of the mortgage of the same interest, and of certain policies of assurance on the life of the mortgagor to A. B.; of an appointment in contemplation of the marriage to C. D. of a sum of money raisable under the trusts of the term, see the appointment, supra, p. 330]: And Whereas a marriage hath been agreed upon, and is intended to be shortly had and solemnized, between the said A. B. and C. D.; And Whereas, on the treaty for the said intended marriage, it
jection, to declare in the deed of assignment, that the trustees shall hold the money on such trusts as the intended husband and wife shall jointly appoint, and that the power so given shall he exercised in the settlement: this plan certainly avoids all reference to the settlement, and appears reasonable; hut it has not been so adopted by the profession as to warrant its introduction in a printed collection of precedents. It must be remembered, too, that the validity of such a claim as that referred to on the part of a purchaser has been disputed; and that, at any rate, in practice, it is usual to take the assertion of the vendor's solicitor as sufficient evidence that the settlement does not contain anything affecting the title which does not appear in the assignment.
In the precedent in the text, several mortgage debts are assigned by one deed: this is the practice most convenient to the settlor, because, while it relieves him from the necessity of future disclosures of his settlement, it puts him to the expense of.only one deed besides the settlement. But if the convenience of the different mortgagors be considered, there should be assignments by separate deeds of the several debts; for, if there be but one assignment, only one of the mortgagors can have the custody of it, and the others must be contented with attested copies of it and covenants for its production.
The preceding observations apply to any charge on lands, and, therefore, of course to the case in the text, where one party is entitled to a sum of money charged on an estate under the trusts of a term. If this sum were to be assigned by the settlement itself, that instrument woidd thenceforth form one of the title deeds of the estate, and would have to be produced every time such title should be investigated. (See supra, p. 330, n. (a)).
was agreed that the said mortgage debts, or sums of £ , Assignment
£ , and £ , and all interest now due or to grow due In°contempla
for the same respectively, and the securities for the same TION op MAR
• i -L i i i • i i i i -i HIAOE, OF SUMS
respectively, should be assigned and conveyed to the said Of Money OutE. F. and G. H., their heirs, executors, administrators, and "A"D">° °"
. . SECURITIES.
assigns, in manner hereinafter mentioned, upon and for the
trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations hereinafter declared or referred to of and concerning the same respectively; And Whereas, upon the treaty for the said —and the mointended marriage, it was also agreed that the sum of £ , "0° Uie^ife"'^
so appointed to the said C. D. as aforesaid, should be assigned to the said E. F. and G. H., their executors, administrators, and assigns, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations hereinafter declared or referred to of and concerning the same. NOW THIS INDENTURE Witnesseth, asWITNESSETH, that, in pursuance of the said agreement ^"teesT '°the in this behalf, and in consideration of the said intended marriage, he the said A. B., with the privity and approbation of the said C. D., (testified by her being a party to and executing these presents (6)), hath assigned, and by these presents doth assign, unto the said E. F. and G. H., their executors, administrators, and assigns, The Said sum off , secured —ofthemort
by the said indenture of the day of , and the said fn^^es"
sum of £ , secured by the said indenture of the
day of , and the said sum of £ , secured by the
said indenture of the day of , and all interest now
due and henceforth to become due for the same sums respectively, and the benefit of all covenants entered into for payment of the same sums respectively, and of all other covenants contained in the hereinbefore recited indentures of mortgage respectively, And All The Estate, right, And all the estitle, interest, property, claim, and demand whatsoever of tate. &chim the said A. B., of, in, and to the same premises, and
(4) It is usual to make the wife concur in any assignment made in contemplation of marriage of the husband.s property; I presume, on a principle similar to that established in the reverse case. (See supra, p. 310, n. (d); but of course with much less reason.