CHAPTER XXV.

MARRIAGE SETTLEMENTS.

[* § 983. Marriage settlements construed strictly, but marriage articles more liberally.

§ 984. Equity will construe executory trusts, under marriage settlements, more favorably to the issue, than those under wills.

§ 985. Will construe contract, as mere articles of settlement in favor of the issue. § 986, 987. Will not generally decree specific execution of articles at suit of volun

teer.

§ 987 a. How far a marriage settlement made after marriage is good against creditors.

§ 988. Personal chattels and terms for years may be settled like real estate held in fee.

§ 989. Estates pour autre vie partake of the incidents of estates tail.

§ 990. Executory devises of terms and chattels. Remote limitations void.

§ 991. Limitations to preserve contingent remainders.

§ 992. This effected by means of special trusts.

§ 993. Courts of equity will aid such trustees in preserving the inheritance.

§ 994. Will compel the execution of such trusts.

§ 995. Will sometimes compel trustee to join in conveyance, to defeat the re mainder.

§ 996. Courts of equity will not control the discretion of a trustee.

§ 997. Difficulty of determining when they should join.

§ 997 a. How construed as to maintenance of children.]

§ 983. AND, in the first place, in regard to MARRIAGE SETTLEMENTS. Where an instrument, designed as a marriage settlement, is final in its character, and the nature and extent of the trust estates created thereby are clearly ascertained and accurately defined, so that nothing further remains to be done according to the intention of the parties, there the trusts will be treated as executed trusts, and courts of equity will construe them in the same way as legal estates of the like nature would be construed at law

where one conveyed property to a trustee to escape creditors, and was afterwards declared bankrupt, and pursuant to terms of composition with creditors sues to enforce the trust and recover the property. Symes v. Hughes, L. R. 9 Eq. 475. See Haigh v. Kaye, L. R. 7 Ch. App. 469; Ownes v. Ownes, 8 C. E.

Green, 60. Funds voted by parlia ment for public service are not trust funds in the hands of the officials who receive them, and equity has no power to call them to account for same, at suit of an employé, who alleges he is entitled to be paid thereout. Grenville Murray v. Earl of Clarendon, L. R. 9 Eq. 11.]

upon the same language. Thus, if the language of the instru ment would give a fee tail to the parents in a legal estate, they will be held entitled to a fee tail in the trust estate.2 But where no marriage settlement has actually been executed, but mere marriage articles only for a settlement, there, courts of equity, when called upon to execute them, will indulge in a wider latitude of interpretation, and will construe the words, according to the presumed intention of the parties, most beneficially for the issue of the marriage. In executing such articles they will put it out of the power of the parents to defeat the issue, by requiring that the limitations in the marriage settlement should be what are called limitations in strict settlement; that is to say, instead of giving the parents a fee tail, the limitations will be made to them for life, with remainders to the first and other sons, &c., in the fee tail; and if the articles are applicable to daughters, the like limitations will be made to them also. And in cases of executory trusts

11 Fonbl. Eq. B. 1, ch. 6, § 7, and note (n); id. § 8, note (s); 2 Fonbl. Eq. B. 2, ch. 1, § 5, note (k); Fearne on Conting. Rem. by Butler, p. 145 to 148 (7th edit.); id. p. 133 to 136; 1 Mad. Pr. Ch. 360; Synge v. Hales, 2 B. & Beatt. 507; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 559, 571; 4 Kent, Comm. Lect. 61, p. 302 (2d edit.).

2 [See Cooper v. Kynock, L. R. 7 Ch. App. 398. Compare Loring v. Eliot, 16 Gray, 568; Caulk v. Fox, 13 Fla. 148; 1 Perry on Trusts, § 357, 359, 360, 361, 375.]

3.[Where there was a recital that afteracquired property of the wife was to be settled on like trusts, but no covenant to that effect on part of the wife in the operative part of the deed, it was held that such covenant would not be implied. Young v. Smith, L. R. 1 Eq. 180. And see Gevers v. Wright's Ex'ors, 3 C. E. Green, 330. A covenant to settle after acquired property will not cover property bequeathed in terms inconsistent with the trusts of the settlement. In re Mainwaring's Settlement, L. R. 2 Eq. 487; In re Edwards, L. R. 9 Ch. App. 97. Nor will such covenant apply to property not acquired during the coverture, e. g., coming under the husband's will. Carter v. Carter, L. R. 8 Eq. 551; Steinberger's Trustees v. Cotter, 3 C. E. Green, 452. And

