This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Limitations in favour of collaterals.
(c) Green v. Paterson, (1886) 32 Ch. D.95; 56L.J.Ch.l81; and see Gandy v. G., (1885) 30 Ch. D. 58 ; 54 L. J. Ch. 1154; a case arising under a separation deed ; cf. Chetwynd v. Morgan, (188G) 31 Ch. D. 596 ; Joyce v. Sutton, (1861) 12 Ir. Ch. R. 71.
(d) Davenport v Bishopp, (1846) 1 Ph. 698; 2 Y. & C. C. C. 451 ; 12 L. J. N. S. Ch. 493 ; in which see the earlier cases cited ; Re Cameron and foils, (1887) 37 Ch. D. 32; 57
L. J. Ch. 69 ; see, however, an exceptional case of Wollaston v. Tribe, (1S69) 9 Eq. 44, where the settlement in favour of collaterals was set aside. This case has, however, been considered as of doubtful authority, see Tucker v. Bennett, (1887) 38 Ch. D. 1, 11.
(e) Pulvertoft v. P., (1811) 18 Ves. at p. 92; sec per Kay, J., in Re Cameron and Wells, (1887) 37 Ch. D. 32, 36, as to the meaning of this expression.
As to what special circumstances will make the considerations of the mutual contracts extend to and include collaterals, it is submitted that where the limitations over are in favour of the collateral relations or connections, not of the settlor, but of the other contracting party (whether wife or husband), the settlement itself may be considered prima facie evidence of such other party having stipulated for their insertion. So, where, on a settlement of the intended wife's estate, the limitations over are in favour of her own collateral relations, in derogation from the husband's marital right of survivorship (in case of personalty), or as tenant by the curtesy (in case of realty). Where, in any case, other than that last referred to, the limitations over are in favour of the collateral relations or connections of the settlor, such presumption cannot so readily arise; but it might be proved that the other party stipulated for their insertion.
Nor do the reported cases (h), where limitations in a
Such limitations should he considered within marriage contract -when.
(f) See Ford v. Stuart, (1852) 15 Beav. 493, 499 ; 21 L. J. Ch. 514.
(g) Maekie v. Berbertson, (1884) 9 A. C. 303, 337, per Ld. Selborne.
(A) See Osgood v. Strode, (1724) 2 P. W. 245; Sultonv. Chetmynd, (1817) 3 Mer. 249, 253 ; Johnson v. Legard, (1818) 3 Mad. 283 ; T. & R. 281; Cotterell v. Homer, (1843) 13 Si. 506 ; Stacpoole v. S., (1843) 2 Con. & L.
489 ; and see Eelewich v. Manning, (1851) 1 D. M. & G. 176; 21 L. J. Ch. 577; see also Cramer v. Moore, (1855) 3 Sm. & G. 141, where it was held that the wife, having survived her husband, was not hound by his covenant contained in marriage articles for the settlement of her reversionary property ; no settlement having been executed, and the only marriage settlement in favour of collaterals have been held invalid, appear to be inconsistent with the above suggestions.
In Clarke v. Wright (i), Blackburn, J. (with whom Willes, J., concurred), after citing the above remarks, was of opinion that the principle there suggested was the only one which could reconcile the conflicting decisions.
If, upon marriage, the husband's estate were settled upon the wife, giving her an absolute power of sale and control over the purchase-money, effectually excluding him from any future participation therein, and without securing to him the indirect advantage of a permanent provision for her, the marriage, it is conceived, would clearly be a sufficient consideration for such a settlement; though she might at once sell the estate and hand over the purchase-money to her own relations : and, if so, upon what principle can it be contended that the marriage would not equally have been a sufficient consideration for any limitations in favour of such relations, which might, upon her stipulation, have been introduced into the settlement ? The case of a woman marrying, and stipulating for a provision in favour of parents, or others, who had previously been dependent on her exertions for support, may suggest the hardships which might result from maintaining a contrary doctrine. The impossibility of restoring the consideration by replacing either party in his or her original status is, in itself, a sufficient reason why full effect should be given to any arrangements which were considered to form the equivalent, or part of the equivalent, to such consideration (k).
If within contract, marriage forms sufficient consideration to support them, semblr.
And where the settlement is made by aid of a party other than the husband and wife - as where, on the marriage of tenant in tail, the tenant for life in possession concurs in barring the entail and re-settling the estate - the validity of limitations in favour of other branches of the family, or (it is conceived) of strangers, seems to be unquestionable (l) : so, even the mother of the husband releasing the lands from an annuity, and accepting a substituted security for its payment, has been held a sufficient consideration for limitations in favour of her younger children (m). A settlement, not on marriage, by tenant for life and tenant in tail, was, under special circumstances, held void as against a purchaser (n) ; but the decision seems to be disapproved of by Lord St. Leonards (o).
Such limitations supported by persons who could derive any benefit from enforcing the covenant being her next of kin.
(i) (1861) 6 H. & N. 849; 30 L. J. Ex. 113. This case was overruled in De Mestre. v. West, see next page.
(k) See Jenkins v. Keymes, (1669) 1
Lev. 237, where it was held that the wife's marriage portion was a sufficient consideration for limitations to the issue of the husband by a seconds marriage. And see Heap v. Tonge, (1851) 9 Ha. 90, 104 ; 20 L.J. Ch. 661; Ford v. Stuart, (1852) 15 Beav. 493, 500 ; 21 L. J. Ch. 514.
The remoteness of a limitation (p), or its being subsequent to a vested estate tail (q), may perhaps be sufficient to sustain it in favour of collaterals.
Necessary concurrence of third person in settlement.