No. XCIX. An Appointment of a Guardian by an Infant (1). APPOINTMENTS. Guardian. years and KNOW ALL MEN BY THESE PRESENTS (2), that I (the ward), of, &c., to be my guardian and the curator of my person and property until I a The (1) By the common law an infant destitute of any lawful guardian, may at any age appoint such person as he may think proper to be guardian of his person and estate, except that until the age of 14 the guardianship of such of his lands as he takes by descent (not being copyholds) devolves on the next of kin to whom such lands cannot descend, who is called his guardian in soccage, or by the common law. appointment of a guardian by an infant can therefore only be after that age, or if before, of lands, or property to which he is entitled otherwise than by descent. See Quadring v. Downs et al., 2 Mod. 176; 1 Blac. Com. 461.; Co. Lit. SS. b. n.(16). But an appointment by an infant will not, however, it seems, preclude an application to the court; Curtis v. Rippon, 4 Madd. 462. Infant may appoint guardian except of de scended lands, at any age. (2) No particular form of the appointment of a guardian seems to be No special form pointed out by the law, but that conceived to be the most proper and requisite. most usually adopted is by writing under the hand and seal of the infant. See Co. Lit. S8. b. n. (16.) APPOINTMENTS. Guardian. Guardian's from the law. cerns, and conduct and welfare in life]. [AND (1) I do hereby authorise and empower the said (guardian) to enter upon and take possession of all and every my messuages, lands, tenements, and hereditaments whatsoever, whether freehold, copyhold, or leasehold, situated, lying, and being in the county of, or elsewhere, in or to which I now have or hereafter may have any estate, right, title, or interest, and to let (2) and demise the same at his discretion, until I shall attain the said age, and to receive and take the rents, issues, and profits thereof as the same shall from time to time become due and payable for my use and benefit, and also to have, receive, take, and possess himself of all and singular my personal estate and effects (3) whatsoever for my use and benefit, and to give acquittances and discharges for all and every the monies and property aforesaid], and to do all and every such other acts, matters and things whatsoever, as shall or may be requisite or expedient relative to me or my estate and property during the term aforesaid, I hereby giving unto him the said (guardian) full powers in and concerning the premises; and I do hereby promise to allow and confirm whatsoever he shall lawfully do or cause to be done therein by virtue hereof. IN WITNESS, &c. (1) The following part of the precedent included within brackets authority derived although found in most forms, appears to be unnecessary, not only because the authority assumed to be given to grant leases, &c., is inherent in the guardian per se; Shoplane v. Roydle, Cro. Ja. 99. 3 Bac. Abr. tit. “Guardian”; but because all the authorities of a guardian are derived from the law, and not from the infant; see ibid. And it is clear that cannot authorise another to do what he is incompetent to do himself. Guardian appointed by infant has the same power as guardian in soccage. May make leases until 21, and manage the infant's general con cerns. Authority of guardian extends to every kind of property. (2) A guardian appointed by the infant himself, it should seem, will have the same power over his general property as a guardian in soccage has over lands descended to him, "for both guardians are of the same nature, and have the same office and employment assigned to them by the law without any direction or intervention of the infant himself, they being therefore appointed because the infant, in regard of his minority, is supposed incapable of managing himself and his estate, and consequently they derive their authority not from the infant but from the law;" 3 Bac. Ab. 403. And the authority of such guardian extends to the making of leases to continue until the infant arrive at the age of 21 years; Lit. s. 123, 124; and all such acts relative to the management of the infant's estate as are requisite for his benefit and advantage, Co. Lit. 88, 89; Shopland v. Ryoler, Cro. Jac 55,98; but not such as are unnecessary or may be prejudicial to him; Tullit v. Tullit, Amb. 370; Audley v. Audley, 2 Vern. 192, 193. (3) The general opinion appears to be, that the authority of a guardian when appointed extends to every species of property of the infant, as well personal as real. See Co. Lit. 88. b. n. (13) ; 3 Bac. Ab. (Svo. ed.) 403. No. C. An Appointment of a Rent-charge out of Freehold Land, by way Variations where a term of years is raised for the purpose of se- APPOINTMENTS. Jointure (before marriage). THIS INDENTURE of two parts, made the the year of our Lord BETWEEN (the intended husband) of, &c. of the one part, and (the intended wife) of, &c. of the other part (2). WHEREAS by indentures of lease and release, bearing Recital of mardate respectively the and days of which was in the riage settlement year the release being of three parts, and made or expressed to be made between the said (intended husband) of the first part, (the former wife) of, &c. of the second part, and (the trustees) of, &c. of the third part, purporting to be a settlement made in contemplation of a marriage, then intended to be had, and which afterwards took effect between the said (intended husband) and the said (former wife) certain messuages, lands, tenements, and hereditaments, therein and hereinafter more particularly described, were settled, conveyed, and assured to the use of the said (intended husband) and his assigns, for the term of his natural life; with divers remainders over. AND (3) in and power to jointure. (1) A jointure strictly is a joint estate in freehold lands limited to the Jointure, what. husband and wife (Co. Lit. 366), but on account of the inconveniences attendant upon a jointure of this kind, as well to the widow as the heir (see 2 Elem. Conv. (2d ed.) p. 287), it is now out of use, and a rentcharge is usually granted in lieu of it. Of the