an assignment not under seal has been supported as such, while there is express authority that such a gift is incomplete.(g) It has, however, been said, that although it is a general rule of law that an intention or promise, where expressed in a deed, is binding at law as a covenant, and the consideration is immaterial; yet in equity, where specific performance of the covenant is sought, it stands scarcely or not at all on a better footing than if it were contained in an instrument unsealed. (h) In the case of chattels personal, capable of delivery, it is certainly the law, that a gift to be effectual must either be by deed, or perfected by delivery.(i) The right to the instrument or policy which is the mere evidence of the contract, as between the office and the assured, may pass by delivery, but it cannot carry with it the benefit of the contract.

26. As we have already seen, a voluntary settlement not otherwise valid, may be rendered so by an ex post facto consideration;() and it may be considered whether this will not always be the case as regards the interest of any person who may have been thereby induced to alter his position, as by the payment of the premiums upon the policy; [*293] *and for this the case of Godsall v. Webb,(7) may be thought an authority. In this case a policy upon the life of a married woman was by the settlement vested in a trustee, in whose name it had been effected, and by whom the premiums were to be paid out of the settlement funds (to the income of which she was entitled for her separate use, and after the decease of her husband in the event (which happened) absolutely,) upon trust after her decease to pay the income to arise from the investments of the sum assured unto her husband during his life, and after his decease, as to the principal thereof as she should appoint by will, and in default of such will upon trust for her next of kin. By a subsequent deed, after reciting the decease of the husband, and that the policy was effected to make a provision for him in case he should be the survivor, and that the widow was unwilling to keep it up and pay the annual premiums, in consideration of the natural love and affection that she bore to the plaintiff, who was her cousin, and his wife, who was her sister, the trustee by her direction assigned the policy to the plaintiff for his own use. On a bill being filed by the plaintiff after he had received the money, against the widow's executors and next of kin, the Master of the Rolls held, that the next of kin were not entitled to have the policy kept up against her; and he said, "Thinking that she had a right to refuse to keep up the policy or to permit the trustee to keep it up, I think the trustee was entitled to assign it according to her direction, and consequently, that the plaintiff is entitled to the fund in question." It will be observed, however, that this case may also be independently supported upon the ground of the concurrence of the trustee in the assign

ment.

27. The great difficulty in these cases of voluntary assignments arises from the fact that the policy is not assignable at law, and courts of

(g) Edwards v. Jones, 1 My. & Cr. 226.

(h) Kekewich v. Manning, 1 De Gex, M. & G. 188.
(i) Martindale v. Booth, 3 B. & Ad. 506.
(1) 2 Keen, 99.

(k) Ante, Pt. 2, Ch. 1.

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equity do not consider that any interest passes equivalent to an equitable estate; for when the legal interest is transferred, as upon a transfer of stock, or an estate legal or equitable passes by deed, the act is conclusive against the settlor and all persons claiming under him, subject to the operation of the statutes of the 13th and 27th of Elizabeth.(m) Hence, when the settlement takes the form of a covenant to effect an insurance, and the policy is actually effected in the name of the trustee, it is effectual as not requiring the assistance of equity to perfect it.

It is also said that when the settlor has executed a bond or obligation to make the particular provision for the donee, the Court will always enforce it.(n)

28. Should policies of assurance ever be made assignable at law by statutory enactment, as may possibly be the case, this cause of the frequent shipwreck of voluntary settlements will be at an end. The law, however, on this subject will still be useful as to all cases prior to the Act, and also in cases when the solemnities required by it may be incomplete, unless the doctrine in Antrobus v. Smith and Edwards v. Jones, namely, that no equitable assignment will be supported when a legal transfer was practicable but neglected, should operate to render invalid, after the passing of the Act, settlements which might have been effectual before it.

29. This subject will be somewhat further elucidated by the consideration that a policy of assurance may be the subject of a donatio mortis causâ, which has been defined to be, "where a man lies in extremity, or being surprised with sickness, and not having an opportunity of making his will, but lest he should die before he make it, he gives with his own hands his goods to his friends. This, if he dies, shall operate as a legacy; but if he recovers, then does the property revert to him again."(c) Such a gift, *indeed, differs little from a legacy, except in not re[*295] quiring the assent of the executor: it is not complete until the death of the donor, and is of no avail against creditors in case of a deficiency of assets, and by the 36 Geo. 3, c. 52, s. 7, is subject to legacy duty.(p) It is, moreover said to require three conditions:-first, the gift must be with a view to the donor's death; secondly, it must be conditioned to take effect only upon the death of the donor by his existing disorder; thirdly, there must be a delivery of the subject of the donation.

