Exchange.

PRECEDENT
CXII.

EXCHANGE.

Parties.

Recital of estates in the property;

CXII.

DEED OF EXCHANGE (a).

THIS INDENTURE, made, &c., BETWEEN A. B., of, &c., of the first part, C. D., of, &c., and E. D., his wife (b), of the second part, and F. G., of, &c. [dower trustee], of the third part. WHEREAS the said A. B. is seised of the hereditaments comprised in the first schedule hereunder written in fee simple in possession, free from incumbrances, and the said C. D. is seised of the hereditaments comprised in the second schedule hereunder written, in fee simple in -of agreement possession, free from incumbrances. AND WHEREAS the for exchange. said A. B. and C. D. have agreed to make an exchange, in manner hereinafter appearing, of the said hereditaments comprised in the said first and second schedules hereto respectively, and the said E. D. has agreed to release her right of dower in the said hereditaments comprised in the said second schedule. NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideraConveyance by tion of the conveyance hereinafter contained, by the said C. D. and E. D., he the said A. B. AS BENEFICIAL OWNER, doth hereby grant unto the said C. D. and his heirs, ALL

Witnesseth.

one party.

Parcels.

(a) As to registered land, see pp. 94, 91, supra. Registration of an exchange is not compulsory under the Land Transfer Act, 1897.

(b) It rarely now happens that the concurrence of the wife is required, see supra, pp. 122, 123, nn. But this form has not been altered because it may sometimes be convenient, and the alterations needed to adapt it to the ordinary case are of the simplest

character.

THOSE the

CXII.

and hereditaments, situate in the parish Precedent of, in the county of, specified in the said first schedule hereto and delineated in the map in the margin of these presents, and therein coloured

EXCHANGE.

TO HOLD Habendum.

the other

party.

the said premises UNTO the said C. D. and his heirs, IN EXCHANGE for the said hereditaments hereinafter conveyed in exchange by the said C. D. and E. D., AND TO SUCH USES, &c. [uses to bar dower in favour of C. D., ut supra, p. 128]. AND THIS INDENTURE ALSO WITNESSETH, that, Witnesseth, secondly. in further pursuance of the said agreement, and in consideration of the conveyance by the said A. B. hereinbefore Conveyance by contained, he the said C. D., as BENEFICIAL OWNER, doth hereby grant, and she the said E. D., with the concurrence of the said C. D., and for the purpose of releasing her right of dower, doth hereby dispose of and release, unto the said A. B., his heirs and assigns, ALL THOSE the and hereditaments situate in the parish of, in the county of specified in the said second schedule hereto, and delineated in the map in the margin of these presents, and therein coloured

-,

Parcels.

TO HOLD the said Habendum. premises UNTO and TO THE USE of the said A. B., his heirs and assigns, IN EXCHANGE for the said hereditaments hereinbefore conveyed in exchange by the said A. B. IN WITNESS, &c. (a).

THE FIRST SCHEDULE above referred to.

THE SECOND SCHEDULE above referred to.

(a) This deed must be executed in duplicate and acknowledged by

the married woman.

Settlements (a).

PRECEDENT
CXIII.

ON MARRIAGE,

CXIII.

SETTLEMENT on Marriage, of a sum of STOCK belonging

to the WIFE.

OHAVICE THIS INDENTURE, made, &c., BETWEEN A., of, &c. [intended husband], of the first part, B., of, &c. [intended wife], of the second part, and C., of, &c., D., of, &c., and

STOCK.

Parties.

(a) The Married Women's Property Act, 1882 (45 & 46 Vict. c. 75, Appendix XII., infra), does not affect materially the system of marriage settlements which, so far as regards the wife's property, are intended, not to secure to her an absolute power of disposition over such property, and thus leave her open to undue influence on the part of her husband, but to secure the property for the common benefit of the husband and wife and the issue of the marriage. (See a note on the repealed Act of 1870 in Dav. Prec. Conv. 3rd ed. vol. iii. p. 253.) It may, however, have rendered settlements of the wife's property less usual, especially as to after-acquired property which, in cases where the wife and issue were already sufficiently provided for, was, even before the Act, sometimes settled to the wife's separate use. And as under sects. 1 and 2 of the Act of 1882 every woman married on or after 1st January, 1883, is entitled to hold as her separate property and dispose as if she were a feme sole of all property which may belong to her at the time of her marriage, or which she may afterwards acquire, it is of course unnecessary to insert in a marriage settlement any special provisions as to property of the wife which it is desired she shall hold for her separate use. It may not, in most cases, be necessary to insert in such a settlement words expressive of the intention that the wife's interests under the settlement shall be for her separate use (see Re Lumley, [1896] 2 Ch. 690); but (regard being had to sect. 19 as judicially interpreted) it has been thought safer that such words should be inserted throughout the following Precedents of settlements; and the wife may, and should, when it is so desired, be

PRECEDENT

CXIII.

