No. II. DEED OF SEPARATION. Parties. Recite agree ment for separation. marriage. DEED of SEPARATION between HUSBAND and WIFE. (Another form where there is no trustee.) TWEEN A. B., of, &c. (husband), of the one part, and C. B., the wife of the said A. B., of the other part: WHEREAS unhappy differences have arisen between the said A. B. and C. B., and they have agreed to live separate from each other in future, and to enter Settlement on into such arrangement as is hereinafter expressed: AND WHEREAS by an indenture of settlement dated the day of, 18—, and made previously to the marriage of the said A. B. and C. B., between, &c. (state parties), of which indenture E. F. and G. H. are the present trustees, divers moneys and property (therein called "the husband's trust funds" and "the wife's trust funds" respectively), were settled by and on the part of the said A. B. and C. B. respectively upon trusts under which the income of the husband's trust funds is payable to the said A. B., and the income of the wife's trust funds is payable to the said C. B. for her separate use without power of anticipation during the joint lives of the said A. B. and C. B., and the income of all the said trust funds is payable after the decease of either of them to the survivor of them during his or her life: AND WHEREAS there has been no issue of the said marriage: NOW THIS INDENTURE WITNESSETH, that in consideration of the premises, IT IS HEREBY AGREED AND DECLARED between and by the parties hereto as follows: That there has been no issue. Witnessing part. of the children after the sepa ration of the parents. children. But by the stat. 2 & 3 Vict. c. 54, power was given to the Court of Chancery to order an infant under the age of seven years to be delivered into the custody of his mother. By a recent Act (36 Vict. c. 12) the power of the Court is extended to the age of sixteen years, and the Court has also power to make regulations as to the access of the father or other guardian. The Act also provides that no agreement contained in any separation deed made between the father and mother of an infant shall be held invalid by reason only of its providing that the father shall give up the custody or control of the infant to the mother, but with a proviso that no Court shall enforce such agreement if it will not be for the benefit of the infant to give effect thereto. As to the principles which guide the Court in cases under the Act, see In re Taylor, 4 C. D. 157; Re Besant, 11 C. D. 508. Before the Act, an agreement that the wife should have the custody of the children had been held void. Vansittart . Vansittart, 4 K. & J. 62; Walrond . Walrond, Johns. 18. DEED OF SEPARATION. Parties to live 1. THE parties hereto will henceforth live separate from each other, and neither of them will take proceedings against the other for restitution of conjugal rights, or molest, or annoy, or separate. interfere with the other in any manner whatsoever. yearly sum of husband's 2. THE yearly sum of £- part of the income of the hus- Wife to have band's trust funds settled by the said indenture of settlement, out of income shall be paid to the said C. B. for her sole and separate use, settled trust without power of anticipation, during the joint lives of the said funds. A. B. and C. B., if they shall so long live separate from each other [and she shall continue to lead a chaste life] by equal half-yearly payments on the day of and the day of in every year, the first payment to be made on the 3. ALL property (if any) now belonging to the said C. B., for any estate or interest, whether in possession, reversion, or otherwise, shall belong to her for her separate use (b). 4. THE said C. B. will pay her own debts, and keep the said Wife to pay A. B. indemnified therefrom, and if the said C. B. shall make her own debts. default in observing this covenant, all moneys which shall be paid by the said A. B. in respect of any debt or liability of the said C. B. shall be refunded to him out of the yearly sum payable to the said C. B. under Article 2. [5. THE petition presented to the High Court of Justice (Probate Division), by the said, shall be withdrawn, and all costs incurred in relation thereto shall be paid by the said A. B.: AND no new or other proceedings shall be taken by either party in the said Court on account of any alleged misconduct of either party before the date of these presents.] IN WITNESS, &c. (b) This clause will be omitted if the marriage has taken place since the 31st December, 1882. Proceedings Court to be stayed and ceedings taken for alleged past mis in Divorce no other pro conduct. VOL 11. D) D CHARITY DEEDS. Division of subject. Definition of "charity." Includes all objects recog nized as charitable by 43 Eliz. c. 4; viz., relief of the poor, THE next precedents in this work being of deeds relating to charities, it is proposed in this Dissertation to consider (1) the restrictions imposed by law on dispositions of land for charitable purposes, and (2) the powers and duties of trustees as regards the management of charity property. Charity, in the legal sense of the term, includes all those objects or purposes which are enumerated as charitable in the preamble of the Statute 43 Eliz. c. 4(a), or included within the purview of that preamble. In accordance with this definition, every disposition is