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Frederick Prideaux.

Prideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) online

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wife's

property when
she is an
infant.



(z) When tlie intended wife is an infant, she is incapable of making a
settlement binding on herself, except with the leave of the Court under
the Infant Settlements Act, 1855. But it is generally desired to avoid the
expense and delay of an application to the Court, and it was therefore
iisual, before the passing of the M. W. P. Act, 1882, where the infant's
property was personalty in possession or in reversion, to rely on the
husband's covenant to settle it. Such a covenant was effectual as regards
personal estate except in the event of the property not falling into possession
during the coverture, and the wife being the survivor.

Before the M. W. P. Act, 1907, a settlement by an intended husband
and infant wife of the wife's property bound it, having regard to s. 19 of the
M. W. P. Act, 1882, to the same extent as under the old law ; hence, the
wife could not repudiate a settlement so effected after she attained full age :
Stevens v. Trevor-Garrkl', 1893, 2 Ch. 307 ; 62 I;. J. Ch. 6(50; lUirklaiul v. B.,
1900, 2 Ch. 534 ; 69 L. J. Ch. 648.

S. 2 (1) of the M. W. P. Act, 1907, was intended t<j meet this point, and
provides that unless the settlement is confirmed by her on attaining full age
it shall not be valid except as mentioned in sub-s. 2.

As already pointed out (see par. (5) of the fii'st note to Form No. 48),
s. 2 (2) of the Act of 1907 raises a doubt as to how far a husband can bind
property to which under the law in force before 1883 he would, apart from
any separate use, have become entitled on the marriage. At any rate, the
settlement operates on interests which the husband would acquire on the
death of the wife during her minority.



ON BEHi\LF OF AN INFANT. 421

2. (i.) It is also hereby declared that the share to Agreement

which the Wife will upon her marria^^e become entitled in leversionaiTr
reversion exiiectant as aforesaid in the investments and ^^^'^ ^^7^^?^!"

^ _ _ _ Funds shall be

pro])erty mentioned in the second Schedule hereto, and in all vested in

. Trustees.

other (if any) the money, investments and property now subject
or which may hereafter become subject to the trusts of the
Settlement of 18-—, shall, if and when the same shall fall into
possession, be assigned or paid b}^ the Husband and Wife, and
all other necessary parties, unto or otherwise vested in the
Trustees, In tkust for the Wife until the said intended marriage,
and after the solemnisation thereof, Upon the trusts and subject
to the powers and provisions hereinafter declared concerning
the same :

(ii.) In further pursuance of the said agreement and in Assignment by

^ / . '^ . . , ^ the Husband

consideration of the said intended marriage, the Husband, As of his interest if
Settlor, hereby assigns unto the Trustees an infant.

All the interest in the said share and premises which under
section two of the Married Women's Property Act, 1907, or
otherwise, he may have power to dispose of.

To HAVE AND RECEIVE the sauie unto the Trustees Upon the
trusts hereby declared concerning the said share and premises :

(iii.) {Add i^ower for Trustees to accept specific propertfi in respect
of reversionavji sJiare — siiJ)-elause (iv.) of Form Xo. 23, defining the
Trustees as i)i stdz-claiise (i.) of that Form.)

3. Trusts after mar riage (f investments and reversionary share,
to invest and vary — Form No. 28, omitting definition of the Trustees.

4. Definition of the " Husband's Trust Fund'' and the " Wife's
Trust Fund " and trusts thereof — Form Xo. 31.

(i.)and(ii.) Successive life interests to Husband and ]]'ife in l)oth
Funds — Form Xo. 32.

(iii.) and (iv.) After death of Husband and Wife for issue, as
they jointly or the suivivor appoint— In default for ehihlren — Hotch-
pot clause— Form Xo. 37.

6. Adrancement clause — Form Xo. 39.

6. 2'rusts in default <f children in respect <f boih Funds —
Form Xo. 41.

7. Pou'cr for Wife to make Setth-moit on future marri(tge — Form
Xo. 46.

8. Investment clause and ancillary clauses — Form Xo. 51.

9. Pouer for Trustees to value and apportion mixed Funds, and
as to deatJt duties, dc. — Form Xo. 61.



422



(precedents) settlements (personal).



Settlement to
be confirmed
by Wife on

attaining full
age.



Covenant by
Husband to
confirm
Settlement.



10. Poivcr for Trustees to alloiv inrestmeiits held on trusts of
Settlement, under uhich the reversionary share is derived, to remain
— Form Xo. 63.