OF WIFE'S

STOCK.

till the

E., of, &c. [trustees] (hereinafter called the trustees), of the third part, WITNESSETH, that in consideration of a marriage intended to be shortly solemnised between the ON MARRIAGE, said A. (hereinafter called the husband) and the said B. (hereinafter called the wife), IT IS HEREBY AGREED, that Witnesseth. the trustees shall hold the sum of £, Two-and-three- Declaration quarters per Cent. Consolidated Stock belonging to the of trust; wife, and lately transferred by her into the names of the trustees, IN TRUST for the wife, until the said intended for the wife marriage; AND, AFTER the solemnisation thereof, shall either permit the said Stock, or any part thereof, to remain unaltered, or shall, with the consent in writing of the husband and wife during their joint lives, and of the investment. survivor of them during his or her life, and after the death of such survivor, at the discretion of the trustees sell the same or any part thereof, and lay out the monies produced by such sale [in the names or under the legal control of them the trustees (a)] in any of the stocks funds shares or securities for the time being authorised by law for the

restrained from anticipation as before the Act (see sect. 19), and the restraint should be extended to her reversionary interests which it may be desired to protect. As to registration under sects. 3 and 4 of the repealed Act of 1870, of Government stock and of paid-up shares or stock of public companies as separate property of a married woman, see Reg. v. Carnatic Railway Company, L. R. 8 Q. B. 299, and Howard v. Bank of England, L. R. 19 Eq. 295. In the later editions of this work the various Precedents of settlements have for the most part been further shortened or simplified by the use of definitions, and by providing for the devolution of the powers of the trustees by a separate interpretation clause. It will be observed that in the Precedents of marriage settlements the intended husband and wife are generally referred to by these respective designations. The inaccuracy of thus describing the parties by reference to a relation not existing, may perhaps be justified, on the ground that the settlement has no actual operation until that relation has been acquired; at any rate the English language affords no convenient mode of describing them by reference to their existing relation. And their respective names can be substituted, if desired, without difficulty. (a) These words are hardly necessary, and should be omitted where contributory mortgages are allowed.

marriage.

Trusts as to

investment and varying

PRECEDENT
CXIII.

OF WIFE'S
STOCK.

for life;

investment of trust funds (a), and may from time to time with such consent or at such discretion as aforesaid, vary ON MARRIAGE, Such investments for others of any kind hereby authorised, AND SHALL pay the income of the said sum of £Trust for wife Two-and-three-quarters per Cent. Consolidated Stock, and of the investments for the time being representing the same to the wife during her life, and so that during her said intended coverture the same shall be and remain her separate property without power of anticipation (l) ; -for husband AND, after the death of the wife (if the husband shall survive her), shall pay the same income to the husband during his life: AND, after the death of the husband and the wife shall hold the said premises, and the income thereof, IN TRUST for all or any such one or more of the issue (c) of the said intended marriage [at such time or

for life if he

survives;

--for issue of
the marriage,
as husband
and wife
shall jointly
appoint;

(a) See the Trustee Act, 1893 (App. XV., infra), and the notes to that Act. It is thought that as a general rule the investments intended to be allowed should be specified as hitherto, and forms for that purpose will be found in the next Precedent, and the notes to that Precedent.

(b) Sometimes the restraint is extended to any subsequent coverture; but this would seem to be improper, because a marriage settlement is made with a view to and for the purposes of the marriage, and should be confined to those purposes.

(c) As to the advantage of extending the power of appointment to remoter issue as well as children, see Davidson's Prec. Conv., vol. iii. 3rd ed. p. 144. A power to appoint to "issue" includes all issue, however remote, but the estates created by such a power as that in the text must be made to vest within twenty-one years from the death of the donee of the power, otherwise they would be void as tending to a perpetuity, and the funds would go as in default of appointment. See Sugd. Pow., 8th ed. p. 397. By 37 & 38 Vict. c. 37, an exclusive appointment may, from the passing of that Act (30th July, 1874), be validly made under any power; but it is better still to frame powers, as in the text, so as to properly authorise such an appointment. It is thought that the form of power in the text, without the additions in square brackets, does not authorise the donees to vest in the trustees discretionary powers in respect of the appointed shares (see Dav. Prec. Conv., vol. iii. pt. ii. p. 159, 3rd edit.). It should be noticed that the authority to overreach prior interests cannot be properly given without qualifica