OF SHARE OF ESTATE. SETTLEMENT under or by virtue of the said will of the said X. Y., deceased, of and in the moneys to arise from the sale and conversion into money of the residuary real and personal estate of the said X. Y., and the stocks, funds, or securities in or upon which the same, or any part thereof, may be invested or laid out, and the accumulations, if any, of the same: TO HOLD the same unto the after declared. trustees of these presents, IN TRUST for the said C. D., until the said intended marriage, and after the solemnization thereof, upon the trusts and with and subject to the powers and provisions hereinafter declared and contained concerning the To trustees upon trusts Power to trustees to make with executors of will as to the distribution of the testator's estate. same. 2 to 6. (Usual trusts and powers in settlement of a wife's fortune as in one of the former Precedents.) 7. THE trustees of these presents may, with the consent in arrangements writing of the said A. B. and C. D. during their joint lives, and of the survivor of them during his or her life, and after the decease of such survivor, at the discretion of the trustees, make or concur in any arrangement with the executors or trustees for the time being of the said will of the said X. Y., or the residuary legatee or legatees under the said will (other than the said C. D.), or any of them, for or in relation to the distribution and partition of the real and personal estate of the said X. Y., or the proceeds thereof, and may accept and take any part of the said real and personal estate in lieu of and by way of satisfaction for the moiety hereby assigned by the said C. D. of and in the proceeds of the said estate, without insisting upon a sale and conversion of the said real and personal estate and the division of the proceeds thereof in strict accordance with the directions of the said will, and in case any freehold, copyhold, or leasehold hereditaments shall be acquired by the trustees of these presents by virtue of any such arrangement as aforesaid, such freehold, copyhold, or leasehold hereditaments shall be held by the said trustees upon the same trusts, and with and subject to the same powers and provisions, as are hereinbefore declared and contained concerning any hereditaments to be purchased with the proceeds of the trust premises hereby settled by the said C. D. under the power in that behalf herein before contained. Special powers to trustees as to share in residuary real and personal estate. 8. THE trustees of these presents may pass and allow the accounts of the executors or trustees of the said will of the said X. Y. relating to the estate and effects of the said X. Y., or dis pute or disallow the same, and also may institute or defend all such actions, or other proceedings for the recovery of the moiety of the said C. D. of and in the said estate and effects, or any part thereof, or in relation thereto, as the trustees of these presents shall deem expedient, and may compromise, compound, and submit to arbitration all such questions, disputes, doubts, or differences as may arise in relation to the premises or any part or parts thereof, and generally act in relation thereto as they shall think fit AND in case any question shall arise whether any money or other property received by the trustees of these presents in respect of the estate and effects of the said X. Y. ought to be treated as corpus or income for the purposes of these presents, every or any such question shall be decided by the said trustees in such manner as they under the advice of counsel or otherwise shall think proper: AND every act, deed, and thing, done or executed by the trustees of these presents under any of the powers herein before contained (including any decision as to whether any such money or property as aforesaid ought to be treated as corpus or income), shall be binding on all the persons beneficially interested under the trusts of these presents. 9. (Appointment of new trustees clause, suprà, p. 296.) SETTLEMENT OF SHARE OF ESTATE. be void if 10. Ir the said intended marriage shall not be solemnized Settlement to within twelve calendar months from the date thereof, then and marriage not in such case these presents shall be void, and the premises within twelve hereby settled by the said C. D. shall remain her absolute property. IN WITNESS, &c. months. OF WITH POWER Parties. Power to trustees to purchase advowson. No. XXII. SETTLEMENT of PERSONALTY, with POWER to TRUSTEES to purchase an ADVOWSON, and TRUSTS of same. THIS INDENTURE, made the day of -, BETWEEN the Rev. A. B., of, &c. (intended husband), of the first part, C. D., of, &c. (intended wife), of the second part, and E. F., of, &c., G. H., of, &c., and I. K., of, &c. (trustees), of the third part (the same as Precedent No. II. or any of the preceding Precedents, down to the end of the ordinary trusts and powers-Power to invest in the purchase of land): PROVIDED ALWAYS, and it is hereby agreed and declared, that it shall be lawful for the trus tees at any time during the life of the said A. B., upon his request in writing, and with the consent of the said C. D., if she shall be then living, to raise by the sale or conversion into money of a competent part of the trust funds and premises for the time being subject to the trusts of these presents [or the trust funds and premises hereby settled on the part of the said A. B.], any sum of money not exceeding the sum of £, and to apply the same in the purchase of the advowson or perpetual right of presentation to any ecclesiastical benefice in England or Wales to be conveyed to the trustees, and to be held by them upon the trusts following (that is to say), UPON TRUST that the trustees shall, upon the request in writing of the said A. B. and C. D., during their joint lives, or of the survivor of them during his or her life, and from and after the decease of such survivor, then at the discretion of the trustees, sell the same advowson or perpetual right of presentation, or the next one or more presentation or