ANALYSIS. the other, payable after his death, called a "Jointure." Secondly, by providing for the payment of gross sums of money, called "Portions," to such of the younger children. of the marriage as attain their majority. Thirdly, by providing that the property, charged with these provisions for the wife and younger children, shall go as a whole after the death of the husband to the eldest son. 365 strict set 1882. Here follows an analysis of a strict settlement made prior Analysis of to 1882 of the husband's property on his marriage when he tlement was seised in fee. The clauses which, if the settlement is before made after 1881, may be omitted or modified in reliance on the C. A. 1881, are printed in italics. An analysis of the same settlement made after 1882, in reliance on the provisions of the S. L. Acts 1882 to 1890, is given post, p. 429. Parties: (1) A. B. (intended husband); (2) C. D. (intended wife); (3) P. T. and Q. T. (trustees of powers); (4) P. M. and Q. M. trustees of pinmoney term); (5) K. J. and L. J. (trustees of jointure term); (6) M. P. and N. P. (trustees of portions terms). Recitals: (1.) The intended marriage. (2.) Narrative recitals where necessary, showing the (3.) Agreement for settlement. Operative clauses : 2. Parcels (general words, all estate). 3. Habendum to P. T. and Q. T. "and their heirs "; 4. To the use of P. M. and Q. M. for 99 years (the pin- 5. To the use of A. B. for life; see post, p. 373. 7. To the use of K. J. and L. J. for 200 years (the jointure term); see post, p. 373. 8. To the use of M. P. and N. P. for 1,000 years (the portions term); see post, p. 376. 9. To the use of the sons of the marriage successively in tail, using the words, "heirs of the body; 10. To the use of the daughters of the marriage as tenants in common in tail, using the words, “heirs of the body," with cross remainders between them; see post, p. 384. 11. To the use of A. B. in fee-simple, using the words, "his heirs and assigns for ever." 12. Trusts of the pin-money term; see post, p. 370. 13. Trusts of jointure term; see post, p. 372. 14. Trusts of the portions term, with the auxiliary trusts and powers; see post, p. 380. 15. Power to husband to jointure a future wife; see post, p. 385. 16. Power to husband to charge portions for the children of a future marriage; see post, p. 386. 17. Declaration as to receipt and application of rents during minorities; see post, p. 387. 18. Powers of leasing and of accepting surrenders of leases; see post, p. 393. 19. Power to grant licences to copyholders; see post, p. 396. 20. Power of enfranchisement; see post, p. 397. 21. Powers of sale and exchange, and, if necessary, of raising money on mortgage with auxiliary trusts; see post, p. 397. 22. Covenant to surrender copyholds to the use of P. T. and Q. T. upon trusts corresponding with uses of freeholds; see post, p. 400. 23. Assignment of leaseholds to P. T. and Q. T. upon trusts corresponding, as nearly as the nature of the property admits, with uses of freeholds; see post, p. 400. 24. Assignment and trusts of heirlooms; see post, p. 401. 25. Receipt clause. 26. Power to appoint new trustees. 27. Clause supplemental to statutory provisions for indemnity of trustees. 28. Covenants for title. necessary. It has been the practice to appoint different sets of trus- Different sets of tees of the powers and of the several terms; probably under trustees, the idea that the powers which had to be exercised for the whether benefit of the estate, i.e., of the husband and eldest son, could not with propriety be vested in persons such as the trustees of the pin-money, jointure, and portions terms, whose duty it was to protect the interests of the wife and younger children. But there is really no conflict of interests, for the better the estate is managed the greater security will the wife and younger children have for pin-money, jointure, and portions. Formerly there was another reason for appointing different sets of trustees of the terms, namely, that where two terms, or a term and an estate of freehold, were limited in immediate succession to the same trustees, merger took place; but this is obviated by the Judicature Act, 1873, s. 25 (4). It is now the usual practice to have only one set of trustees, though occasionally there are two sets, one for the powers and the other for the terms. There is, however, no objection to having different sets of trustees for the powers and for each term according to the old practice, if the parties so desire. for title. It was formerly the practice to insert in a settlement on Covenants marriage full covenants for title, as on a sale; but this is inconvenient, and it is now the practice to omit the covenants and to imply a covenant for further assurance by the settlor conveying "as settlor" (ante, p. 311). It will only be necessary to consider some of the operative clauses. tion. 1. The grant is expressed to be made "in consideration Consideraof the said intended marriage and in pursuance of the said recited agreement." 