see, as to the construction of such covenants, Campbell v. Bainbridge, L. R. 6 Eq. 269; Dering v. Kynaston, L. R. 6 Eq. 210; In re Browne's Will, L. R. 7 Eq. 231; Dickinson v. Dillwyn, L. R. 8 Eq. 546; In re Pedder's Settlement, L. R. 10 Eq. 585; Bower v. Smith, L. R. 11 Eq. 279; In re Clinton's Trust, L. R. 13 Eq. 295. As to the proper limitations where a will directs a "strict settlement," see Loch r. Bagley, L. R. 4 Eq. 122; Stanley v. Coul thurst, L. R. 10 Eq. 259; Grier v. Grier, L. R. 5 H. L. 688. The estates to be vested in children should be in common rather than in joint tenancy. Mayn v. Mayn, L. R. 5 Eq. 150. For cases where executory trusts were held not to provide for the issue of deceased children, see In re Bellasis' Trust, L. R. 12 Eq. 218; In re Brookman's Trust, L. R. 5 Ch. App. 182. "Sole" may have a different meaning in marriage settlements from what it has in wills. Massey v. Rowen, L. R. 4 H. L. 288. Where marriage articles made the husband trustee, with full power of management, but did not declare any trusts, it was held that there was no trust which the court could execute. Dillayev. Greenough, 45 N. Y. 438.]

41 Fonbl. Eq. B. 1, ch. 6, § 7, and note (n); id. § 8, note (s); Fearne on Conting. Rem. p. 90 to 114, by Butler (7th edit.); Earl of Stamford v. Hobart,

arising under wills, a similar favorable construction will be made in favor of the issue in carrying them into effect, if the court can clearly see from the terms of the will that the intention of the testator is to protect the interests of the issue in the same way.1

§ 984. There is, however, a distinction recognized in equity between executory trusts created under marriage articles, and those created under wills, in relation to the interpretation of them and the mode of carrying them into execution. In cases of marriage articles, courts of equity will, from the nature of the instrument, presume it to be intended for the protection and support of the interests of the issue of the marriage, and will, therefore, direct the articles to be executed in strict settlement, unless the contrary purpose clearly appear.2 For, otherwise, it would be in the power of the father to defeat the purpose of protecting and supporting such interests, and to appropriate the estate to himself. But, in executory trusts under wills, all the parties take from the mere bounty of the testator; and there is no presumption that the testator means one quantity of interest rather than another, an estate for life in the parent rather than an estate tail; for he has a right arbitrarily to give what estate he thinks fit, to the parent, or

1 Bro. Parl. Cas. 288; Glenorchy v. Bosville, Cas. temp. Talb. 3. See 1 White & Tudor's Eq. Leading Cases, 1, and notes; Countess of Lincoln v. Duke of Newcastle, 12 Ves. 218, 227; Taggart v. Taggart, 1 Sch. & Lefr. 87. There is a most elaborate note of Mr. Fonblanque (1 Fonbl. Eq. B. 1, ch. 6, § 8, notes) on this subject, in which the distinction between trusts executed and trusts executory is fully discussed, and the distinction stated in the text is firmly maintained. I regret that it is too long for an insertion in this place. See also Atherly on Marriage Settlement, ch. 7, p. 93 to 105. Lord Eldon, in Jervoise v. Duke of Northumberland (1 Jac. & Walk. 559, 571), has taken notice of the confused and inaccurate senses in which the words executory trusts and executed trusts are often used. In one sense all trusts are executory, since the cestui que trust may call for a conveyance and execution of the trust. But executory trusts are properly those where something remains to be done to complete the intention of the parties, and their act is not final. See Mott v. Bux

ton, 7 Ves. 201; Hopkins v. Hopkins, 1 Atk. 591. [* This last case is here incorrectly reported, and is corrected by Lord Hardwicke's manuscript notes, in Habergham v. Vincent, 2 Vesey, Jr. 238. See Lloyd v. Brooks, 34 Md. 27.]

1 Leonard v. Earl of Sussex, 2 Vern. 526; Papillon v. Voice, 2 P. Will. 478; Glenorchy v. Bosville, Cas. temp. Talb. 3; 1 Fonbl. Eq. B. 1, ch. 6, § 8, and note (s); Countess of Lincoln v. Duke of Newcastle, 12 Ves 227, 230, 231, 234; Fearne on Conting. Rem. by Butler, p. 113 to 148 (7th edit.); id. p. 184; Green v. Stephens, 17 Ves. 75, 76; Carter v. White, Ambler, 670; Sydney v. Shelley, 19 Ves. 366; Stonor v. Curwen, 5 Sim. 264. [Thompson v. Fisher, L. R. 10 Eq. 207. Where property was given to daughters, then infants, by a will, a settlement being directed on themselves on their marriage, and they became of age without marrying, held, that they were entitled to their shares absolutely. Magrath v. Morehead, L. R. 12 Eq. 491.]

