so that the words and limitations, taken in their legal sense, would enable the parents, or one of them, to defeat this provision for the children, equity will construe the articles to mean that the estate is limited to the parents for life, and the children will take at the decease of their parent or parents as purchasers; and equity will decree a formal settlement to be drawn in such way as to carry out this purpose.1 If a settlement is already drawn after the marriage, but not in accordance with this rule, equity will correct and reform it so as to carry out this intention.2 But if the settlement was formally drawn out before marriage contrary to this rule, the court will presume that the parties abandoned the articles, and entered into a new agreement, as expressed in the settlement. If, however, a settlement before marriage is expressed on its face to be made to carry out the articles, and it does not carry them out in this respect, equity will reform it. So if it can be shown in any other way that the formal settlement was intended to carry out the articles, and it does not do so, equity will reform it on the ground of mistake, or if the settlement is made in the very words of the articles, and the legal effect of the words of the articles and settlement is different from the intention of the parties, the settlement will be corrected and reformed in order to carry

1 Handick v. Wilkes, 1 Eq. Ca. Ab. 393; Gilb. Eq. 114; Trevor v. Trevor, 1 P. Wms. 622; Rochford v. Fitzmaurice, 1 Conn. & Laws. 173; 2 Dr. & War. 18; 4 Ir. Eq. 375; Cusack v. Cusack, 5 Bro. P. C. 116; Davies v. Davies, 4 Beav. 54; Griffith v. Buckle, 2 Vern. 13; Jones v. Langton, 1 Eq. Ca. Ab. 392; Stonor v. Curwen, 5 Sim. 269; Barnaby v. Griffin, 3 Ves. 206; Horne v. Barton, 19 Ves. 398; Coop. 257; 22 L. J. (N. S.) Ch. 225.

2 Warrick v. Warrick, 3 Atk. 293; Sheatfield v. Sheatfield, Ca. t. Talb. 176; Legg v. Goldwire, ib. 20; Burton v. Hastings, Gilb. Eq. 113; overruling same case, 1 Eq. Ca. Ab. 393; Briscoe v. Briscoe, 7 Ir. Eq. 129.

8 Legg v. Goldwire, Ca. t. Talbot, 20; Warrick v. Warrick, 3 Atk. 291. 4 Honor v. Honor, 1 P. Wms. 123; West v. Errissey, 2 P. Wms. 349; Roberts v. Kingsley, 1 Ves. 238.

5 Bold v. Hutchinson, 5 De G., M. & G., 568; Rogers v. Earl, 1 Dick. 294; 1 Sugd. V. & P..143.

out the exact intention of the parties.1 If, however, there are any intervening rights as those of an innocent purchaser, without notice, his rights of course will be protected. So it is established that daughters are included under the general term of heirs or issue, and that they take as purchasers.3 And children includes grandchildren. This has been held in England. Of course in the United States, where primogeniture is abolished, estates will be settled upon sons and daughters equally, or upon daughters alone in default of sons. But if the children or issue of the marriage are provided for in some other way, as by portions to be raised for them in such manner that it appears that they are not intended to take as purchasers of the particular estate under the settlement, then the rule in Shelley's case will prevail, and the parents or parent may sell the whole estate. And so where there is an actual present conveyance of personal property by a marriage contract executed before marriage in trust for the wife, and at her death to the heirs of her body, it was held to be an executed trust, there being no further conveyances to be executed, and that the rule in Shelley's case applied."

1 West v. Errissey, 2 P. Wms. 349; Roberts v. Kingsley, 1 Ves, 238; Honor v. Honor, 1 P. Wms. 128; 2 Vern. 658; Powell v. Price, 2 P. Wms. 535; Gaillard v. Pardon, 1 McMul. Eq. 358; Neves v. Scott, 9 How. 197; Gause ». Hale, 2 Ired. Eq. 241; Smith v. Maxwell, 1 Hill, Eq. 101; Allen v. Rumph, 2 Hill, Eq. 1; Briscoe v. Briscoe, 7 Ir. Eq. 129.

2 Warrick v. Warrick, 3 Atk. 291; Trevor v. Trevor, 1 P. Wms. 622; West v. Errissey, 2 P. Wms. 349. But if the purchaser have notice of the articles, they may be enforced against him. Davies v. Davies, 4 Beav. 54; Thompson v. Simpson, 1 Dr. & War. 491; Abbott v. Geraghty, 4 Ir. Eq. 15. 8 West v. Errissey, 2 P. Wms. 349; Comyn, R. 412; 1 Bro. P. C. 225. 4 Scott v. Moore, 1 Wins. (N. C.) Eq. 98.

5 Burton v. Hastings, 2 P. Wms. 535; Gilb. Eq. 113; 1 Eq. Ca. Ab. 393; Hart v. Middlehurst, 3 Atk. 371; Maguire v. Scully, 2 Hog. 113; 1 Beat. 370; Marryat v. Townley, 1 Ves. 105; Phillips v. Jones, 4 Dr. & Sm. 406; 3 De G., J. & S. 72.

6 Powell v. Price, 2 P. Wms. 535; Fearne's Con. Rem. 103.

Carroll v. Renick, 7 Sm. & M. 799; Tillinghast v. Coggeshall, 7 R. I.

