Powers of sale and exchange are also considered as usual powers in a settlement, and will be authorised by the use of very alight expres sions in the articles.
In settlements of personalty, where the property is assigned to trustees, they are empowered to invest and Lay out the funds, and also to vary the securities from time to time. After the declaration of trusts for the husband and wife and children, such settlements usually contain powers of providing for the maintenance, advancement, and education of the children who are or may become entitled to shares in the funds under the preceding trusts.' Settlements both of real and personal estate usually conclude with what are called trustee clauses, that is to say, clauses which enable the trustees to give effectual receipts; to provide for the appointment, when needful, of new trustees ; for the indemnity of the trustees against involuntary losses; and for the payment of their expenses.
Marriage settlements sometimes contain covenants to settle par ticular lands ; covenants to settle, or to purchase and settle lands of a certaiu value, or future real estate ; covenants to settle present or future personalty ; and covenants by parents, on the marriage of one of their children, to leave to that child an equal or some proportionate share with the rest.
The covenant to settle particular lands of course binds heirs, devi and all into whose possession the lands come, except a purchaser, for valuable consideration without notice; and, in case of the lands being so alienated, satisfaction may be claimed out of the general assets of the covenantor.
Questions frequently arise upon covenants to settle, or to purchase and settle lands of a particular value, as to what amounts to per formance. On this point the following positions appear to be esta blished :— I. Where the covenantor has no lands at the time, any purchase be may afterwards make will be presumed to have been made in pursuance of the covenant; 2. It scents, though there are conflicting authorities upon the point, that if the covenant be to settle, and the covenanter, having at the time lands adequate to the performance of the covenant, die without making any purchase, the lands which he had at the time will be bound to the extent of the covenant; 3. Where the covenant is to purchase and settle, it seems that no Lands of which the covenantor is seised at the time will be affected, but all after-pur chased lands will be affected to the extent of the covenant.
Covenants to settle future real estate of which the husband shall become seised during the marriage, or during his life, do not affect lands of which the covenantor is then seised, but extend to all after acquired.lands, even to such as come to the husband under the pro visions of the deed of settlement.
Covenants to settle present or future personalty are considered as applying to capital only, not to income. If real estate should have been purchased with the personalty subject to such a covenant, the land is not bound is specie by the covenant., but is charged with the money invested in the purchase.
Covenants to leave one child an equal or proportionate share with the rest, attach only upon that the settler's property which may remain at tho time of his death. The parent may therefore make
an absolute gift of any part of his property in his lifetime to another child without committing any breach of his covenant ; but a gift reserving any interest to himself is a breach of it. The benefit of such a covenant is confined to children living at the death of the parent.
5. :Marriage is not an absolute gift to the husband of the wife's personal estate, but only entitles him to so much of it as lie may have reduced into possession, assigned or released during his lifetime. Accordingly, questions frequently arise upon settlements as to the title of the husband, under them, to the whole of his wife's fortune. Upon this point the following propositiona appear to be established : 1. The antenuptial settlement of property made by the husband upon the wife, in consideration of her fortune, entitles him only to her then, ' and not to the future personal property ; 2. That if a part only of her fortune appears to have been stipulated for, the residue of what she then has, or what may afterwards accrue to her, will not belong to the husband ; 3. That when it appears from the settlement, either ex pressly or by implication, that the agreement was for the whole of the wife's present and future personal estate, the husband, or his personal representative (in case of his predeceasing his wife), will be entitled to claim the whole under the contract.
When the husband has not entitled himself by contract to the choses in action of the wife, there is no bar to his getting possession of such of them as are recoverable at law; but if he require the assistance of a Court of Equity for the recovery of thew, and the wife does not con sent to his obtaining the whole, that court will not lend its aid, except upon the terms of the husband's making a provisiou for the wife and her children, by way of settlement, out of the fund. Most frequently one half of the fund is directed to be settled, but the proportion given in each case depends upon the circumstances, though it never amounts to the whole. The rules of the Court of Equity in directing settlements out of the wife's equitable chose.: in action are the same, whether the application to it is made by the husband himself or by his creditors. Settlements out of the wife's equitable chases in action, when made by the husband, are no less valid against his creditors than when made under the direction of the court ; and even a settlement by him of the entire fund, which the court would not have directed, has in some cases been held valid against his creditors ; though the decisions in those cases seem hardly consistent with the law as laid down under the 13 Eliz., c. 5. It should be added, that now by the scat. 20 & 21 Vict., c. 57, a married woman is empowered to release, with the concur rence of her husband, her equity to a settlement in property to which she may be entitled under any deed dated subsequently to December 31, 1857; also to dispose of reversionary interests under such settle ments. But these enactments do not interfere with the principles above stated. (SEP/JUTE USE; Bright on Husband and Wife.)