A donatio mortis causâ cannot be by deed without delivery ;(2) but where the subject of the gift is in action, and not in possession, the delivery of the instrument by which it is secured has been held sufficient. Thus a bond may be the subject of such a gift, and the executor becomes a trustee for the donee;(r) and in like manner a mortgage, by delivery

(m) c. c. 4. 18. The latter referring to real estate only.
(n) Fletcher v. Fletcher, 4 Hare, 67; Bridge v. Bridge, sup.

(0) Hedges v. Hedges, Prec. Chan. 269; Farquharson v. Cave, 2 Coll. C. C.'356.
(P) Ward v. Turner, 2 Ves. Sen. 434.
(9) Will. Ex. 658.

(r) Ashton v. Dawson, 2 Coll. C. C. 363, in notis; Blount v. Barrow, 4 B. C. * C. 72.

of the mortgage deeds. (s) Gifts of this nature are not abolished by the new Wills Act.(t) It may be thought that that which was equivalent to delivery for the purpose of a donatio mortis causâ, ought to have been so upon a voluntary assignment by deed. This would be a further argument for the validity of such an assignment, coupled with the delivery of the policy.

30. In Johnson v. Ball, (u) a testator after the passing of the new Wills Act, bequeathed a policy of assurance on his own life to B. and C., "to hold the same upon the uses appointed by letter signed by them and myself." Subsequently, at the request of B. and C., he signed a memorandum to the following effect:-"I wish my policy of assurance, left to B. and C., to be divided as follows: I give," &c., mentioning the shares in which he desired *certain volunteers to take. This [*296] memorandum was not attested. Sir James Parker, V. C., observed, "Even supposing that the will referred to an existing letter to be afterwards signed, it would be impossible to give effect to any such letter as a declaration of trust; to do so, would be to give effect, as a codicil, to a paper subsequent in date to the will, and not properly attested. A testator could not by his will prospectively create for himself a power to dispose of property by an instrument not properly attested." The memorandum, moreover, his Honour thought, could not operate as a gift or settlement, inter vivos.

31. When policies upon a man's own life were subject to his general power of appointment, and he appointed that the moneys payable should be paid to his executors and administrators, it was held that the effect of the appointment was to make the policy moneys part of his personal estate, and not to give any interest to his next of kin as cestuis que trust designated by him.(v)

32. The inducements to effect voluntary settlements, up to the present time, have been twofold; namely, first to avoid the payment of the heavy duties charged upon probate and legacies by the Stamp Acts; and secondly, to make a provision for the objects intended to be benefited which shall not be liable to be lost by any fluctuation in the fortunes of the settlor. The first of these inducements, more especially powerful in the case of natural children, who are in the estimation of the law strangers in blood to the settlor, and whose legacies are consequently liable to the highest duties chargeable, is for the most part destroyed by the Succession Duties Act, the provisions of which, as affecting policies of insurance, we shall consider in a subsequent chapter. Voluntary settlements for the future will therefore, in all probability, be comparatively rare; but the second inducement still remains; and in considering this object it is to be remarked, that the settlement of a policy of assurance seems to be almost the only method *by which a person without realised property, but in solvent circumstances, can make an effectual provision for a volunteer.

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(8) Hurst v. Beach, 5 Madd. 357; Duffield v. Elwes, 1 Bligh, N. R. 498. (t) Moore v. Darton, 20 L. J. Chanc. 626. (V. C. B.); Staniland v. Willott, 3 Mac. & G. 664. (u) 5 De G. & S. 85.

(v) Mackenzie v. Mackenzie, 3 Mac. & Gor. 559.

