OF PERSON ALTY FOR HUS CHILDREN, AND REMOTER ISSUE. Declaration of trusts of all the funds and the income thereof. AND IT IS HEREBY agreed and declared between and by the BAND, WIFE, parties to these presents, that the said G. H. and I. K., their executors, administrators, and assigns, shall, from and after the solemnization of the said intended marriage, stand and be possessed of and interested in the said several sums of £ and £- -, and the stocks, funds, or securities in or upon which the same are or shall be laid out or invested, and the interest, dividends, and annual produce thereof respectively, (including the interest which shall arise for the said sum of £— until the same shall be paid), 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 or concerning the same, (that is to say) UPON TRUST that they the said G. H. and I. K., and the survivor of them, and the executors or administrators of such survivor, do and shall, during the joint lives of the said A. B. and C. D., by and out of the interest, dividends, and annual produce of with restriction the said trust monies, stocks, funds, and securities, levy and on anticipation. raise the clear yearly sum of £————, and pay and apply the In trust during the joint lives of husband and wife out of the income to pay an annuity to the wife for her separate use, Cases as to proving in bankruptcy debts secured to the trustees of marriage settlements by bond or covenant. same by equal half-yearly payments, without any deduction or abatement whatsoever, to such person or persons and for such intents and purposes as the said C. D. shall from time security of the said covenant, [or "bond"] during the life of the said [covenantor-wife &c., as may be determined], or during any less period, And that the said G. H. and I. K., their executors or administrators, or any of them, shall not be answerable for any loss which may be occasioned thereby." Many cases have occurred in bankruptcy on covenants and bonds of this nature when given by the husband, and especially when framed so that the money is only payable on notice; the question being as to the right of the trustees to prove the debt. See Ex parte Mare, 8 Ves. 335; Er parte Campbell, 16 Ves. 244; Hill v. Cock, 1 Rose, 323; S. C. 1 Ves. & B. 176; Ex parte Elder, 2 Madd. 282; Ex parte Dicken, Buck, 115; Ex parte Brenchley, 2 G. & J. 174; decided before the stat. 6 Geo. 4, c. 16, (see sect. 56); and Ex parte Turpin, Mont. 443; S. C. 1 Dea. & Chit. 120; Ex parte Shute, Mont. & Bligh, 385; S. C. 3 Dea. & Chit. 1; Ex parte Hooper, 3 Dea. & Chit. 655; decided since the statute. See, too, supra, p. 367, n. (a). OF PERSON- AND REMOTER to time, notwithstanding her coverture, by any writing or writings under her hand and seal, 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 her own hands for her sole and separate use and benefit independently and exclusively of the said A. B., and without being in anywise subject to his debts, control, interference, or 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., or of her appointees, notwithstanding her coverture, to be, from time to time, sufficient discharges for the same, and the first half-yearly payment of the said yearly sum of £ to be made at the end of six calendar months next after the solemnization of the said intended marriage (g); AND DO AND SHALL pay the residue of the interest, dividends, and annual produce of the said trust monies, stocks, funds, and securities to, or permit the same to be received by, the said A. B. and his assigns; AND FROM AND AFTER the death of such one of them the said A. B. and C. D. as shall first die, do and shall pay the interest, dividends, and annual produce of the said trust monies, stocks, funds, and securities to, or permit the same to be received by, the survivor of them the said A. B. and C. D., and his or her assigns, during his or her life; AND FROM and after the AND AFTER the death of the survivor of them the said A. B. and C. D., do and shall stand and be possessed of and interested in all and singular the said trust monies, stocks, funds, and securities, and the interest, dividends, and annual produce thereof, IN TRUST for all and every, or such one or more, exclusively of the other or others of the issue of the said A. B. and C. D., whether a child or remoter descendant or descendants, (such remoter descendant or descendants being born during the lives of the said A. B. (g) As to framing trusts for the separate use of married women, see supra, p. 316, n. (g); and see infra, Precedent VIII. and to pay the income to the residue of her husband. and after the death of either husband or wife, to pay the in come to the sur vivor for life. death of the survivor, to hold the trust come; funds and in in trust for the children and issue of the marriage, as the husband and wife shall ap point; OF PERSON. ALTY FOR HUS CHILDREN, AND REMOTER and C. D., or the life of the survivor of them (e)), at such BAND, WIFE, age, day, or time, or respective ages, days, or times, and if more than one, in such parts, shares, and proportions, and with such annual sum of money, and future or executory or other trusts, such annual sums of money and future or executory or other trusts being for the benefit of some or one of such child or children or remoter descendant or descendants as aforesaid, with such provision for the maintenance and education or the advancement or preferment in the world of any such child or children or remoter descendant or descendants, either at the discretion of the said trustees or trustee for the time being, or of any other person or persons to be named or appointed in that behalf or otherwise, and upon such conditions, with such restrictions, and in such manner as the said A. B. and C. D. shall, during their joint lives, by any deed or deeds, or instrument or instruments in writing, with or without power of