I.KMKNT. 



SETTLEMENT. 



e. 10, whereby women who were eu\ of estate* Uil of the 



of their husbands (tjc prorinanf tin) wen prohibited from alienating 







The estates limited in settlement* of real property may be either 

 lettlor equitable. [UsES.1 



When charge* are intended to be created upon real entato, as for 

 jointure* or portion* for children, it ii utual to limit terms of years 

 out of the estate to trtutee* for securing payment of the charge* by 

 perception of the rent* and profits, or by sale or mortgage of the 

 ratate for the period* so limited. These term* are inserted at proper 

 places in the settlement, according to their objects, among the other 

 limitation* ; and roch limitations as are subsequent to these terms of 

 yean in the order of arrangement, are al*> made subject to them in 

 jwint of legal and equitable interest. It is usual to provide that the 

 terms shall eease when their objects are accomplished or become un- 

 neceasary or incapable of taking effect. 



Estate* for lives and terms for years are incapable of being entailed ; 

 but they, a* well as personal property of any kind, may be settled in 

 m effectually, and so as to be inalienable for as long a time as 

 estate* of inheritance. The property in such settlements is usually 

 amigned to trustees in trust fur the husband, or for the husband and 

 wife for hi or their life or lives and the life of the survivor; and then 

 in trust for the first and other sons severally, and the heirs of their 

 bodies. Thin limitation veets the absolute interest in the eldest son, 

 who will be entitled to dispose of the property upon his attaining the 

 age of twenty-one ; but in order to provide for the event of the eldest 

 son dying under age and without issue, in which case his interest 

 would otherwise vest in his father, if alive, as his heir or next of kin, 

 it is usual to introduce a proviso that the property shall not vest 

 absolutely in any son dying under the age of twenty-one years and 

 without issue ; and it has been determined, that, in construing settle- 

 ment* of both real and personal property, when the real estates are 

 limited in strict settlement, and the personal property, according to a 

 form frequently adopted, upon and for the same trusts, estates, and 

 purposes as the freeholds, as far as the law will permit, a proviso of 

 the kind above-mentioned is to be understood. 



There is no restriction an to the number of life estates which may 

 be limited in settlements to take effect in succession, provided the per- 

 sons be all in existence at the date of the settlement ; for, in point 

 of fact, this amounts to no more than an estate for the life of the 

 survivor. 



Thus it appears that real or personal property may be settled so as 

 to be inalienable for a life or any number of lives in being, and 

 twenty-one years after. To this must be added a period of nine 

 months, which is allowed for the birth of a posthumous child in cases 

 where gestation exists. As the period of twenty one years was no 

 doubt adopted originally with reference to the term of minority, 

 which must elapse before an estate tail could be barred, it was formerly 

 thought that this period could not at all events be added to an 

 executory trust ; but it is now settled otherwise. All restraints on 

 alienation beyond the above-mentioned limits are void, as tending to 

 what is called in law a perpetuity ; and all the subsequent limitations, 

 if contingent, are also void. The same rules are applicable to execu- 1 

 tory devises, and springing and shifting uses [WILLS ; USES] ; but not 

 to remainders limited to take effect after estates tail, which are not 

 subject to any restriction; because, as such limitations may be 

 defeated at any time by barring the estates tail, they can have no ten- 

 dency to a perpetuity. 



The forms of settlements may be varied according to the objecta 

 and intentions of the parties, and the construction of the articles 

 upon which they are founded. The principle upon which a Court of 

 Kjiiity acts in executing marriage articles, is to look rather to the 

 intentions of the parties as deducible from the circumstances, than 

 to the literal meaning of the words employed by them. Thus, when 

 the words used in articles concerning the settlement of real estate are 

 such as would give the father an estate tail, and thereby enable him 

 to defeat the settlement, the court will in general direct limitations in 

 strict settlement to be executed, under which the father will take a 

 life estate only. Upon the same principle, even though a deed of settle- ' 

 ment has actually been executed after marriage, if it appear to be in 

 any respects inconsistent with the letter or spirit of the ante-nuptial 

 articles, the court will rectify it. 



Questions frequently arise as to what powers, covenants, and pro- ! 

 vise* are to be introduced into marriage settlement* made in pursuance 

 of executory trusts, whether created by articles, wills, or other instru- 

 ment*. The tic-termination of these depends entirely upon the rules 

 ti/itniction as applied to each particular case. 



