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CHAPTER IX.

MARRIAGE ARTICLES.

NOTES.

901. A deed of settlement is usually prepared at once without previous articles where the property is inconsiderable, and this is to be recommended in every case where it is practicable.

902. Marriage settlements are valid as against creditors, whether executed before or after the marriage, if they are in pursuance of articles entered into before marriage, and this without reference to the settlor being in debt or not at the time of the settlement. (Campion vs. Cotton, 17 Ves., 263.) And semble that an agreement in consideration of marriage, and to settle after-acquired property, will be good against creditors, though the settlor were in debt at the time of the agreement; but the settlor himself may defeat it by conveyance to a purchaser for valuable consideration, even though he have express notice of the prior settlement.

903. Marriage articles are within the 29 Car. ii., c. 3, s. 4, and must therefore be signed by the party to be charged; but they may be established through the medium of letters, as in the case of agreements to purchase real estate. And if intended to be written, and that intent is prevented by the fraud of one of the parties, equity will compel performance; and so if there has been part performance of an unwritten agreement, as where the wife, under such agreement, was permitted to enjoy the interest of a certain sum for her separate use during the marriage, equity will enforce specific performance; but marriage itself is not part performance.

904. The construction of marriage articles by courts of equity is not merely technical, but according to the intention of the parties, and that intention is held to be mainly a provision for the issue; therefore, when the words of the articles would confer an estate tail on the settlor which he might bar and defeat, equity will direct a strict settlement, and cut down the settlor's estate to a life estate only. Daughters also are included in the general term "issue," and estates will be decreed to be limited to them accordingly.

905. The recital is usually confined to that of the intended marriage, except where it is desirable to show the interest which the settlor takes in the property, or the power which he has of making the settlement; but, if the articles are in consideration of a mutual settlement, the deeds or agreements should be briefly recited.

906. In strict settlements the property is usually settled on the intended husband for life, with a rent charge to the wife, if she survive him, remainder to the children of the marriage in tail, with power to raise portions for younger children, to grant leases, and the usual powers of sale and exchange.

These objects are effected in the following manner :

(1.) The property is conveyed to trustees to uses by name, and their heirs, to the use of the trustees of the term, [who are different persons, and must be named,] their executors, administrators, and assigns, for a long term of years, upon the trusts mentioned.

(2.) That, subject thereto, the property is to be to the use of the intended husband for life, without impeachment of waste.

(3.) That, after his death, the wife shall have a rent charge by way of jointure out of the premises, stating the periods of payment, and giving her the usual powers of distress and entry.

(4.) Estates tail are next limited, whether special or otherwise, and also, if daughters take, whether they are to take successive estates or as tenants in common; and, in the latter case, cross remainders usually take place, and should be stated, with a final limitation of the ultimate remainder.

(5.) Next comes the agreement to raise portions for the younger children; the consent of parents thereto, if necessary, and the precise amount, and the mode of raising them, [as by sale or otherwise,] are carefully set out.

(6.) Powers of leasing, if granted, should state the term for which the property is to be let, and whether, as is usual, the power is to be restricted to granting leases in possession.

(7.) Powers of sale and exchange are now given to the trustees to uses; and, if any of the premises consist of an undivided estate, a power of partition should be added, for it is doubtful whether a mere power of sale will authorize a partition.

The articles conclude by providing

(8.) Power to appoint new trustees, and all other usual powers contained in such settlements.

907. Any proviso intended to defeat a part or all of the settled estates on the happening of an event, as the bankruptcy of the husband, must be in the articles, otherwise it cannot be put in a settlement executed after marriage; but it is important to note that, under the bankrupt laws in England, the property of the intended wife, and that only, or the husband's property to an equal amount in lieu thereof, may be so settled as to survive the bankruptcy.

908. A power of revocation, if general, will avoid the settlement, as against strangers, under 27 Eliz., c. 4, s. 15, but the statute docs not extend to personal estate. And a power in sale and exchange clauses intended to effectuate the settlement, as to revoke old uses, will not cause such avoidance, nor will a power of revocation dependent on the consent of others, over whom the settlor has no control; but a general power to mortgage or lease on fines will avoid the settlement.

909. Ordinary settlements on husband and wife, and their issue, should clearly define the estates and interests, and powers of oppointment should be so given as to leave no doubt whether they are joint or several; and, if joint, whether to the survivor, and, if so, whether to be exercised by will as well as deed; and, if the power be to the wife only, whether it is to be exercised as well coverte as sole.

Limitations in default of appointment next follow, and the pinmoney of the wife, if any, should be precisely stated, and the particular property to be charged with it; and the limitations or trusts in favor of the issue of the marriage require equal precision.

910. Stock in public funds cannot pass by a deed of assignment at law, and therefore the practice is to transfer it into the names of. the trustees of the settlement upon the trusts therein declared.

911. If future acquired property is intended to be embraced by the settlement, it must be expressly stated, and this is usually the case where the intended wife has future expectances, which are not intended to be under the control of her husband.

