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provided in case of the decease of a trustee ; and in case of the decease or resignation at any time of any of the persons who may be hereafter appointed trustees, in manner aforesaid, similar proceedings shall be had for supplying the vacancy created by such decease or resignation. And the trust fund, property, and estate shall always be had and held by the persons so appointed from time to time in trust for the uses and purposes set forth in this indenture, and none other. And all nominations made as aforesaid shall be in writing.
Seventhly, That the purchasers of any estate, real or personal, which may be sold and conveyed by the trustees under this indenture, shall not be bound to see to the application of the purchase-money; but the receipt and acquittance of the trustees shall be a full and adequate discharge to such purchasers for such purchase-money.
Eighthly, That all the expenses and incidental charges of the trustees shall be deducted from the income of the trust property, as well as a reasonable allowance to the trustees for their own services.
Ninthly, That the resignation of any trustee shall not be, nor be pleaded as, a bar to the chancery jurisdiction of the courts of the Commonwealth, in case a resort against such trustee to the said court shall be necessary.
Tenthly, That the trustees under this indenture, each for himself and not for each other, shall be responsible for the want of due diligence only in the execution of the said trusts, and for their wilful defaults, and in case of the omission by the party of the first part to nominate a successor to either of the parties of the second part, or to any person appointed instead of them, or elther of them who may resign or decease, the surviving or continuing trustee shall have power and authority to execute all the trusts herein specified and declared, in as ample manner as both the said parties of the second part might jointly have done. In Testimony Whereof, The said
hereto set their hands and seals, the day and year first above written.
(Signatures.) (Seals.) Signed, Sealed, and Delivered in Presence of
acknowledged this instrument to be
Then the within-named his free act and deed before me.
Justice of the Peous
(5.) Another Form of Indenture in Trust, for Property of
Unmarried Women. This Indenture, Made and concluded this
in the year of our Lord one thousand nine hundred and
by and between of in the county of single woman, of the one part,
the father of the said , of the other part: Witnesseth, Whereas the said
is seized and possessed in her own right, of the following-described real estate;
and is also seized and possessed of a certain piece of land, situate in said ; with the buildings thereon standing, and privileges and appurtenances thereto belonging; the whole of which were conveyed by to
, by deed bearing date the of the year of our Lord one thousand eight hundred
, and recorded in the Registry of Deeds for said county, lib.
And whereas the said
is possessed of the following personal estate: to wit, of shares, of the capital stock, of the
, and is also possessed of the promissory note of for the sum of dollars, dated
and payable and also of the bond of
dated the , in the year of our Lord one tho'ysand nine hundred and conditioned for the payment of
dollars and interest. And whereas she, the said
is desirous of securing the said estate, both real and personal, in the event of her marriage, to her sole use and benefit; and for this purpose it hath been agreed, that all the estate and property aforesaid shall be granted, assigned, and transferred unto the said
, and to such other trustee as shall hereafter be appointed according to the provisions hereinafter expressed, to be held in trust by them for the separate and sole use and benefit of her, the said
and her heirs (notwithstanding any such coverture), upon the terms and conditions, for the uses, intents, and purposes, under the limitations, and for and during the time, as hereinafter is expressed. Now, this indenture witnesseth, that the said
, in consideration of the premises, and of the covenants hereinafter contained, and also of one dollar now paid to her by the said
the receipt whereof is bereby acknowledged, hath granted, bargained, sold, and transferred, and Ly these presents doth grant, bargain, sell, and transfer, unto the said
, his heirs and assigns, forever, all the real and personal estate, stocks, notes, and bond, herein before described and specified : To have and to hold the same to him, the said
his heirs and assigns, forever, to and for the several uses, trusts, and purposes, and subject to the several provisions, limitations, powers, and agreements, hereinafter limited, declared, and expressed ; that is to say, to the sole use and behoof of the said
and her heirs until the solemnization of any such marriage, and, from and immediately afterwards, to and for the following uses, intents, and purposes, to wit:
That the said estate, both real and personal, stocks, notes, and bond, shall be held, by him, the said
and his successor in said trust in the manner hereinafter expressed and provided, to the sole use and separate benefit of her the said
without being liable to the debts, incumbrances, or control of any husband she may have during the
existence and continuance of said trust; that said
shall, froni time to time, lease and demise said real estate to the best profit and advantage, and, at such time as he shall see fit and think proper, sell and dispose of all or any part of said real estate, upon the most advantageous terms, for the interest of said