2 Atherly on Marr. Settlem. ch. 7, p. 93 to 101; ante, § 974.

to the issue.1 If, therefore, the words of marriage articles limit an estate for life to the father, with remainder to the heirs of his body, courts of equity will decree a strict settlement, in conformity to the presumed intention of the parties. But if the like words occur in executory trusts created by a will, there is no ground for courts of equity to decree the execution of them in strict settlement, unless other words occur explanatory of the intent. The subject being a mere bounty, the intended extent of the bounty can be known only from the words in which it is conferred. If it is clearly ascertained from any thing in the will, that the testator did not mean to use the expressions which he has employed, in a technical sense, courts of equity, decreeing such a settlement as he has directed, will depart from his words in order to execute his intention. But they will follow his words, unless he has himself shown that he did not mean to use them in their proper sense; and they have never said that, merely because the direction was for an entail, they could execute that by decreeing a strict settlement.2

§ 985. In furtherance of the same beneficial purpose in favor of issue, courts of equity will construe an instrument which might, under one aspect, be treated as susceptible of a complete operation at law, to contain merely executory marriage articles, if such an intent is apparent on the face of it; for this construction may be most important to the rights and interests of the issue. So an instrument, as to one part of the property com

1 1 Fonbl. Eq. B. 1, ch. 6, § 8; Jeremy on Eq. Jurisd. B. 1, ch. 1, § 2, p. 32; id. B. 3, Pt. 2, ch. 2, p. 379; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 550, 551, 554.

2 Blackburn v. Stables, 2 Ves. & B. 370; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 559, 571, 574; Lord Deerhurst v. Duke of St. Albans, 5 Mad. 260; Synge v. Hales, 2 B. & Beatt. There is some language of Lord Eldon in the Countess of Lincoln v. Duke of New castle, 12 Ves. 227 to 230, which might lead to the conclusion that he held that there was no distinction between executory trusts under marriage articles and those created by a will. In that case, he said: "There is no difference in the execution of an executory trust created by a will, and of a covenant in marriage arti

cles, such a distinction would shake to their foundation the rules of equity.” But in Jervoise v. Duke of Northumber land (1 Jac. & Walk. 573), he corrected the misapprehension of his opinion, and said: "If it is supposed that I said there was no difference between marriage articles and executory trusts, and that they stood precisely on the same ground, I never meant to say so. In marriage articles, the object of such settlement, the issue to be provided for, the intention to provide for such issue, and, in short, all the considerations that belong peculiarly to them, afford primâ facie evidence of intent, which does not belong to execu tory trusts under wills." [See West v. Holmesdale, L. R. 4 H. L. 543.]

3 Atherly on Marr. Sett. ch. 7, p. 121 to 133; Trevor v. Trevor, 1 P. Will. 622;

prised in it, may be construed to be a final legal marriage settlement; and as to other property merely to be executory marriage articles.1

§ 986. There is also a distinction in courts of equity as to the parties, in whose favor the provisions of marriage articles will be specifically executed or not.2 The parties seeking a specific execution of such articles may be those who are strictly within the reach and influence of the consideration of the marriage, or claiming through them; such as the wife and issue, and those claiming under them; or they may be mere volunteers, for whom the settler is under no natural or moral obligation to provide, and yet who are included within the scope of the provisions in the marriage articles; such as his distant heirs or relatives, or mere strangers. Now, the distinction is, that marriage articles will be specifically executed upon the application of any person within the scope of the consideration of the marriage, or claiming under such person; but not generally upon the application of mere volunteers. But where the bill is brought by persons who are within the scope of the marriage consideration, or claiming under them, there, courts of equity will decree a specific execution throughout, as well in favor of the mere volunteers, as of the plaintiffs in the suit. So that, indirectly, mere volunteers may obtain the full benefit of the articles, in the cases where they could not directly insist upon such rights. The ground of this peculiarity is, that when courts of equity execute such articles at all they execute them in toto and not partially.1

White . Thornborough, 2 Vern. 702. See 1 White & Tudor's Eq. Lead. Cas. 30, and notes.

1 Countess of Lincoln v. Duke of Newcastle, 12 Ves. 218; Vaughan v. Burslem, 3 Bro. Ch. 101, 106. [Where a mistake on the settlement was clear, the fund was distributed under the Trustee Act, according to its true meaning, without requiring it to be first rectified. In re De La Touche's Settlement, L. R. 10 Eq. 599. But a settlement may be rectified even after the death of the husband. See In re Viant's Settlement, L. R. 18 Eq. 436; Smith v. Iliffe, L. R. 20 Eq. 666; Cogan v. Duffield, L. R. 20 Eq. 789.]

* See Neves v. Scott, 9 Howard, U. S. 197; Dennison v. Gothring, 7 Barr, 175; King v. Whitely, 10 Paige, 465. [Articles were enforced in favor of husband,

though he had broken the contract on his part, there being part performance by the marriage, and the covenants being independent. Jeston v. Key, L. R. 6 Ch. App. 610. Compare Butman v. Porter, 100 Mass. 337.]

3 See Atherly on Marr. Sett. ch. 5, p. 131 to 145; Wollaston v. Tribe, L. R. 9 Eq. 44; ante, § 433, 706 a, 793 u, 973; post, § 1040. [* Hence, where the parties in contemplation of marriage agreed that neither, after the death of one of them, should claim any thing that belonged to the other before marriage, it was held sufficient to bar the woman's right of dower, and a year's provision and distributive share in her husband's estate. Cauley v. Lawson, 5 Jones, Eq. 132.]

4 Atherly on Marr. Sett. ch. 5, p. 125 to 130; id. 131 to 135; Osgood v. Strode,