DUTY payable on the death of the JOINTRESS. PARTIES, A., surviving trustee of settlement, 1; B., tenant for life, 2; C., widow, jointress, 3; D., trustee of jointure PREC. XXVIL term, 4(c); E., purchaser, 5; Recital of strict settlement of the Recitals. "hereds first hinafter described and intd to be hby ap- Settlement. pointed (togr with other hereds)," subject to a jointure rentcharge of £- — limited to C., and a term of· years for securing the same, vested in D., and to a principal sum of and interest charged thereon by an indenture, dated, cum (b) The Conv. Act, 1881, s. 5, contains provisions for freeing land sold Sale of either by the Court or out of Court, from incumbrances, whether of annual or land free capital sums (see the definition of "incumbrances" in s. 2), on payment into from inCourt of an amount which the Court considers sufficient to provide for the brances charge, with a margin for expenses, interest, and contingencies (except under depreciation of investments); the order for payment into Court being made Conv. Act, on the application either of the vendor or purchaser by summons in Chambers, 1881. and on notice to the other (see s. 69); whereupon the Court is empowered, either after or without any notice to the incumbrancer, to declare the land to be freed from the incumbrance, and to make any order for conveyance, or vesting order, proper for giving effect to the sale, and to give directions for the retention and investment of the money in Court. As to the procedure under this section, see Wolstenholme and Turner on the Act, 2nd ed., p. 20. These provisions will be useful, in cases to which they apply, where a release of or sufficient indemnity against an incumbrance cannot be obtained. In that case the conveyance will contain recitals of the order or orders for payment into Court, and declaring the land free from the charge, and appointing a person to convey, or vesting order (where this is necessary, which it would only be to get in a legal estate); and the payment into Court, such payment being expressed to be part of the consideration for the conveyance. The person (if any), appointed to convey, would join in the conveyance, and would, if a covenant against incumbrances by him is to be implied, be expressed to convey "under the said order of, &c.," see p. 366, note, and some words expressing that the property is free from the charge, would be added after the habendum. (c) If the trustee of the jointure term has never acted or incurred any Satisfied costs, his concurrence would be unnecessary; as, on the release of the jointure, term. the term would cease under 8 & 9 Vict. c. 112; as to what is a satisfied term under the Act, see Anderson v. Pignet, L. R. 8 Ch. Ap. 180. PREC. XXVII. Purchase of land under power. dc., and expressed, &c., for the portions of the younger children of K., all of whom are now infants under the age of 21 years, and to another principal sum of £—, &c., "which rent-charge and term and respive principal sums and interest override and are paramount to the uses and powers of the sd settlemt," setting forth the uses of the settlement up to and including the estate of B., "with divers remrs over," and the power of sale and of revocation of the uses, &c., and the power to give receipts (if any), and (as part of the property now to be conveyed was purchased with the proceeds of a sale under the power) also referring to the trust for re-investment of the sale-monies in the purchase of other land to be conveyed to the uses of the settlement; Death of L., one of the trustees of the settlement: AND WHAS in the year the sd A., as surviving tree of the sd indre of settlemt, and with the consent of the sd B., applied certain monies in his hands arising from the sale of pt of the hereds comprd in the sd settlemt, in the pchase of certain hereds situate in the County of -, including the hereds secondly hinafter described and intd to be hby appointed. Recital of conveyance of the last-mentioned premises to the uses of the settlement: Contract for sale, p. 338, form IV.: AND WHAS the sd principal sum of £which was a charge on the sd premes at the date of the sd settlemt of, &c., and the interest thereon was in the year paid off out of monies arising from a sale of pt of the sd settled estes, and the only charges, estes, or interests now subsisting upon or in the sd hereds first hinafter described and appointed, which are prior and paramount to the uses of the sd settlemt, and would therefore not be over-reached by an exercise of the power of sale therein contd as afsd, are the sd jointure rent-charge of £, limited to the sd C. by the sd prior instrument, and the sd term of years, vested in the sd D., for securing the same, and the sd sum of £ charged thereon for portions by the sd, Agreement &c. AND WHAS the sd C. has [C. and D. have resply] agrd to concur in these presents, for the ppose of releasing the sd Payment off of charges. to concur. PREC. XXVII. rent on pur money. hereds first hinafter described and appointed from the sd rentcharge (which is secured on other ppty of ample value), [and the sd term for securing the same]: [AND WHAS the paymt Jointure of the sd jointure rent-charge is intd to be secured by a charge to charge upon the sd pchase-money and the investmts to be be secured made thof under the trusts of the sd indre of settlemt, and chasethe income thof in substitution for the sd hereds and premes hby released thfrom, which charge is to be effected by an indre already engrossed and intd to be executed immediately after these presents, but so that the execution of such