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exercised for the benefit of one after the death of the other.1 In Imlay v. Huntington, a husband covenanted that he would pay over to certain trustees $10,000, and one-half of certain other expected moneys of his intended wife, to be held by said trustees in trust for the wife for the term of twenty years, after which time they were to convey to such persons as the wife should appoint. The marriage was consummated, and the husband received $60,000, which he continued to hold and manage as his own during the lifetime of his wife, making no payment to the trustees, and neither the trustees nor the wife requesting him to pay the sum over, or to make any settlement in pursuance of the articles. On the death of the wife, at the end of twenty years, her brothers and sisters, there being no issue of the marriage, applied to the court by bill in equity for the execution of the marriage settlement, in accordance with the articles and covenants entered into by the husband before marriage but it was held that it was competent for the wife to discharge the husband from the fulfilment of the covenants, and to abandon the trust; that, under the circumstances of the case, the articles were abandoned by the wife and all the parties; that the wife's personal property vested absolutely in the husband; and that the wife's heirs had no right to maintain the bill for any part of her personal estate."

§ 366. In executory trusts created by wills, no presumption arises a priori that a provision was intended for the children of the first taker, as in marriage settlements, and that such children were intended to take as purchasers. If the trust be "for A. and the heirs of his body," or "for A. and the

1 Doorly v. Arnold, 18 W. R. 540.

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2 Imlay v. Huntington, 20 Conn. 146; Jones v. Higgins, L. R. 2 Eq. 538.

8 Harrison v. Naylor, 2 Cox, 247; Bagshaw v. Spencer, 1 Ves. 151; Marshall v. Bousley, 2 Madd. 166; Robertson v. Johnston, 36 Ala.

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heirs of his body and their heirs," or "for A. for life and after his decease to the heirs of his body," 2 A. will be tenant in tail; and he may disappoint his heirs by barring the entail. So, where a testator directed an estate to be settled on his daughter and her children, and, if she died without issue," remainder over, the court held that the daughter was tenant in tail; and that in a voluntary devise the court must take it as they find it, though upon like words in a marriage settlement it might be different. So where a testator directed lands to be settled on his "nephew for life, remainder to the heirs male of his body, and the heirs male of every such heir male severally and successively, one after another, as they 'should be in seniority and priority of birth, every elder and the heirs male of his body to be preferred before the younger," it was held that, although the nephew took by a voluntary executory devise, the court must execute it in the words of the will and according to the rules of law, and that equity could not carry the words further than the same words would operate at law, and that the nephew took an estate tail. The words in this case all went upon the idea of an entail. So if there is a direction that the trustees shall not give up their trust until "a proper entail was made to the heir male by them." 5 But in another similar executory trust, Lord Eldon declined to compel a purchaser to accept the title, on the ground that the entail was too doubtful to be acted upon in so grave a matter. Where a testator devised real estate to his daughter, then unmarried, in trust for her heirs, she to

1 Marryat v. Townley, 1 Ves. 104.

2 Blackburn v. Stables, 2 V. & B. 370; Seale v. Seale, 1 P. Wms. 290; Meure v. Meure, 2 Atk. 266; Robertson v. Johnston, 36 Ala. 197.

197.

Sweetapple v. Bindon, 2 Vern. 536.

Legatt v. Sewell, 2 Vern. 551; McPherson v. Snowden, 19 Md.

5 Blackburn v. Stables, 2 V. & B. 367; Marshall v. Bousley, 2 Madd. 166; Dodson v. Dodson, 3 Bro. Ch. 405.

Jervoise v. Northumberland, 1 J. & W. 559; Woolmore v. Burrows, 1 Sim. 512.

receive the income for her and their support and education, and, if she should die leaving no heirs, then over to her brothers and sisters, it was held that the word income passed the estate to the daughter, that the word heirs was a word of limitation, and that the daughter took an estate tail.1

§ 367. In executory trusts under marriage articles, many distinctions arise upon the question, Who may enforce their specific performance, and compel the execution of the formal deed and the disposal of the property in accordance with the settlement that should have been made under the articles? Thus the general rule is, that parties, seeking a specific execution of such articles, must be those who come strictly within the reach and influence of the consideration of the marriage, or who claim through them, as the wife, or the husband, and the issue of the husband or wife, or both. a general rule, mere volunteers, or collateral relatives of husband or wife, cannot interfere and ask for a specific performance of the articles. But there are so many exceptions and qualifications to this rule, that a case is rarely decided upon it. The principle is, that, to bring collateral relations within the reach and influence of the consideration, there must be something over and above that flowing from the immediate parties to the marriage articles, from which it can be inferred that relatives beyond the issue were intended to be provided for, and that, if the provision in their behalf had not been agreed to, the superadded consideration would not have been

