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OF MONIES OUTSTANDING ON SECURITIES AND TO ARISE FROM THE SALE OF

REAL ESTATE.

—and subject to the husband's life interest, the wile's funds to go as she shall appoint, or to her next of kin of her own blood.

Rents and pro, fits of the real estate until sold to go as the interest of the monies arising from a sale.

may be laid out or invested, and the interest, dividends, and annual produce thereof, or so much thereof as shall not have become vested or been applied under any of the trusts or powers herein contained, Upon the trusts following, (that is to say), [the same trusts as supra, p. 322]: And It Is Hereby agreed and declared between and by the parties to these presents, that, in the meantime, and until the said moiety of the said leasehold premises shall be sold, in pursuance of the trust in that behalf in the lastly hereinbefore recited indenture of even date with these presents contained, the said E. F. and G. H., their (q) executors, administrators, and assigns, do and shall pay and apply the annual rents, issues, and profits of the said undivided moiety, (subject and without prejudice to the trusts declared thereof by the same indenture of even date herewith), to the persons and in manner to whom and in which the interest of the money to arise by the sale thereof would for the time being be payable and applicable under these presents, in case the same premises had then been sold, and the purchase money laid out or invested: [Trustees' receipt clause, supra, p. 323(r).—Power to appoint new trustees, supra, p. 324 (s).—Clauses for the indemnity and payment of trustees (t), supra, pp. 326, 327, inserting in the indemnity clause immediately before the words, " for any other misfortune, &c." the following words, "for not proceeding' upon any of the" covenants or obligations contained in the said indentures by which the said

mortgage debts or sums of £ , £ , and £ ,

are respectively secured, nor for omitting or neglecting to see that the policies of assurance hereinbefore mentioned are kept on foot, nor for any other omission or neglect in respect of the same securities, nor &c."]. In Witness &c.

(g) If the land conveyed in trust for sale had been freehold, the word "heirs " must have been used instead of " executors and administrators." See supra, p. 359, n. (/).

(r) Sec supra, p. 324, n. (r).

(*) See supra, p. 326, n. («); p. 328, n. (y).

(f) See supra, p. 327, n. (»); p, 328, n. (x).

VI.

SETTLEMENT of Shares in Monies out on Of Personal

Mortgage, of a Sum of Stock, and of a Rever- ba'nd's Life

Sionary Interest in Stock belonging to the Interest De

_ . , TERMINING OM

Wife. A Policy of Assurance effected by Bankruptcy,
the Husband on his own Life, and a Sum of &c-
Money which he Covenants his Representa-
tives shall pay after his Death, are also settled
by Reference to the previous Trusts, with a
Variation in the ultimate Trust. Trusts for
the Separate Use of the Wife for Life, and,
after her Death, for the Husband, until he
become Bankrupt or Insolvent, or Assign
his Interest (a), or Marry again. Usual
Trusts and Powers for the Benefit of Chil-
Dren. Special Trusts over in Default of
Children entitled. Power to the Wife, if
she Survive, to Settle Part of the Funds on
a Second Marriage. Proviso, that if the
Husband in his Lifetime Pays to the Trustees
the Sum assured on his Life, the Policy shall
belong to him. Covenants and Provisoes as
to the Policy of Assurance. Covenants by
Husband and Wife for the Settlement of
After-acquired Property of the Wife.
Usual Trustee Clauses.

THIS INDENTURE, made &c, Between A. B., of &c, Parties
[intended husband], of the first part; C. D., of &c, [intended

(a) Property cannot be settled upon a man or upon a feme sole in Property cansuch a manner that the interest of the donee shall continue after bank- not De limited to ruptcy or insolvency » or in such a- manner as to take away the donee s s0 as j0 power of alienation; (Brandon v. Robinson, 18 Ves. 429; Ross v. Ross, takeaway the

Recital of the wife], of the second part; and E. F., of &c., and G. H.,of &c, [trustees], of the third part: Whereas, under and by virtue

power of alienation or deprivation by act of law, unless there be a gift over in such event.

The wife's property may be settled on marriage, so that the husband's interest shall determine on his bankruptcy or insolvency.