appointment of rentscharge by way of jointure, see ante, MOD. PREC. Vol. 7. pp. 262. n. (1), 300. n. (1); also 1 Elem. Conv. 321; 2 ib. 287. (2d edit.) If the rent- Copyholds. charge be to issue out of copyholds, see post. Tit. COVENANT. (2) If a term of years be created for the better securing the jointure (which is generally proper), make the husband of the first part, the intended wife of the second part, and the trustee of the term of the third part. (3) If the jointure be in pursuance of a power contained in a will, recite the will, in the usual form, with the power verbatim, as above. Term of years. Will. APPOINTMENTS. the said indenture of release, there is contained a proviso, empowerJointure (being the said (intended husband) in the event of his surviving the said fore marriage). (former wife), by any deed or deeds or other writing or writings to be by him sealed and delivered in the presence of, and attested by two or more credible witnesses (1), at any time after the decease of the said (former wife), to grant, limit, and appoint, unto and for any woman or women, whom he might thereafter marry, either prior or subsequently to the said marriage, for and during the life or lives of such woman or women respectively, as or in the nature of a jointure for her or them respectively, any rent or annual sum, not exceeding the clear yearly sum of £ to be issuing out of, and charged, and chargeable upon all or any of the lands and hereditaments thereinbefore granted and released or otherwise assured, by even quarterly payments, on the day of wife. Intended marriage. day of the day of and the day of the in every year, with such AND WHEREAS the powers of distress and entry, and other lawful powers and remeDeath of former dies (2) for the purpose of securing the due payment thereof, as he the said (intended husband) should think proper. said (former wife) hath since departed this life. AND WHEREAS 2 marriage hath been agreed upon, and is intended to be shortly hac and solemnized (3) between the said (intended husband) and the sai (intended wife). AND WHEREAS the said (intended husband) is desirous of exercising the power of appointment so given to him, by the hereinbefore in part recited Indenture of Settlement, in favor of the said (intended wife). Now THIS INDENTURE WITNESSETH, that unto the intended in pursuance and execution of the power and authority so given or re WITNESS. The intended husband limits and appoints wife. Appointment conform to power. Term of years. 27 Hen. 8. (1) It is in general requisite to the validity of an appointment that the instrument of appointment should conform in every particular with the terms of the power; and although in favor of a wife this rule has been frequently relaxed, see Tollet v. Tollet, 2 P. Wms. 489, and cases there cited, yet it will not be safe to allow of a deviation. (2) If the husband have the power of creating a term for the purpose of securing the payment of the jointure, add, “And with such term of years to be created or raised for the purpose of securing the same, &c." as above. (3) *A strict jointure must be appointed before the marriage, as if not till afterwards, the wife, by 27 Hen. VIII. c. 10. may, upon the death of her husband, refuse, and claim her dower at the common law; as she also may where the provision is a rent-charge in lieu of a jointure, as above, unless made before marriage, or in pursuance of an agreement upon the marriage. day of APPOINTMENTS. Jointure (be The yearly sum of £ by way of jointure. served to him the said (intended husband) by the hereinbefore in part recited indenture of release of the and of every, fore marriage). or any other power or authority, enabling him thereunto, and in consideration of the said intended marriage, and for the purpose of making a provision for the said (intended wife) in case she shall happen to survive him, HE the said (intended husband) HATH granted, limited and appointed, and by this present deed or writing, by him ealed and delivered in the presence of, and attested by the two crelible persons whose names are or are intended to be hereupon indorsed, as witnesses attesting the same, DотH grant, limit, and appoint, unto the said (intended wife) in case the said intended marriage shall take effect, and the said (intended wife) shall happen to survive him the said (intended husband), the yearly rent or annual sum (1) of £ of lawful money of the United Kingdom of Great Britain and Ireland, to be issuing, and payable, and ad, received, and taken out of and from, and charged, and chargeble upon ALL, &c. being the same lands and hereditaments as re comprised (2) in the hereinbefore in part recited indenture of elease, and thereby conveyed to the use of the said (intended husand) for the term of his natural life, as hereinbefore is menioned. To HAVE, HOLD, receive, perceive, take and enjoy the said yearly rent or annual sum of £ , hereinbefore granted, limited, and appointed, or mentioned, or intended so to be, unto and by the said (intended wife) and her assigns, from and immediately after the decease of the said (intended husband) her intended husband, for and during the term of her natural life, and up to the day (3) of her decease, to and for her own use and benefit, for or in nature of a jointure, and in lieu, bar, and full satisfaction of or for all dower, In bar of dower. freebench, and thirds, at the common law, or by custom or otherwise, which she the said (intended wife) can or may, or otherwise might have, claim, or be entitled to, in, to, or out of all or any of the messuages, lands, tenements, and hereditaments whatsoever, whereof he the said (intended husband) now is, or shall or may during the said intended coverture, be seised for any estate of inheritance in possession, or for other dowable estate or interest whatsoever; The said (1) See form, where land is limited instead of a rent-charge, post. p. 319. (2) If the power be contained in a will, say, Devised by the said in part recited will of the said (testator) deceased, to the said (intended husband) for his life as aforesaid. (3) See ante, Mod. Prec. Vol. 6. p. 23. n. 27. Will. |