11. Indemuitji to Trustees, if required — Form No. 62.

12. Pou-er to employ agents, dr. — Form No. 66.

13. Pou-er to appoint new Trustees — Form No. 68.

14. (i.) Provided always, that the Wife shall, after she attains
full age, \\\>o\\ the request in writing of the Husband or of the
Trustees, execute at the cost of the trust estate such assignment
of the one-fifth share and premises hereinbefore agreed to be
assigned as will, in the opinion of the Trustees, be sufficient
for giving effect to the Settlement intended to be hereby made,
and for confirming these presents, and in case the Wife shall
neglect to comply with such request for six calendar months
after receiving the same, then and in such case the trusts for
payment of the annual income of the Husband's Trust Fund to
the Wife, if she survives the Husband, shall become void as if
she had died in his lifetime, and the power of appointment
conferred on her either jointly with the Husband or solely as
survivor shall, as regards the Husband's Trust Fund, cease to
be exercisable by her, and shall become exercisable by the
Husband either by deed or Will as if he had survived the Wife,
and her consent to any investm.ent of or to the exercise of the
power of advancement or otherwise in resjiect of the Husband's
Trust Fund shall not be required :

(ii.) The Husband hereb}^ covenants with the Trustees and
with each of them that he will as soon as the Wife attains
full age use his best endeavours to obtain the confirmation
by her of these presents, and further that he will, if required,
take out administration to the estate of the Wife, and from
time to time do and execute all such acts and deeds as the
Trustees may consider necessary or proper for the purpose of
giving effect to the Settleujent intended to be hereby made.

In witness, &c.

The First Schedule above referred to.
Particulars of investments transferred by the Husband.

The Second Schedule ap.ove referred to.
Particulars of investments subject to the trusts of the
Settlement of 18 — .



CONFIRMATION OF INFANT's SETTLEMENT. 423



No. XV.

DEED (/ CONFIEMATION of CI SETTLEMENT Oil ail InFANT

Wife attainiiHi Full Age (a).

THIS INDENTUEE, made, &c. (same imrties as last Precedent, Parties.
excejn that C. D. tcill now he C. B., the Wife of A. B.) :

"VVheeeas these presents are supplemental to an Indenture Recital of
(hereinafter called the Principal Indenture) dated, &c., and ^*^' ^°^®'^*-
made between the same parties as are parties hereto (being a
Settlement executed in consideration of the marriage, shortly
afterwards solemnised, between the Husband and Wife) :

And whekeas the Wife attained the age of twentj'-one years That wife has

on the day of last, and the Trustees have (as testified agJ^'aS Ihat

by their execution of these presents) requested the Wife, for the tiie Trustees

•^ . . . have requested

purpose of confirming the Princij)al Indenture, to execute such assignment to

. . 1 . ». , . T be made.

assignment as is heremalter contamed :

NOW THIS INDENTUEE WITNESSETH that for the Confinnatory
purpose of confirming the Principal Indenture, the Wife, As tiie share in
Settlor, and with the approbation of the Husband, hereby sionary^^'
assigns unto the Trustees interest.

All that the — ■ — share to which the Wife is entitled in
reversion as mentioned in the Principal Indenture in the invest-
ments and property mentioned in the second Schedule thereto,
and in all otlier (if any) the money, investments and property
now subject or which may hereafter become subject to the
trusts of the Settlement of 18 — mentioned in the Principal
Indenture,

To HAVE AND RECEIVE the Same unto the Trustees absolutely,
Upon the trusts and subject to the powers and provisions by
the Principal Indenture declared concerning the same.

In witness, &c.

(rt) It is usual for this deed to be prepared at the same time as the settle-
ment. It may be by indorsement, if desired. Where there is nothing to
assign, e.g., where investments are settled, the wife should simply contu-m
the settlement. The investments will be separately transferred by her.
And see notes to last Precedent as to the necessity of confirming the
settlement.



424



(precedents) settlements (personal).



No. XVI.

SETTLEMENT of Freeholds where the intended Husband
and Wife are (/iren Successive Life Estates, with
remainder to tlic Trustees Upon Trust for Sale, tlie
Proceeds heinri held on usual Trusts _/oy Issue {h).



Parties.



Recitals.

Seisin of
Husband.



Operative
part.

Couvej'ance by
Husband.



To use of
Husband until
marriage.



After marriage
to Husband
for life.



THIS INDENTURE, made, &c.. Between A. B., of, ka. (herein-
after called the Husband), of the 1st part, C. D., of, &c.,
Spinster (hereinafter called the Wife), of the 2nd part, and
E. E., of, &c., G. H., of, &c., K. L., of, &c., and M. N., of, &c.
(hereinafter called the Trustees), of the 3rd part.

Agreement for marriage — Form No. 2.

