[covenantor] by the said [ Christian name], his wife, in equal 251 shares, as tenants in common, and their respective heirs and Bah? -with cross executory limita tions between them in fee, assigns but if any of such children shall die under the age of twenty-one years, without leaving issue living at his or her death, Then as to the share or shares of the child or respective children so dying, as well original as accruing under this limitation, To THE USE of the other child or children of the said [covenantor] and [Christian name] his wife, and if more than one, in equal shares as tenants in common, and the heirs and assigns of such other child or respective children.x But if no child of the [covenantor] by the said [Christian name] his wife, shall attain the said age, or dying under that age, shall leave issue living at his or her death,) Then, as to the said hereditaments and premises, To THE USE of the (survivor (75) of them,) the said [covenantor] and [Christian name], and the heirs and assigns of such survivor., IN WIT NESS, &c. to objects individually, and to objects as a class, by a familiar instance. Under a devise to the testator's "children," either as joint tenants or tenants in common, the children living at his death will take, as constituting the class, the whole benefit of the devise, in exclusion of children dying in his lifetime. It follows, that, if at the time of making the will, the testator had two children, John and Jane, and John should die before the testator, and Jane survive the testator, Jane would take the entirety. But if the devise were to the testator's children, John and Jane," or (the testator having only two children, John and Jane), to the testator's "two children," or to the testator's "children now living," the children would then take in their individual capacity. If, therefore, John should die before the testator, and Jane survive the testator, the devise would lapse as to an undivided moiety, and Jane would take, under such devise, only the other moiety. Hence expressions referring to existing children, either nominatim or as" children now born," &c. should be avoided in a limitation designed to comprehend the objects as a class. (75) This limitation to the survivor is a contingent remainder, for till the death of the husband or the wife, the remainder has not an ascertained object; and though one or the other must survive, yet the remainder may never take effect, inasmuch as the particular estates of the husband and the trustees may determine during the joint lives of the husband and wife. survivor of wife in fee, covenantor and Contingent revivor. mainder to sur PART III. MIXED ASSURANCES. Conveyances on Sales. Date. RECITALS, -of conveyance of freeholds, by No. 21. CONVEYANCE by APPOINTMENT and LEASE and RELEASE to a Purchaser. (76) THIS INDENTURE of three parts, made the day of in the year of our Lord -, BETWEEN [vendor], of, &c. of the first part, [purchaser], of, &c. of the second. part, and [trustee for purchaser], of, &c. of the third part. WHEREAS by virtue of indentures of lease and release, bear lease and release ing date respectively the and fine, to the common uses to prevent dower in favour of the vendor, Conveyance on sale of freeholds and copyholds at an entire price. and -- days of ——, in the the indenture of release being made between, &c. [names of parties], and by a fine duly levied by the said year and his wife, in (76) This precedent is adapted to a sale of freehold and copyhold lands at an entire price, but the parts relating to the copyhold lands may be readily separated. So far as regards the freehold lands, the precedent exhibits the form of conveyance in general use for the transfer of the fee upon a sale by a vendor entitled under the common uses to prevent dower. Much of the exuberance of expression which occurs in the ordinary forms has, however, been pruned away. AND WHEREAS at a court-baron held for of vendor's adin the county of mittance to copy. day of holds, of contract for and copyholds, sale of freeholds time, by any deed or deeds direct or appoint, and in default of such direction or appointment, to the use of the said [vendor] and his assigns during his life, without impeachment of waste, with remainder to the use of the said [trustee for vendor], his executors and administrators, during the life of the said [vendor], in trust for the said [vendor] and his assigns, with remainder to the use of the said [vendor], his heirs and assigns. the manor of on the in the year the said [vendor] was admitted tenant to the copyhold hereditaments hereinafter described with their appurtenants, to hold to the said [vendor], his heirs and assigns, at the will of the lord, according to the custom of the said manor, and by the uses and services therefore due and of right accustomed. AND WHEREAS the said [vendor] lately contracted and agreed with the said [purchaser] for the sale to him of the fee-simple in possession of the said freehold and copyhold hereditaments, at the entire price of £AND WHEREAS it has been agreed that the sum of £ part of the said price, shall be deemed the consideration for tioned, the said freehold hereditaments, and that the sum of £ the residue thereof, shall be deemed the consideration for the said copyhold hereditaments. (77) AND WHEREAS, in pur- of surrender by suance of the said contract, so far as concerns the said copyhold hereditaments, at a special court-baron held for the said manor on the day of the date of these presents, [or, out of court, at or immediately before the execution of these presents,] the said [vendor], in consideration of the sum of £paid to him by the said [purchaser], has surrendered into the hands of the lord