Page images





conveyance, lemnization thereof, UPON TRUST, that the said E. F. and TION OF MAR- G. H. and the survivor of them, his executors or adminis

trators, do and shall, at any time or times, with the consent in writing of the said A. B. and C. D., during their joint

lives, and after the death of such one of them as shall first trust for sale. die, with the consent in writing of the survivor of them,

and after the death of the survivor of them, at the discretion of the said E. F. and G. H., or the survivor of them, his executors or administrators, and either alone or in conjunction with the person or persons for the time being entitled to the other moiety of the same premises, absolutely sell and dispose of the moieties hereinbefore released and assigned respectively, or expressed or intended so to be, of the said monies, hereditaments, policies of assurance, and premises, either entirely and altogether, or in parcels, and either by public auction or private contract, for such price or prices as the said E. F. and G. H., or the survivor of them, or the executors or administrators of such survivor, shall think reasonable, with power to buy in the said premises, or any part thereof, at any sale or sales by auction, and to rescind, abandon, or vary any contract for sale, and to re-sell the premises which shall be so bought in, or the contract for the sale of which shall be so rescinded or abandoned as aforesaid, without being in any. wise answerable for any loss which may happen thereby respectively; And also, with full power to insert any such special or other clauses or stipulations in any contract for or conditions of sale, either as to title or otherwise, as they the said E. F. and G. H., or the survivor of them, or the executors or administrators of such survivor, shall think fit (e); And do and shall enter into all such other arrangements 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, in relation to any sale or sales Trusts of the of the said premises, or any part thereof; And DO AND money to arise from the sale;

SHALL receive the purchase-money to arise from any such sale or sales as aforesaid, and by and out of the same pay all

(e) See the notes ante, Vol. 3, pp. 290—292, Lewin's Law of Trusts, chap. xix.




[ocr errors]
[ocr errors]
[ocr errors]

sequent trusts

of the

the expenses attending such sale or sales as aforesaid, or conveyance, otherwise incurred in the execution of any of the trusts or TION powers hereby declared; AND DO AND SHALL hold all the RIAGE, IN residue of the same purchase-money, and also the rents, issues, and profits of the same moieties and premises in the -and of the meantime, and until the same shall be sold, (but subject tentos

fits till sale, and without prejudice to the trusts in these presents de- (subject to subclared of the same rents, issues, and profits), upon and for declared such trusts, intents, and purposes, and with, under, and rents and pro

fits); subject to such powers, provisoes, declarations, and agree

- declared by ments, as are or shall be expressed and declared of and reference to a

settlement of concerning the same, in and by an indenture already pre- even date. pared and engrossed, bearing or intended to bear even date with these presents, and made or intended to be made between (partiessettlement of even date]: AND IT IS Rents and pro

fits, until sale, HEREBY agreed and declared, that, in the meantime and to be first until the said moieties hereinbefore released and assigned plied in pay

ment of a prorespectively as aforesaid, shall be sold, the said E. F. and portion of the G. H., and the survivor of them, and the executors and me

on the lease, administrators of such survivor, do and shall, by and out and of the pre

miums on the of the rents, issues, and profits of the said moiety of the

policies. said leasehold premises, pay one equal moiety or half part of the rent reserved in and by the said indenture of the day of — , or to be reserved in and by any renewed lease of the same premises, and also one equal moiety or half part of the annual premiums and other sums of money which shall from time to time become payable for keeping on foot the said policies of assurance on the lives of the said X., Y., and Z., respectively, and for keeping on foot any policy or policies of assurance which may hereafter be effected on the same lives or any of them, or any other life or lives for which any renewed lease or leases of the said hereditaments may be granted; And Trustees to re

new lease when WHEN AND SO OFTEN(f) as the same may be required by the necess

necessary, and

rent reserved

(5) When renewable leaseholds are made the subject of settlement, it As to the reis expedient to provide for their renewal. If the settlement contain no newal of renew

able leaseholds direction to renew, a trustee or tenant for life is not bound to renew. co

ne is not bound to renew. comprised in (Nightingale v. Lawson, 1 Bro. C. C. 440, 443). But whether the settle- settlements; ment do or do not contain a direction for renewal, if a trustee or a tenant


conveyance, dropping of any life or lives upon which the said leasehold IN CONTEMPLA

