SETTLEMENTS. TRANSFER of a MORTGAGE in contemplation of the No. XXXV. TRANSFER OF MORTGAGE. Parties. Recitals. Intended marriage. That mortgage debt still due with interest. Agreement for transfer. First testatum. marriage of the mortgagee. THIS INDENTURE [indorsed (a) on a mortgage dated &c., 1880, to secure to the intended wife, then F. B., £3000 and interest] made the &c., between the within named F. B. [wife] of the first part, D. D. of &c. [husband] of the second part, and Sir F. B. of &c., Baronet, Arthur D. of &c., and H. D. B. of &c., which three last named persons are hereinafter called the trustees, of the third part: Whereas a marriage has been agreed on and is intended to be solemnized between the said F. B. and D. D.: And whereas the within mentioned sum of £3000 with the current half-year's interest thereon, is owing to the said F. B. on the security of the within written indenture: And whereas upon the treaty for the said marriage it was agreed that the said sum of £3000 and the interest thereon, and the securities for the same, should be transferred to the trustees upon the trusts and under and subject to the powers and provisions hereinafter contained or referred to. NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement, and in consideration of the said intended marriage, the said F. B., AS MORTGAGEE, with the approbation of the said D. D., hereby assigns, ALL that the principal sum of £3000 so owing to the said F. B. on the security of the within written indenture, and all interest due and to become due thereon, and the benefit of, and the right to exercise and enforce, all powers and securities for compelling payment of the same: When transfers may be by supplemental, or indorsed deed. (a) Transfers of mortgages to trustees, as in the case in the text, or on the appointment of new, or the retirement and discharge of old, trustees, may be made by indorsement where circumstances admit, since no money passes, but if a transfer has to be sent to different places for execution it is safer to effect it by supplemental deed than risk the loss of the mortgage deed. No. XXXV. TO HOLD unto the trustees IN TRUST for the said F. B. SETTLEMENTS. until the said intended marriage, and after the solemnization thereof UPON THE TRUSTS and under and subject to the powers and provisions declared concerning the same Habendum. by an indenture intended to bear even date herewith and to be made between &c. [the marriage settlement.] AND THIS INDENTURE ALSO WITNESSETH that in further Second pursuance of the said agreement, and for the considera- testatum. tion aforesaid, the said F. B. AS MORTGAGEE, with the approbation of the said D. D., hereby conveys unto the trustees ALL the messuages, lands, and hereditaments com- Habendum. prised in and conveyed by the within written indenture, TO HOLD unto and to the use of the trustees in fee simple, subject to the right of redemption subsisting under the within written indenture on payment of the said sum of £3000 and the interest thereon: trustees. AND IT IS HEREBY DECLARED that the power of appoint- Power to ing new trustees of these presents shall be exercisable by appoint new the said D. D. and F. B. during their joint lives, and by the survivor of them during his or her life. In witness, &c. This transfer is an independent trust deed, and contains a separate power to appoint new trustees, so that the settlement is not brought on the title to the estate. The money, being settled upon trusts, is necessarily held by the trustees on a joint account. If the transfer were after the settlement, to secure settlement money, it should be a transfer to the transferees on a joint account, without disclosing the trusts. This being a mere transfer of mortgage no covenant is required except by the wife as mortgagee. NEW TRUSTEES. No. XXXVI. Parties. Recitals. Of purchase of a residence, What the residue consists of, Wife's trust fund not in possession: W. resident abroad, SECT. VI. APPOINTMENT, RETIREMENT, AND DISCHARGE OF APPOINTMENT by Supplemental Deed of NEW TRUSTEES THIS INDENTURE made &c., between A. D. of &c., and B. D. his wife [donees of the power] of the first part, M. of &c., and N. of &c. [the new trustees] of the second part, and Y. of &c., Z. of &c. [the continuing trustees], and the said M. and N. of the third part, and supplemental to an indenture dated &c., and made between &c. hereinafter called the principal indenture (being a settlement made previously to the marriage then intended and since solemnized between the said A. D. and B. D.) [Preced. XXXI. ante] and of which principal indenture W. and X., and the said Y. and Z are the trustees: Whereas the sum of £ being money representing part of the husband's fund settled by the principal indenture, has been sold and has been invested under a power for that purpose therein contained, in the purchase and in defraying the costs of the purchase of a messuage and hereditaments situated at &c., and which by an indenture