Estates for lives and terms for years are incapable of being entailed ; but they, as well as personal property of any kind, may be settled in trust as effectually, and so as to be inalienable for as long a time as estates of inheritance. The property in such settlements is usually assigned to trustees in trust for the husband, or for the husband and wife for his or their life or lives and the life of the survivor ; and then in trust for the first and other eons severally, and the heirs of their bodies. This limitation vests the absolute interest in the eldest son, who will be entitled to dispose of the property upon his attaining the age of twenty-one; but in order to provide for the event of the eldest son dying under age and without issue, in which case his interest would otherwise vest in his father, if alive, as his heir or next of kin, it is usual to introduce a proviso that the property shall not vest absolutely in any son dying under the age of twenty-one years and without issue ; and it has been determined, that, in construing settle ments of both real and personal property, when the real estates are limited in strict settlement, and the personal property, according to a form frequently adopted, upon and for the same trusts, estates, and purposes as the freeholds, as far as the law will permit, a proviso of the kind abos-e-mentioned is to be understood.
There is no restriction as to the number of life estates which may be limited in settlements to take effect In succession, provided the per sons be all in existence at the date of the settlement ; for, in point of fact, this amounts to no more than an estate for the life of the survivor.
Thus it appears that real or personal property may be settled so as to be inalienable for a life or any number of lives in being, and twenty-one years after. To this must be added a period of nine months, which is allowed for the birth of a posthumous child in cases where gestation exists. As the period of twenty-one years was no doubt adopted originally with reference to the term of minority, which must elapse before an estate tail could be barred, it was formerly thought that this period could not at all events be added to an executory trust; but it is now settled otherwise. MI restraints on alienation beyond the above-mentioned limits are void, as tending to what is called in law a perpetuity; and all the subsequent limitations, if contingent, are also void. The same rules are applicable to execu tory devises, and springing and shifting uses [WILLS; lists]; but not to remainders limited to take effect after estates tail, which are not subject to any restriction ; because, as Rich limitations may be defeated at any time by barring the estates tail, they can have no ten dency to a perpetuity.
The forms of settlements may be varied according to the objects and intentions of the parties, and the construction of the articles upon which they are founded. The principle upon whicka Court of
Equity acts in executing marriage articles, is to look rather to the intentiona of the parties as deducible from the circumstances, than to the literal meaning of the words employed by them. Thus, when the words used in articles concerning the settlement of real estate are such as would give the father an estate tail, and thereby enable him to defeat the settlement, the court will in general direct limitations in strict settlement to be executed, under which the father will take a life estate only. Upon the same principle, even though a deed of settle ment has actually been executed after marriage, if it appear to be in any respects inconsistent with the letter or spirit of the ante-nuptial articles, the court will rectify it.
Questions frequently arise as to what powers, covenants, and pro visos are to be Introduced into marriage settlements made in pursuance of executory trusts, whether created by articles, wills, or other instru ments. The determination of these depends entirely upon the rules of construction as applied to each particular case.
Of the powers usually introduced into settlements of real estate, the meat important are—powers of jointuring and raising por tions; powers of leasing and management ; and powers of sale and exchange.
Where the wife, upon whose marriage the settlement is made, does not take a life interest in the estate in the event of surviving her hug:runt provision is usually made for her by way of jointure in bar of dower. [Joixtrat: ; Dowrn.] In addition to this, powers are frequently introduced to enable the husband, in case of his surviving his wife, and marrying again, and sometimes also the other tenants for life under the settlement, to make provision for their widows, by way I of jointure, which the nature of their estate would not have other ' wise entitled them to do. Powers of jointuring, and powers for charging the estate with portions for the benefit of the younger children of the then existing or a future marriage, will not, it seems, be inserted in settlements executed under the direction of a Court of Equity, without clear authority for them in the articles ; for without such authority the court can have no data by which to regulate the quantum of interest to be taken by the donees.
Powers of leasing for the usual torn of twenty-one years are essen tial to the management of an estate, and will be considered as authorised by the use of the most general expressions in the articles ; or perhaps introduced as a matter of course ; but is power to grant building leases will not, it seems, be implied without express authority.