R- hereditaments now are or hereafter shall be holden, use their RIAGE, IN or his best endeavours to obtain, and concur with the person

or persons for the time being entitled to the other moiety make surren of the same premises, in obtaining a renewed lease or leases ders, and do all of the same premises, on the accustomed and reasonable

terms, in order that, until the premises shall be sold, the


necessary acts.

for life renew, he cannot hold the renewed lease for his own benefit; it becomes subject to all the equities affecting the original lease. (Nightingale v. Lawson, ubi supra; Holt v. Holt, 1 Ch. Ca. 191; Pierson v. Shore, 1 Atk. 480; Edwards v. Lewis, 3 Atk. 538; Taster v. Marriott, Amb. 668; Rawe v. Chichester, Id. 715; Addis v. Clement, 2 P. W. 459; Stone v. T'heed, 2 Bro. C. C. 248; Killick v. Fleckney, 4 Bro. C. C. 161; Parker v. Brooke, 9 Ves. 583; Collet v. Hooper, 13 Ves. 260; Featherstonhaugh v. Fenuick, 17 Ves. 298; Fitzroy y, Howard, 3 Russ. 223; Mulvaney v. Dillon, 1 Ball & Bea. 409; Winslow v. Tighe, 2 Ball & Bea. 196; Lee v. Vernon, 5 Bro. P. C. 18; Buckley v. Lanauze, 1 Lloyd & Goold, temp. Plunk. 327). See, too, the case of Webb v. Lugar, 2 You. & C. 247, in which a lease of tithes was left in trust as to part of the tithable land, to keep it tithe free. And if a tenant for life sells the right of renewal, the purchase-money is subject to the estates of the settlement ; (Owen v. Williams, Amb. 734); and the renewed lease is still subject to the former equities, although the original lease may have expired before the renewal; (Pickering v. Vowles, 1 Bro. C. C. 197; Moody v. Matthews, 7 Ves. 185 ; James v. Deane, 11 Ves. 383; S. C. 15 Ves. 236; Jackson v. Welsh, 1 Lloyd & Goold, temp. Plunk. 346); or, although the new lease is not to commence till after the expiration of the old one ; (Rakestraw v. Brewer, 2 P. W. 511; Taster v. Marriott, Amb. 688); or be obtained from a superior landlord. (Giddings v. Giddings, 3 Russ. 241). But the rule does not extend to purchases of the reversion by trustees of an existing lease. (Norris v. Le Neve, 3 Atk. 38; Randall v. Russell, 3 Mer. 190; Hardman v. Johnstone, Id. 352;

see, however, Fosbrooke v. Balguy, 1 My. & K. 226). Directions to A trust for renewal may be implied from the general language of the

settlement. (Lord Monfort v. Cudogan, 17 Ves. 488; S. C. 19 Ves. when.

635; Capel v. Wood, 4 Russ. 500; O'Ferrall v. O'Ferrall, i Lloyd &

Goold, temp. Plunk. 79). But, of course, the draftsman will give explicit The propriety directions on the subject. In all cases, however, a discretion as to reof a discretion to renew leases. newal should be reposed in the parties by whom it is to be effected; for

if it be made absolutely incumbent on them to renew, they may be compelled to pay unreasonable fines. And a discretion to renew is not considered an arbitrary discretion, but one which is to be exercised to obtain a renewal, if reasonable terms can be had. (Lord Milsington v. Earl Mulgrave, 3 Madd. 491; 5 Madd. 472). See further on this subject, Lewin's Law of Trusts, chap. xvii. sect. 1.






