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XVII.

OF REAL ESTATE EQUALLY AMONG THE CHILDREN.

Parties.

Recitals, shewing the wife's estate.

Recital of the agreement for settlement as to the freeholds;

SETTLEMENT of Reversionary Freehold and Copyhold Property. Limitations to the Husband and "wife Successively for Life, with Remainder to the Children as the HusBand and Wife or the Survivor shall ApPoint, and In Default of Appointment, to the Children as Tenants In Common In Tail, with Cross Remainders between them in Tail {a). Usual Powers and Covenants.

THIS INDENTURE, made &c, Between N. D., of &c, [the father of the intended wife], of the first part; C. D., of &c, [intended wife], the only daughter of the said N. D., of the second part; A. B., of &c., [intended husband], of the third part; and E. F., of &c., G. H., of &c, and I. K., of &c, [trustees], of the fourth part: [Recital of a settlement on the marriage of the wife's father and mother, and of a deed poll executed in pursuance of a power in that settlement, under which the wife is entitled to the reversion in fee expectant on the determination of the prior life estates in freeholds, and to a corresponding equitable estate in copyholds, the legal estate in which is vested in her fatherand of the agreement for the marriage, see supra, p. 309]; And Whereas upon the treaty for the said intended marriage, it was (among other things), agreed, that the reversion in fee-simple of her the said C. D., of and in the said freehold and charterhold hereditaments comprised in the hereinbefore recited indenture of release and settlement, (subject and without prejudice, as in the said deed poll is in that behalf expressed and provided), should

(a) It is extremely inexpedient to settle real estate in this manner. (See supra, p. 341, n. (a)).

OP REAL ESTATE EQUALLY AMONG THE

be settled and assured To the uses, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations hereinafter Children. limited, expressed, and declared of and concerning the same, And That the said N. D. should surrender the re- —andthecopyversion expectant on the respective deceases of him the said tolds, N. D. and the said P. D. his wife of and in the copyhold hereditaments comprised in the said indenture of release and settlement, to the use of the said E. F., G. H., and I. K., their heirs and assigns, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations hereinafter declared and expressed, or referred to, of or concerning the same. NOW Witnessetb, THIS INDENTURE WITNESSETH, that, in pursu- £° ftEif ance 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 sealing and delivering these presents (6)), hath granted and confirmed, and by these presents doth grant and confirm, unto the said E. F., G. H., and I. K., and to their heirs, All That the remainder or reversion in fee-simple of her the said C. D., expectant and to take effect in possession upon the determination of the said several uses or estates, by the said indenture of release and settlement limited, or expressed to be limited, for and during the respective lives of the said N. D. and P. D., and subject and without prejudice, as in the said deed poll is in that behalf expressed and provided, of and in all such and so .many, and such part and parts of the said capital and other messuages, lands, tenements, and other hereditaments mentioned and comprised in the said indenture of release and settlement, as are or is freehold or charterhold (c), with their rights, easements, and appurtenances (d), And All The Estate, &c.: Habendum to

'1 r w 'the releasees.

(o) See supra, p. 310, n. (rf).

(c) See ante, Vol. 3, p. 354, n. («)•

(d) The estate conveyed being a remainder or reversion, lies in grant; Form of eon

and, therefore, no lease for a year is needed. H ence, too, the parcels veyance of a

. . . i .„ ,r i - „ reversion or r«

are conveniently described in the recital. (See ante, Vol. 3, p. 209, mainder

OF ILEAL ESTATE EQUALLY AMONG THE CHILDREN.

To the use of the wife until marriage;

—after marriage, to the use of the husband for life;

—remainder to trustees to preserve contingent remainders;

—remainder to the wife for life;

—and to trustees to preserve;

—remainder to

To Have And To Hold the said remainder or reversion in fee-simple expectant, and to take effect in possession as aforesaid, and subject and without prejudice as aforesaid, and all and singular other the premises hereinbefore granted, or expressed and intended so to be, unto the said E. F., G. H., and I. K., and their heirs, To The Uses, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations hereinafter limited, expressed, and declared of and concerning the same, (that is to say), To The Use of the said C. D., her heirs and assigns, until the said intended marriage shall be had and solemnized; And From and after the solemnization thereof, To The Use of the said A. B. and his assigns during his life, without impeachment of waste; And From and after the determination of that estate by forfeiture or otherwise, in the lifetime of the said A. B., To The Use of the said E. F., G. H., and I. K., and their heirs, during the life of the said A. B., upon, trust to preserve the contingent uses and estates hereinafter limited from being defeated or destroyed, and for that purpose to make entries and bring actions as occasion shall require, But, nevertheless, to permit and suffer the said A. B. and his assigns to receive and take the rents, issues, and profits of the said premises, for his and their own use during his life; And From and immediately after the decease of the said A. B., To The Use of the said C. D. and her assigns during her life, without impeachment of waste; And From and after, &c.; [remainder to the trustees to preserve during her life (e)]; And From and immediately after the

n. (c)). The present deed describes the property as a remainder or reversion, but it is very usual to convey the property by the ordinary description, as though it were in possession, and to indicate its reversionary nature only in the habendum, by stating the prior estates to which it is subject.