revocation and new appointment, to be sealed and delivered by them in the presence of, and to be attested by, two or more credible witnesses, jointly direct or appoint; AND IN DEFAULT of such joint direction or appointment, and so far as no such direction or appointment shall extend, then as the survivor or as the survivor shall ap point; Validity and extent of powers in marriage settlements to appoint to grandchildren and remoter descendants. Trusts in marriage settlements, in de fault of appointment, should not extend to any descendants bebeyond child (e) A power to appoint to children does not embrace grandchildren or remoter descendants; (2 Sugd. on Powers, 273; Hewitt v. Lord Dacre, 2 Kee. 622. See too supra, p. 318, n. (i)); but there is no objection to including grandchildren or remoter descendants within the power. (Routledge v. Dorril, 2 Ves. jun. 357). No appointment can, however, be made, except within the limits allowed by the law as to perpetuities, and with a view to this the appointment must be considered as contained in the settlement itself; and therefore it is better, in the creation of the power, to confine its exercise within the legal limits. (1 Sugd. Pow. chap. vii. sect. 1; Routledge v. Dorril, 2 Ves. jun. 357; Church v. Kemble, 5 Sim. 525; Sadler v. Pratt, Id. 632. See too 1 Sugd. Pow. 181; Id. ii. 70). As to the general law relating to perpetuities, see 1 Pow. Dev. by Jarman, 388 et seq.; Cadell v. Palmer, 10 Bing. 140). There is little use in extending the trusts in default of appointment to remoter descendants; and it is extremely objectionable to do so on account of the great alteration which such an extension renders necessary in the language of the subsequent clauses of the settlement. The power to appoint to remoter descendants provides sufficiently for the probabilities of the case. See, however, infra, Precedent XIV. ren. OF PERSON- AND REMOTER and in default of any appointment, for the children of the marriage, who, being sons, attain and, being daughters, attain twenty-one twenty-one, or marry, in equal shares. of them the said A. B. and C. D. shall, by any deed or deeds, instrument or instruments in writing, with or without power of revocation and new appointment, to be sealed and delivered by him or her in the presence of, and to be attested by, two or more credible witnesses, or by his or her last will or testament in writing, or any codicil or codicils thereto, or any writing or writings in the nature of or purporting to be a will or codicil, direct or appoint; 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 A. B. by the said C. D., who, being a 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 among 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 such one child: PROVIDED ALWAYS, and it is hereby Hotchpot. agreed and declared between and by the parties to these clause. presents, that no child who or whose issue shall take any part of the said trust monies, stocks, funds, or securities, under or by virtue of any direction or appointment to be made by the said A. B. and C. D. jointly, or by the survivor of them, in pursuance of either of the powers hereinbefore in that behalf contained, 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, without bringing the share or shares appointed to him or her, or to his or her issue, into hotchpot, and accounting for the same accordingly (ƒ): [Advancement, Maintenance, and Accu- Advancement, mulation clauses, see supra, pp. 319-321]: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that if there shall be no child of the said A. B. and C. D., who, being a son, shall attain the age of twenty-one years, or, being a daughter, shall attain (f) The hotchpot clause is, it will be seen, slightly altered in the present case to meet the extension to remoter descendants of the power of appointment. See supra, p. 319, n. (p). maintenance, and accumula tion clauses. Trusts of the wife's funds, in default or failure of issue of the marriage, entitled thereto; OF PERSON ALTY FOR HUS- ISSUE. that age or marry (g), then and in such case the said G. H. —if she survive trusts following, (that is to say), IF THE SAID C. D. shall her husband, for her abso lutely; -but if she die in his lifetime, as she shall appoint; -and in de ment, for the husband. Trusts of the husband's funds, in de outlive the said A. B., then in trust for the said C. D., her executors, administrators, or assigns; BUT IF THE SAID C. D. shall die in the lifetime of the said A. B., then in trust for such person or persons, and for such intents and purposes, as the said C. D., notwithstanding her coverture, shall, by her last will and testament, or any codicil or codicils thereto, or any writing or writings in the nature of or purporting to be a will or codicil, direct or appoint; AND IN DEFAULT of such fault of appoint- direction or appointment, and so far as no such direction or appointment shall extend, in trust for the said A. B., his executors, administrators, or assigns: AND IT IS HEREBY agreed and declared, between and by the parties to these presents, that if there shall be no child of the said A. B. by the said C. D., who, being a son, shall attain the age of twenty-one years, or, being a daughter, shall attain that age or marry (i), then and in such case the said G. H. and I. K., their executors, administrators, and assigns, shall, from and after the death of the said C. D., and such default or failure of children of the said intended marriage as aforesaid, which shall last happen, stand and be possessed of and interested in the said sum of £- [the sum covenanted to be paid by the husband's father], and the stocks, funds, and securities in or upon which the same shall be laid out or fault or failure marriage, enti of issue of the tled thereto. (g) See supra, p. 322, n. (n). , (h) See supra, p. 322, n. (o). (i) See supra. p. 322, n. (n). |