charitable which has for its object (1) the advancement relief of the indigent; (2) the advancement of learning; the Christian (3) the maintenance or propagation of the Christian religion, whether according to the doctrines and rites of the Church of England, or those of the Church of Rome, or of any sect or body of Protestant nonconformists(); or (4) the promotion of any other useful public purpose (c). of learning or religion, or any other useful public purpose. Statutes of Divers ancient statutes, called the Statutes of Mortmain, prohibited alienations of land to corporate bodies (a) This Act is repealed, except as regards the preamble, by the Mortmain and Charitable Uses Act, 1888. (b) By 9 & 10 Vict. c. 59, it is provided that her Majesty's subjects professing the Jewish religion in respect to their schools, places for religious worship, education, and charitable purposes, and the property held therewith, shall be subject to the same laws as her Majesty's Protestant subjects dissenting from the Church of England are subject to. It would appear, therefore, that gifts for the maintenance of Jewish places of worship or the Jewish religion would now be good charitable gifts. (c) A legacy to the Royal Geographical Society is a good charitable bequest. Beaumont v. Oliveira, L. R. 6 Eq. 534. without a licence from the Crown, under pain of forfeiture. Dispositions of land to unincorporate persons in trust for charitable purposes were not within those statutes, but were subjected to restrictions by the Act 9 Geo. 2, c. 36. The Mortmain and Charitable 9 Geo. 2, c. 36. Uses Act, 1888 (d) (which came into operation on the Mortmain and 13th August, 1888), repeals the Statutes of Mortmain Uses Act, 1888. and also the Act 9 Geo. 2, c. 36, and the Acts amending it, but the provisions of the new Act are substantially the same as those of the repealed Acts. Charitable mortmain except with authority of Part I. of the Act of 1888 provides that land shall Assurance in not be assured to or for the benefit of, or acquired by prohibited, or on behalf of, any corporation in mortmain otherwise licence from than under the authority of a licence from the Crown Crown or by or of a statute for the time being in force, and that if statute. any land is assured otherwise than as aforesaid, the same shall be forfeited to the Crown, subject to certain reservations in favour of a mesne lord. And her Majesty is expressly empowered to grant licences to assure and acquire lands in mortmain (e). Part II. of the Act of 1888 relates to charitable uses, and is as follows: under which may be Sect. 4.-(1.) Subject to the savings and exceptions contained Conditions in this Act, every assurance of land (ƒ) to or for the benefit assurances of any charitable uses, and every assurance of personal made to estate to be laid out in the purchase of land to or for the charitable benefit of any charitable uses, shall be made in accordance with the requirements of this Act, and unless so made shall be void. (2.) The assurance must be made to take effect in possession for the charitable uses to or for the benefit of which it is made immediately from the making thereof. (3.) The assurance must, except as provided by this section, (d) 51 Vict. c. 42. (e) Sects. 1, 2, 3. (f) The term " assurance" includes a gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge, incumbrance, devise, bequest, and every other assurance by deed, will, or other instrument. "Land"includes tene- uses. be without any power of revocation, reservation, condition, or provision for the benefit of the assuror or of any person claiming under him. (4.) Provided that the assurance, or any instrument forming part of the same transaction, may contain all or any of the following provisions, so, however, that they reserve the same benefits to persons claiming under the assuror as to the assuror himself; namely, (i) The grant or reservation of a peppercorn or other nominal rent; (ii) The grant or reservation of mines or minerals; (iv) Covenants or provisions as to the erection, repair, any other (v) A right of entry on nonpayment of any such rent or on breach of any such covenant or provision; (vi) Any stipulations of the like nature for the benefit of the assuror or of any person claiming under him. (5.) If the assurance is made in good faith on a sale for full and valuable consideration (g), that consideration may consist wholly or partly of a rent, rentcharge, or other annual payment reserved or made payable to the vendor, or any other person, with or without a right of re-entry for nonpayment thereof. (6.) If the assurance is of land, not being land of copyhold or customary tenure, or is of personal estate, not being stock in the public funds, it must be made by deed executed in the presence of at least two witnesses. (7.) If the assurance is of land, or of personal estate, not being stock in the public funds, then, unless it is made in (g) "Full and valuable consideration" includes such a consideration either actually paid upon or before the making of the assurance, or reserved or made payable to the vendor or any other person by way of rent, rent-charge, or other annual payment in perpetuity, or for any term of years or other period, with or without a right of re-entry for non-payment thereof, or partly paid and partly reserved as aforesaid. Sect. 10. |