When succes- (e) When successive life estates are limited, each should be followed by sive jife estates a SPparate limitation to trustees, during the immediately preceding life, to each should be preserve the contingent remainders. We sometimes find a series of life decease of the said C. D., To The Use of all and every, or o? Real Essuch one or more exclusively of the other or others, of the among The children and child of the said A. B., on the body of the said Children. C. D. to be begotten, at such age, day, or time, or respect- the children

. . - , . of the marriage,

ive ages, days, or times, tor such estate or estates, interest tne husband or interests, and, if more than one, in such shares and pro- and TMlfe sha11

. . . appoint;

portions, and with, under, and subject to such limitations and remainders over, and charged and chargeable with such sum or sums of money, either annual or in gross, being for the benefit of some one or more of the said children, and upon such conditions, with such restrictions, and in such manner as 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 by them sealed and delivered in the presence of, and attested by, two or more credible witnesses, from time to time direct, limit, or appoint; And In Default of such joint direction, —and in delimitation, or appointment, and so far as no such joint di- j'jjjf "pp"^. rection, limitation, or appointment shall extend, then as lnenf■ as the the survivor of them the said A. B. and C. D. shall, by any appoint; deed or deeds, instrument or instruments in writing, with or without power of revocation and new appointment, to be by him or her sealed and delivered in the presence of, and attested by, two or more credible witnesses, or by his or her last will and 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, from time to time direct, limit, or appoint; And In Default of such direction, limit- —and in dcation, or appointment, and so far as no such direction, limit- p01nttmfe*"ytoP" ation, or appointment shall extend, To The Use of all and all the children every the children and child of the said A. B., on the body ants*i'n com-"" of the said C. D. to be begotten, and the heirs of their re- mon in t<lil; spective bodies issuing, to be divided between or amongst the said children, if more than one, in equal shares as

estates, with only one limitation to trustees to preserve, following the last followed by a of the life estates, and expressed to be for the purpose of preserving eon- I'TM'1*''01! to tingent remainders during all the preceding estates; but this is a very confused and inaccurate mode of limitation. As to the estate of the trustees' to preserve contingent remainders, see supra, p. 502, n. (g).

OF REAL ESTATE EQUALLY AMONG THE CHILDREN.

—with cross remainders between them as tenants in common in tail;

—with remainder to the wife in fee.

Power of leasing.

tenants in common; And if anyone or more of the said children shall die without issue of his, her, or their body or respective bodies, then as well as to the original share or shares of the child or children so dying, and of whom there shall be such failure of issue as hereinbefore is mentioned, as to the share or shares which shall have survived or accrued to any such child or children, or to the heirs of his, her, or their body or respective bodies, To The Use of the other or others of the children of the said A. B. by the said C. D., and the heirs of their respective bodies issuing, and to be divided between or amongst the last-mentioned children, if more than one, in equal shares, as tenants in common; And if all the children of the said A. B. by the said C. D., but one, shall die without issue, or there shall be but one such child, then as to the entirety of and in the said hereditaments and premises, To The Use of such one or such only clnld, and the heirs of his or her body issuing; And Fob Default of such issue, To The Use of the said C. D., her heirs and assigns for ever (f): 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 A. B. and C. D., as and when, under and by virtue of the limitations hereinbefore contained, they shall successively and respectively be in the actual possession of, or be entitled to, the receipt of the rents, issues, and profits of the said hereditaments, the reversion whereof is hereby granted, or expressed and intended so to be, during their respective lives; And

Mode of settlement of real estate among all the children of a marriage.

(/) When parties insist on having real estate settled as real estate for the benefit of all the children, (see supra, p. 341, n. (a)), it should be limited (subject to the powers of appointment) to the use of all the children in tail, with cross remainders between them in tail. Now that estates tail can be barred by an enrolled deed, there is no objection to their creation; and this mode of limitation is so much more simple and convenient than that of limiting estates in fee-simple, that the latter should never be permitted. In limiting real estate to children, they must be made to take vested estates at birth; for if the vesting be postponed to twenty-one or marriage, and the prior estates determine before all the children attain twenty-one or marry, the estates which then remain contingent will fail

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