1 Allen v. Henderson, 49 Pa. St. 333.

2 Vernon v. Vernon, 2. P. Wms. 594; Edwards v. Warwick, ib. 171; Osgood v. Strode, ib. 245; Ithell v. Beane, 1 Ves. 215; 1 Dick. 132; Stephens v. Trueman, 1 Ves. 73; Pulvertoft v. Pulvertoft, 18 Ves. 90; 2 Kent, Com. 172, 173; Atherly on Mar. Sett. 145; Bradish v. Gibbs, 3 Johns. Ch. 550; West v. Errissey, 2 P. Wms. 349; Kettleby v. Atwood, 1 Vern. 298, 471; Williamson v. Codrington, 1 Ves. 512; Colman v. Sarrel, 1 Ves. Jr. 50; 3 Bro. Ch. 13; Ellison v. Ellison, 6 Ves. 662; Graham v. Graham, 1 Ves. Jr. 275; Wycherly v. Wycherly, 2 Ed. 177, note; Bunn v. Winthrop, 1 Johns. Ch. 336; Gevers v. Wright, 3 Green, Ch. 330. 30

VOL. I.

given.1 While this is the general rule, the court seize hold of the slightest valuable consideration to give effect to the settlement in favor of collateral relatives; and it need not appear that these slight considerations were inserted in favor of distant relatives: the court will presume such to be the case.2 The result of all the cases is, that, if from the circumstances under which marriage articles were entered into by the parties, or as collected from the face of the instrument itself, it appears to have been intended that the collateral relatives in a given event should take the estate, and a proper limitation to that effect is contained in the articles, a court of equity will enforce the trust for their benefit. Such parties are not volunteers outside the deed, but come fairly within the influence of the consideration upon which it is founded. Such consideration extends through all the limitations of the articles for the benefit of the remotest persons provided for, consistent with the rules of law.3 But of course there is a more direct equity in favor of a wife and children. So in respect to chattel interests, it has been held that a bond under seal, though voluntary, will uphold a decree for the execution of the trust in favor of those whom the obligor is under obligations to support, as wife or children; for a seal in law

1 Osgood v. Strode, 2 P. Wms. 245: Goring v. Nash, 3 Atk. 186; Hamerton v. Whitton, 2 Wils. 356; Williamson v. Codrington, 1 Ves. 512; Bleeker v. Bingham, 3 Paige, 246.

2 Neves v. Scott, 9 How. 209; Stephens v. Trueman, 1 Ves. 73; Edwards v. Warwick, 2 P. Wms. 171.

8 Neves v. Scott, 9 How. 210; Canby v. Lawson, 5 Jones, Eq. 32; Dennison v. Goehring, 7 Barr, 175; King v. Whitely, 10 Paige, 465. See this matter very learnedly discussed in Neves v. Scott, 9 Monthly Law Reporter, 67, Boston, June, 1846. This decision, however, was overruled in Neves v. Scott, 9 How. 98. The case was again discussed before the State court of Georgia, and the opinion of the Circuit Court of the district of Georgia was followed. That case was in turn overruled in 13 How. 268. The judgment of the Supreme Court of the United States was, that on the face of that instrument the consideration extended to brothers and sisters; and, further, that it was an executed trust, and that they had an interest. 4 Pulvertoft v. Pulvertoft, 18 Ves. 99.

imports a consideration.1 But this doctrine seems to be rejected; and it is now held that neither wife nor child can enforce a purely voluntary contract or settlement.2

§ 368. And where a third person-parent, agent, or friend of the parties-holds out any considerations of a pecuniary nature to induce a marriage, and articles are drawn up, and a marriage takes place, equity will compel the party holding out the inducements to make them good, or specifically perform the articles.3

§ 369. If, however, in an executory trust created in a will there are indications of an intention that the words "heirs of the body" shall be words of purchase and not of inheritance, they will receive that construction; that is, the intention of the testator will be carried out, if it is sufficiently clear, although the same words in an ordinary grant would create an estate tail. Thus, if there are other words in the will that indicate that the words "heirs of the body" are words of designation, and not of inheritance, such heirs will take by purchase, and the first taker of course will have only an estate for life. Thus, if the testator direct a settlement on A. for life "without impeachment of waste," or with a limitation "to preserve contingent remainders,' or if he direct that "care

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be taken in the settlement that the tenant for life shall not bar the entail," the superadded words show the inten

1 Bunn v. Winthrop, 1 Johns. Ch. 336; Minturn v. Seymour, 4 Johns. Ch. 500; Lechmere v. Carlisle, 3 P. Wms. 222; Walwyn v. Coutts, 3 Mer. 708; Antrobus v. Smith, 12 Ves. 44; Colman v. Sarrel, 1 Ves. Jr. 54; Beard v. Nutthall, 1 Vern. 427.

2 Jefferys v. Jefferys, 1 Cr.& Phil. 138; Holloway v. Headington, 8 Sim. 325. 3 Hammersley v, De Biel, 2 Cl. & Fin. 45.

Glenorchy v. Bosville, Ca. t. Talb. 3; 1 Lead. Ca. Eq. 1, and notes. 5 Pappillon v. Voice, 2 P. Wms. 471; Rochford v. Fitzmaurice, 1 Conn. & Laws. 158.

• Leonard v. Sussex, 2 Vern. 526.

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