that, in confequence of the fettlement, it came back to her, there being no younger children, and is not to be confidered as part of the portion, in confideration of which, the jointure was made. But I am of opinion, that objection does not hold. I agree, that where a jointure is to be made under fuch limited powers, of a portion to be received, the tranfaction must be fair, bona fide without fraud and collufion; and, therefore, if it is a nominal, and not a real portion, that will not do; as, where a man who marries a lady with a fmall portion, and either he or his friends advance money to make it up a nominal portion, and, after the marriage, take it back. So, if the wife had a portion which was fettled to her separate ufe, it would not do. Parents create these powers for the purpose of compelling their children to marry wives of an adequate fortune, and not to burthen the eftate with a great jointure for a wife, who brings nothing into the family: whenever, therefore, the portion of the wife is ftipulated to be applied in a proper and reasonable manner, for the benefit of the family, that is to be confidered as a portion received. The father could not mean that every part of this portion fhould be received by his fon to spend and waste; if it was fettled fo as to become beneficial to the family, in the fair way of making fettlements, it was fufficient. Thefe parties were young at the time of marriage, and might have feveral children. It was reasonable to take so much of the wife's fortune as an increase of the younger childrens portions, which the husband had under his father's will a power to fettle, nor was there any impropriety in giving the wife a chance of furvivorship. This, then, is an application U 2 Manfell v. Arg. v. 1.35. plication of the portion by the husband, in a reason § S. A power of jointuring a wife, may be restrained by a condition, that the marriage fhall be with the confent of a third perfon. AS Leafes made by tenants for life determine upon Origin of. the death of the leffor, powers are ufually inserted in fettlements, enabling the tenants for life to grant leases, which shall be valid against the perfons in remainder or reverfion. 120. Powers of this kind are productive of great advan 1 Burr. Rep. tages, not only to the tenants for life, and the perfons in remainder and reverfion, but alfo to the public: the tenants for life are thereby enabled to grant a certain term to the leffee, by which means they get a higher. rent, which is equally beneficial to the remainder-men and reverfioner; and the public is benefited by this Conftrued ftrictly. Doe v. Lady Cavan. 5 Term R. 567. Vide Doe v. infra. fyftem, because the extent and fecurity of the tenant's intereft, induces him to expend his capital in the cul tivation and improvement of the estate. § 2. But, leaft the tenant for life fhould exert this power to the prejudice of the perfons in remainder or reverfion, he is, in general, reftrained by the words of the power, from making any leafes but on certain conditions, by which means, the tenant for life is ob liged to fecure the fame advantages to the remaindermen and reverfioner, which he referves for himself, The restrictive part of fuch powers ought, therefore, to be construed strictly against the tenant for life, and in favour of the remainder-man and reverfioner; because the conditions upon which the power is given, are inferted with a view to their intereft, and the leffee under fuch a lease, ftanding only in the place of the tenant for life, and deriving his title merely under the power, if that be not completely executed, the right of the remainder-man to poffefs the eftate, freed from the lease, will take place of the right of the leffee, as fuperior to it from whence, it follows, that every circumftance required by the power must be ftrictly complied with, otherwife the leafe will be void. $ 3. Thus, it appears, that the inftruments by which leafing powers are executed, are conftrued fomewhat differently from other deeds of appointment; for, it being exprefsly required that tenants for life fhould execute their powers of leafing in a particular manner, that becomes a condition precedent; and if all the circumstances required by the power are not complied complied with, the power is held to be totally unexecuted fo that, if an improper covenant is inferted in a lease made in purfuance of a power, the leafe is thereby void in its creation, and not the covenant only, and will not bind the remainder-man. § 4. Where a qualification is annexed to a general power of leafing, which, if obferved, goes in deftruction of the power, the law will dispense with fuch qualification. § 5. The restrictions, which are ufually annexed to leafing powers, relate, 1ft, To the inftrument by which the power is executed; 2d, To the lands to be let; 3d, To the time when the leafe is to commence; 4th, To the duration of the leafe; 5th, To the rent directed to be referved; and, 6th, To the claufes and cove nants directed to be inferted in fuch leafes. Vide CumCafe, infra, berford's f. 15. Restrictions annexed to leafing Powers. Inftrument. § 6. With respect to the inftrument by which a ft, As to the leafing power is directed to be executed, it is generally required to be by a deed indented, fealed and delivered in the presence of two or more witneffes; and it is also ufually required, that the tenant fhould execute a Burr. Rep. counterpart of fuch indenture. § 7. Livery of feifin is not neceffary to be given on 125. 2 Lev. 149. a freehold leafe, made in execution of a power. Be- 1 Vent. 291. caufe a leafe made in execution of a power, takes effect from the deed by which the power is created; and the legal eftate is transferred by the operation of the statute of ufes. |