afforded by the trees from the affidavits in the cause. Men are but too ready to support the cause of their principal, without always considering sufficiently the justice of it. Affidavits flatly contradicting each other are in these cases almost invariably made by the agents of the different parties. This facility of restraining a tenant for life from exercising his legal right foments and irritates domestic strife, makes the son the shameless antagonist of his parent in an open court of justice, and fixes into eternal enmity that disagreement which conciliation might happily have effaced. If such a proceeding wound the peace of a parent in the evening of his days, how severe a punishment does the child inflict on himself. To save a few perishable trees, he preserves, while they last, a monument of his want of filial duty; he keeps a signal to remind his own children of the duty which they owe to him!

Equity will also restrain a tenant for life, although without impeachment of waste, from defacing or pulling down the mansion-house. This was done in the year 1716, in Lord Bernard's case. He had almost totally defaced the mansion-house, by pulling down great part of it, and was going on entirely to ruin it, whereupon the Court not only enjoined him not to proceed farther, but compelled him to rebuild, and put it in the same plight and condition it was in at the time of his entry thereon. We cannot complain of such an exercise of the jurisdiction.

In settlements of personal property, the funds are actually transferred to the trustees: the common trusts are for the husband for life, then for the wife for life, and after their deaths, for all or any of the children of the marriage, as they shall jointly appoint; and in default of such appointment as the survivor shall appoint, and in

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default of such last-mentioned appointment upon trust for the children-to sons at twenty-one and to daughters at twenty-one or marriage, with what are termed clauses of survivorship and accruer amongst the children, the object of which is to vest the funds ultimately in those children only, who being sons attain twentyone, or being daughters attain twenty-one or marry. Provision is made for the maintenance and education of the children after the deaths of their parents, and powers are given to advance the children in life to a certain extent with the consent of the parents during their lives, and afterwards at the discretion of the trustees. In default of any child becoming entitled, the funds are sometimes settled on the survivor of the husband and wife. The ultimate disposition should be carefully attended to where a woman is settling property on her marriage. I remember an instance where a young lady with a competent fortune married a man without any, and her fortune was settled on the husband for life, then on her for life, and afterwards on the children, and if none, on him. He died very shortly after the marriage, and there was no child, and the reversion passed to others by his will: in the result she was left a young widow, with a life-interest only in her own fortune.

Where each party furnishes a portion of the settled property, the husband's portion, in default of children, is usually made to revert to him, and the wife's is settled on her, but only in case she survive her husband; and if she die in his lifetime, as she shall appoint by will, and, in default of appointment, to her husband or to her next of kin excluding him, as may be agreed upon. And like trusts are adopted where the wife's fortune alone is the subject of the settlement. The object of these provisions for the wife is to prevent her

132

SETTLEMENT TO WIFE'S SEPARATE USE.

from being deprived, even by her own act, of her reversionary interest during her husband's lifetime, and yet to secure her testamentary power over it, so that she may give the interest by her will to her husband, or to whom else she pleases. If the ultimate gift over in the settlement is to the husband, the wife's previous power enables her by her will to defeat his interest if she chooses. But as such a power over his interest might lead to strife, it would be better to let his right to the reversion depend upon her disposition in his favour by her will.

Where the lady's personal property is to be settled, even where it is not of large amount, and although the intended husband settles an equal fortune, it is sometimes stipulated that the first trust of her portion shall be for her separate use for the joint lives of herself and her husband, and then of course to the survivor of them for life. The friends of the lady in such cases think that they can safely permit an union between the parties which places the wife so much in her husband's power, but that they cannot allow him to have any dominion over the income of her property during the marriage— person and property are not to go together-yet the man himself should reflect that his wife will, as regards her fortune, still be a single woman, that she will have complete control over it during and notwithstanding her marriage; whilst he may have to maintain the establishment and educate the children without the aid of what ought to form a part of the common fund, and without which, in many cases, he could not prudently have married. Such settlements are not to be encouraged; they lead to disputes between man and wife in after life, and it sometimes becomes a matter of constant bargain between them, how much each is to contribute towards the

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common expenses, or the acquisition of some object of enjoyment which they both desire-they tend, in short, to destroy the true relation between husband and wife. Where the property is ample, pin-money may with propriety be provided for the wife, just as upon a settlement of real estate.

In settlements of personal property there is always a power to vary the securities, with the consent, however, of the husband and wife during their lives, or of the survivor of them. Now that railway debentures are so common, and that railway preference shares are established upon a firmer footing, it may be proper, under due restraint, to authorise the money to be invested upon such securities.

Where money to any considerable amount is settled, a power should be reserved of laying it out in land to be re-sold when convenient, and in the mean time to be treated as money.

In money settlements, generally, as I have already mentioned, and sometimes even in settlements of real estate, a power is reserved to the parent to appoint the property to all or such of the children as he shall think fit. If the power is only to appoint the proportions amongst the children, he cannot exclude any; every one must have a share; but he may now give to any a share merely nominal.

* The Act for which I am responsible, which made what were termed illusory appointments, that is, appointments of nominal sums, good in equity, as they always were at law, proceeded upon this principle, that as the power required every one to have a share, the donee of the power could not properly exclude any, although he might give what he pleased-1s., for example, to one or more. Of

* 11 Geo. IV., and 1 Will. IV., c. 46.

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HOTCHPOT: COVENANT TO SETTLE.

course, where the power is to appoint to any exclusively, he may give all to one; as in substance he may under the former power. But still in this, as in all other cases, the power must not be abused. An appointment cannot be made to a child under any stipulation for the parent's benefit; for example, that he shall join in a sale of the estate, although the child may, after the appointment, if he think fit, join with his father in selling the estate, and the transaction cannot be impeached if the money is fairly paid to the father and son. So if you have a power to appoint any sum to any of your children, at what age you please, you cannot appoint it to a sickly child under age, in order that upon his death you may get it as his administrator.

Almost any instrument, however informal, upon which the intention clearly appears, will be deemed in equity a good execution of a power of jointuring, or of appointing property to your children; but such difficulties arise in these cases that I cannot too much impress upon you the necessity of never doing any act in relation to estates over which you have only a power, without first applying to your solicitor.

Where a power is given to appoint a fund amongst children, and the property is given to them in default of appointment, it is mostly declared that no child shall take a share of any part unappointed, without bringing his appointed share into hotchpot-which word hotchpot, our famous judge Littleton, with great gravity, tells us is, in English, a pudding. The object of this provision is to compel a child, to whom part is appointed, to bring his appointed share into the general fund, if he is desirous to take a share of the part unappointed. Thus, suppose there be two children, and the fund to be £200, if you give £20 to one, he must give up that, in