STRICT SETTLEMENT. G. H., of &c., [trustees of a term], of the third part; I. K., of &c., and L. M., of &c., of the fourth part; and N. O., of &c., and P. Q., of &c., [trustees to preserve contingent remainders and donees of the powers], of the fifth part: [Recitals, shewing that, subject to a number of charges Recitals shewand incumbrances specified in schedules to the settlement, of the settlor. ing the title the hereditaments to be settled, and other hereditaments, stand limited to such uses as A. B. and C. B. shall appoint, and in default of appointment to A. B. for life, with remainder to C. B. in fee: Recitals of a conveyance of even date, whereby the other hereditaments referred to were vested in C. B., E. F., and G. H., in trust to sell and hold the proceeds on trusts to be declared by the present settlement; see the mode of reference, supra, p. 362]. NOW THIS Witnesseth apINDENTURE WITNESSETH, that, in consideration part of the hepointment of of the premises, they the said A. B. and C. B., pursuant to, reditaments. and by force and virtue and in exercise and execution of, the power or authority to them for this purpose given by the herein before recited indenture of the so far as the same is subsisting, and of every or any other power or authority whatsoever in anywise enabling them or either of them, jointly or severally (b), in this behalf, do by this deed or writing sealed and delivered by them respectively, in the presence of the two credible persons whose names are intended to be hereupon indorsed, as witnesses attesting the sealing and delivery hereof by the said A. B. and C. D., direct, limit, and appoint; THAT such Parcels. and so many of the manors, lands, and hereditaments hereinafter released, or expressed and intended so to be, with day of to be carried out, powers of jointuring must be given to the different male tenants for life, and powers of charging portions for their younger children to all the tenants for life. The female tenants for life, too, should have powers of appointing rent-charges in the nature of jointures to husbands. These last powers are not in the Precedent in the text, but an example of them will be found in a settlement by will in the next volume. The ordinary powers of leasing and of enfranchisement, and of sale and exchange, must, of course, be inserted. (b) The language of the reference to the power is rather peculiar in this case. See ante, Vol. 3, p. 211, n. (e). STRICT SETTLEMENT. To the uses of the settlement. Witnesseth further, grant and release of all the property. Parcels. Habendum. their rights, members, easements, and appurtenances, as are comprised and described in the second schedule to these presents, shall henceforth go, remain, and be, TO THE USES, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, declarations, and agreements hereinafter declared, expressed, and contained of and concerning the same. AND THIS INDENTURE ALSO WITNESSETH, that, in consideration of the premises, they the said A. B. and C. B., according to their respective estates and interests, have, and each of them hath granted, released, and confirmed, and by these presents do, and each of them doth grant, release, and confirm unto the said E. F. and G. H., (in their actual possession now being, by virtue of a bargain and sale to them thereof made by the said A. B. and C. B., in consideration of five shillings a-piece, by indenture &c., ante, Vol. 3, p. 198), and to their heirs, ALL and singular the manors, lands, and hereditaments described or mentioned in the second and fourth schedules to these presents [general words]: TO HAVE AND TO HOLD the said manors, lands, and hereditaments, and all and singular other the premises hereby released, or expressed and intended so to be, unto the said E. F. and G. H., 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 declared, expressed, and contained of and concerning the same: AND IT IS HEREBY AGREED and declared between and by the parties to these presents, that the direction, limitation, and appointment, and also the grant, release, and confirmation hereinbefore contained, shall severally operate and enure To THE USES, 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 Limitations to same, (that is to say), TO THE USE of the said C. B., E. F., the use of trus- and G. H., their executors, administrators, and assigns, for and during the term of nine hundred years, to commence be subsequently from the day of the date of these presents, without impeachment of waste, UPON AND FOR THE TRUSTS, intents, and purposes, and subject to the proviso hereinafter expressed To uses. Declaration of uses. tees for a term of 900 years, upon trusts to declared; STRICT SETTLEMENT. thereto, -to the use of settlor for life, subject to restrictions as to waste; remainder to trustees during serve contin his life to pre gent remain ders; and contained of and concerning the same; AND IMMEDIATELy from and after the expiration or sooner determination of the said term of nine hundred years, and in the meantime sub- and, subject ject thereto and to the trusts thereof, TO THE USE of the said A. B. and his assigns during his life, without impeachment of waste, except wilful or permissive waste, in disparking lands, or in pulling down houses, or suffering the same to run into decay (c); AND immediately from and after the determination of that estate by forfeiture or otherwise in his lifetime, To THE USE of the said N. O. and P. Q., their heirs and assigns, during the life of the said A. B., IN 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 the said A. B. and his assigns to have, receive, and take the rents, issues, and profits of the said hereditaments and premises during his life for his and their own use and benefit; AND IMMEDIATELY from and after the decease of the said A. B., To SUCH USES, upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisoes, agreements, and declarations, as the said C. B. shall, at any time or times after the decease of the said A. B., by any deed or deeds, instrument or instruments in writing, with or without power of revocation and new appointment, to be by him sealed and delivered in the presence remainder to such uses as eldest son shall appoint; the settlor's Wilful or voluntary waste by tenant for life. (c) Wilful or voluntary waste consists chiefly