Of the power* usually introduced into settlements of real estate, 

 t important are powers of jointuring and raising por- 

 tion* ; power* of leasing and management ; and powers of sale and 

 exchange. 



e the wife, upon whose marriage the settlement is made, does ' 

 not take a life interest in the estate in the event of surviving her ' 

 husban ' i umially made for her by way of jointure in bar 



: i in: ; |)OWER.] In addition to this, powers are 

 frequently introduced to enable the husband, in case of his surviving 

 hi wife, ml marrying again, and sometimes also the other tenants for 

 life under the settlement, to make provision for their widow*, by way 



of j.iiiituii-. wliii-h the nature of their estate would not have other- 

 wise entitled them to do. Powers of jointuring, and powers for 

 charging the estate with portions for the benefit of the younger 

 children of the then existing or a future marriage, will not, it seem*, 

 be inserted in settlements executed under the direction of a Court of 

 Kquity, without clear authority for them in the articles; for without 

 such authority the court can have no data by which to regulate the 

 quantum of interest to be taken l.y tin- donees. 



Powers of leasing for the usual term of twenty-one years are essen- 

 tial to the management of an estate, and will be considered a* 

 authorised by the use of the most general expressions in the articles ; 

 or ]M>rh.i|m introduced as a matter of course ; but a power to grant 

 (milling leases will not, it seems, be implied without express 

 authority. 



1'owurs of sale and exchange are also considered as usual powers in 

 a settlement, and will be authorised by the use of very slight expres- 

 sions in the articles. 



In settlements of personalty, where the property is assigned to 

 trustees, they are empowered to invest and lay out the funds, and also 

 to vary the securities from time to time. After the declaration of 

 trusts for the husband and wife and children, such settlements usually 

 contain powers of providing for the maintenance, advancement, and 

 education of the children who are or may become entitled to shares in 

 mis under the preceding trusts.* 



Settlements both of real and personal estate usually conclude 

 with what are called trustee clauses, that is to say, clauses which 

 enable the trustees to give effectual receipts; to provide for the 

 appointment, when needful, of new trustees; for the indemnity of 

 the trustees against involuntary losses ; and for the payment of their 

 expenses. 



Marriage settlements sometimes contain covenants to settle par- 

 ticular lands; covenants to settle, or to purchase and settle lands 

 of a certain value, or future real estate ; covenants to settle present 

 or future personalty ; and covenants by parents, on the marriage of one 

 of their children, to leave to that child an equal or some proportionate 

 share with the rest. 



The covenant to settle particular lands of course binds heirs, devi- 

 seeS) and all into whose possession the lands come, except a purchaser, 

 for valuable consideration without notice; and, in case of the lands 

 being so alienated, satisfaction may be claimed out of the general assets 

 of the covenantor. 



Questions frequently arise upon covenants to settle, or to purchase 

 and settle lands of a particular value, as to what amounts to per- 

 formance. On this point the following positions appear to be esta- 

 blished : 1. Where the covenantor has no lands at the time, any 

 purchase he may afterwards make will be presumed to have been made 

 in pursuance of the covenant ; 2. It seenis, though there are conflicting 

 authorities upon the point, that if the covenant be to tetttt, and the 

 covenantor, having at the time lands adequate to the performance of 

 the covenant, die without making any purchase, the lands which he 

 had at the time will be bound to the extent of the covenant ; 3. Where, 

 the covenant is to purchase and tettle, it seems that no lands of which 

 the covenantor is seised at the time will be affected, but all after-pur- 

 chased lands will be affected to the extent of the covenant. 



Covenants to settle future real estate of which the husband shall 

 become seised during the marriage, or during his life, do not affect 

 lands of which the covenantor is then seised, but extend to all after- 

 acquired. lands, even to such as come to the husband under the pro- 

 visions of the deed of settlement. 



Covenants to settle present or future personalty are considered as 

 applying to capital only, not to income. If real estate should have 

 been purchased with the personalty subject to such a covenant, the 

 land is not bound in spent by the covenant, but is charged with the 

 money invested in the purchase. 



Covenants to leave one child an equal or proportionate share \\ith 

 the rest, attach only upon that portioivof the settlor's property \\liirli 

 may remain at the time of his death. The parent may therefore make 

 an absolute gift of any part of his property in his lifetime to another 

 child without committing any breach of his covenant ; but a gift 

 reserving any interest to himself is a breach of it. The benefit of 

 such a covenant is confined to children living at the death of the 

 parent. 



6. Marriage is not an absolute gift to the husband of the wife's 

 personal estate, but only entitles him to so much of it as he may have 

 reduced into possession, assigned or released during his lifetime. 

 Accordingly, questions frequently arise upon settlements as to the ! it!.- 

 of the husband, under them, to the whole of his wile's fortune. 

 I '\xm this point the following propositions appear to be established : 

 1 . The antenuptial settlement of property made by the husband upon 

 the wife, in consideration of her fortune, entitles him only to her tktn, 

 and not to the/<ure personal property; '2. That if a part only of her 

 fortune appears to have been stipulated for, the residue of what she 

 then has, or what may afterwards accrue to her, will not In-long t. > tin- 

 husband ; 3. That when it appears from the settlement, either ex- 

 pressly or by implication, that the agreement was for the whole of the 



* Similar cluunci arc contained in settlement* of real estate, where there are 

 trusts fur raining portions. 



