WITH USUAL CLAUSES. Advancement clause. REAL ESTATE Such yearly sum or sums of money as the said X. Y. and Y. Z., or the survivor of them, or the executors or administrators of such survivor, shall for that purpose deem sufficient and proper, not exceeding the amount of such interest as aforesaid, the said yearly sum or sums of money for maintenance to be free and clear of and from all deductions for taxes or otherwise, and to be raised and paid in such manner and at such times as to them the said X. Y. and Y. Z., and the survivor of them, and the executors and administrators of such survivor, shall in that behalf seem meet (r): 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 X. Y. and Y. Z., and the survivor of them, and the executors and administrators of such survivor, at any time or times during the life of the said A. B., with his consent and approbation, signified by some deed or deeds, instrument or instruments in writing, to be by him. sealed and delivered in the presence of, and to be attested by, two or more credible witnesses, and after the decease of the said A. B., then of the proper authority of the said X. Y. and Y. Z., or of the survivor of them, or of the executors or administrators of such survivor, to levy and raise, by the ways and means aforesaid, or any of them, for the advancement or preferment in the world of any son or sons of the said A. B. by the said C. D., lawfully to be begotten, (other than or besides an eldest or only son so for the time being entitled as aforesaid), any sum or sums of money, not exceeding in the whole, for any one such son, one third part or share of his then expectant or presumptive portion, which same sum or sums of money shall be considered and taken to be in part of the portion or fortune provided, or intended to be provided, for such son or sons respectively, under or by virtue of the trusts of the said term of one thousand years, and to pay and apply the money so to be raised for the placing out, preferment, advancement, or benefit of such son or sons as the said A. B., during his life, shall think fit, and after the decease of the said A. B., as the said X. Y. and Y. Z., (r) As to this clause, see supra, p. 321, n. (m). REAL ESTATE CLAUSES. Portions not to be raised till they become payable; and profits to be received sioner. or the survivor of them, or the executors or administrators of such survivor, shall, in their or his discretion, think fit, notwithstanding the portion or portions of such son or sons shall not then have been or become vested or payable (s): PROVIDED ALWAYS, and it is hereby further agreed and declared between and by the parties to these presents, that the said X. Y. and Y. Z., or the survivor of them, or the executors or administrators of such survivor, shall not sell, mortgage, or demise any part of the said hereditaments and premises comprised in the said term of one thousand years, until one of the said portions, or some part thereof, shall become payable by virtue of and under the trusts aforesaid; AND THAT the rents, issues, and profits of the said heredi--and the rents taments and premises, or so much of the same rents, issues, and profits as shall remain after answering the trusts aforesaid, shall, until one such portion shall become payable as aforesaid, be had and received by the person or persons who for the time being shall be entitled to the same hereditaments and premises in reversion or remainder expectant upon the determination of the same term, to and for his and their own use and benefit: PROVIDED ALWAYS, and it is further agreed and declared between and by the parties to these presents, that if the said A. B. shall give or advance to or with any child or children for whom a portion or portions is or are intended to be hereby provided as aforesaid, any sum or sums of money for or towards his, her, or their portion or portions respectively, for his, her, or their preferment or advancement in the world, then and in such case, unless the said A. B. shall, by some writing under his hand, direct the contrary, if such advanced sum or sums of money shall be equal to or greater than the whole of the portion or portions intended to be hereby provided for such child or children severally as aforesaid, the same shall be accounted in full satisfaction of the whole of such his, her, or their portion or portions; but if such advanced sum or sums of money shall be less than such portion or portions, the same shall be considered as part only of such his, her, or their (s) As to this clause, see supra, p. 320, n. (7). Proviso, that sums paid by the father to the children, in satisfaction of their por are to be taken tions pro tanto; WITH USUAL CLAUSES. REAL ESTATE portion or portions; and such money only shall be raised, under or by virtue of the trusts of the said term of one thousand years, for the portion or portions of the child or children to or with whom such sum or sums of -and the fa the satisfied portions. Power to raise the portions by mortgage in the lifetime of the father. money shall be so given or advanced by the said A. B. as aforesaid, as, together with the sum or sums of money so to be given or advanced, will amount to and complete the sum of money intended to be hereby provided for such child or children respectively, under or by virtue of the trusts of the said term of one thousand years; AND THEN and in such case ther to receive the said A. B., his executors, administrators, or assigns, shall be entitled to receive the sum or sums of money so to be advanced by him as aforesaid, and the same shall be considered as part of his personal estate, unless the said A. B. shall, by some writing under his hand, direct the contrary (t): PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that if it shall be desired, at any time or times during the life of the said A. B., to raise any sum or sums of money under the trusts herein before declared of the said term of one thousand years, by mortgage or sale of all