in felling timber, pulling Waste, what is. down houses, opening mines or pits, changing the course of husbandry, and destroying heir-looms. Permissive waste consists chiefly in allowing houses to go to decay. (See 1 Cru. Dig., by White, Tit. III. ch. ii.; Co. Lit. 53. a. et seq.). It has been held, that a tenant for life, "without impeachment of waste other than wilful waste," is entitled to the interest of money produced by the sale of decaying timber cut by order of the Court. Wickham v. Wickham, 19 Ves. 419; S. C. Geo. Coop. 288; see, however, Garth v. Cotton, Dick. 183; S. C. 1 Ves. sen. 524, where the tenant for life was prohibited from committing "voluntary waste." A tenant for life, without impeachment of waste, will be restrained from malicious or injurious waste. (See the cases cited in Cru. Dig. ubi supra, sect. 59 et seq., and the recent case of Wellesley v. Wellesley, 6 Sim. 497). STRICT SETTLEMENT. thereto, to the use of trustees for one day to prevent a merger; life; -remainder to trustees to pre of, and to be attested by, two or more credible witnesses, or by his last will and testament in writing, or any codi-and, subject cil thereto, direct, limit, or appoint; AND IN DEFAULT of and until such direction, limitation, or appointment, and so far as no such direction, limitation, or appointment shall extend, To THE USE of the said I. K. and L. M., their executors, administrators, and assigns, for the term of one day, determinable as hereinafter mentioned (d), in order to prevent the said term of nine hundred years hereinbefore limited to the said C. B., E. F., and G. H., their executors, administrators, and assigns, from being merged and extinguished in the freehold next hereinafter -and, subject limited to him the said C. B.; AND FROM AND AFTER thereto, to the the expiration or other sooner determination of the said use of settlor's eldest son for term of one day, and in the meantime subject thereto, TO THE USE of the said C. B. and his assigns during his life, without impeachment of waste; AND IMMEDIATELY from and after the determination of that estate by forfeiture or otherwise in his lifetime, To THE USE of the said N. O. and P. Q., their heirs and assigns, during the life of the said C. B., [in trust to preserve contingent remainders, -remainder to supra, p. 613]; AND IMMEDIATELY after the decease of the said C. B., TO THE USE of the first and other sons of the said C. B., lawfully to be begotten, severally, successively, and in remainder, one after another, in order and course as they shall respectively be in priority of birth and seniority of age, and the heirs male of the body and respective bodies of all and every such son and sons issuing, the elder of such sons and the heirs male of his body issuing being always to take before and be preferred to the younger of such sons and the heirs male of his -remainder to and their body and respective bodies issuing, AND IN DEFAULT of such issue, TO THE USE of the first and other sons cessively in tail of the said C. B., lawfully to be begotten, severally, sucgeneral; serve; his first and his first and other sons suc Merger of terms. (d) If this limitation were wanting, the third part of C. B. in the term of nine hundred years would, perhaps, on the death of A. B., merge in the life estate of C. B. See Burton's Law of Real Property, arts. 748 et seq., and 900. STRICT SETTLEMENT. remainder to other daughters successively in tail general; his first and cessively, and in remainder, one after another in order and course as they shall respectively be in priority of birth and seniority of age, and the heirs of the body and respective bodies of all and every such son and sons issuing, the eldest of such sons and the heirs of his body issuing being always to take before and be preferred to the younger of such sons and the heirs of his and their body and respective bodies issuing (e), AND IN DEFAULT of such issue, To THE USE of the first and other daughters of the said C. B. lawfully to be begotten, severally, successively, and in remainder, one after another in order and course as they shall respectively be in priority of birth and seniority of age, and the heirs of the body and respective bodies of all and every such daughter and daughters issuing, the elder of such daughters and the heirs of her body issuing being always to take before and be preferred to the younger of such daughters and the heirs of her and their body and respective bodies issuing, AND IN DEFAULT of such issue, To THE USE of the said D. B., [the second son of A. B.], and his assigns during his life, subject to impeachment for waste (f), AND IMMEDI- remainder to ATELY from and after the determination of that estate by for remainder to the second son of the settlor for life, with impeachment of waste; trustees to preserve; (e) This and the succeeding limitation should be postponed to the li- Order of limitations to the second son and his male issue, and to that to the after-mitations in strict settleborn sons of the settlor in tail male; but the variation from the regular ment. order of the limitations, as well as the introduction of the power of appointment previously limited to the eldest son, arose from the fact, that the concurrence of the eldest son in making the settlement was indispensable. (f) The expression" subject to impeachment for waste" is added from abundant caution; for a tenant for life may not commit waste, unless his estate is expressly limited without impeachment of waste. With respect to waste by tenants for life, see 1 Cru. Dig. by White, Tit. III. chap. ii.; Co. Litt. 53. a. et seq., supra, p. 613, n. (c). It is waste for a tenant for life to change meadow into arable land, or the like. (Cru. Dig. ubi supra, pp. 18, 19; supra, p. 50. n. One of the most important distinctions between a tenant for life simply, and a tenant for life without impeachment of waste, is, that the latter alone has the power to fell timber for sale. But if there be a tenant for life, subject to impeachment for waste, timber which has arrived at maturity, or is decaying, or which ought to be cut for the purpose of thinning woods, may be cut and sold under the direction of the Court of Chancery or by competent trustees. (Tooker v. Annesley, 5 Sim. 235; Waldo v. Waldo, 7 Sim. 261). The Waste by a tenant for life. |