Imatges de pàgina
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CHAP. I.

SEC. VI.

Of the execu

tion of a deed

"the within-named (the principal.) by virtue of a " power or authority enabling him thereunto, a true and "attested copy whereof (or "a counterpart whereof") "is hereunto annexed, hath hereunto set the hand and "seal of the said (principal), the day and year &c."

And the delivery should be in this form, "I deliver "this as the act and deed of the within-named (the "principal.)"

The power must be under hand and seal, or it will not authorize the execution of a deed; and there should be two parts of it, the one to be retained by the attorney, the other to be annexed to the deed, because the grantee under a deed, executed by virtue of a power of attorney, has a right, at any time, to call for the power to satisfy himself or others claiming under him of the competency of the authority.

On a conveyance to new trustees, appointed by the by a trustee ap- Court of Chancery under the 6th Geo. IV, c. 74, the pointed under name of the old trustee should be inserted throughout

6 Geo. iv.

Of execution

by infants, conveying under an order of court.

the conveyance, as if it was to be executed by him personally, and the deed should be executed in this form,— "A. B, (the old trustee)

by

C. D," (the person appointed by the Court to

convey.)

There must of course be inserted a full recital of the order of the court authorizing him to convey.

When, under the decree or order of a Court of Equity, some of the grantors are infants, it is the practice to make the infants parties, but to suspend their executing the deed till they are of age, although the language of the order is "that all proper parties, except A. B, C. D, "infants, join in the conveyance."

CHAPTER II.

OF SETTLEMENTS.

1. Of the settlement of personal estate.
2. Of the settlement of real estate.

SECTION I.

Of the Settlement of Personal Estate.

Where the property to be settled belongs to the wife, Settlement of the property of and consists of money upon mortgage, or bond, the se- intended wife.

curities must be recited in the intended settlement, which may be done very briefly, and even by a general reference merely specifying the sums. The mortgages should each be transferred by a separate deed to the trustees of the settlement, with an assignment to them of the money, and they must, by such separate deed, be declared to stand possessed thereof, upon the trusts of the settlement; and where there are several mortgages, all of them may be assigned by a deed to be enrolled, so that the trustees may have evidence of the title to the real estate by resorting to the enrolment. By this means the trusts of the settlement are not exposed, and, upon payment of the money, the transfer of the mortgage may be delivered up to the owner of the estate, and the mortgagor has in his custody or power the means of shewing a deduction of title to the legal estate, and a discharge of the money, without any resort to the settlement which must necessarily remain with the trustees.

In the settlement, the trustees are declared to stand

CHAP. II.

SEC. I.

General plan of the settlement.

possessed of the mortgage-monies assigned to them by such separate deeds, and of the monies due on bonds &c. (1), (which may be assigned to them by the settlement itself) In trust for the wife until the marriage, and, afterwards, In trust either to continue the same on the present securities (with a power of attorney to receive the same and give discharges as in the common form with a proviso that the receipt &c. of the trustees should be good discharges), or with the consent of the parties to call them in, and from time to time to place the same out again upon new securities, &c., and to pay the interest to the husband for life. If the property be wholly the wife's, and she survive, it is usual, in that case, to declare it to be In trust for her, but if she die in her husband's lifetime in trust for the children in the usual manner.

No general plan can be laid down: every settlement will, of course, vary with the intent of the parties and their views and circumstances. Generally speaking, the husband has a life-interest in the first instance: sometimes that interest, when the husband is in trade and the settled property moves from the wife, is made defeasible on his bankruptcy or insolvency, and when that is the case care should be taken to secure the income to the wife for her separate use during the coverture, and to the issue of the marriage after her death, though it should happen in her husband's life-time. Sometimes, the intended wife takes the immediate income by way of separate use during her coverture; or a part thereof, as a given sum a year, is secured to her by way of pinmoney, and the residue made payable to the husband

(1) The settlement should recite the transfer of the mortgages and the references to the trusts.

during his life, and after the death of either the whole
is given to the survivor for life. Sometimes a power of
appointment is reserved to the husband and wife jointly
by deed, and to the survivor of them by deed or will,
to appoint the trust-money amongst their children in
such shares as they shall think fit; in such a case, they,
or the survivor, should always be empowered to appoint
to grandchildren as well as children, for then, in case
of bankruptcy, extravagance &c., the parents may pass
over the child and provide for the issue of such child,
in the event of the death of a child, give the
issue the share of the child so dying; but, observe,
the issue must be born in the lifetime of the hus-
band and wife, or the survivor, or within twenty-one
years after the death of the survivor, and, that the power
may
be good, it must contain a limitation to that effect :
The following form will embrace these conditions in
reference to real estate.-

or,

any

CHAP. II.

SEC. I.

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To the use of all and every other such one or more, ex- Power for clusively of the other or others of the child or children of parents jointly, and survivor, to the said [husband], on the body of the said [wife], his in- appoint lands tended wife, to be begotten, or of the issne of of the among same dren. child or children, who shall depart this life in the lifetime of the said [husband] and [wife,] or the survivor of them, leaving issue then living at such age or time, ages or times, in such shares and proportions, for such estate or estates of inheritance, charged with such yearly, or other sum or sums of money, and with such conditions and limitations over, (the same sum or sums of money, conditions or limitations over, being for the benefit of some other or others of such children or issue) as the said [husband] and [wife,] by any deed or deeds, writing or writings, with or without power of revocation, to be sealed and delivered by them in the presence of and attested by two or more witnesses, shall, at

CHAP. II.

SEC. I.

Proper powers for trustees.

any time or times, jointly direct, limit, or appoint. And, for want of such joint direction, limitation or appointment, or so far as the same, if incomplete, shall not extend, (1) then as the survivor of them, the said [husband] and [wife], shall by any deed or deeds, writing or writings, with or without power of revocation, to be sealed and delivered by him or her in the presence of and attested by two or more witnesses, or by his or her last will and testament in writing, to be by him or her signed and published in the presence of and attested by three or more witnesses, direct, limit and appoint, and for want of such direction, limitation or appointment, or so far as the same, if incomplete, shall not extend, Then,

A power is also generally given to the trustees, with the consent of the husband and wife, or of the survivor, to lay out the trust-monies in land, but, nevertheless, to be deemed personal estate, for it would be improper to alter the nature of the trust-fund, and it is a general rule that the acts of trustees shall not vary the interests of parties, except where the trustees have a discretion, and then, whether they exercise it or omit to exercise it, the fund must be taken as found, for there is no equity between real and personal representatives, or on the part of the crown claiming by escheat. This power for the trustees to lay out the trust-monies in the purchase of lands, may be useful in a variety of ways, as for bettering or securing the fund, especially where the trusts may be of long duration (2). Another advantage is, that if the parents be desirous of retiring, they may purchase an estate for residence, but, in this case, the powers should be con(1) Sometimes thus:-" If the said then as the said —, after his (or "her") decease, by any deed, &c. (2) Money intended to be settled upon trusts, that they may have long continuance,-improper to let it remain so. The right way is to direct it to be laid out in lands; in which case the property is not only secure, but may, by a change of circumstances, become materially enhan ced in value. Points in Conv., 79.

shall survive the said

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