dated &c. were conveyed to the trustees of the principal indenture upon trust for sale, and for disposition of the net proceeds of sale in accordance with the terms of that indenture [Preced. XXXII.]: And whereas the investments representing the residue of the husband's trust fund now consist of the investments mentioned in the schedule hereto standing in the joint names of the same trustees: And whereas no part of the wife's trust fund settled by the principal indenture has yet fallen into possession: And whereas the said W. has been resident out of the United Kingdom for more than twelve calendar months (a): NEW TRUSTEES. No. And whereas the said X. is now a person of unsound XXXVI. mind, duly found so by inquisition: X. a lunatic. And whereas the said A. D. and B. D. are desirous of appointing the said M. and N. to be trustees of the appoint new principal indenture in the place of the said W. and X.: trustees and transfer And whereas it is intended that as soon as may be investments: after the execution of these presents the investments mentioned in the schedule hereto shall be transferred (b) into the joint names of the said Y., Z., M., and N. as trustees of the principal indenture: appoint new trustees of residence purchased. And whereas it is also intended that by an indenture Intention to bearing even date herewith and made between the same parties and in the same order and supplemental to the said indenture of &c. [the conveyance of the residence, Preced. XXXII.], the said M. and N. shall under a power for the purpose contained in the same indenture be appointed trustees thereof in the place of the said W. and X., and that the said indenture of even date shall contain the proper declaration for vesting in the said Y., Z., M. and N. the messuage and hereditaments comprised in the said indenture to which it is to be supplemental : testatum. NOW THIS INDENTURE WITNESSETH that the said A. D. First and B. D. in exercise of the power for this purpose Appointment given to them by the principal indenture and of every of new trustee. other power enabling them, hereby appoint the said M. and N. to be trustees of the principal indenture in the place of the said W. and X., and jointly with the said Y. and Z. for all the purposes of the principal indenture. testatum. Declaration AND THIS INDENTURE ALSO WITNESSETH that the said Second A. D. and B. D., with the assent of the said Y. and Z., hereby declare that all chattels and also the right to recover and receive all debts and other things in action subject to the trusts of the principal indenture, shall (a) Evidence of this fact should be obtained and preserved. vesting right to chattels &c. NEW TRUSTEES. No. forthwith vest in the said Y., Z., M., and N. as trustees of the principal indenture and as joint tenants for the XXXVI. purposes and upon the trusts thereof. In witness, &c. No declaration of trust necessary. Execution by W. or application in lunacy unnecessary Assent of continuing trustees not necessary. THE SCHEDULE ABOVE REFERRED TO. (List of investments representing the husband's trust fund other than the messuage and lands purchased.) It is unnecessary now to add a declaration of trust of the stocks and shares to be transferred. The only object of that trust formerly was to make a debt by breach of trust a specialty debt. Now by statute 32 & 33 Vict. c. 46, specialty debts have no priority. The effect of the declaration as to vesting is to make it unnecessary to send the deed abroad for execution by W., or to apply in the lunacy of X. for a vesting order, but the transfer of copyholds or mortgages or stocks or shares must be obtained as before the C. A., see s. 34 (3). The assent of the continuing trustees to the declaration on the appointment of new trustees is not required by the Act, but it is desirable to shew by the deed that they do assent. No. XXXVII. Parties. Recitals. W. resident abroad, X. a lunatic. First testatum. Appointment of new trustees. APPOINTMENT by Supplemental Deed of NEW TRUSTEES of the RESIDENCE purchased by Settlement Trustees [Preced. XXXII. ante]; and DECLARATION VESTING it under C. A. s. 34 (1). THIS INDENTURE made &c., between &c. [the same date and parties as last Precedent], and supplemental to an indenture hereinafter called the principal indenture, dated &c. and made &c., whereby a messuage and hereditaments situated at &c. were conveyed to the said W., X., Y., and Z. as trustees upon trust for sale [Precedent XXXII.] Whereas the said W. has been resident out of the United Kingdom for more than twelve calendar months: And whereas the said X. is now a person of unsound mind, duly found so by inquisition : And whereas the said A. D. and B. D. are desirous of appointing the said M. and N. to be trustees of the principal indenture in place of the said W. and X. NOW THIS INDENTURE WITNESSETH that the said A. D. and B. D., in exercise of the power for this purpose given to them by the principal indenture and of every other |