OF AN ELDEST OR ELDEST TITLED TO SETTLED REAL ESTATE. and the rents and profits till sale to be applied as the in come of the trust monies; the land being to be held as personal estate; and the same powers, provisoes, agreements, and declara- IN EXCLUSION tions, (including the said power of purchasing freehold, copyhold, and leasehold hereditaments), as the money so raised and laid out in the purchase of such manors, messuages, lands, tenements, or hereditaments, was subject to before such purchase was made, or would then have been subject to if the same had not been laid out therein; AND DO AND SHALL, in the meantime and until such manors, messuages, lands, tenements, or hereditaments shall be so sold, pay and apply the rents, issues, and profits thereof to the persons, for the intents and purposes, and in the manner, to, for, and in which the interest, dividends, and annual produce of the money laid out in the purchase thereof would have been payable and applicable under the trusts hereinbefore declared in case such purchase had not been made; IT BEING HEREBY agreed and declared that the manors, messuages, lands, tenements, and hereditaments which shall be purchased under this present power shall, when so purchased, be considered as money, and be subject to such and the same trusts in all respects as the money laid out in the purchase thereof was subject to before such purchase was made, or would have been subject to if the same had not been so laid out; AND THAT it shall be lawful for the said E. F., G. H., and I. K., and the survivors and survivor of them, and the heirs, executors, and administrators respectively of such survivor, in the meantime, until the same manors, messuages, lands, tenements, and hereditaments shall be so sold as aforesaid, with such consent or at such discretion as aforesaid, to lease the same or any part or parts thereof at rack rent, for any term or terms of years, not exceeding twenty-one years, to take effect in possession and under the usual covenants and conditions on the part of the lessees: [Trustees' receipt clause, supra, p. 352.-Power to appoint new trustees, supra, p. 324.—Clauses for the indemnity and Trustee clauses. reimbursement of trustees, supra, pp. 326, 327]. IN WITNESS &c. and with power of leas ing. COVENANT TO SURRENDER COPYHOLDS IN TRUST FOR SALE. Parties. Recitals shewing the husband's estate in the copyholds; XI. COVENANT on a Marriage to SURRENDER an COVE THIS INDENTURE, made &c., BETWeen A. B., of &c., [intended husband], of the first part; C. D., of &c., [intended wife], of the second part; and E. F., of &c., and G. H., of &c., [trustees], of the third part; [Recital of a purchase by the father and testator of A. B. of a moiety expectant on the death of X. Y. (a tenant for life) of certain copyholds; of his will; and of certain releases whereby the same became vested in A. B.;-also of a purchase by A. B. of certain other copyholds in possession holden of the same manor, and of his admittance]; AND WHEREAS a marriage has been agreed upon, and is intended to be shortly had of the agree and solemnized, between the said A. B. and C. D.; AND ment to vest the copyholds in trustees for sale. WHEREAS, upon the treaty for the said intended marriage, it was among other things agreed, that the said copyhold premises purchased of the said X. Y., subject to her life-interest therein, and the said copyhold hereditaments purchased of the said should be surrendered to the use of the said E. F. and G. H. and their heirs, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations here (a) See supra, p. 333, n. (a), p. 341, n. (a). COVENANT TO SURRENDER COPYHOLDS SALE. Witnesseth, inafter declared and contained of and concerning the same. NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideration of IN TRUST FOR the said intended marriage, he the said A. B. doth hereby, for himself, his heirs, executors, and administrators, cove- covenant to surnant with the said E. F. and G. H. and their heirs, that render. he the said A. B. or his heirs shall and will, at the court to be holden next after the solemnization of the said intended marriage, in and for the said manor of at his or their own costs and charges, well and effectually surrender or cause to be surrendered by all necessary parties into the hands of the lord or lady, lords or ladies, of the said manor, according to the custom of the same manor, ALL THAT the The copyholds. said equal moiety or half part lands and hereditaments comprised in the said surrender of the day of, (but subject and without prejudice to the said life estate of the said X. Y.), and also the said tract, piece or parcel of land, and other hereditaments comprised in the said surrender of the day of(b), [general words], TO THE USE of the said E. F. and G. H., their heirs and assigns, according to the custom of the said manor, and to be holden by and under the rents, fines, suits, and services therefore due and of right accustomed, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, and agreements hereinafter declared and contained of or concerning the same, (that is to say), [upon trust for sale, supra, p. 346, substituting "heirs" for "executors or administrators"]: AND IT IS HEREBY agreed and declared between and by the parties to these presents, that it shall be lawful for the said E. F. and G. H. or the survivor of them, or the executors or administrators of such survivor, to sell the said moiety, hereditaments, and premises so purchased of the said X. Y. as aforesaid, in