of the said manor, the copyhold hereditaments following, (namely) all [copyhold parcels], together with the rights, members and appurtenances thereto belonging, To (77) An apportionment is necessary on account of the ad valorem duty imposed by the act, 55 Geo. 3, c. 184, though the purchaser is at liberty to distribute the entire price as he may think fit. But an apportionment which consults the relative values is advisable, with reference as well to the title, as to damages on the covenants. that the price has been appor the vendor to the purchaser of the purchaser's admit copyholds, and the tance. Apportionment of entire price. TESTATUM. Consideration. the use of the said [purchaser], his heirs and assigns for ever, to hold at the will of the lord, according to the custom of the said manor, and by the rents, suit and services therefore due and of right accustomed, and at the same court the said [purchaser] has been admitted tenant according to the tenor of such surrender. (78) Now This Indenture WITNESSETH, that in pursuance of the said contract, so far as concerns the said freehold hereditaments, and in consideration of the sum of £, paid by the said [purchaser], to the said [vendor] on the execution of these presents, the receipt of which said sum of £ and also of the said sum of £, the consideration for the said copyhold hereditaments, (making together the said entire price of £,) the said [vendor] hereby acknowledges, and therefrom hereby releases and discharges the said [purchaser], his heirs, executors, administrators and assigns, The said [vendor], in execution of the aforesaid power given to him by the said recited indentures, and of every other power enabling him in this behalf, and to the intent that these Operative part of presents may operate preferably by way of appointment, Doth appointment. direct and appoint (79) that all the freehold messuage or Covenant to surrender copyholds. Conveyance by appointment. Effect of appoint ment with refer ence to judgment creditors. (78) The conveyance of the freehold estate contains not unfrequently a covenant to surrender the copyhold estate, but the surrender is usually a contemporaneous act. It seems better to omit the covenant, and to sub. stitute the recital in the text. That plan seems advisable too with reference to the covenants for title. (79) As the appointee is in of the seisin created to serve the uses of the deed containing the power, and consequently, by title paramount to the ownership of the vendor, the superadded conveyance by lease and release, although generally adopted in practice, must be nugatory unless the appointment fail of effect. It is more beneficial to the purchaser to take under the appointment, inasmuch as it overreaches the estate of the vendor and his trustee to prevent dower, and confers a title discharged from his judgment debts. Doe d. Wigan v. Jones, 10 Barn. & C. 457, and 5 Mann. & R. But note, the judgment was in invitum, and see 1 Adolph. & Ell. 293. The only disadvantage is, that the covenants will not run with the land, but that is a matter of secondary importance. The power of appointment should always form part of the limitations to prevent dower, and even if the legislature should wholly (suprà, 140) remove the necessity for such mitations, the power should still be retained. release. tenement, closes and hereditaments hereafter described, Together with the rights, members and appurtenances thereunto belonging, shall henceforth remain and be To the only proper use of the said [purchaser], his heirs and assigns for ever, [or, where the estate is to be conveyed to the uses to prevent dower, To the uses hereinafter expressed concerning the same.] AND THIS INDENTURE FURTHER WITNESSETH, that in further 24 TESTATUM. pursuance of the said contract, so far as concerns the said freehold hereditaments, and for the consideration lastly hereinbefore expressed, The said [vendor] by way of auxiliary or secondary assurance, Hath granted, bargained, sold and released, Operative part of and by these presents Doth grant, bargain, sell and release unto the said [purchaser], his heirs and assigns, (in the actual possession of the said [purchaser], now being by virtue of a Actual possession bargain and sale made to him by the said [vendor], in consideration of 5s. by indenture bearing date the day next before the day of the date of these presents, for one year computed from the day next before the day of the date of the said indenture of bargain and sale, and by force of the statute for transferring uses into possession,) The freehold hereditaments, (namely) [freehold parcels], Together with all following the rights, members and appurtenances thereunto belonging, And All estate, &c, also all the estate, right, title, interest, claim and demand of the said [vendor] in, to or upon the said freehold heredita clause. in fee. ments and premises, with their appurtenances, And also all All deeds, &c, deeds, papers and writings in his custody or power relating to his title to the same hereditaments and premises, or any part thereof, either solely or together with other hereditaments belonging to him of less value. TO HAVE HABENDUM. AND TO HOLD the said freehold messuage, closes, heredita- To the purchaser ments and premises hereby released or otherwise assured or intended so to be, with their appurtenances, unto the said [purchaser], his heirs and assigns for ever, To the only proper use of the said [purchaser], his heirs and assigns for ever, [or, where the estate is to be conveyed to uses to prevent (or, to uses to dower, To such uses, upon such trusts, and in such manner as the said [purchaser] shall by any deed or deeds appoint, and prevent dower.) |