And so, too, the husband's property settled in consideration of the wife's fortune paid.

1 J. & W. 164; Graves v. Dolphin, 1 Sim. 66); but property not originally belonging to the donee may be so settled, that, on bankruptcy or insolvency, or on the donee's affecting or attempting to alienate it, it shall be divested out of him, and go over to some one else. (Id.; Lockycr v. Savage, 2 Stra. 497; Dommetl v. Bedford, 3 Ves. 149; S. C. 6 T. R. 684; Doe A. Mitchinson v. Carter, 8 T. R. 57; Wilkinson v. Wilkinson, G. Coop. 259; S. C. 3 Swanst. 515; King v. Robinson, Wightw. 386; Shee v. Hale, 13 Ves. 404; Cooper v. Wyatt, 5 Madd. 482; Lear v. Leggetl, 2 Sim. 472; S. C. 1 Russ. & My. 490; Yarnold v. Moorhouse, 1 Russ. & My. 364; Lewes v. Lewes, 6 Sim. 304; Whitfield v. Prickett, 2 Kee. 408). The clause which is intended to restrain the power of alienation should clearly provide in what events the man's interest is to go over, and should refer not only to voluntary alienation, but also to involuntary alienation by bankruptcy, insolvency, outlawry, or other act of law; for most of the cases have turned on the point, whether the words clearly indicated that the event which had happened was one on which the interest would go over. (See 2 Powell on Devises, by Jarman, 275). And it is clear, that, if the instrument creating the interest speak only of alienations generally, no forfeiture will he created by an involuntary alienation by act of law, but the property will go to the persons (as the assignees in bankruptcy for example) to whom that act would naturally carry it; and any discretion reposed in trustees to pay to a man as long as they please, is terminated by insolvency, Green v. Spicer, 1 Russ. & My. 395; Piercy v. Roberts, 1 My. & K. 4), or by bankruptcy; {Snowdon v. Dales, 6 Sim. 524) ; and the donee's interest passes to his assignees. (Id.)

Most of the preceding cases arose on wills, and the donee's interest arising merely from the gift, the donor could annex any legal restraint he chose to bis gift, on the ancient maxim cujus est dare, ejus est disponere. But the rule has been carried further: it is settled, that, notwithstanding the inchoate right which a husband by a contract of marriage acquires to his wife's property, a life interest in the property may be given to the husband, with a proviso that it shall determine on alienation, either voluntary or by act of law. {Lockycr v. Savage, 2 Stra. 497; Ex parte Hinton, 14 Ves. 498); or if the husband receive a portion with his wife, he may settle an equal amount of his own property in a similar manner. (Ex parte Cooke, 8 Ves. 353; Ex parte Hodgson, 19 Ves. 206; Lester v. Garland, 5 Sim. 205). And the widow of a bankrupt may, if he engage by marriage settlement to settle money which he falsely represented himself to possess, prove for the amount of her fortune paid to him. (Ex parte Gardiner, 11 Ves. 40). A letter is sufficient evidence of the debt. (Ex parte Sitger re Manof the trusts of a deed-poll bearing date the day of Op Personal

-, and under the hands and seals of X. and Y., the said

TY, THE HUS-
BAND'S LIFE

C. D. is entitled to the principal sum of £ , with interest Interest »e

- , - . »• , TERMINING ON

tor the same alter the rate 01 —I. per cent, per annum, Bankruptcy,

which said sum of £ is part of the sum of £ , &c

bearing interest at the rate aforesaid, and due or owing ^'J*'8 beinBen

„ , ,„ ' , , , titled to a part

irom to the said 2L. and x., and secured to them by of a mortgage

a mortgage of freehold and copyhold hereditaments at , debt:

in the county of , by indenture bearing date the

day of , and made, or expressed to be made, between

[parties], [Similar recital showing that C. D. is similarly —and to a part

entitled to a sum of £ , part of a sum of £——, due to mortgage'debt;

other trustees on another mortgage]; And Whereas the —and to a resaid C. D., under or by virtue of the will of her late mother versi°nary in

. , p terest in part

, is entitled to one equal fourth part of the sum of of a sum of

stock;

ton, Mont . 100); but it seems that parol evidence is not sufficient. (Ex parte Baxter re Spurrier, Mont. 135).