And whereas the Husband is now seised of the here-
ditaments hereinafter described for an estate in fee simple
in possession free from incumbrances :

Agreement for Settlement — Form No. 11.

Commencement of operative imrt — Form No. 12.

1. In pursuance of the said agreement and in consideration of
the said intended marriage, the Husband, As Settlor, hereby
conveys unto the Trustees

All those, &c.,

To HOLD unto the Trustees in fee simple To the use of the
Husband in fee simple until the said intended marriage shall be
solemnised, and after the solemnisation thereof To the uses
following (that is to say) : —

(i.) To THE use of the Husband during his life without im-
peachment of waste, with remainder



Trustees with
future trust
for sale are
S. L. Act
trustees.



(6) See first note to Prec. VI., p. 402, sup. ; as a rule an immediate trust for
sale is recommended. If the husband and wife wish to manage the land,
Form No. o6a can be used.

Under this Precedent the husband during his life, and after his death the
wife, will be in the same position as regards the management and control of
the property as if it were a strict settlement. If he or she sells, the
purchase-money will be payable to the trustees who are constituted by the
S. L. Act, 1890, s. 10 (ii.), the trustees for the i^u-poses of the Acts by virtue
of their future trust fur sale. If it is desired to give the tenants for life
wider jiowers than those conferred by the S. L. Acts, see Forms in Kealty
Settlements, itif. To some extent this Precedent is partly a liealty Settle-
ment and partly a Personalty Settlement.



CONVEYANCE WITH FUTURE TRUST FOR SALE. 425

(ii.) To THE USE of the Wife during her hfe without impeach- Wife for life,
ment of waste and without power of anticipation daring any
coverture (c), with remainder

(iii.) To THE USE of the Trustees in fee simple, Upon trust To Trustees on
that the Trustees (which expression, where the context so admits,
includes the survivors and survivor of them and the executors or
administrators of such survivor or other the trustees or trustee
for the time being hereof) shall after the death of the survivor of
the Husband and Wife, sell the premises, with power to retain the
whole or an)- part thereof unsold so long as the Trustees think
proper without being liable to account, but so that any part
remaining unsold shall be deemed personal estate and devolve
as such :

(iv.) The Trustees shall be the trustees hereof for all the Appointment
purposes of the Settled Land Acts, 1882 to 1890 (d). Trustees'.

2. The Trustees shall stand possessed of the net money to Trusts of pro-
arise from sales under the trust for sale aforesaid and any other

capital money arising hereunder, after payment thereout of all
costs incidental thereto and also of the net rents and profits of
the premises until sale, after payment of outgoings, In trust
(trusts for issue as Husband and Wife jointh/ or the surriror
appoint — In default for children — Hotchpot clause — Form No. 37).

3. (i.) The Trustees may at any time or times, but with the AdvciuLement
consent in writing of the Husband and Wife or of the survivor of '

them if living, raise out of any capital money or investments for
the time being in their hands or by sale or mortgage of the
liereditamenls hereby conveyed, or any part thereof, any sum

not exceeding the sum of £ in respect of any one child or other

issue of the said intended marriage, and may pay or apply the
same for the advancement or benefit of such child or other issue
as the Trustees think fit, and for the purposes aforesaid may
revoke the uses hereinbefore declared and appoint the heredita-
ments hereinbefore conveyed to the use of a purchaser or
mortgagee in fee simple or for any less estate or interest.

(ii.) The Trustees shall in distributing the net money to arise
under the trust for sale aforesaid take into account any money

{(■) See lie Lnmletj, 1N96, 2 Ch. 690 ; 65 L. J. Ch. 837.

((/) If the life estates are surrendered and the reversion becomes abso-
liitely vested in a person who elects to take as real estate, a doubt might
arise whether there was a subsisting trust for sale within S. L. Act, 1S90,
s. 16.



426



(precedents) settlements (personal).



Protection to
purchasers and
mortgagees.



Powers of
management
to Trustees
after death of
both tenants
for life.

Investment
clause.



Ultimate trust
for Husband in
default of
issue.



Powers, &c.



advanced to a l)eneficiary or to his or her issue under the said
power, and the decision of the Trustees in rehition thereto shall
be final.

4. No purchaser, mortgagee or other person dealing with
the Trustees for money or money's worth shall be concerned to
see to the application of any money paid to the Trustees, or
whether the money is wanted, or whether more than is wanted
is raised, and no purchaser under the trust for sale hereinbefore
contained shall be concerned to inquire whether the person or
persons entitled to the proceeds of sale have elected to take any
hereditaments as real estate.