indre shall not be deemed necessary to the validity of the rele hby made, or be material to the title of the premes first hinafter described and appointed (d)]: AND WHAS the Indemnity sd B. has agrd to enter into such covenant as is hinafter succession contd for indemnifying the sd E. in respect of the sd sum duty. of £ and interest, which is secured on other ppty of ample value, and in respect of the succession duty payable upon the decease of the sd C.: Recital as to title deeds, p. 341: NOW THIS INDRE WITNETH that in psuance Witof the sd recited contract and for effecting the sd sale, and in conson, &c. purchase-money paid to A. (the rect, &c.), the sd A. as surviving tree of the sd indre of settlemt (e), in against nesseth. (d) Care should be taken that the deed giving the substituted security is not made a title deed. (e) This implies a covenant against incumbrances by A., and full covenants Covenants for title by B., see p. 366, note; as to the mode of implying the covenants for title. for title, if B. has only power to consent to or to request the sale, see p. 382, form XI., and note thereto. The implied covenant for right to convey in this Precedent is inaccurate, by reason of C. and D. joining in the conveyance, but not by the direction of B., see p. 366, note; and it might be better to import B.'s covenants by a separate clause, see p. 382. For the forms of express covenants for title, and against incumbrances, should it be desired to insert them, see pp. 365, et seq., the covenant for right to convey being, "that he, the sd B., now has power to give such direction, or consent,' or 'to make such request,' as afsd, and that the sd A. now has power to appoint the sd premes hby appointed, and every pt thof, to the use of the sd E., his hrs and assigns, in mner afsd." If B. was the settlor, the clause PREC. XXVII. Revocation. ment. Further witnesseth. exercise of the power in this behalf in the same indre, and in the sd indre of, &c., the conveyance of after-purchased lands, by reference to the sd indre of settlemt, resply contd as afsd, and of every other power thereunto enabling him, by the direction of the sd B. directing as beneficial owner (e), doth hby revoke and make void all the uses, trusts, powers, and provons, by and in the sd indre of settlemt, and by and in the sd indre of, &c., by reference thto, resply, limited, decld, and contd of and concerning the respive hereds first and secondly hinafter described and intd to be hby apAppoint pointed, and doth hby appoint that, parcels in two parts, p. 344, omitting general words and estate clause, see pp. 357, 359, shall henceforth go and remain To THE USE of the sd E., his hrs, and assigns: AND THIS INDRE FURTHER WITNETH that in psuance of the sd agreemt in this behalf and in conson of the premes the sd C., as mtgee (ƒ), at the request of the sd B., doth hby rele [and the sd D. as tree (ƒ) at the request as well of the sd B., as of the sd C., doth hby surrender and assign] unto the sd E., his hrs and assigns, ALL AND singular the hereds and premes first hinbefore described and expd to be hby appointed to the intent that the same may henceforth be discharged from the sd jointure rent-charge of £ per annum limited or secured to the sd C. by the sd, &c., and from every pt thof, and from all powers and remedies for securing the same, and all claims and demands in respect thof, [and that the sd term of years may become absolutely merged and extinguished in the freehd and inheritance of the same premes] [or, that the sd term of years may cease as a satisfied term]; Covenant by B. with E., that he the sd B., for life to his hrs, exs, or ads, will at all times hereafter keep the sd Release from jointure. Covenants by tenant qualifying his implied or express covenants, should be inserted, as stated below. (e) See preceding page. (f) A covenant by C. and D. against incumbrances is here implied; see p. 366, note, and p. 382, note. PREC. XXVII. purchaser charge and E., his hrs, exs, ads, and assigns, effectually indemnified from and against the sd principal sum of £ charged on the sd premes firstly hby appointed under or by virtue of the sd indemnify indre, &c., and from and against all interest due, or to ac- against crue due in respect thof or any pt thof, and from and against succession all succession duty which may become payable in respect of duty (g). the sd premes firstly hby appointed, or any pt thof, upon the death of the sd C., and from and against all claims, demands, actions, proceedings, costs, and expenses whatsoever, for or in respect of the sd principal sum and interest and succession duty, or any pt thof resply. Acknowledg ment and undertaking by B. as to title deeds, p. 391. IN WITNESS, &c. XXVIII. CONVEYANCE of FREEHOLDS by TRUSTEES by PREC. XXVIII. PARTIES, A. and B., trustees, (hinafter called the vendors), 1.; C., tenant for life, (hinafter called the life tenant), 2; D., purchaser, (hinafter called the pchaser), 3: WHAS under an Recitals. indre of settlemt, dated, &c., and expd, &c. [or, the will, Settledated, &c., and proved on, &c., of X., of, &c., deceased], the hereds hereby appointed stand settled to the use of the life ment. (g) The covenant of indemnity against the succession duty, which will become Indemnity payable on the death of the jointress, should be inserted; but it appears to be as to sucunnecessary, although the jointure overrides the settlement; see Dugdale v. cession Meadows, 6 Ch. Ap. 501; Hanson on Probate, &c., Duties, notes to ss. 2 & duty. 42 of the Succession Duty Act, 1853. (a) For a fuller form, see the last Precedent. |