A husband, who does not receive a portion with his wife, cannot, on But the hushis marriage, settle any of his own property, so as to divest his own band's other interest on bankruptcy, or, it is presumed, on any alienation by act of no^be'so1setlaw. (Higinbotham v. Holme, 19 Ves. 88). But a recital in the settle- tied, ment is not conclusive evidence of the property being the husband's, if the fact be otherwise; and, on proof, the settlement may be rectified. (Higginson v. Kelly, 1 Ball & Bea. 252; Ex parte Verner, Id. 230).

A bond or covenant given by the husband for the payment of a sum As to bonds and of money on his bankruptcy to trustees, upon trust for his wife and covenants by children, is void as against the assignees in bankruptcy; {Murphy, a jjule^ioney'° bankrupt, 1 Sch. & Lef. 44; Re Meaghan, Id. 179; Ex parte Hill, 1 on his bankCox, 300); unless so far as it has been given in consideration of the mptcy. wife's fortune received. (Ex parte Hill, ubi supra; Ex parte Cooke, 8 Ves. 353; Ex parte Young, 3 Madd. 124; S. C. Buck, 179; Re Meaghan, ubi supra; Ex parte Turpin re Brown, 1 Dea. & Chit. 120; S. C. Mont. 443; Ex parte Hooper re West, 3 Dea. & Chit. 655; Ex parte Shute, Mont. & B. 385; S. C. 3 Dea. & Chit. 1). Such an obligation, however, is good against the husband. {Assignees of Gardiner v. Shannon, 2 Sch. & Lef. 228).

The interest m the dividends received is applicable, in the first instance, to make up the entire sum secured, and then goes as directed by the settlement, the assignees taking the husband's life interest, if he have one. (Ex parte Shute, ubi supra; Ex parte Turpin, ubi supra). See, too, further on this subject, the cases collected in Chitty's Equity Index, tit. " Bankruptcy," xiii. 7.

OF PERSONAL-
Ty, THE HUS-
BAND'S LIFE
INTEREST DE-
TERMINING ON
BANKRUPTCY,
&c.

—and to a sum
of stock in her
own name;
—of a mar-
riage having
been agreed on;
—of the agree-
ment that the
husband should
insure his life
in the trustees'
names;

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l. per cent. Annuities, standing in the names

, as executors of the said will, and which said fourth part will become transferable to the said C. D. on the decease of the survivor of and ;And Whereas

the said C. D. is also possessed of and entitled to the sum of £ , —l. per cent. Bank Annuities, lately standing in her own name; 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, upon the treaty for the said marriage, it was agreed, that the said A. B. should effect a policy of assurance on his own life in the names of the said E. F., G. H., and I. K. (6),

in the sum of £ , and should enter into such covenants

respecting the same as are hereinafter contained, and that the said E. F., G. H., and I. K., their executors, administrators, and assigns, should stand possessed of and interested in the said policy of assurance, and of all sums of money to become payable under or by virtue of the same, upon the trusts, and under and subject to the powers, provisoes, declarations, and agreements hereinafter declared, and expressed or referred to and contained of and concerning the same; And Whereas, upon the treaty for the said marriage, it was also agreed, that the said C. D. should

transfer the said sum of £ , —/. per cent. Bank

Annuities, and should assign the said sums of £ and

£ , [the mortgage sums], and the interest henceforth

to accrue due on the same respectively, and the said one

equal fourth part of the said sum of £ , —l. per cent.

. Bank Annuities, and the dividends to accrue due on

the same, after the same shall have become transferable to the said C. D., into the names of and unto the said E. F., G. H., and I. K., their executors, administrators, and assigns, upon and for the trusts, intents, and purposes, and subject to the powers, provisoes, declarations, and agreements hereinaf—and that the ter declared of and concerning the same respectively; And

—and that the wife should transfer and assign her property above mentioned;

(6) The policy of assurance, if made on the occasion, should always be made in the trustee.s name, as the risk of forfeiture is thereby diminished. (See ante, Vol. 3, p. 91).

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