33. A power of revocation may always be reserved by a settlor; but, to render the provision entirely secure in the event of a subsequent bankruptcy, it must be omitted. Such a power, exercisable by a settlor at his pleasure, is equivalent to the entire interest, and may be exercised by the assignees for the benefit of the creditors. A power, indeed, to be exercised only with the consent of another person, as, for instance, the wife of the donee of the power, in this case the settlor, will not have this effect; (w) but the insertion of such a colourable power by the settlor for his own benefit would be hazardous, as exposing the settlement to the statute of Elizabeth(x) as fradulent. Hence, when the circumstances of the settlor are such as to render this object of importance, the power or revocation should be avoided. Of course, a power of appointment among designated objects, such as children, will not be objectionable on this account. Few settlors are willing to part irrevocably with their property; and when the power of revocation is retained, it has been suggested that the safer course may be to reserve it to be exercised by deed only, and not by will; for a general residuary disposition of the personal estate might, under the 27th section of the Wills Act (2 Vict. 26), be construed as an exercise of the power of revocation and new appointment, and so unintentionally defeat the settlement, by passing the property comprised therein to the residuary legatee.(y)

34. If a settlor, when the transaction is complete, desires to regain his interest in the property, he must duly exercise his power. A mere re-conveyance or re-assignment by the trustee will not terminate the trust.(z)

UPON THE RIGHTS AND INTERESTS OF PERSONS UNDER DISABILITIES.

1. A POLICY of assurance may be effected for the benefit and in the name of an infant, upon his own life or the life of another; but if he enters into a contract for a policy, or a term of which is the issue of a policy, as regards any liability that may arise thereon, it will be subject to the ordinary rule affecting the contracts of infants, namely, that they are void or voidable at their election, on arriving at the age of 21 years, or according as the Court may pronounce them to be to their prejudice or benefit. (a) Should, however, the infant decline to complete or affirm

(w) Jones v. Winwood, 10 Sim. 158.

(y) Watkin's Principles, 9th edit. Addenda.

(2) Ellison v. Ellison, 6 Ves. 656; 2 Sug. Pow. 99. (a) 2 Stephen's Com. 335.

(2) 13 Eliz. c. 5.

the contract, it would seem that he cannot maintain an action to recover the premium paid by him, or any deposit in respect of it.(b) When the policy is on the life of the infant, the person to receive the amount assured upon his death will be his administrator. If the policy is upon the life of another, the amount assured, as in the case of a simple legacy, cannot be paid during the minority of the infant without the sanction of a court of equity.(c) It may also be observed that the Court will sometimes exercise a large discretion in dealing with the interest of an infant *in property of this description. Thus, when a policy on the life [*299] of the grandfather had been settled, upon the petitions of the infant and her father, made after the decease of her mother, and stating that the father was in indigent circumstances, and about to emigrate, an order was made for the surrender of a bonus accrued thereon, and for its application by the trustees of the settlement in the maintenance of the infant. There was no suit in court for the administration of the trust; and the Vice-Chancellor made it a condition for making the order that the father should give up his interest, not only in the bonus, but in the principal sum assured, which was 7501.(d) The statutes relating to Friendly Societies will be found to contain special provisions for enabling infants, and also married women, to effect insurances for small sums upon their own lives.

2. If a married woman is entitled in her own right to any policies of assurance, as marriage operates as a gift to the husband of all such choses in action belonging to his wife, and not settled to her separate use, as he may be able to reduce into possession during her life, he will be entitled, when the policy is on the life of a third party, upon the death of that party happening during the coverture, to recover in an action at law, and give a good discharge for the amount insured, making, nevertheless, his wife a party to the action in all cases where the interest accrued prior to the coverture. Her receipt will then be no discharge to the office, unless she have an authority from him, either express or implied, to receive payment.(e)

Should he, however, be unable to recover without recourse to the assistance of a court of equity, the wife will be entitled to her equity to a settlement out of the *fund,(ƒ) a right which she will have the [*300] option of waiving or enforcing, which will not necessarily be lost by her adultery, (g) and is equally valid against the assignees for a valuable consideration, or in bankrtptcy of the husband as against himself.(h) Effect will be given to this right or equity, by settling the whole or a part of the fund; and the amount will be in the discretion of the Court, and according to the circumstances of the case,(i) in the names of trustees,

(b) Holmes v. Blogg, 2 Moore, 552; Wilson v. Keane, Peake, Add. Cas. 196. (c) Lee v. Brown, 4 Ves. 366; Chambers on Infancy, 426; Will. Ex. 1206. (d) Ex parte Hays, 3 De G. & S. 485; Walsh v. Walsh, 1 Drewry, 64. (e) Roper, Husband and Wife, 210.

(f) Sturgis v. Champneys, 1 My. & Cr. 97.

(g) Greedy v. Lavender, 13 Beav. 62.

(h) Ibid. Vaughan v. Buck, 1 Sim. N. S. 284.

(i) Scott v. Spashett, 16 Jur. 157; 2 Spence, 485.