MENTS. MARRIAGE. Freeholds. (Full Form.) band) and (intended wife) his intended wife, by SETTLEdemise, mortgage, sale, or other disposition, either at one time or several times, of the several messuages, lands, tenements, hereditaments, and pre- Settlement of mises comprised in the said term of 1000 years, or any part or parcel thereof, for all or any part of the said term, or by and out of the rents, issues, and profits thereof (1), or by bringing actions against the tenants or occupiers of the said premises for arrears of rent, or by all or any of the said ways or means, or such other lawful ways. or means as they the said last-mentioned trustees or trustee shall think fit, and in case of any mortgage of the said premises, or any part thereof, by sale of the premises so mortgaged, or any other part thereof, for the purpose of paying off, redeeming, or extinguishing the said mortgage (2), levy and raise such sum and sums &c. (1) It is holden, that a trust to raise portions out of the rents Power of sale, and profits only, will give the trustees a power to sell or mortgage the estate for that purpose; Sheldon v. Dormer, 2 Vern. 310. Ivy v. Gilbert, Prec. Ch. 583. 2 P. Wms. 13, S. C. 2 Brow. P. C. 468, S. C. 1 Ves. jun. 234; but in order to facilitate these transactions, should they be found necessary, it is better to give the trustees an express authority for that purpose.-As to the construction of a trust for raising portions, so far as regards the time at which they are to be raised, see Codrington v. Ld. Foley, 6 Ves. jun. 364. (2) As it has been questioned whether, where trustees have Sale of mortmortgaged premises under a power to raise portions or the like, gaged premises. they can sell any part of the same premises for the purpose of paying off such mortgage, see Palk v. Ld. Clinton, 12 Ves. jun. 48, ante, Vol. VI. p. 412, n. (19), this power should be expressly given to them. SETTLE- MARRIAGE. Settlement of If only one younger child, to To be paid at such times as husband shall appoint. for the portion or portions of the said child or Younger or elder son. Time of vesting. (1) In equity every child is considered as a younger child for the taking under the provisions of the settlement, except the heir ; an eldest daughter is therefore a younger child if there be a son of the marriage; Beale v. Beale, 2 P. Wms. 244; and on a similar principle a younger son, on becoming the elder by the death of his brother, will lose the provision made for him as one of the younger children of the marriage; Teynham v. Webb, 2 Ves. sen. 198; and see Duke v. Doidge, ib. 203, n. (a), and Lady Lincoln v. Pelham, 10 Ves. jun. 166. (2) Where portions are directed to be paid or transferred at twenty-one or marriage, but if such events happen in the lifetime of the parents, to be postponed until their death, with survivorship on the decease of any child before his share shall become payable, the interest vests in the children on attaining twenty-one or marriage, although the parents be living, Schenck v. Leigh, 9 Ves. jun. 300, 311; and vid. King v. Hake, ib. 438; and Powis v. Burdett, ib. 428. SETTLE MENTS. MARRIAGE. Settlement of In default of appointment at out power of revocation and new appointment, to be sealed and delivered by him in the presence of two or more credible witnesses, or by his last will and testament in writing, to be by him signed and published in the presence of three or more credible witnesses shall direct or appoint (1), and in default of such direction or appointment, the same to vest in such child, being a younger son, at his 21 or marriage. age of twenty-one years, or, being a daughter, at her age of twenty-one years, or day of marriage, [with the consent of the said (husband) (2)] whichever shall first happen, and to be paid and payable to him or her at the same age or time, provided the same do not happen until after the decease of the survivor of them the said (intended husband) and (intended wife); but if the same shall happen in the life-time of the said (intended hus (1) As powers of appointment of uses are frequently given Powers of apto married women, to fathers or mothers, &c. in favour of one pointment in marriage settleor more of their children, such powers should in general be ments." shackled with such requisition of consent of third persons signing and sealing in the presence of a certain number of witnesses or other circumstance, as may have a tendency to prevent the appointor from being taken by surprise, and induced at an unguarded moment to exercise the power contrary to the general welfare of the family; therefore although a power of appointment of such estate may be reserved to be exercised by will without its being executed according to the statute of frauds, see ante, Vol. I. p. 449, n. (2), it is better that it should be so restricted. (2) It is now fully settled that a condition in restraint of Consent. marriage without consent is valid; Dashwood v. Ld. Bulkeley, 10 Ves. 230. Lloyd v. Branton, 3 Mer. 116. Malcolm ". Callagan, 9 Mad. 349. band) and (intended wife) or of the survivor of or £ Appointment to younger children. (1) The terms elder and younger have reference in these limitations to the estate, and not to primogeniture; every child is therefore considered as coming within this description, except the heir or person taking the estate under the limitations; and hence a younger son becoming an eldest, is not within a power to appoint to younger children; Beale v. Beale, 2 P. Wms. 244. Chadwicke v. Doleman, 2 Vern. 528. Teynham v. Webb, (being more than one) shall be paid and payable, SETTLE MENTS. and become a vested interest in such children respectively, or in or to any one or more of them, MARRIAGE. exclusively of the other or others of them (1), or in or to his, her, or their issue (2), at and upon such ages, days, or times, and in such shares and Settlement of Freeholds. (Full Form.) 2 Ves. 190, (sed vid. contr. Leake v. Leake, 10 Ves. jun. 477, under the circumstances of the case); and should an appointment have been previously made to him, it will be ineffectual, Broadmead v. Wood, 1 Brow. Ch. Ca. 77. And so a daughter, although the eldest child, is within the power to appoint to younger children, Pearson v. Garnet, 2 Brow. Ch. Ca. 38. And an eldest son may be the object of a like power where the estate (as in Borough English) goes to the younger son, Duke v. Doidge, cited 2 Ves. jun. 203. Emery v. England, 3 Ves. jun. 232. (1) As it has been holden that a power to appoint between Exclusive appointment. and amongst the children of the marriage in such shares, &c. as the parents shall appoint, will not authorise an appointment to one or more of such children, in exclusion of the rest; see Pocklington v. Bayne, 1 Brow. Ch. Rep. 450; Alexander v. Alexander, 2 Ves. jun. 640; Kemp v. Kemp, 5 ib. 849; and as it may happen, that some of them may have a provision made for them, independently of the present settlement, it is reasonable, in most cases, that the father should have the power of making such an appointment to or amongst any one or more of the children, in exclusion of the others, as their respective exigencies may require. (2) A power of appointment is usually confined to such chil- Issue. dren of the parents as the appointor shall direct; but as this has been held not to enable the appointor to exercise the power in favour of the issue of such children (see Brudenell v. Elves, 1 East, 422, 7 Ves. jun. 382, S. C. Butcher v. Butcher, 9 ib. 382) who on the decease of the parents are frequently more in need of the appointor's bounty than the surviving children, care should be taken in settlements to extend the powers of appointing amongst the issue of such children who may die. |