Page images
PDF
EPUB

laws, it is sometimes desirable to frame the trusts and limitations of the settlement with a view to preserve some provision for his wife and family, in the event of his becoming bankrupt. This may be partially effected by giving the first life estate in all the property to the wife for her separate use, which will preserve the property for the benefit of the family during her life. As an objection is, however, (and as it appears to the editor justly,) felt against that course, the income of the property is sometimes limited to the husband, till his bankruptcy, insolvency, or voluntary alienation of it, and then to his wife, for her separate use, for the remainder of her life; but as such a limitation would be invalid as to any property that was originally his own,' the most effectual mode of gaining the proposed end appears to be, to give the first life interest in the gentleman's property to the wife, for her separate use, and limit her property to the husband till his bankruptcy, insolvency, or voluntary alienation. Such a limitation of the wife's property would be support

ed.

On referring to the cases cited in support of these positions, it will be observed, that such limitations as are here recommended are construed with great strictness. Thus, if the limitation over is made to depend upon any attempt to alien, incumber, or charge by the party himself, an alienation by act of

• If not given to her separate use, the gentleman would be entitled to dispose of it for the term of their joint lives; and to that extent it would consequently vest in his assignees, in the case of bankruptcy or insolvency; but whether the husband's power extends beyond his own life, so as to affect his wife's interest as survivor, appears to be yet unsettled. Stiffe v. Everitt, 1 M. and Cr. 37.

Higinbotham v. Holme, 19 Ves. 88. * Brandon v. Robinson, 18 Ves. 429; Ex parte Hodgson, 19 Ves. 206; and see Id. 92, Wilkinson v. Wilkinson, 3 Swanst. 515; Lear v. Legget, 2 Sim. 479; 1 Russ, and M. 690.

law, as on bankruptcy, is not considered within the terms of the provision, and a restraint upon alienation upon a gift to a man for life, without any gift over on such event, is entirely inoperative.b

Where it is wished to give a woman any interest, Restraint on for her separate use, it must be remembered that alienation. the ordinary limitation for that purpose not only deprives her husband of all power over it, but puts her in the situation of a feme soled as to such property, and consequently enables her to make any disposition of it she pleases. If, therefore, it is desired to provide against the exercise of that moral influence which a husband generally has over his wife, and under which she may be induced to part with her separate property, her power over it should be taken away by an express provision, ordinarily termed a restraint upon anticipation, which, united with the limitation to her separate use, will effectually secure to her the enjoyment of that provision which was intended for her.

Great care should be taken, in framing a settle- Period of ment, to express clearly the events upon which the vesting. interests of the children are to become vested. The ordinary and best course is to declare, that all the sons of the marriage who attain twenty-one, and all the daughters who attain that age, or previously marry, (with consent of parents, if so wished,) shall take vested interests, and that without reference to their surviving their parents.

If the period of vesting is postponed to the age of twenty-five, or any other period later than twentyone, such a limitation, in any antenuptial settlement

• See also Whitfield v. Prickett, 2 Keen, 608.
o Woodmeston v. Walker, 2 Russ. and M, 204.
• For a form of a trust of this sort, see ante, p. 55.
d Sturges v. Corp, 18 Ves. 190.
• Brandon v. Robinson, 18 Ves. 434.

! Woodmeston v. Walker, 2 Russ. and M. 205 ; see Tullett v. Armstrong, 1 Beav. 1, and L. J. N. S. 41 Ch., in which the points as to separate estate are fully considered.

as to all the children, and in a postnuptial settlement as to those not born at its execution, would be void; for the vesting of any real or personal estate under such circumstances cannot be postponed to a period or event which may possibly not happen till after twenty-one years from the death of the parentsthe greatest time allowed by law for postponing the vesting of any estate being a life or lives in being, and twenty-one years, and a period for gestation afterwards.

A marriage-settlement should always be executed before the marriage actually takes place ; for if it were executed afterwards, it would be considered as voluntary, unless made in pursuance of a written antenuptial agreement, in which case, so far as its provisions are in conformity with the terms of the agreement, it would have the same validity as if made before marriage.

Where government or other stock, or shares in any company, are the subject of a settlement, care should be taken to vest it in the trustees, in the mode required for the transfer of such particular kind of property. Thus, an actual transfer in the books of the Bank of England as to any government stock, or in the books of any company, as to any shares in, or property under, the control of such company, should always be obtained previous to the marriage; and where money is settled, the trustees should require either that it be paid to them, or invested in their names, and should obtain possession of the securities; but if reversionary or other pro. perty, which does not, at the time, admit of being legally vested in the trustees, be settled, all the precautions of which the case may admit should be taken for preventing the party to whom the pro. perty belonged from continuing to deal with it afterwards as his own. Thus, if trust-property, or a

« Lord Southampton v. M. of Hertford, 2 Ves. and B. 54; Leake v. Robinson, 2 Mer. 362; and see p. 388.

policy of insurance, or a debt, be settled, notice of the settlement should be given to the trustees, or other party by whom payment is eventually to be made ; and where the whole legal estate is vested in the trustees of the settlement, they are entitled to, and should obtain, the possession of the title-deed 3.

*CHAPTER XXXVI.

STAMPS.

Though no part of the original work was devoted to the consideration of the Stamp-laws, the editor of the present edition has thought that a chapter on such portions of the Stamp-acts as are applicable to the ordinary proceedings in conveyancing, is quite consistent with the general design of the work, and will prove not altogether unacceptable to the practical reader.

The general stamp-act now in force was passed in the 55th year of George the Third, and came into operation on the 1st September 1815. It has been amended, so far as it applied to the transfer of mortgages, and some other points not within the scope of this chapter, by the 3d George the Fourth, c. 117, which came into operation on the 15th August 1822. The act of 1st and 2d Geo. IV., ch. 55, was passed to remove doubts which had arisen as to the stamps chargeable on instruments affecting property, of which part might be situate in Ireland, and other part in Great Britain, or elsewhere; and as to bonds executed by several persons, some residing in Ireland, and others in Great Britain, or elsewhere, by declaring that, in such cases, the proper stamps were those chargeable in Great Britain.h

h The other acts relating to stamps are the 5th Geo. IV., c. 41, for repealing certain duties on legal proceedings ; the

« PreviousContinue »