OF PERSON ALTY FOR HUS- —and of a sum secured to her by a bond. remains due. -of the agree ment for the a certain sum of £, one third part of a sum of £directed to be raised for portions for the younger children of the said by the said, and by which indenture a term of years was limited in certain estates therein mentioned, situate in the county of, to certain persons therein named, their executors, administrators, and assigns, upon trusts for raising the said sum of £; AND WHEREAS, by a bond or obligation in writing, bearing date the day of ——, under the hand and seal of ——, (the brother of the said C. D.), the said [brother], became bound unto the said C. D. in the penal sum of £, with a condition thereunder written for making void the same on payment by the said [brother], his heirs, executors, or administrators, unto the said C. D., her executors, administrators, or assigns, of the sum of £, with interest for the same after the rate ofl. per cent. per annum, at the times and in manner therein mentioned for payment of the same respectively; AND WHEREAS the sum of £part of which still remains due and owing upon the said bond; 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 intended marriage, it was agreed that the said C. D. should assign the said sums of £ and £- and all interest due and to become due for the same respectively, unto the said G. H. and I. K., their executors, administrators, and assigns, and that the said E. F. should enter into such covenant as is hereinafter contained for the payment unto the said G. H. and I. K., their executors, administrators, or assigns, of the sum of £, with interest for the same as hereinafter mentioned, and it was agreed that the said several principal sums, and the interest thereof respectively, should be held and applied upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations hereinafter expressed and declared of and concerning the same respectively; AND WHEREAS, in pursuance of the said agreements, by an indenture bearing even date with, but executed before, these presents, and made, or expressed to be made, between intended marriage. of the assign ment of the wife's share in the sum secured by the term. OF PERSON ALTY FOR HUS- ISSUE. Witnesseth, as signment by the wife of the sum secured by the bond to the trustees. [parties] (a), the said C. D., with the privity and approbation of the said A. B., (testified as therein mentioned) (b), hath assigned unto the said G. H. and I. K., their executors, administrators, and assigns, the said sum of £, and all interest due and to become due for the same, To hold the same unto the said G. H. and I. K., their executors, administrators, and assigns, upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisoes, agreements, and declarations, as were or should be declared or expressed of and concerning the same in and by an indenture therein referred as to bearing even date therewith (being the present indenture). NOW THIS INDENTURE WITNESSETH, that, in further pursuance of the said agreement, and in consideration of the said intended marriage, she the said C. D., with the privity and approbation of the said A. B., (testified by his being a party to and executing these presents (b)), hath assigned and by these presents doth assign unto the said G. H. and I. K., their executors, administrators, and assigns, ALL THAT the said principal sum of £, secured by the hereinbefore recited bond, and all interest due and to become due for the same, TOGETHER WITH the said bond and the full benefit thereof; AND all the estate, right, title, interest, property, claim, and demand whatsoever, both at law and in equity, of her the said C. D., of, in, and to the same premises, and every part Power of attor thereof respectively, TOGETHER ALSO with full power and authority for the said G. H. and I. K., and the survivor of them, and the executors and administrators of such survivor, their and his assigns, to ask, demand, sue for, recover, and receive, and give effectual releases and discharges for the said sum of £, and interest, and every part thereof respectively, in the names or name of the said A. B. and C. D., or either of them, or of their or either of their executors or administrators (c): To Have, hold, -and the estate, &c. ney. Distinction be (a) As to the reasons for making the assignment by a separate deed, see supra, p. 333, n. (a). (b) See supra, p. 310, n. (d). (c) The power conferred by this clause is different from that given by OF PERSONALTY FOR HUS CHILDREN, AND REMOTER ISSUE. the trustees RECEIVE, AND TAKE the said sum of £, and the interest thereof, and all and singular other the premises hereby BAND, WIFE, assigned, or expressed and intended so to be, unto the said G. H. and I. K., their executors, administrators, and assigns, upon and for the trusts, intents, and purposes, and Habendum to with, under, and subject to the powers, provisoes, agreeupon the trusts ments, and declarations, hereinafter declared, expressed, of the settleand contained of and concerning the same. AND THIS INDENTURE ALSO WITNESSETH, that, in further ther covenant pursuance of the said agreement, and in consideration of the said intended marriage, the said E. F. doth hereby, for himself, his heirs, executors, and administrators, covenant the receipt clause. The power of attorney is intended only to enable the trustees to sue at law, and give legal receipts to the persons from whom they