-use of bro tended bus ther of the in- to the issue male of the brother, the other brothers of the intended husband, and their issue male]; and other daughters of marriage in tail remainders to -use of first the intended male; [remainders to first and other daughters of the intended hus band by any future wife in mainders to daughters of the tail male, re every younger son and the heirs male of his body; And on failure of such issue, To THE USE of [next younger brother of the intended husband] and his assigns, during his life, without impeachment of waste, [remainder to trustees to preserve contingent remainders, with remainders to the first and other sons of the brother in tail male, corresponding with the previous limitations to the intended husband and his issue male, with like remainders to his other brothers, according to seniority, and their sons in tail male]; And on failure of such issue, To THE USE of the first and every other daughter successively of the said [relessor] by the said [intended wife] in remainder, one after another, and the heirs male of the body of each such daughter, every elder daughter and the heirs of her body taking before every younger daughter and the heirs of her body; And on failure of such issue, [remainder to the first and other daughters of the intended husband by any future wife, remainder to the first and other daughters of the brothers of the intended husband, according to seniority, in tail male]; And on failure of such issue, To THE USE of the said [trustees to preserve contingent remainders], their executors and administrators, during the life of [name], the wife of [name and additions], who before her marriage with him was [maiden name], spinster, the eldest use of trussister of the said [intended husband], without impeachment of of a married waste, Upon trust to preserve the contingent remainders herein- sister of the inafter limited, and to pay the rents and profits of the said here- for her separate ditaments into the proper hand of the said [sister], or to such use; person or persons as she shall by writing under her hand appoint to receive the same, but not by way of anticipation, for her separate use, free from marital control, and for which rents and profits the receipts of herself or her appointees shall be sufficient discharges; And immediately after her decease, [re-[remainders mainders to the first and other sons of the sister in tail male, with like remainders, in favour of the other sisters of the tended husband, according to seniority, and their sons in male, with remainders to the daughters of the sisters in tail male]; And on failure of such issue, To the use of the said [relessor], their issue his heirs and assigns for ever. PROVIDED ALWAYS, that every -use of husperson not bearing, otherwise than by the unauthorized assumption thereof (51), the surname and arms hereinafter re in tail (51) See Doe d. Luscombe v. Yates, (5 B. & A. 544); Hawkins v. Luscombe, (2 Swanst. 375). brothers in tail male]; tended husband to first and other sons of the sister in tail male, re mainders to the other sisters of husband and the intended male]; band in fee. Clause for taking name and arms. Trusts of the term for 500 years; quired to be taken and used, who shall become entitled as be- TRUST, in the first place, for securing to the said [intended wife] for securing and her assigns the yearly rent-charge hereinbefore limited jointure; to her for her jointure; and for that purpose, when and so often as the same rent-charge shall be in arrear for thirty days after any of the days appointed for payment thereof, out of the rents and profits of the said hereditaments, or by mortgaging, selling, or otherwise disposing of the same hereditaments, or any part thereof, for the last-mentioned term or any part thereof, or by all or any of the means aforesaid, to raise and satisfy all arrears of the last-mentioned rent-charge, and all incidental costs and expenses; And, subject to the trust aforesaid, UPON FURTHER TRUST (52), by the direction in for raising portions for Of trusts for raising portions. 1. As to the means of raising them in the lifetime of the tenant for life. 2. As to the criterion for ascertaining the quantum of (52) The usual modes of making provision for younger children in strict settlements, appear to be liable to some objections:-1. They limit a term in reversion, expectant on the death of the father, tenant for life, at the same time that the portions are made raisable in his lifetime with his consent; consequently, in order to effect a loan in his lifetime, he must charge his life interest. A security thus derived partly out of the life estate, and partly out of the term, is complex and inconvenient. To place the term before the life estate might be deemed objectionable, as intercepting the legal dominion of the tenant for life, and, where the wife's jointure is charged on the same lands, as prejudicing her rights; but it seems desirable that a power to accelerate the term should be given to the tenant for life. 2. They adjust the quantum of provision for the younger children by reference to the number of children coming into existence, instead of the number eventually requiring a permanent provision, i. e. marrying or attaining twenty-one. Having indicated a certain sum for a given number provision to be of children born, they go on to direct accruer among the children if any raised. die under age, &c.; but as one child might eventually carry off the whole fund, a corrective clause is applied, cutting down the augmented portion to a certain sum. This, of course, adds considerably to the length and complication of the trusts. The number of objects who may require a substantial provision, furnishes, it is conceived, the proper criterion for ascertaining the amount of the fund. The expectant share of a child, or, in other words, what that child would take if the children for the time being in existence should in event be the objects, may be available for the