pursuance of the trust for sale hereinbefore contained, either in the lifetime of the said X. Y., or after her death, and in case of a sale (b) The parcels are correctly placed in the recitals, as the settlor only undertakes to settle the property which he took under the surrenders referred to. (See ante, Vol. 3, p. 312, n. (b)). To the use of the trustees for sale. Power to sell in the lifetime of the tenant for life with or the reversion without her concurrence. COVENANT TO SURRENDER SALE. Trusts of the purchase-money during the life of the tenant for life if with her con currence. in the lifetime of the said X. Y., either by way of sale in possession with her consent and concurrence, or by way of IN TRUST FOR Sale of the reversion expectant on the death of the said X. Y. without her consent or concurrence (c): AND IT IS HEREBY agreed and declared between and by the parties to these presents, that in case the said copyhold hereditament purchased of the said X. Y. shall be sold in her lifea sale be made time with her consent and concurrence, the said E. F. and G. H., or the survivor of them, or the heirs of such survivor, do and shall lay out and invest the clear money to arise by such sale, (after paying thereout all the costs and expenses of such sale), in the names or name of them the said E. F. and G. H., or the survivor of them, or the executors or administrators of such survivor, in the purchase of a competent share or shares of any of the parliamentary stocks or public funds, or upon government or real securities in England or Wales, but not in Ireland; AND do and shall, during the life of the said X. Y., with the consent of the said X. Y., A. B., and C. D., or of the survivors or survivor of them, alter, vary, and transpose the said trust monies, stocks, funds, and securities into or for other stocks or funds or securities of the like nature, as to the said trustees or trustee shall seem meet; AND do and shall during the life of the said X. Y. pay the interest, dividends, and annual produce of the said trust monies, stocks, funds, and securities to her the said X. Y. and her assigns for her and their own use: Trusts for sale ary estate. (c) When a reversionary estate is made the subject of a settlement conof a reversion- taining either a power or trust for sale, the settlement should never fail to declare whether a sale may or may not be made before the reversion falls into possession, and to provide for the destination of the purchasemoney, in case of a sale being made during the continuance of the prior estate, and with the concurrence of the owner thereof. In a late case of this nature, in which a purchaser objected that the power of sale could not be exercised till the reversion fell into possession, but waived all other objections, and the court was of opinion that the power was well exercised; it was referred to the Master to make an apportionment of the purchasemoney between the owner of the prior estate and the trustees of the settlement. (Clark v. Seymour, 7 Sim. 67). But it does not appear that an apportionment would have been forced on the purchaser if he had not waived all objections except that to the exercise of the power of sale. COVENANT TO SURRENDER SALE. General trusts of the purchase AND IT IS HEREBY AGREED and declared between and by the parties to these presents, that the said E. F. and G. H., their heirs, executors, administrators, and assigns, shall stand and IN TRUST FOR be possessed of and interested in the sum or sums of money to arise or be produced by any sale which shall be made in pursuance of these presents, including the stocks, funds, or money. securities in or upon which the money to arise by the sale of the said copyhold hereditaments purchased of the said X. Y. shall be invested, in case the same premises be sold in her lifetime with her concurrence as aforesaid, but subject and without prejudice to her life interest in the interest, dividends, and annual produce thereof under the trusts hereinbefore declared, and also of and in the rents, issues, and profits of the said copyhold hereditaments herein before covenanted to be surrendered, or expressed and intended so to be, until the same shall be sold, UPON and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations declared, expressed, and contained of and concerning the same in and by an indenture already prepared and engrossed, bearing or intended to bear even date with these presents, and made or intended to be made between [parties-settlement]: PROVIDED ALWAYS, and it is hereby agreed and declared Power of par between and by the parties to these presents, that it shall be lawful for the said E. F. and G. H., and the survivor of them, and the heirs of such survivor, at any time or times hereafter, before the lands and hereditaments whereof an equal moiety or half part is hereinbefore covenanted to be surrendered shall be sold in execution of the trust hereinbefore declared, (with the consent in writing of the said X. Y., A. B., and C. D., and of the survivors and survivor of them, during their, his, and her lives and life respectively, and after the death of the survivor of them, at the discretion of them the said E. F. and G. H., or of the survivor of them, or of the heirs of such survivor), to join and concur with the person or persons for the time being seised of or entitled to the other part or share of the same copyhold hereditaments, in making a partition or division of the same copyhold hereditaments, or any of them, or any part or tition. |