§ 362. In England, when a married woman could not convey her interest in real estate, a strict settlement was not ordered under marriage articles that limited the husband's estate to the heirs of the body of the wife, for the reason that this created an entail that could not be barred without considerable difficulty; but since the Fines and Recoveries Act, the difficulty is removed. Nor will the court order a strict settlement, if there is anything in the nature of the limitations or otherwise on the face of the articles, which indicates that such was not the intention of the parties, for the reason that the rule now under discussion was estab lished in order to carry out the intention of the parties. If, therefore, the intention of the parties appears to be in accordance with, or not contrary to, the ordinary rule, the ordinary rule will be allowed to prevail.2

§ 363. If personal property is agreed to be settled on the parents for life, and then to their heirs, or the heirs of their bodies, the chattels will not vest in the parents absolutely, but in the heirs when they are born; and it is not necessary that they should survive their parents, or become actual heirs, unless the gift is to the parents and their heirs living at the death of the surviving parent, or there are other equivalent words.5

§ 364. If there is a covenant in marriage articles to settle personal property upon the same trusts, and for the same purposes, as the real estate is settled, the court will not apply

1 Rochford v. Fitzmaurice, 2 Dru. & W. 19; Highway v. Banner, 1 Bro. Ch. 587; Howel v. Howel, 2 Ves. 358; Green v. Ekins, 2 Atk. 477; Honor v. Honor, 1 P. Wms. 123.

2 Ibid.; Power v. Price, 2 P. Wms. 535; Chambers v. Chambers, 2 Eq. Ca. Ab. 35; Fitzg. 127.

3 Hodgeson v. Bussey, 2 Atk. 89; Barn. 195; Bartlett v. Green, 13 Sim. 218.

Theebridge v. Kilburne, 2 Ves. 233.

Read v. Snell, 2 Atk. 642.

the same limitations to the personal as to the real estate, for that would be to vest an absolute interest in the heirs at their birth; but the court will insert a provision making the personal property follow the course of the real estate.1 Courts will also insert a provision that the children or issue shall take, as tenants in common, and not as joint-tenants, on account of the inconveniences of joint-tenancies, and from the presumed intention of the parties; and so the court will insert other words and conditions, and vary the literal instruction of the articles in order to carry out the presumed intention, and promote a convenient settlement for the protection and security of all the parties, as if the settlement is to be of all the property which the settlor might thereafter become entitled to, it will be construed to embrace only the property acquired during the marriage. The court will not always order a formal settlement to be drawn out, but will declare the meaning and intention of the articles, and leave the parties to act upon the declaration, as if it was a formal

1 Stanley v. Leigh, 2 P. Wms. 690; Gower v. Grosvenor, Barn. 63; 5 Madd. 348; Newcastle v. Lincoln, 3 Ves. 387, 394, 397; Scarsdale v. Curzon, 1 John. & H. 51. The matter referred to in the text seldom or never arises in the marriage settlements made in the United States, as primogeniture is abolished, and entails on the eldest son are seldom resorted to. But where personal chattels are made to vest under a marriage settlement in the eldest son as heir, and such son dies under age, very awkward effects follow; and, under covenants to settle personal property upon the same limitations as are applied to a settlement of real estate wherein the eldest son takes as heir, it was a matter of great discussion in the Court of Chancery and in the House of Lords, what kind of provisions ought to be inserted to protect the parents and other children in case the eldest son died under age and without issue. Newcastle v. Lincoln, 3 Ves. 387; 12 Ves. 218.

2 Taggart v. Taggart, 1 Sch. & Lef. 88; Rigden v. Vallier, 3 Atk. 734; Marryat v. Townley, 1 Ves. 103. Joint-tenancy is abolished by statute in most of the United States, with the exception, in some States, of gifts and grants to husband and wife.

Kentish v. Newman, 1 P. Wms. 234; Martin v. Martin, 2 R. & M. 507; Master v. De Croismar, 11 Beav. 184; Targus v. Puget, 2 Ves. 194. Steinberger v. Potter, 3 Green, Ch. 452.

settlement drawn out and executed by them. So the court will sometimes rectify the settlement drawn under articles by a decree, without ordering a new deed to be drawn out and executed.2

§ 365. Marriage settlements, whether made in pursuance of articles, or under directions contained in wills, or under decrees of the court, are matters in which courts exercise the most liberal principles of equity. If a settlement is drawn up under a decree, and it is not in all respects in accordance with the decree, the court will set it aside, and order a new settlement. In Grout v. Van Schoonhoven, the court ordered a new settlement, in substance that the trust should be for the wife during her life without power of anticipating the income; and upon her death for the use of her husband for life, in case he survived her; and, after the death of both, to be divided equally among all their children then living, and the descendants of such as had died leaving issue, per stirpes; with a power to make advances with the approbation of the trustees to the children, on their attaining full age or being married, out of the capital fund, in anticipation of the ultimate distribution, in order to set them up in the world. An advance cannot be made in order that a child may put the money in its pocket, but an advance may be made to trustees under a marriage settlement for a child.5 Where there was power of advancement to a married woman, it was held that an advance to her husband to set him up in business might be allowed; and so where there was power in a settlement to withdraw funds, and lay them out in the purchase of a trade for the benefit of husband and wife, the power may be

1 Byam v. Byam, 19 Beav. 58.

2 Tebbitt v. Tebbitt, 1 De G. & Sm. 506.

Temple v. Hawley, 1 Sandf. Ch. 154.

4 Grout v. Van Schoonhoven, 1 Sandf. Ch. 342.

Roper v. Curzon, L. R. 11 Eq. 452.

In re Kershaw's Trust, L. R. 6 Eq. 322.