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were not present at the discussion of all matters in diffe
For lessee if CLX. Provided always, and the said A. B. doth for himdistrained upon during the term self, his heirs, executors, administrators, and assigns, covenant
and grant with and to the said C. D., his executors, administrain on the premises not as- trators, and assigns, that if at any time or times hereafter, signed (a).
during the continuance of the said term of ninety-nine years,
such distress or distresses being so made in or upon the said messuage or tenement and premises hereinbefore assigned, or expressed and intended so to be, or any part thereof, by the person or persons claiming to be entitled to the said rent; and the distress or distresses then and there taken, by or by the order of the said C. D., bis executors, administrators, or assigns, to take, carry, drive away, impound, and in pound to detain and keep until such sum and sums of money, costs, charges, damages, and expenses as aforesaid, and all the costs, charges, damages, and expenses of, in, or about, or relating to the same distress or distresses, shall be fully satisfied
(a) For common form of Powers of Distress and Entry, vide Tit. VI. arts. ix. and xi.
and paid to the said C. D., his executors, administrators, or assigns, in due time after such distress or distresses shall be so made or taken; or otherwise to appraise, sell, and dispose of the same distress or distresses, or otherwise to demean therein according to law, in the like manner as in the case of distresses taken for rent reserved by lease or common demise; to the end and intent that the said C.D., his executors, administrators, and assigns, may be thereby fully satisfied, and paid all such sum and sums of money, costs, charges, damages, and expenses, as he or they or any of them shall so pay, sustain, be at, or be put unto as aforesaid, and also all costs, charges, damages, and expenses, of, in, about, or relating to the said last-mentioned distress and distresses.
OF PROVISOES AND DECLARATIONS.
I. 1. And the said A. B. doth hereby declare that no dower, conforme
widow of him the said A. B. shall be entitled to dower out ably to the stat. 3 & 4 Will. 4, of the messuages, lands, and other hereditaments (a) herec. 105.
inbefore released or otherwise assured, or intended so to be, or any part thereof (6).
2. And I the said A. B. do hereby declare that no widow of mine shall be entitled to dower out of any manors, advowsons, messuages, or any other hereditaments, whether corporeal or incorporeal, or out of any share thereof, of which I shall die wholly or partially intestate.
That provision II. And it is hereby declared and agreed by and between for wife shall be the parties to these presents, and the said A. B. doth hereby of lands and consent and agree, that the provision hereby made for the half or third of said A. B. shall be and be accepted by her, and she doth moveables, according to the
hereby accept the same in lieu, bar, recompence, and full satislaw of Scotland.
faction of and for all manner of tierce of lands, half or third of moveables, or other rights or benefits whatsoever, to which the said A. B. can or may be entitled of or in the estate and effects of the said C. D. her said intended husband, by virtue of the laws of Scotland (c). And it is hereby also provided,
(a) Or, if by a separate deed, “ comprised in and conveyed by the said hereinbefore in part recited indentures of” &c.
(6) For form of limitations to prevent dower, which ought still to be used when it is intended to exclude the dower of any one married on or before the 1st January, 1834, vide Tit. VI. arts. v. and vi. And for the provisions of the Dower Act, see book i. App., p. 265 of the first volume of this work.
(c) According to the Scottish law, the widow of an heritable proprietor, who has been married to her for " year and day,” or has had a live
declared, and agreed, that the trusts and provisions hereinbefore contained, and every of them, shall be and remain in full force, notwithstanding the death of either of them the said C. D. and A. B. within a year and a day after the solemnization of the said intended marriage, and without any issue of the same marriage having been born alive, any law, usage, or custom of Scotland to the contrary in anywise notwithstanding (a).
III. And it is hereby directed, declared, and agreed by Two merchants and between the several persons parties to these presents, as chased real and far as they respectively are interested, that the said real and personal propersonal estates, so far as relates to or concerns the joint conveyance of tenancy in the personal estates and the sole power of ap- was to them as pointment over the real estate, shall be held upon, under, and joint tenants in subject to the trusts hereinafter expressed and declared con- as they or the cerning the same; (that is to say), as to, for, and concerning one survivor shall
appoint; in deundivided moiety or half part, the whole into two equal parts fault, each moior shares to be divided, of and in the same plantations, ety was limited tracts of land, [negroes or slaves,] implements, live and dead purchasers to stock, and hereditaments with their appurtenances, in trust uses to prevent for the said A. B., his heirs, executors, administrators, and sonalty was liassigns for ever; And as to, for, and concerning the other or as joint tenants: remaining undivided moiety or half part of the same planta- this declaration tions, tracts of land, negroes or slaves, implements, live and dead stock, and hereditaments with their appurtenances,
ing child by her, is entitled to the “ tierce" or life-rent, provided she has not accepted a special provision in lieu of it. The “tierce” extends to one-third of all lands, tiends, (if vested by separate infefftments), and heritable securities, in which, at the time of her husband's death, he stood vested as of fee by infefftment. Bell's Commentaries on the Laws of Scotland, i. 43, 547, 4to edit. Erskine's Inst., tit. vi. sect. 38—41.
(a) This clause was suggested by a writer to the signet in consequence of a peculiarity in the law of Scotland, by which, in the event of a marriage dissolving within a year and day from the solemnization thereof, by the decease of either party, without a living child being procreated of the marriage (unless provision is made to the contrary in the marriage contract), the rights of both parties are brought back to the same situation in which they were at the time of marriage. Bell's Com. i. 547. Erskine's Inst., tit. vi. sect. 38—41.
in trust for the said C. D., his heirs, executors, administrators, and assigns for ever; which joint tenancy and sole power of appointment are respectively created to avoid the inconvenience which might arise from the possibility of the death of either of them the said A. B. and C. D., prior to the execution of these presents, by the grantors respectively therein named (a).
That the sums IV. And it is hereby directed and declared by and beof money secur- tween the several persons parties to these presents, as far as exchange, shall they respectively are interested, that the plantations [negroes, not be a lien on the premises
slaves], hereditaments, stock of cattle, and implements, and sold. (Where other property respectively hereby released and assigned, or part of the con
otherwise assured, or intended so to be, or any of them, shall in bills of ex
not at any time after the execution of these presents, either change).
by way of equitable lien, or in any other manner, or by any
That the lands
V. And (c) the said A. B. doth hereby declare and direct that immediately after the execution of these presents, all the estate, right, title, and interest of him the said A. B. in the said messuages &c., and also the rents, income, and produce of the same, in the meantime, till the same shall be sold under the trusts hereinbefore contained, shall be con
(a) The grantors, being in England, might, at the time of executing the deed, be ignorant of the death of one of the joint grantees, in which case, if the land had been conveyed to them as tenants in common, the grant would have been void for a moiety.
(6) Vide Vol. I. book ii. chap. iii., and Vol. II. part i. tit. i. art xi. note.
(c) Or, “ For the purpose of securing and establishing the right of the executors, administrators, and assigns of the said A. B. to such purchase-money.”