FOR A MORTGAGE. mortgage be good right, full power, and absolute authority to grant and release, or appoint or otherwise convey and assure the said messuages, lands, and hereditaments, comprised in the said schedule to these presents, and every part thereof, with their rights, members, easements, and appurtenances, and the inheritance thereof, in fee simple, free from any incumbrances whatsoever; and that, in the That, until meantime and until the said mortgage shall be made and executed, the said messuages, lands, and hereditaments, and every part thereof, with their rights, members, easements, and appurtenances, shall be and remain a security to the said C. D., his executors, administrators, and assigns, and stand charged and chargeable with the payment to him and them of the said sum of £4,000 and interest as aforesaid. IN WITNESS &c. made, lands shall be charged as a security for the monies advanced. XIII. AGREEMENT with an intended MORTGAGEE to TO EXERCISE A POWER OF THIS INDENTURE, made &c. BETWEEN A. B., of &c., Parties. [mortgagor], of the one part, and C. D., of &c., [mort gagee], of the other part: [Recites will, devising estates, Recital of will, in strict settlement, under which A. B. is tenant for life, with power to the tenant for life to charge the estates with £ venant to exercise power, far as the same is thereinbefore recited]: AND WHEREAS of loan. the said C. D. hath this day advanced and lent to the said A. B. the sum of £- -; NOW THIS INDENTURE Witnesseth coWITNESSETH, that the said A. B. doth hereby, for himself, his heirs, executors and administrators, covenant with the said C. D., his executors, administrators, and assigns, that he, the said A. B., will, as soon as the case will admit, at his own costs and charges, by virtue and TO EXERCISE A POWER OF -and to limit a term, ; in exercise of the aforesaid power in this behalf given, or limited to him by the said will, as hereinbefore is mentioned, well and effectually subject and charge all the manors, castles, farms, lands, and hereditaments, so devised by the said will, as herein before mentioned, or such part of the same hereditaments as the said C. D. shall think sufficient and satisfactory, to and with the payment to the said C. D., his executors, administrators, or assigns, of the sum of £ And also limit and appoint the hereditaments so to be charged, with their appurtenances, unto the said C. D., his executors, administrators, and assigns, for the term of years, to be computed from the day of the date of these presents, without impeachment of waste, by way of mortgage, for securing to the said C. D., his executors, administrators, and assigns, the repayment of the said sum of £, on the now next ensuing, with interest for the same in the meantime, at the rate of £per cent., per annum; And will enter into a covenant with into usual mort- the said C. D., by way of collateral security, for the payment of the said sum of £, and interest; And also into proper and usual covenants for the right of him, the said A. B., to charge and mortgage the said premises in --and to do all manner aforesaid, and for further assurance; And further, that he, the said A. B., will, at his own costs and charges, make, do, and execute, or cause, and procure to be made, done, and executed, all such acts, deeds, and assurances in the law, whatsoever, for effecting the purposes aforesaid, as by the said C. D., his executors, administrators, or assigns, or his or their counsel in the law shall be reasonably devised, advised, or required. IN WITNESS &c. (a). -and to enter gage covenants, acts necessary for further as surance. day of Agreements to exercise pow ers. (a) Contracts, or agreements to execute powers, are, in equity, considered as defective executions, and will, like them, be aided, if there be a sufficient consideration. "The same rules," says Sir E. Sugden, (2 Powers, 127), "apply to each case. As against a remainderman, both are equally binding. The principal distinctions between them are, that a contract to execute a power might be enforced against the donee of the power himself, where a defective execution, without any contract, although capable of being enforced against the remainderman, could not be aided against the party who made it." XIV. THE CONSTRUCTION OF A WILL. AGREEMENT for settling the true CONSTRUC- FOR SETTLING THIS INDENTURE, made &c. BETWEEN C. B., of &c., Parties. Now, it is settled, that a defective execution will be aided in favour of a purchaser, mortgagee, or lessee; (see the cases collected, 2 Sugd. Pow. 100; 2 Chance on Powers, 494); and, therefore, it follows, that an agreement to exercise a power of sale, or charging, or leasing, will also be aided, although wanting in the formalities required by the power. (See 2 Sugd. Pow. 127, 135). And the general rule is, that an agreement to execute a power, will always be enforced, and aided, if there be a sufficient consideration; that is, if the object be the benefit, either of a purchaser, mortgagee, creditor, lessee, wife, or child, or of a charity. (See Sugd. Pow. ch. 10, ss. 1, 2, 3; Chance on Powers, ch. 23, ss. 1, 2). Most of the cases as to agreements to exercise powers have arisen as to powers of jointuring, and there does not appear to be any case expressly as to a power of charging. But there can be no doubt, that agreements to execute powers of charging would be enforced and aided. (See Lord Redesdale's Observations, 1 Scho. & Lef. 