LECTURE VIII. We now come to the consideration of Settlements made upon marriage. In some cases the urgent haste of the parties leaves no time for the preparation of a regular settlement previous to marriage. In these cases articles for a settlement are often drawn, and not unfrequently drawn with that inaccuracy which is generally the result of haste. trust. The articles provide that a settlement shall be exe- Articles. cuted, which is to contain the provisions stipulated for, in favour of the intended husband and wife and the issue of the marriage. A trust of this sort, which is to be carried into effect by an instrument to be subsequently executed, is called an executory trust. Not that An executory every trust is not in some sense executory, or to be executed at a future time. But a trust of this nature is, as you see, a trust to create a trust. The parties agree that their intention shall be carried into effect more accurately by a subsequent instrument. In the con- Construction struction of executory trusts of this nature, the courts of executory have shown great leniency. They have always borne in mind that the main object of marriage articles is to make a provision for the issue of the marriage. If, according to the rules of law, a settlement agreed to be made would give to either parent an estate tail, so as to enable him or her to bar such estate and to defeat the issue, as if the articles should be that the lands of the husband shall be settled on him and the heirs of his Heirs of the body,-equity will consider that such an intention could body in not have been in the mind of the parties. And it will accordingly modify the actual settlement; so as to give trusts. articles. Subsequent settlement. to the parent a life estate, and to make the children purchasers of estates in remainder, expectant on the decease of such parent,-in fact settling the property on the husband for life, with remainder to his first and other sons severally and successively in tail, with remainder to his daughters as tenants in common in tail, with cross remainders among them, in the event of any daughter or daughters dying without issue (a). If, subsequently to the articles, but before the marriage, a settlement is actually made, the settlement will, in such case, be considered to be a new agreement, and so will control the articles, and not be set aside by them (b). But if the settlement is recited to have been made in pursuance of the articles, in this case the presumption of a new agreement is done away with, and the settlement will be reformed according to the equitable construction placed upon the articles (c). And where a settlement is made after marriage, in pursuance of articles for a settlement made before marriage, the articles will control the settlement; and, if the court should think that, on an equitable construction of the articles, the children should have estates vested in them independent of their parents, the court will order the settlement to be reformed so as to follow what it considers the articles must have meant (d). In the same way articles agreeing to settle money on the children. of the marriage equally, are considered, in equity, as intended only for such of the children as, being sons, attain twenty-one, or being daughters, attain that age or marry; and a settlement made after marriage in (a) Trevor v. Trevor, 1 P.Wms. 622; affirmed, 5 Bro. P. C., Toml. ed. 122; Lewin on Trusts, p. 100, 6th ed. (b) Legg v. Goldwire, Cases temp. Talbot, 20; Fearne, Cont. Rem. 107, 108. (c) Honor v. Honor, 1 P. Wms. 123. (d) Hart v. Middlehurst, 3 Atk. 371; Streatfield v. Streatfield, Cases temp. Talbot, 176. pursuance of such articles will, if it literally vest the property in all the children equally, whether they attain twenty-one or not, be reformed according to the presumed intent. An example of this occurs in the recent case of Cogan v. Duffield, before the Court of Appeal (e). Cogan v. This case was as follows:-Joseph Cogan intermarried Duffield. with Agnes Duffield in March, 1867. Articles for a settlement were hastily drawn on the morning of the wedding day, and signed immediately before the marriage. By these articles it was provided that certain funds, the property of the intended wife, should be transferred into the names of Thomas Duffield and Bernard Cogan, the trustees of the settlement; the trusts of the income being "for the benefit of the said Agnes Duffield and Joseph Cogan during their lives, and the trusts of the capital being for and amongst the children, according to the appointment of the said Joseph Cogan and Agnes Duffield or the survivor of them; and, in default of appointment, to the children equally; and, in the event of there being no children, and of the said Joseph Cogan being the survivor, the trust property to be at his absolute disposal." After the marriage a settlement was executed by which, after reciting the articles, the fund was settled upon trust to pay the income to the husband and wife during their joint lives, and, after the death of either, to the survivor for life; and after the death of the survivor, as to the capital, in trust for the children or child of the marriage as the husband and wife should jointly appoint; and, in default of appointment, in trust for the child or children, and if more than one as tenants in common. If there was no child then the fund was to be in trust for Joseph Cogan, if he survived his wife. The trusts of the settlement thus so far literally carried out the trusts of the articles. There was issue of the marriage one (e) L. R., 2 Ch. D. 44. Remarks on Trusts not construed literally. child only who died when about six months old, in the lifetime of both parents. Then Joseph Cogan died in 1873, having made a will, by which he gave all his property to his brother Bernard Cogan, a defendant in the suit, whom he appointed his executor. In January, 1874, Agnes Cogan filed her bill in the Court of Chancery against Thomas Duffield and Bernard Cogan, the trustees of the settlement, praying for a rectification of the settlement, and for a declaration that she was entitled to the arrears due at Joseph Cogan's death of the rents of certain land, which had been purchased with part of the trust funds; and that she was absolutely entitled to all the trust property, and that the defendants might be ordered to convey and transfer the same to her. You will observe that in this case, if the trusts were to be literally carried out, the whole of the property would vest in the child of the marriage who died when about six months old; and, on his death, his father Joseph Cogan, as his sole next of kin, would be entitled to the whole of the property, subject only to the life interest of his wife Agnes Cogan therein. On the other hand, if the trusts were not to be construed literally, but the property was not to vest in the child until he attained the age of twenty-one years, then, there being no trust declared of the property in the event which happened of Mrs. Cogan surviving her husband, and the property having originally been hers, the trust would result back to her, and she would thus become absolutely entitled. And so it was held by Vice-Chancellor Bacon when the case came before him (ƒ). On appeal his decision was affirmed by the Court of Appeal. Lord Justice James in his judgment says: "Marriage articles ought as far as possible to be construed so as to (f) L. R., 20 Eq. 789. make the most effectual provision for the children of the marriage. This would be effected by inserting in the settlement a gift to such of the children as being sons should attain twenty-one, or being daughters attain that age or marry, or by giving the fund among the children, with a proviso giving over to the others of them the share both original and accruing of each child who, being a son, should die under twenty-one, or being a daughter should die under that age unmarried." He then refers to a decision of Lord Redesdale, who held that in such a case the fund should be limited to the children as tenants in common, with provisions for limiting over the shares of any who died under twentyone and without issue; also to a decision of Sir Lancelot Shadwell, the Vice-Chancellor of England, who settled a fund, in a similar case, so as to give vested interest to those children only who being sons attained twenty-one, or being daughters attained that age or married. "If it were necessary to choose between these two schemes of settlement, I should," says the Lord Justice, "be rather in favour of that of the ViceChancellor of England, who was a great authority on matters of conveyancing; but, in the present case, it is unnecessary to decide the point, for in neither way could a child who died under twenty-one and unmarried become absolutely entitled to any part of the capital. The husband, therefore, could not acquire a title as representing his deceased child; and as he did not survive his wife, there is no other way in which a title through him can be made out. I am of opinion, therefore, that on this point the decree is right." wife a life There was another point in the case:-The widow Articles conclaimed, as I mentioned, certain arrears, which were strued to give due on Joseph Cogan's death, of the rents of certain estate for her lands purchased with part of the trust property. If separate use. the rents were his, the arrears, of course, would have |