5. After the death of the survivor of the Husband and Wife
the Trustees shall have, &c. (continue as in Form No. 56).

6. Capital money arising under the Settled Land Acts, 1882
to 1890, or under the trust for sale hereinbefore contained, may
be invested in the names of the Trustees in any of the invest-
ments following, with power to vary such investments for
others of a like nature (that is to say) : — Form N^o. 51.

7. If there shall not be any child of the said intended
marriage who attains a vested interest under the trust herein-
before declared in default of appointment, then, subject to the
trusts and powers hereinbefore contained, the hereditaments,
money and investments and all other property subject to the
limitations and trusts of these presents shall, after the death of
the Wife, be held In tkust for the Husband in fee simple or
absolutely.

8. Power for 'Trustees to value, and as to land duties and death
duties, de. — Form, No. 61, omitting preUminary words in square
brackets.

9. Indemnity to Trustees, if required — Form No. 62.

10. Power to employ agents, dtc. — Form No. 66.

11. Power to appoint new Trustees— Form No. 68.
In witness, &c. (^0-



[(I) If other personal estate is settled and the proceeds of sale of the land
are to be held witli it, tlie land should be conveyed on trust for sale (see
Free. VI., p. 402) and the trusts of the proceeds declared by a deed of even
date. The powers of the trustees can under Form No. 56a be delegated to
the tenants for life. This is preferable to emploj'ing a future trust for sale.



CONVEYANCE OF A REMAINDER ON TRUST FOR SALE. 427

No. XVII.

APPLICATION to acrompamj the last Precedent ivhere the
Land Conveyed is Registered under the Land Transfer
Acts.

Land Transfer Acts, 1895 and 1897.

District .

Parish .

No. of title — .

{Date.) A. B., of, etc., hereby applies to the registrar to enter
the following restriction against the title above referred to
(namely) : —

Iiestrietion. Except under an order of the registrar, no transfer
of the land is to be registered unless made on sale, exchange
or partition, the consideration money being paid to E. F.,
of, &c., G. H., of, &c., and I. K., of, &c. (e), or into Court,
and except under an order of the registrar, no charge or
lien by deposit of certificate is to be registered or created
unless expressed to be for one of the purposes for which a
tenant for life is authorised by law to raise money on
mortgage of settled land, the money being paid to the
said E. F., G. H., and I. K.

No. XVIII.

CONVEYANCE J)i/ the intended Husband of an Undivided
Share in Remainder of Freeholds to Trustees on Trust
for Sale after the determination of the Prior Life
Estate. The Proceeds to he held upon the Trusts
declared by a Deed o/'Even Date ( /').

THIS INDENTURE, made the day of , Between A. B., Parties.

of, &c, (hereinafter called the Husband), of the 1st part, C. D.,

(e) Add, if the registrar will permit it, " Or the SUrvivors or survivor
of them or the executors or administrators of such survivor "
where under the settlement thej' have power to give receipts for capital
money ; and see prescribed Form 64, and compare prescribed Forms 6 and 7.

(/) Any sale made during the siibsistence of the prior life estate will be
made by the tenant for life under the S. L. Act powers and the money paid



428



(precedents) settlements (personal).



Recitals.

Title of
husband to
share in
remainder.

Agreement for
marriage.

Witnessing
part.

Husband
conveys share
of freeholds
(subject to
prior life
interest) to
Trustees.



Trust for sale.



of, &c. (hereinafter called the Wife), of the 2nd part, and E. P.,

of, &c., G. H., of, &c,, and L. K., of, &c. (hereinafter called the

Trustees), of the 3rd part :

Whereas (Hccite Will of X. Y., under wkicli the Hnshand is

e)ititled to an undivided third share in remainder of freeholds

expeetant on the life estate of R. B., Ids father) :

And whereas {agreeinentfor vtarriafje, Form No. 2) :
And avhereas {agreement for Settlement, Form No. 11) :

NOW THIS INDENTURE WITNESSETH and it is herehy
declared as follows : —

1. In pursuance of the said agreement and in consideration
of the said intended marriage, the Husband, As Settlor, hereby
conveys unto the Trustees

All that the one undivided third share of the Husband in
all, &c. (pareels),

To HOLD (subject to the life estate tlierein of the said R. B.)
unto and To the use of the Trustees in fee simple. In trust for
the Husband in fee simple, until the said intended marriage
shall be solemnised : And after the solemnisation thereof, Upon
the trusts and subject to the powers and provisions hereinafter
declared concerning the same.

