A "strict" settlement. CHAPTER VI. OF SETTLEMENTS. HITHERTO We have dealt only with instruments having for their object the alienation of land, either absolutely or temporarily; we turn now to those which seek to prevent its alienation, so far as the law will allow. This object may be attained either by wills operating as settlements, or by settlements proper. These latter again are divided into family settlements, whereby provision is often made for several branches of one family, and marriage settlements, the benefits of which are primarily conferred only on two persons about to marry, and their issue. Settlements made by wills, or by means of family settlements, may, evidently, take almost innumerable forms, varying with the wishes of each individual settlor, and cannot be properly dealt with in an elementary work like the present. will, therefore, confine our attention to the less complex subject of marriage settlements of land, selecting as a specimen the most ordinary form; that, namely, which is usually known as a "strict" settlement (a). The object of such an instrument is to give the settled property to the eldest son of the marriage in tail male, subject to its providing a life income for the husband and wife and portions for the younger children the deed containing, in addition to the clauses apt for these purposes, some which provide for various contingencies, and others whereby the wishes of the settlors can be more effectually carried out. (a) The form of settlement is taken chiefly from "Wolstenholme and Turner's Settled Land Act." The settlement, after the usual formal introduction, Parties. states the parties to the deed. These consist of the intended husband and wife respectively, and of two different sets of trustees, whose functions we shall presently consider; the two sets being composed of the same, or of different persons, as may be preferred. Supposing that, as is more ordinarily the case, the estate to be settled belongs to the future husband, the first thing to be done is to keep it in his absolute possession until the marriage is solemnised. This can be accomplished by means of a shifting use, the application of which to this purpose is one of the many advantages derived from the passing of the Statute of Uses. With this object the deed proceeds to witness that, in consideration of the intended marriage, and in pursuance of a previous agreement, the husband, as settlor, and with the consent of the wife, conveys the property in fee-simple to the second set of trustees, whom we may distinguish as the "general trustees," the first set being called the "portions trustees." This he does by assuring it to them by means of the same words of conveyance and clauses as are usually contained in purchase deeds; the habendum being to the use of himself (the husband) in fee-simple until the solemnisation of the marriage; thus effecting no change in his ownership until that event takes place. by husband as Where the husband conveys as settlor, he, by virtue Conveyance of the Conveyancing Act, 1881 (b), enters into an settlor. implied covenant that he, and every person deriving title under him by deed, or act, or operation of law in his lifetime subsequent to the settlement, or by testamentary disposition or devolution in law on his death, will, from time to time, and at all times, after the date of the settlement, at the request and cost of any person deriving title thereunder, execute and do all (b) 44 & 45 Vict. c. 41. Wife's pinmoney. such lawful assurances and things for further or more perfectly assuring the settled property to the trustees and those deriving title under them, as shall be reasonably required. These provisions of the Act only apply to settlements made after the 31st December 1881. In settlements of land made before that date, the husband will generally be found to have entered into the ordinary covenants given by a vendor on a sale; and in settlements prepared after that date he is sometimes made to covenant as beneficial owner, which, as we have seen, implies all those covenants. But since covenants for title, excepting that for further assurance, are of small practical value, there appears to be no advantage in the husband's covenant going beyond what is implied by his conveying as settlor. The settlement then proceeds to state the uses which are to take effect after the marriage. Of these the first limitation is to the use that the wife may during the joint lives of herself and her husband receive out of the income of the property, by way of pin-money, for her separate use and without power to deprive herself of it by anticipation, a yearly rent-charge of a specified amount. Pin-money is, as its name implies, money applicable to the personal expenses of the wife, for her dress and for her pocket-money (c). It is not like other money given to her for her separate use, for she cannot claim more than one year's arrears of it (d), nor can she even claim this if her husband, instead of paying her money, has furnished her at his own expense with clothes and other necessaries (e). Neither have her personal representatives any claim for arrears of it, under any circumstances, after her death (f); it being given in order that she may be enabled to dress so as to keep up the dignity of her (c) See on this subject Sug. Law of Property, 165". (d) Townsend v. Windham, 2 Ves. Senr. 1, 6. (e) Thomas v. Bennett, 2 P. W. 339; Fowler v. Fowler, 3 P. W. 353, 354(f) Howard v. Digby, 2 Cl. & F. 634. husband, and she being under an implied obligation to spend it for that purpose and not accumulate it (g). securing pin Women's Pro It was formerly customary to secure the payment of Term for the wife's pin-money by limiting a term of ninety-nine money not years to trustees, and declaring the trusts of it to be necessary. that they should, during the joint lives of the husband and wife, out of the rents and profits of the property, or by sale of the timber or minerals, or by mortgage of the property for the whole or any part of the term, raise the amount necessary, from time to time, for the payment of the pin-money, and, subject thereto, and to the payment of their expenses, should allow the rents to be received by the husband or his assigns. This, however, is now unnecessary. The Married Married Women's Property Act, 1882 (h), enables a married perty Act, woman to hold any real or personal property as her 1882. separate property without the intervention of any trustee, and the Conveyancing Act, 1881 (), provides Conveyancing Act, 1881. that where a person is entitled to receive out of any land, or out of the income of any land, any annual sum, payable half-yearly or otherwise, and whether by way of rent charge or otherwise, not being rent incident to a reversion, then such person, if the annual sum or any part thereof is in arrear for twenty-one days, may distrain upon the land for the amount so due, and dispose of the distress in order to pay the sum due and all the costs of the distress; and if the annual sum or any part thereof is in arrear for forty days after it is due, the person so entitled may enter upon and take possession of the land and receive the rents until all the arrears and costs are fully paid; or may, whether taking possession or not, by deed demise the land charged, or any part thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise, for all or any part of (g) Jodrell v. Jodrell, 9 Beav. 45. (i) 44 & 45 Vict. c. 41, s. 44. the term, of the land charged or any part thereof, or by receipt of the income thereof, or by any or all those means, or by any other reasonable means, to raise and pay the annual sum due, or to become due, together with all the costs and expenses occasioned by nonpayment of the annual sum, or incurred in compelling payment of it. The limitation of the rent charge to the use of the wife gives her a legal rent charge in the land, in the same way as if it had been granted to her directly. For the Statute of Uses (j) enacts that where any person shall be seised of any land to the use and intent that some other person shall have any annual rent thereout, the person that has such use shall be deemed to be in possession and seisin of the same rent, of and in such like estate as they had in the use of it; and as if a sufficient grant of such rent had been made to them by the persons seised of the use. Subject to the rent charge for securing the wife's pin-money, the next use is to the husband for life without impeachment of waste: thus giving him the legal estate in the property during his lifetime, with as much power over it as is consistent with the interests of the remainder-men. He is, therefore, in a position to deal with the estate much as a prudent man would deal with one of which he was absolute owner; being allowed to make leases, open mines and quarries, pull down buildings when necessary, and cut ordinary timber for his own benefit (k); whilst, on the other hand, he cannot commit that which is known as "equitable waste," such as pulling down the mansion-house of the estate (1), or cutting ornamental timber (m). He can also, as we have seen, now (j) 27 Hen. VIII. c. 10, s. 6. (k) Bowles' Case, 11 Rep. 79b; and Tu. L. C. 37. (1) Vane v. Barnard, 2 Ver. 738. (m) Downshire v. Sandys, 6 Ves. 107; see also the notes to Garth v. Cotton, IL. C. 751. |