MARRIAGE SETTLEMENTS. Powers for maintenance. No sale or mortgage till some portion payable, Power for wife to charge. Leasing powers to husband. a younger child might obtain nearly an equal provision with an eldest son. In settlements upon the above plan (as well as in all others), there must also be a power to raise maintenance for the children intended to take portions, which maintenance, in case it be payable out of the lands, should never exceed four per cent., that being interest which money laid out in land is supposed to produce; and, conformable to this maxim, where it is payable out of the personal estate, it will bear interest at five per cent. from the time of becoming due, or at all events the same interest as the fund out of which it is payable produces. It is also proper in settlements of this nature to direct that no sale or mortgage shall be made by the trustees till some of the portions shall become payable; otherwise, as the term, in point of limitation, follows immediately the husband's life estate, a mortgage might be made, and the money taken up, while the jointress was living. It is likewise usual, and indeed highly reasonable, on a settlement of the wife's property, that she should have the disposal of a sum of money to be raised out of her own estate, in the event of there being no children: this may be done under the trusts of the three thousand years' term. It is also proper, in such a settlement, to give the husband a restrictive leasing power; for uses may arise under the joint appointment of him and his wife which will make such a power very useful; as, otherwise, he having a life estate with the reversion in fee, subject only to the three thousand years' term, he might grant leases, subject only to that term, at his pleasure. If mortgages not If there be any mortgages upon the estate, they should either paid off, husband to covenant be paid off at the time, or a covenant should be taken from the husband to discharge them within a given period, according to to exonerate. his circumstances and situation, and the covenant should contain the following words: "That he will pay the money, with the accruing interest, &c. so, and in such manner, as that by such payment the premises may be exonerated and discharged of and from the mortgage debt." If these words were not inserted, the husband might pay off the existing mortgage by borrowing the money of another person and transferring the security to him: this would, however, be such an evasion of the covenant as equity would prohibit. MARRIAGE SETTLEMENTS. And as in every marriage settlement it is of the utmost im- Outstanding portance to get in all legal estates, and to assign all outstanding terms to trustees to attend the uses (for otherwise if the husband should mortgage without notice, and the mortgagee should get in an outstanding term, he might defeat the uses of the settlement, quoad his mortgage), it will be proper to declare, that on payment of the principal and interest, the mortgagee shall convey to the uses of the settlement. Although the lands, or part, be copyhold, they may be settled to the same uses as the freeholds (if the custom of the manor will admit of it) either by limitations expressed in the surrender, or by reference to the deed of settlement. And if the custom of the manor allow of limitations of legal estates, or, in other words, limitations to uses, the copyholds may be settled along with freeholds. Where the custom of the manor (as within the county of Durham) requires that legal estates should be vested in trustees, and does not admit of surrenders to uses, it is the practice, when freehold and copyhold lands are intended to be settled together, to vest the legal estate of both in trustees, in trust for the parties and their issue; in this case, therefore, a term of years cannot legal estates to be gotten in. Copyholds may be settled to same uses as freeholds. MARRIAGE be limited to raise portions for younger children, but a trust of the fee must be created for the purpose. SETTLEMENTS. Powers of sale, exchange, &c. And if there be any particular reason for creating legal estates of the freeholds, the copyholds must be surrendered to trustees; and the trusts may be either detailed, or a reference be made to the preceding limitations of the freeholds. The leasing powers in settlements may also extend to copyhold lands, if a proviso be inserted that no lease shall be made of them without a licence from the lord of the manor or his steward. In marriage settlements powers were formerly given to the husband and wife, or to the husband alone, to sell the settled estates, the party first settling other lands to the same uses; but powers thus given to the parties it has been found inconvenient to execute, because the new estate must then be purchased and settled before the old one can be parted with; the usual way, therefore, now is, to vest the powers in the trustees to uses (who have a scintilla juris to feed and serve the uses when they arise) in which case their conveyance under the power will operate as an appointment of an use to the purchaser, and divest, repeal, or determine the old uses; and to make the execution of their power of sale more effectual, it has been recommended that they shall have a power to revoke the uses of the settlement, and to appoint new ones; which supersedes every possible doubt afterwards, as to the title of a person to whom they shall convey; and in a power of this kind there should be inserted a direction, that on a sale, and until the money shall be laid out in a new purchase, it shall be invested by the trustees on government securities, or on mortgage, and that the interest shall be paid to such persons as would be entitled to the rents of the lands to be purchased and settled; which last direction may be very advantageous to the husband and his family; for an estate which perhaps brings in only three and a half or four per cent. (compared with the sum it would sell for) may be disposed of, and the purchase-money laid out in the funds to produce five and a half or six per cent. MARRIAGE SETTLEMENTS. or mortgage. If a power is to be given to the husband to charge the Power to charge settled estate with a given sum for his own benefit, there should be a power of mortgaging, by demise, annexed to the power to charge, for otherwise it might be difficult for him to raise the money, few persons being willing to lend on an equitable charge, because in case the interest should be in arrear, or the principal wanted, they could neither bring an ejectment nor foreclosure, but must have recourse to a bill to have the money raised by mortgage or sale; whereas if a power be given to raise it by mortgage, the term created, which will rise out of the seisin of the trustees to uses, will overreach and take place of the husband's life estate, and all other estates limited by the settlement, and the mortgagee will consequently be in the same situation as if he had a security upon the estate before the settlement was made (1). (1) Where the husband has no power to raise the money by mortgage, but only to charge, he must execute a deed, charging the same accordingly: this will vest the money in himself, and he may afterwards assign it to any person who will advance him the amount; or, if the power be sufficiently extensive for the purpose, he may acknowledge to have received the sum of the person who lends it to him, and may charge the estate with the payment of that sum in his favour; but in either case the lender has a mere equitable security, and cannot come at his money without the assistance of a court of equity. And so if the husband have power, by deed or will, to charge additional portions for his younger children, and he charges the estate therewith accordingly, the children must resort to equity to have the portions raised, if the eldest son refuse to pay them. SETTLEMENTS. MARRIAGE But where the husband is to have a power to charge the premises with the payment of a sum of money for his younger children, or for any other purpose not to take place in his life-time, a power to mortgage is evidently not so necessary to be annexed as if the money was wanted in his life-time, and therefore is not usual. It may here be observed, that mortgages for the above purposes should always be made by demise (with a proviso that on payment of the money the term shall be void), in order that the legal estate limited by the settlement may not be displaced. And though there be different terms for years subsisting at the time, and all taking place of the limitations of the settlement, still, as the possession of the term is the possession of the reversion, the persons taking under it would have the legal estate in the lands, and the eldest son, on the death of his father, might make a tenant to the præcipe for suffering a recovery; but if the mortgage in the above circumstances were to be made in fee, it would be difficult to say what effect it would have as to the estates of which it would overreach and take place. Some further observations will be found on these points in the notes, post, No. II. and in the INTRODUCTION, ante, (after p. 240.) |