PRELIMINARY OBSERVATIONS

ON

MARRIAGE SETTLEMENTS.

GREAT care and circumspection are necessary in preparing deeds of marriage settlements-for the events they are to provide for are not like those in purchase or mortgage deeds, or deeds of copartnership, or between debtors and creditors, which can be previously ascertained-but events which may or may not happen, and for persons unborn, and the number and the sex of which are wholly unknown. The primary object of every settlement must however be to make a provision for the wife, and for the issue of the marriage, should there be any; and in doing this the following contingencies must be had in view, and be provided for, i. e. the wife surviving the husband, the husband surviving the wife, there being children of both sexes, and they surviving both cr only one of their parents; there being sons only, or one only son; daughters only, or one only daughter; a son and one or more daughters; a daughter and one or more sons; some or all of the children attaining the age of twenty-one years, or, if daughters, being sooner married; there being no children, or all of them dying under that age

MARRIAGE SETTLEMENTS.

VOL. VII.

R

MARRIAGE or time: upon all of which events some observations will be sub

SETTLEMENTS.

mitted in the subsequent pages, in addition to those made in the INTRODUCTION, which see, ante, after p. 240.

Settlements are seldom so framed as to be clearly intelligible by the parties, although it is of the greatest consequence that they should be; as for want of this it frequently happens that the property is settled under limitations and provisions which give very different interests than those intended by the settler. To obviate this difficulty, deeds of settlement should contain a plain recital of the mode in which the property is intended to be settled preliminary to the provisions, &c. introduced; and, as far as the law will permit, technical forms of expression should be avoided. Where these are necessary to carry the desired object into effect, a familiar clause of explanation should be added, to show their legal operation.

In preparing marriage settlements, the province of counsel is generally considered to be limited to the mere act of putting into technical form the instructions of the settler, so that his intentions, be they what they may, may be carried into effect; but it appears to me that it belongs to him to do more than this; and that he has a right to consider himself as the general adviser of his client to the extent of every matter connected with the disposition of the property intended to be settled, as his professional experience will suggest to him inconveniences likely to arise from particular limitations, which could not occur to the party himself.

As marriage settlements have principally in view a provision for the wife and the issue of the marriage, and it is a compliment generally paid to the lady (particularly where the property to be settled is her own, or proceeds from her relations) to have the settlement prepared by her own counsel, I shall give a

general outline of some of the most common provisions for

those purposes.

† (1) If real or personal estate is to be settled on the wife

and children, so as totally to exclude the husband, it must be conveyed or assigned to trustees in trust for the wife and her heirs, or executors and administrators, according to the nature of the property, until the marriage, and after its solemnization, in trust during the joint lives of her and her husband, to pay the rents or interest to such person as she shall appoint, and for want of appointment, into her proper hands, for her separate use, and the receipt of such persons to be a sufficient discharge; and if she survive her husband, the property is to be in trust for her heirs or executors, administrators or assigns; but if she die in his lifetime, then upon such trusts, &c. as she shall by will appoint (not by deed, for she might then be prevailed on by the husband to make an appointment of the reversion in his favour, which he might sell or raise money upon) and in default of appointment, in trust for the children, in the usual manner; remainder in trust for the wife and her heirs, or executors, administrators, and assigns.

MARRIAGE SETTLEMENTS.

Wife's property

settled for her

own benefit.

wife.

Where no provision is intended to be made for the children out Rent charge to of her property, but a rent-charge is to be secured to the wife out of the husband's estate (the children being provided for by the husband, or the personal property of the wife) the lands are, in consideration of the wife's fortune, and of the marriage, to be conveyed to a trustee, to the use of the husband and his heirs, until the marriage, and after the solemnization thereof, to the use of the husband for life; remainder to the use, intent, and

(1) See ante, Vol. I. p. 426, n. (†).

MARRIAGE

SETTLEMENTS.

Mortgages on husband's estate

to be paid off.

Wife's estate t> be settled to joint appointment, subject jointure, &c.

purpose, that the wife, in case she shall survive him, shall receive the proposed rent charge; with powers of distress and entry; and as to the settled premises, from and after the death of the husband, subject to the rent-charge, to the use of the trustee for one thousand years, upon trusts after mentioned; remainder to the husband in fee. Then declare the trusts of the term to be for raising the rent-charge in case of its being in arrear, and for payment to the executors or administrators of the wife a proportionable part of it from the last day of payment: there must be the usual provisions, that the trustees shall permit the surplus of the rents to be received by the reversioner and for the cesser of the term when all the trusts shall have been performed. And if the estate intended to be settled be incumbered with

mortgages or portions of mothers, sisters, &c. the wife's fortune should either be applied to discharge them, or other estates of the husband should be conveyed to trustees for the purpose of disincumbering the settled estate, and indemnifying the same in the mean time therefrom. In cases of this kind, the settlement and the deed of sale and indemnity should each state the brief contents of the other; but in the deed of indemnity it may be sufficient to say, that the husband has settled the estate intended to be preserved to and for the several uses in the said indenture of settlement declared in favour of and for the benefit of him and his wife, and the children and issue.

In case the estate to be settled is the wife's, and it is intended that, subject to a jointure, an annuity to her, and portions to the younger children, it should remain at the joint disposition of the husband and wife, but if, in default of any such disposition, the ands to be his; they are to be conveyed to trustees to the use of the wife and her heirs until the marriage, remainder to the husband for life, remainder to the use, intent, and purpose that the

SETTLEMENTS.

wife shall receive a rent-charge, with powers of distress and MARRIAGE entry, remainder to the trustees for a term, suppose three thousand years, upon the trusts after mentioned, then to and for such uses, &c. as the husband and wife shall jointly by deed appoint, remainder to the husband in fee.

The trusts of the term to be in the first place for raising the jointure, annuity, and a proportionable part of it to the executors of the wife, and then upon trust, in case there shall be any child or children of the marriage, to raise portions; namely, if only one child, such a sum-if two children, such a sum-if three or more, such a sum; the portions of the sons to be vested at twenty-one, and the portions of the daughters at that age or marriage with the consent of the husband and wife, and the survivor of them, or his or her executors previously had (for it would be improper to make the vesting of the portions depend on a subsequent event), to be signified by writing and attested by witnesses, that it may be a deliberate act. The portions should in no case, where the estate is burdened with a considerable rent-charge, be payable sooner than the death of the surviving parent. There must be the usual clause, that if any of the children die before their portions become vested, they shall go over to the others.

But as by a settlement on this plan none of the sons take any estate in the lands, it is not necessary to provide that the portion of the youngest son becoming an eldest shall go over to the other children.

It must also be provided, that under the clause of survivorship, no one child shall have more than the original sum intended for him, nor any two of them more than the original sum intended for them; without this precaution, one child might become entitled to the provision intended for three or more, and