2. The Trustees i^which expression, where the context so
admits, includes the survivors and survivor of them and the
executors or administrators of such survivor or other the
•trustees or trustee for the time being hereof) shall, with the
consent in writing of the Husband and Wife during their joint
lives and of the survivor of them during his or her life, and
after the death of the survivor at the discretion of the Trustees,
sell the undivided share and premises hereby conveyed at any
time or times after the death or cesser of the life estate of the
said R. B., with power to sell the same share alone or in con-
junction with the other undivided parts or shares of the premises,

to the trustees of the Will creating the settlement. Hence, notice of the
conveyance on trust for sale of the share in remainder should be given to
the trustees of the Will so that they will know to whom to pay the proceeds
of any sale of the share made in the lifetime of the tenant for life. The
settlement of even date (see next Precedent) will contain a power for the
trustees to accei)t the part of the proceeds of any sale representing the share
in remainder discharged from any liability for reinvestment in hind, but this
liability is really discharged by the conveyance on trust for sale.



SETTLEMENT OF PROCEEDS OF SALE OF ESTATE IN REMAINDER. 429

or any of them, as the Trustees shall think fit, and shall stand
possessed of the net money to arise from the sale of the said
undivided share (after payment of the costs and expenses
attending such sale), and of the rents and profits of the said
undivided share and premises (or such part thereof as shall not
he sold in the lifetime of the said li. B. under the powers
conferred by the Settled Land A.cts, 1882 to 1890, or otherwise)
after the death of the said R. B., or the cesser of his life interest
and until the sale of the said share, Upon the trusts and subject ■
to the powers and provisions declared concerning the same by
an Indenture already prepared, and intended to bear even date
with these presents, and to be made between the same parties
as are parties hereto and in the same order.

3. All capital money arising under the said Will or invest- As to capital
ments representing the same received by the Trustees in respect under the^"^"
of the premises hereby conveyed shall be held Upon the same ^'^^ (^)-
trusts as if the same had arisen under the trust for sale
aforesaid.

4. Powers of inaiUKjcDtcnt — Forvi No. 5Q, omitthuj part in aquare Powers of

mi- TT ' ; ■ • • leasing and

brackets, lliis ronn autlionses a pavtition. partitioning,

5. Power to appoint new Trustees — Form Xo. 68 witli the '^'
addition at the end.

In witness, &c.

No. XIX.

SETTLEMENT hij the intended Husband of the Proceeds o/
Sale of a Share in Eemaindee o/ Freeholds eonrei/ed to
Trustees o)i Trust /oy Sale by Deed ef even Date, and by
the intended Wife of a Portion Charged on Pieal Estate.

THIS INDENTURE {same jMVties as last Precedent). Parties.

. , ,. • 7 1 A^ n Recitals.

Arjreementjor niarriage—rorni j\o. 'Z.

And whereas by an Indenture bearing even date with these Conveyance of

. T T 1 , ,1 ,• even date by

presents, and made between the same persons as are parties Husband of
hereto and in the same order, the Husband conveyed his undi- f^jj^^'^j/j'^g^. ^f
vided third share in remainder in certain freehold hereditaments fieehoids upon

_^_ trust for sale.

{y) Such capital money must, of coiirse, be paid to the trustees of the Will. Effect of
They will account for the same on the cesser of the life interest. If the Life surrender,
interest is surrendered, the duties should be commuted before the money is
handed over. If there are any family charges or duties to be discharged,
the STU'render of the life estate would not destroy the statutory powers :
S. L. Act, 1882, s. oO.



430



(precedents) ski tlkmknts (personal).



Operative
part.



therein mentioned unto the Trustees in fee simple, subject to the
estate for life therein of E. B. (the father of the Husband), Upon
trust that the Trustees should, after the solemnisation of the said
intended marriage, sell the said undivided share and premises at
any time or times after the death of the said E. B. or the
cesser of his life estate and stand possessed of the net money to
arise from any such sale after payment of costs and also of
the rents and profits of the premises until sale Upon the trusts
declared concerning the same by an Indenture of even date
therein referred to (meaning these jDresents).

Title of Ulfc to a j)0)iioji under a Will — Form No. 6.

Agreement for Settlement — Form No. 11.

Commencement of operative part — Form No. 12.

1. Assignment by Wife of portion — Forms Nos. 14, 18, and 19.

2. Trusts after marriage of proceeds of sale of the share conveyed
hij deed of even date and portion, to invest and vary — Form No. 28.

3. Definition of the ''Husband's Tnist Fund'" and the " Wife's
Trust Fund" and trusts thereof— Form No. 31.

(i.) and (ii.) Successive life interests to Husband and Wife in both

Fuuds—Form No. 32.
(iii.) and (iv.) After death of Husband and Wife, for issue as they



Online LibraryFrederick PrideauxPrideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) → online text (page 55 of 138)