60, 62, 63; 2 Ball & Beatty, 44). It is, however, extremely undesirable to leave any matter open to dispute; and, therefore, care should always be taken, that agreements to execute powers should be themselves executed and attested in the manner which the power requires. (See Mortlock v.. Buller, 10 Ves.292). (a) It must be understood, that this precedent is given, not as a form which can be used in framing other instruments, but as a THE CON STRUCTION OF Recites that deceased, were FOR SETTLING G. H., of &c., and I. H. his wife, (formerly I. B. spinster), and A. B., of &c., (which said C. B., F. E., I. H. and A. B., are the only children now living of C. B., Esq., deceased, the only son of A. B., late of &c., now deceased, and are the only next of kin of L. B., deceased, another child of the said C. B. deceased), M. B., of &c., spinster, N. P., of &c., and Q. P., of &c., (formerly Q. B. spinster), and R. S., of &c., and T. S. his wife, (formerly T. B. spinster), which said M. B., Q. P., and T. S., are the only daughters of the said A. B., deceased; and are, together with the said children of the said C. B., deceased, the only next of kin of the said A. B., deceased), of the one part; and the said N. P., G. H., and C. B., party hereto, (the executors named in and appointed by the will of the said A. B., deceased), of the other part: WHEREAS the said A. B. and C. B., deA. B. and C. B., ceased, carried on business as merchants, in copartnership, down to the time of the death of the said C. B., deceased: AND WHEREAS the said C. B., deceased, duly signed and left, by will, his published his last will and testament in writing, bearing date the 31st day of May, 1827, and thereby left all his property in the said copartnership at the disposal of the said A. B., deceased, and appointed him sole executor of the said will: AND WHEREAS the said C. B. died on the 27th day of C. B., and pro- December, 1833, without having altered or revoked his said will, so far as the same related to the property of the said copartnership, and the said appointment of executor; and the same will was proved by the said A. B., deceased, on the 24th day of February, 1824, in the Prerogative Court -that he left a of the Archbishop of Canterbury: AND WHEREAS the said C. B., deceased, left V. B. his widow, and the said C. B., party hereto, F. E., I. H., A. B., party hereto, and L. B., —will of A. B., and no other child him surviving: AND WHEREAS the said A. B., deceased, duly made, signed, and published his last co-partners; -that C. B. co-partnership property to A. B.; -death of bate of his will; widow and certain children; deceased. specimen of the kind of instrument required for carrying into effect family arrangements. It is of considerable length, and will require much attention, before it is fully comprehended; but as it was prepared with much care, and was settled in consultation by two of the most eminent conveyancers of the present day, it has been thought well to include it in this Collection. THE CONSTRUCTION OF pute. A WILL. will and testament in writing, bearing date the 1st day of FOR SETTLING January, 1834, and after therein noticing, that, by the death of the said C. B., deceased, whom he had appointed his sole executor, that appointment had ceased, he thereby appointed the said N. P., G. H., and C. B., party hereto, his (the said testator's) executors; and the said testator gave the whole of the properties he might be possessed of or entitled to, belonging to his said deceased son, so far as he, the said testator, had power under the will of his said son, to the said N. P., G. H., and C. B., party hereto, in trust, (to the full extent of his said son's property), for the purposes in the said will now in recital mentioned; and the said testator, by his said will, declared that his own property he should dispose of to the children of his said. son, and the children of his daughter, the said T. S., and some bequests to others, as he, the said testator, should thereafter name and set forth; and the said testator, One of the among other bequests, bequeathed to his said daughter, the points in dissaid T. S., the sum of £1,000 31. per cent. consols, to be added to her marriage settlement; and the said testator then gave various other legacies, and further directed, that a sufficient sum might be invested in the public funds, or some other security, that the interest thereof might enable his executors to pay the rent from time to time accruing due, which he, the said testator, and his said son, the said C. B., deceased, by lease, had engaged to do, in respect of some property at ; and with respect to the remainder of his, the said testator's, property, (not disposed of otherwise), he directed that the same should be distributed by his executors, amongst his grandchildren with equity and Another of the justice, one half thereof amongst the children of his late points in disson, the said C. B., deceased, and the other amongst the children of his daughter, the said T. S.: AND WHEREAS Recites codicil the said A. B., deceased, duly made, signed, and published a codicil, bearing date the 2nd day of January, 1834, to his said will, and thereby, in respect to the bequest of his residuary property to his grandchildren, directed, that they Point in disshould each attain a vested interest therein, only as they might respectively attain the age of twenty-three years, or pute. to will of A. B. pute. |