2. It often happens that the title is not investigated very Parcels. Terms used for securing annuities and gross sums. strictly; so that possibly some part of the property intended to be settled may be omitted in the particular description of the parcels. To guard against this, a few sweeping words are often inserted for the purpose of conveying all the settlor's property in certain counties or parishes (Moore v. Magrath, 1 Cowp. 12). Where this is done, care should be taken not to restrict by the recitals the generality of the description in the operative part (d). 4. At law a limitation of a term of years, immediately preceding any limitation of an estate of freehold, has no effect on the seisin of the freeholder; but the termor has the right to the rents and profits of the land during his term; and, if he be made unimpeachable of waste, he can cut timber, open mines, &c. For these reasons, when an annuity or a gross sum of money is intended to be charged. on the settled property, the usual and convenient practice is to limit a term to trustees upon trust "out of the rents and profits, or by the sale of timber or minerals, or by mortgage of the same premises, or any of them, for all or any part of the term, or by all or any of the ways and means aforesaid, or by any other reasonable ways or means," to raise the annuity or gross sum and their costs (see form in 2 K. & E. 664). The trustees are also directed to "permit the person or persons for the time being entitled in reversion immediately expectant on the said term to the said premises therein comprised, to receive the surplus of the rents and profits of the same premises." (See form in 2 K. & E. 597). Where there are several terms in the same instrument, it is convenient, instead of inserting this provision in the case of each term, to insert a similar provision applicable to the surplus rent of all the terms. Formerly, a proviso was inserted for the cesser of the term as soon as the trusts were fulfilled; but this is now unnecessary, owing to the provisions of the Satisfied Terms Act, 1845 (8 & 9 Vict. c. 112). (d) It must be seen no advowson is settled unless twelve months have elapsed since the last institu tion or admission to the benefice, 61 & 62 Vict. c. 48, s. 1 (1); see 1 K. & E. 926. Where an annuity is secured in this manner, it is rarely Annuity. necessary for the annuitant to call on the trustees to act; for it is to the advantage of the person in possession to keep down the annuity, so that he may not be disturbed in the possession of the land. The practice of securing an annuity by means of a term has become less common than it was formerly, for the limitation of a rent-charge (see form in 2 K. & E. 584) is shorter than the declaration of the trusts of a term, and it is now unnecessary to set out the powers of distress and entry (post p. 373). Where the object of the term is to provide for the raising Gross sum. of a gross sum of money, this is carried out by means of a mortgage by the trustees of the term. The power of sale given to mortgagees by the C. A. 1881, s. 19, will apply to a mortgage by trustees unless expressly excluded by the mortgage. As the tenant for life in possession is bound, as between himself and the remainderman, to keep down the interest on any charge bearing interest (ante, p. 145), he is generally willing to concur in the mortgage for the purpose of covenanting with the mortgagee to pay the interest accruing due during his life. Occasionally he is willing to covenant to pay the principal; and when he does so, it should be provided that, as between himself and the mortgaged property, the latter should primarily bear the debt, but that the mortgagee should not be affected by the proviso. It is generally desirable to insert a power of raising the sum secured by a term by a mortgage of the inheritance (see 2 K. & E. 633). Where it is intended that the payment of an annuity during the lifetime of the tenant for life shall be secured by a term, the term is made prior to his estate for life, so that he is entitled to the possession of the estate, subject to the obligation of paying the annuity. If it be intended that an annuity or gross sum, such as a jointure or portions, shall become payable after his death, the term is limited in remainder after his life estate; so that the tenant in tail is entitled to possession, subject to the charges being paid. 24 E.I.C. The position of the limitation of the term. |