or any part of the said hereditaments and premises comprised in the same term, then and in every such case it shall be lawful for the trustees or trustee for the time being by whom the same shall be so raised, and they or he are and is hereby authorized and directed, by any deed to be executed by them or him in the presence of, and attested by, two or more credible witnesses, to limit and appoint the hereditaments and premises which shall be so mortgaged or sold, to the person or persons to whom the same shall be so mortgaged or sold under the trusts of the said term of one thousand years, for the term of three hundred years, to commence and be computed from the execution of the deed by which this present power shall be exercised, if the said A. B. As to the satisfaction of portions by advancement by the father. (1) With respect to the effect of this clause, see Countess Gower v. Earl Gower, 1 Cox, 53; Pitt v. Jackson, 2 Bro. C. C. 51; Smith v. Lord Camelford, 2 Ves. jun. 698; Folkes v. Western, 9 Ves. 456; Noel v. Lord Walsingham, 2 S. & S. 99. REAL ESTATE WITH USUAL CLAUSES. preceding versioner to and profits. trusts, the re take the rents shall so long live, without impeachment of waste, but so that in case of a mortgage, the term so to be limited or appointed shall be made to cease or be redeemable on payment of the principal money to be secured, and the interest. thereof, on or at the day or time, or days or times, and in the manner to be thereby appointed for the payment of the same respectively (u): PROVIDED ALWAYS, and it is hereby Subject to the agreed and declared between and by the parties to these presents, that, subject and without prejudice to the trusts hereinbefore declared, the rents, issues, and profits of the said hereditaments and premises comprised in the said term of one thousand years, or so much of the same rents, issues, and profits as shall from time to time remain after answering the trusts aforesaid, shall be had and received by the person or persons who for the time being shall be entitled to the same premises in reversion or remainder expectant on the determination of the same term, to and for his and their own use and benefit: PROVIDED ALWAYS, and Proviso for cesser of the term. it is hereby agreed and declared between and by the parties to these presents, that immediately after all the trusts hereinbefore declared of and concerning the said term of one thousand years shall in all respects be fully performed and satisfied, or shall have become unnecessary or incapable of taking effect, And the said X. Y. and Y. Z., and each of them, their and every of their executors, administrators, and assigns, shall have been fully reimbursed and satisfied all costs, charges, and expenses, (if any), to be occasioned by or relating to the trusts hereby reposed in them as aforesaid, (u) In the absence of the power given by this proviso, it is very difficult in practice to make a security for any portions which it may be desired to raise in the lifetime of the father, because the term under the trusts of which they are to be raised only commences from the death of the father. If the father be willing to consent, a security may be made by demising his life estate; but this is a very awkward and inconvenient device, and might perhaps affect his right to exercise or consent to the exercise of the other powers in the settlement: and if the father do not concur, no efficient security can be made till after his death. The proviso in the text has been recently introduced in order to obviate these difficulties, but how it will work in practice is yet to be seen. Power to raise portions in the lifetime of the father. WITH USUAL CLAUSES. Power to the husband to limit jointures to after-taken wives; REAL ESTATE (and which they are hereby authorized and empowered to levy and raise by all or any of the ways or means aforesaid, or by any other reasonable ways and means, and to retain accordingly), the same term shall, subject and without prejudice to any disposition or dispositions which shall have been made of the premises comprised therein, or any part thereof, in pursuance of the trusts aforesaid, absolutely cease and determine (v): PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that if the said C. D. shall die in the lifetime of the said A. B., then and in such case it shall be lawful for the said A. B., at any time or times and from time to time, either before or after his marriage with any other woman or women, by any deed or deeds, writing or writings, with or without power of revocation, to be by him sealed and delivered in the presence of, and to be attested by, two or more credible witnesses, or by his last will and testament, or any codicil or codicils thereto, to grant, limit, or appoint to any woman or women, or to any person or persons in trust for any woman or women, with whom he the said A. B. may marry after the decease of the said C. D., for her or their life or lives, and in full or in part only for or in the nature of her or their jointure or jointures, and in bar or without being n bar of her or their dower thirds and freebench, any annual sum or yearly rent-charge, or annual sums or yearly-rent charges, not exceeding for any one such woman the clear yearly sum of £, to be issuing and payable out of, and charged and chargeable upon, all or any of the said hereditaments and premises herein before directed, limited, and appointed, and granted and released respectively, or expressed and intended so to be, (other than the said advowsons), and to be free from all taxes and deductions whatsoever, and to be paid at such times and in such manner as to him the said A. B. shall seem meet; AND for the purpose of securing the annual sum or yearly rent-charge, or annual sums or yearly rent-charges, so to be appointed as aforesaid, to limit or appoint to the woman or women, or to any trustee or trustees for the woman or -with usual powers; (v) As to this proviso, see supra, p. 308, n. (m). |