912. If property is to be settled to the separate use of the wife, it should be stipulated, if real estate, that it shall be conveyed, and, if personalty, assigned to trustees in trust for her until the marriage, and after marriage in trust during the joint lives of her and her husband to pay the rents and profits, or interests and dividends, as she, by any writing, but not by way of anticipation, may appoint, and in default of appointment into her own hands, for her sole and separate use, free from the debts or control of her husband; and if he die before her, then in trust for her, her heirs, executors, or administrators, according to the nature of the property; but if she die first, then upon such trusts as she shall by will appoint, and in default of appointment in trust for the children of the marriage, and if no children then for her heirs or next of kin.

MARRIAGE SETTLEMENTS.

913. The title of the property to be settled should be investigated, and all outstanding legal estates, if any, should be got in; for, otherwise, the settlor, by mortgaging the property to some one who had no notice of the settlement, might defeat the settlement to the extent of the mortgage. Incumbrances also should be cleared off; and, if it cannot be otherwise done, a power to sell part of the property, for the purpose of paying them off, should be reserved.

914. When the settlor is tenant in tail, and a disentailing deed is necessary to enable him to make the settlement, it is better done by a separate instrument.

915. If money secured by mortgage is part of the settlement, two deeds will be necessary-one to transfer the mortgage and mortgaged premises to the trustees of the settlement, to stand possessed of the same upon the trusts declared therein, and the other to declare the trusts of the settlement; because, as all deeds of transfer of mortgage form part of the mortgagor's title, he is entitled, on redeeming the mortgage, to have every deed of conveyance or transfer of the premises delivered to him. And the same in the case of railway shares: one deed, duly registered on the books of the railway company, and indorsed accordingly, must transfer the shares to the trustees; and another-i. e., the deed of settlement itself-must declare the trusts on which the shares are held.

916. Assignment of personal securities should always contain a power of attorney to sue for and enforce payment, and also a power to compound or compromise such debts.

917. If moneys to be settled are payable at some future period, the settlor enters into a covenant with the trustees concerning the same, and sometimes gives a bond as additional security.

918. Where moneys advanced to the husband are secured by a policy on his life, the policy should be assigned to the trustees, with a covenant that the settlor will keep up the policy at his own cost, and a power to the trustees to do so out of the trust moneys in case of his default.

919. Provision for the children of the wife by a former marriage should be made in the deed of settlement, or by some instrument in which her intended husband concurs. This is the prudent course, though not absolutely necessary; for though, after a treaty of marriage has commenced, an intended wife cannot dispose of her property, real or personal, without the consent of her intended husband, this case of making reasonable provision for the children of a former marriage is an exception; but still it is far better to make such provision openly than in such a way as to appear like a fraud on the marriage.

920. The settlement should be strictly in conformity with the articles, otherwise equity will set it aside and decree a settlement in conformity; but, if the settlement is made before marriage, and is not expressed to be in pursuance of previous articles, equity will not rectify discrepancies, but presume that the parties had abandoned the articles, and made a fresh arrangement; but, whether before or after marriage, a settlement expressed to be made in pursuance of articles will be rectified in equity, even against a purchaser for valuable consideration, with notice of the articles.

921. All persons having any estate or interest in the settled property, or intended to be bound by the settlement, should be made parties to it, and execute it, or perform some act by which they recognize its authority; but the better way is for the trustees, and every other party, to execute the deed.

922. The profession or trade and abode of the parties should be particularly set out, since many years may elapse before the settlement is acted upon this will assist the discovery of the trustees and others taking an interest under the deed.

923. The recitals are always short, and may be entirely dispensed with in ordinary cases; but, if the settlement is in exercise of a power, the deed or will creating such power should be recited, so as to show that the terms of the power have been strictly complied with. And so also, where an annuity is the subject of the settlement, the instrument creating the annuity should be recited, and the same rule applies to personal securities and policies of assurance, the nature of which should be plainly set out in recital; and to a settlement of the wife's property to defeat bankrupt laws, in which case the title of the property to be settled should be historically recited; then the agreement for the marriage, and that the wife's fortune, naming the amount, was to be paid to the husband in consideration of the settlement therein after contained, and that such fortune had been actually paid over.

924. The testatum. The marriage is a sufficient consideration when the settlement is executed before marriage, or in pursuance of articles made before marriage; but where there is real estate, a nominal consideration of five shillings is usually put in, and where the intended wife's fortune is part of the consideration, or where there is a mutual settlement, the amount and nature of the consideration should be stated.

925. The habendum should always be to the trustees in joint tenancy, so that the whole estate may go to the survivor in case of death; and, if the property is freehold, the limitation should be to the trustees, and their heirs, to the uses, trusts, &c., therein after declared. Care must be taken not to limit the estate in such terms as would execute the uses in the trustees; and therefore the words "unto and to the use of the trustees" must not be used, for they would give them the legal estate, and the estates arising out of their seizin would be merely equitable.

926. Leaseholds for lives may be settled in the same way as freeholds; but, in the case of leaseholds for years, whether for an absolute term or determinable on lives, there is no mode of limitation by which the beneficiaries can be made to take a legal estate.

927. Declarations of uses and trusts are usually in the following order :

(1.) For the settlor, in case of his death after the execution of the settlement but before the marriage. A rare occurrence, but one that has happened.

(2.) The use of a rent charge, [if any,] by way of jointure for the wife, or provision for the husband, or any other purpose, with powers of distress and entry.

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