recover money, while the receipt clause has for its object to enable them to give releases which shall discharge the persons paying money to them from the necessity of seeing that it is duly applied according to their trusts. The power of attorney is given in all assignments of legal choses in action, whether made to trustees or to assignees for their own benefit, but the receipt clause is added only when trusts are declared. The power of attorney has a legal object, and is consequently inserted only in those settlements in which there is an assignment of a legal chose in action, while the receipt clause owes its origin to the doctrines of equity, and is inserted in all settlements. See supra, p. 324, n. (r). In a case where there was a properly worded power of attorney, (given by a party however who had died), and also a receipt clause, so worded as to have become inoperative in the events which had happened, it was suggested that the power of attorney enabled the attorney to give a valid equitable discharge for trust monies to be paid him; but the Vice-Chancellor (Sir L. Shadwell) said, "Supposing that the power of attorney is to be considered in a court of equity as remaining in force, notwithstanding the death of the party who gave that power, the question is, whether, on account of the difference of the language used in the two parts of the deed, the party must not be taken to have intended that there should be an inherent difference between receipts given under the power of attorney and those given under what is usually called the receipt clause. I do not think that the court has ever decided that a receipt given under the former is to be taken as equivalent to a receipt given under the latter." (Brasier v. Hudson, 9 Sim. 110). It is to be observed, however, that this case is not a decision, that where there is a power of attorney, and no receipt clause, trustees cannot give a valid equitable discharge under the power of attorney. ment. Witnesseth, fur by the father of the intended husband within after the mar six months OF PERSON ALTY FOR HUS BAND, WIFE, CHILDREN, AND REMOTER ISSUE. riage to pay a sum of money to the trustees of the settle ment. Witnesseth further, declaration of trusts. with the said G. H. and I. K., their executors and administrators, that if the said intended marriage shall take effect, and he the said E. F., his heirs, executors, or administrators, shall and will, within six calendar months next after the solemnization thereof, pay or cause to be paid unto the said G. H. and I. K., their executors, administrators, or with interest for the same after for the purpose assigns, the sum of £ the rate of -l. per cent. per annum, to be computed from the day on which the said intended marriage shall be solemnized, without any deduction or abatement whatsoever for any present or future taxes or impositions, or any other matter, cause, or thing whatsoever. AND THIS INDENTURE ALSO WITNESSETH, that it is hereby agreed and declared between and by the parties to these presents, that the said G. H. and I. K., their executors, administrators, and assigns, shall stand and be possessed of and interested in the said several sums of £- £——, and £ -, and £, and the interest thereof respectively, 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 and concerning the same respectively, (that is to say), As, to, for, and conCERNING the said two several sums of £- and £ [the monies assigned by the wife], and the interest thereof, IN TRUST for the said C. D., her executors, administrators, and assigns, in the meantime and until the said intended marriage shall be had and solemnized; AND FROM AND AFTER the solemnization of the said intended marriage, UPON TRUST, that they the said G. H. and I. K., and the survivor of them, or the executors or administrators of such or to vary the survivor, do and shall either permit and suffer the said sums As to the intended wife's funds, for her till the marriage. and after the marriage, in trust to allow the same to re main as actually invested, securities. of £ and £ to remain on their respective present securities, or 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, or of the survivor of them during his or her life, and after the decease of such survivor at the discretion of the trustees or trustee for the time being, call in and compel payment of and receive the said sums of £— and £ respectively, or either of them, or any part thereof respectively, and with such consent or at such (d) See supra, p. 312, n. (e). (e) See supra, p. 313, n. (ƒ). of (f) If it is intended that the trustees shall have an absolute discretion as to calling in money secured by a covenant of this nature, the following proviso may be used: "PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that it shall be lawful for the said G. H. and I. K., and the survivor of them, and the executors and administrators of such survivor, at their or his discretion, to permit and suffer the said sum of £- or any part thereof, to remain on the OF PERSONALTY FOR HUSBAND, WIFE, CHILDREN, AND REMOTER ISSUE. As to the sum be paid by the covenanted to husband's father, upon trust to invest the same and vary securities. Proviso that the trustees shall not during the lives of the hus band and wife, or the survivor, compel pay ment of this sum without her consent. their, his, or Absolute power to trustees to permit monies to remain on bond or cove nant. |