of re

said premises may be held for the lives of three persons, conveyance, and the lives and life of the survivors or survivor of them, and for that purpose do and shall, from time to time, make RIAGE, IN or concur in making such surrender of the lease, for the time being subsisting in the same premises, and do all such other acts as shall be necessary and requisite in that behalf; AND DO AND SHALL, on every such renewal, pay and The monies to apply the monies to be received by them or him under or be receive

from any policy by virtue of the policy of assurance, for the time being sub- to be applied for sisting upon the life which shall have dropped, or a com

newal fines and petent part thereof, in or towards the discharge of the fine expenses, and

assuring the which shall be required upon such renewal, and the ex- lives of the cespenses of such renewal, and in or towards the effecting of a tuis que vie; policy or policies of assurance on the new life or lives for which such renewed lease shall be granted, so that the lives of all the persons for whose lives the said leasehold hereditaments shall for the time being be holden may always be assured in the sum of £- each; AND DO AND SHALL —and the sur

plus to the per. pay the surplus (if any) of the said monies to the person or

sons for the persons for the time being entitled to the annual rents and time being en

titled to the profits of the said moiety hereinbefore released of the said rents and proleasehold premises; And if the said monies shall be insuffi- fits;

-deficiences to cient to pay the said fines and experises, and the cost of ef- be paid out of fecting such assurance as aforesaid, do and shall pay and the rents

profits. apply such part and parts of the annual rents, issues, and profits of the said moiety of the said leasehold premises, as shall be required for the purpose of paying the residue of the fine, expenses, and costs aforesaid : PROVIDED ALWAYS, Power to the and it is hereby agreed and declared, that in case from any cause the money for the time being wanted to pay the fines newal of lease

by way of mortand other expenses of renewal, shall not be produced by the ways and means aforesaid, at the times when the same shall be wanted, it shall be lawful for the said E. F. and G. H., and the survivor of them, and the executors or administrators of such survivor, to raise such sum or sums of money as for the time being shall be wanted for the purposes aforesaid, and the costs of raising the same, by mortgage of the said premises hereby released and assigned respectively, or expressed and intended so to be, or any of them: AND IT IS HEREBY agreed and declared between and by the Clause exone

[ocr errors]
[ocr errors]

trustee to raise





Conveyance, parties to these presents, that no mortgagee shall be bound

AR= or concerned to see as to the necessity or propriety of raising AGE, IN money by mortgage, or to see that no more is raised than

ought to be raised: Provided ALWAYS nevertheless, and the

said A. B. doth hereby for himself, his heirs, executors, and rating mortgagees from seeing administrators, covenant with the said E. F. and G. H., their to the necessity of the money executors and admisi

executors and administrators, in manner following, (that is being raised. to say), that, notwithstanding the trusts and powers hereinCovenant by the husband,

before contained, as to raising and paying the fines and exnotwithstand penses of renewal and insurance, in case the said intended ing previous provisions, to marriage shall take effect, he the said A. B. shall and will, pay rent and

during his life, or until the said undivided moiety and prepremiums and costs of renewal. mises shall be sold, pay the share, payable in respect of the

same moiety, of the rent reserved by the said recited lease or any renewed lease, and the expense of observing and performing the covenants in any such lease, and also of the fines and other expenses of renewal, and also of the premiums and other expenses of keeping up such assurances as aforesaid; And shall and will pay off and discharge any mortgage or mortgages which may be made by the trustees or trustee of these presents in the lifetime of him the said

A. B. under the power in that behalf hereinbefore conTrustees not to tained (g): Provided Also nevertheless, that the said E.

As to the man- (9) The settlement should always declare how the fines and expenses ner of raising, of renewal are to be raised, although it seems to be now settled that the and the apportionment of the expenses must be borne by the tenant for life and those in remainder, in expenses of re- the proportion of the benefit which they will by calculation derive from newal,

such renewals. (Allan v. Backhouse, 2 Ves. & B. 65; Playters v. Abbott, 2 My. & K. 97; The Earl of Shaftesbury v. The Duke of Marlborough, Id. 111; Reeves v. Creswick, 3 You. & C. 715). It has been decided, that, where the tenant for life is a cestui que vie, and renews the lease of his own accord, the expense of the renewal is a charge on the estate for his benefit. (Adderley v. Clavering, 2 Bro. C. C. 659; S. C. 2 Cox, 192). As to the principle of contribution in such a case, where it is necessary to raise the money by mortgage, and the manner in which the security should be made, see Reeves v. Creswicke, 3 You. & C. 715. See further, Lewin's Law of Trusts, chap. xvii. sect. 2.

It is always desirable to insert an express power of raising by mortgage any money which may be wanted, together with a clause discharging a mortgagee from the duty of seeing to the necessity of the money being

« PreviousContinue »