presentations in the same benefice, and shall stand possessed of the proceeds of such sale or sales, after payment of the expenses attending the same, upon the same trusts and with the same powers and provisions as the money laid out in the purchase of such advowson or perpetual right of presentation would have been subject to if the same had not and until sale been so laid out: and in the meantime, and until such sale as aforesaid, and in case of any sale of a next presentation, then Trustees to hold advowson when purchased in trust to sell OF PERSONALTY WITH POWER TO PURCHASE ADVOWSON. in trust for life, and after subject to such sale, IN TRUST for the said A. B. during his life, and after his decease, IN TRUST for the person or persons who, if the said advowson had been sold, would for the time being be entitled under these presents to the income of the trust funds representing the proceeds thereof, and so that during the husband for minority of any person who if of full age would for the time his decease being be entitled to nominate or join in the nomination to the upon trust for said benefice under the trusts now being declared, the guardian would be or guardians of such minor shall have the like right to nominate income of proor join in the nomination as the minor would have had if he or advowson had she had been of full age (a): PROVIDED ALWAYS, and it is been sold. persons who entitled to ceeds of sale if (a) In the earlier editions of this work, the trusts of the advowson in Trusts to prethe above Precedent were in the form of a direction to present certain sent a partispecified or indicated persons so long as it should remain unsold. Trusts cular person to of this kind are not uncommon, particularly in wills. Their validity does a benefice not appear to have been questioned in any reported case, but it is con- whether valid. ceived that if it were so, there would be some difficulty in sustaining them. A right of presentation is a right coupled with a public duty, and it is conceived that any agreement or arrangement by which a patron is prevented, when a vacancy happens, from selecting such clerk as he may conscientiously believe to be the most proper individual for supplying the living, would be held void, independently of the statutes against simony, as contrary to public policy. See the judgment of Hullock, B., Fletcher v. Lord Sondes, 1 Bligh, N. S. 190. Speaking of a bond of resignation (which was decided to be void), the learned judge says: "The patron thereby becomes precluded from choosing the most proper individual for supplying the living. If he act in the presentation according to the condition of the bond, his choice is fixed long before the fitness of the object can be ascertained. At the execution of the bond, the nominee may be at college, or perhaps at school, or perhaps in his cradle." Special bonds of resignation are now rendered valid by statute under certain conditions; but the force of the above reasoning is not thereby diminished, and it applies with still greater force to a trust of the kind above referred to, than to a bond of resignation; because, under the latter, the patron has the option whether to enforce it or not; whereas, under the former, the trustee is absolutely tied to present the particular person. See also Potter v. Chapman, Ambler, 100. In the case of Webb v. Byng, 2 K. & J. 669, a testatrix gave to A. the "livings of Q. and C., should he like the profession, and be qualified for them.' Wood, V.-C., held that the devise was confined to a single presentation, and did not extend to the advowson, as the words "should he like," &c., showed an intention to confer on the devisee a personal benefit which could only be effected by his being himself presented. This case seems to have decided that the testatrix, by the gift of the livings to A., meant that A. should be presented, which intention could only, it is apprehended, be carried into effect by supposing a trust vested in the heir-at-law for that purpose. The question whether such a trust could be enforced does not seem to have been raised; and it is submitted, therefore, that this case is not an authority against the view expressed in the former part of this note. Having regard to the above observations, it is submitted that when an advowson is made the subject of a settlement, or is authorized to be purchased out of the trust funds, the deed should simply declare who are to OF PERSONALTY WITH POWER Proviso that it part of ar hereby agreed and declared, that if the trustees shall think fit, it may, with the consent in writing of the said A. B. and of the said C. D., if she shall be then living, be made part of the arrangement on the purchase of such advowson as aforesaid, either that the vendor shall receive the purchase-money upon rangement on the completion of the purchase, and pay to the trustees interest purchase of advowson, that thereon, computed from the time of such payment, until a vacancy shall happen in the benefice the advowson whereof shall be so purchased as aforesaid, after such rate not exceeding £5 per cent. per annum, and to be secured in such manner as money shall be shall be agreed upon between the parties, or that the purchase vendor shali pay interest invested until vacancy and income received by purchaser. money shall be paid to the vendor upon and not before the happening of such vacancy, and shall in the meantime be invested in the names of trustees to be nominated for that purpose, UPON TRUST to pay the annual income thereof to the trustees of these presents until the happening of such vacancy, and from and after such vacancy, IN TRUST for the vendor. (Provision as to appointment of new trustees, suprà, p. 296.) IN WITNESS, &c. be the cestuis que trust of such advowson, i. e., of the right to present, and not who are the persons to be presented. A cestui que trust of the right could nominate himself, and the trustee would be bound to present him; all that is necessary being that the beneficial patron, for the time being, should have a free choice. |