purposes of advancement, for which purpose it is not material whether the share is vested, subject to be divested, or purely contingent. In framing trusts for children in money settlements, some conveyancers adopt the contingent form, making the attainment of twenty-one, &c., an integral part of the description of the objects, which renders the survivorship clause unnecessary, since no child dying under twenty-one, &c., is an object of the trust. Under the ordinary clauses a child takes a vested interest on its birth, subject to be divested. Where distinct clauses of accruer are applied, as is some ren. of like younger child- writing of the said [relessor], during his life, and after his decease of the proper authority of the trustees or trustee for the time being of the same term, by all or any of the means aforesaid, to raise, in case one child and no more of the said intended marriage, other than an eldest or only son entitled to the inheritance of the said hereditaments under the limitations hereinbefore contained, shall attain the age of twenty-one years, or be married, the sum of £ of lawful British money; or in case two children and no more of such marriage, other than an eldest or only son entitled as aforesaid, shall attain that age, or be married, the sum of £ money; or in case three or more children of such marriage other than an eldest or only son entitled as aforesaid shall attain that age or be married, the sum of £- of like Trusts of money money. And as to the money which shall become raisable under the trust lastly declared, IN TRUST, as a portion or portions, for the child or more remote issue, or all or any one or more of the children or more remote issue of the said shall appoint; intended marriage, (such issue to be born in the lifetime of the said [relessor]), other than an eldest or only son, or issue of an eldest or only son entitled as aforesaid, for such interest or interests in such shares, to be vested and paid on such contingencies, and at such period or periods, with such limitations over in favour of any other or others of the object of this trust, and in such manner, in all respects, as the said [relessor], by any deed or deeds, revocable or irrevocable, executed by him in the presence of and attested by one or more than one witness, or by his last will, or any testamentary writing, exe raised; 3. As to the distribution of the fund when raised. times done, to the original, and again to the accruing shares, the process is long and intricate. 3. The fund is by the forms in question made payable to an only child, or divisible among all the children, in such shares as the father shall appoint, and for want of appointment equally; instead of being treated as a fund applicable to the benefit of the younger branches of the family, according to the common course of money settlements. When real estates are strictly settled on the elder branch, and there is besides an existing money fund, that fund is commonly settled in trust for all, or any one or more exclusively, of the younger children, grandchildren, or more remote issue, as the parents shall appoint, &c.; and there seems to be no reason why a fund, drawn out of the real estate to supply the want of such an existing fund, should be settled in a different manner. The clauses in the text have been framed on the principles here suggested. clause. cuted and attested according to the statute for the amendment of the laws with respect to wills, shall appoint. And in default of in default of such appointment, and subject to any partial appointment, appointment, IN TRUST, as a portion or portions, for the child children equally. if only one, or all the children if more than one, of the said intended marriage, who shall attain the age of twenty-one years or be married, other than an eldest or only son entitled as aforesaid, such children, if more than one, to take in equal shares. PROVIDED ALWAYS, that no child taking any portion Distribution, or hotchpot, or portions under any exercise of the aforesaid power of ap- clause. pointment shall participate in the unappointed fund, otherwise than under a further exercise of such power, without bringing the appointed portion or portions into distribution with the other child or children, objects of the trust last aforesaid, and making an allowance for the same. PROVIDED ALSO, Advancement that it shall be lawful for the trustees or trustee for the time being of the said term of 500 years, by the direction in writing of the said [relessor], during his life, and after his decease in the discretion of such trustees or trustee, to raise in manner aforesaid, and apply in or towards the advancement or preferment in the world or otherwise for the benefit of any child or children or issue entitled to any vested, contingent, or presumptive portion or portions under the trusts aforesaid, any sum or sums not exceeding in the whole one half of his, her, or their portion or respective portions. PROVIDED ALSO, that any money which the said Sums advanced [relessor] shall give or advance in his lifetime, for or towards to go in part discharge of the preferment or establishment in the world of any child or portions. children or issue entitled as last aforesaid, shall go in full or in part satisfaction, according to the amount thereof, of the portion or portions of such child or children or issue, unless the said [relessor] shall, by writing under his hand, other wise declare. PROVIDED ALSO, that the said trustees or trustee Maintenance shall, after the decease of the said [relessor], unless he shall clause. otherwise direct by any exercise of the aforesaid power of appointment, raise out of the rents and profits of the said hereditaments, and apply in or towards the maintenance and education, or otherwise for the benefit of any child or children or issue entitled as last aforesaid, an annual sum or annual sums equal to interest after the rate of £ per cent. per annum on his, her, or their portion or respective portions. |