and shall invest the proceeds; and, upon payment of the stocks, notes, or bond aforesaid, invest the same in like manner; that he shall pay all the rents and profits of said real estate, and the interest and income of said funds, and also the interest and income of said personal property hereby assigned, and all the net profits arising and accruing therefrom, as well as such portion of the principal as he shall judge necessary for her convenience and support, unto her, the
or to such person or persons as she shall in writing, without the signature or interference of any husband, appoint, for and during the natural life of her, the said that is to say, for and during the term for which said
trust shall continue, according to the provisions and limitations hereinafter expressed; and, after the decease of the said
, the remaining income und profit unpaid, to the child or children of the said
if she shall leave any; and, upon such decease, grant, convey, and transfer the same estate, both real and personal, and any investments in funds, unto such child or children, his and their heirs and assigns, forever; and also grant and con. vey, in like manner, any real estate which may be purchased with the pro. ceeds of said property; and in case the said
should die without issue, then to grant, convey, and transfer the same, in like manner, unto the heirs-at-law of her the said And the said
for himself, his heirs, executors, and adminis. trators, doth covenant, grant, and agree, to and with the said
her executors and administrators, that in case she, the said
should desire any real estate to be purchased with any part of said capital stock, funds, or interest, of the estate and property hereby conveyed, and it should be deemed advantageous and proper by the said
to comply there. with, then he will make a purchase thereof, and take deeds of conveyance of such estate in his name, as trustee, and will hold the same subject to the like trusts, limitations, powers, and agreements as are herein limited, declared, and expressed; and will pay over the rents and income thereof as is above provided, unless she, the said
shall choose to occupy and live on the same; and, in such case, no rents shall be exacted or required of any husband of the said
And upon the happening of the death of hiin, the said
he doth further covenant that his heirs or executors or administrators shall and will, as soon as practicable thereafter, make good and sufficient instruments of conveyance to transfer and grant the aforesaid estate, both real and personal, or such parts thereof as shall then remain undisposed of, and such as may be purchased by him, said
in pursuance of the trusts and intent of this indenture, unto such person as shall be appointed the trustee of the said
for that purpose by the Judge of Probate for the District of for the time being, who is, in that event, authorized to make the appointment.
In Witness Whereof, The said parties have hereto interchangeably set their hands and seals, the day and year first above written.
(Signatures.) (Seals.) Signed, Sealed, and Delivered in Presence of (Witness.)
Ss. 30th September, A. D. 19 Then personally appeared the above-named
and and severally acknowledged this indenture to be their free act and deed.
(Signature.) Justice of the Peaca
AGREEMENT AND ASSENT.
THE LEGAL MEANING OF AGREEMENT. No contract which the law will recognize and enforce exists, until the parties to it have agreed upon the same thing, in the same sense. Thus, in a case where the defendants by letter offered to the plaintiffs a certain quantity of “good” barley, at a certain price. Plaintiffs replied: “We accept your offer, expecting you will give us fine barley and full weight.” The jury found that there was a distinction in the trade between the words “good” and “fine,” and the court held that there was not a sufficient acceptance to sustain an action for non-delivery of the barley. So where a person sent an order to a merchant for a particular quantity of goods on certain terms of credit, and the merchant sent a less quantity of goods, and at a shorter credit, and the goods were lost by the way, it was held by the court that the merchant must bear the loss, for there was no sale or contract between the parties.
There is an apparent exception to this rule, when, for example, A declares that he was not understood by B, or did not understand B, in a certain transaction, and that there is therefore no bargain between them; and B replies by showing that the language used on both sides was explicit and unequivocal,
and constituted a distinct contract. Here, B would prevail. The reason is, that the law presumes that every person means that which he distinctly says. If A had offered to sell B his horse for twenty dollars, and received the money, and then tendered to B his cow, on the ground that he was thinking only of his cow, and used the word horse by mistake, this would not avoid his obligation, unless he could show that the mistake was known to B; and then the bargain would be fraudulent on B's part. This would be an extreme case; but difficult questions of this sort often arise. If A had agreed to sell, and had actually delivered, a cargo of shingles at “3.25," supposing that he was to receive that price for a “bunch,” which contains five hundred, and B supposed that he had bought them at that price for a "thousand,” which view should prevail? The answer would be, first, that if there was, honestly and actually, a mutual mistake, there was no contract, and the shingles should be returned. But, secondly, if a jury should be satisfied, from the words used, from the usage prevailing where the bargain was made and known to the parties, or from other circumstances attending the bargain, that B knew that A was expecting that price for a bunch, B would have to pay it; and if they were satisfied that A knew that B supposed himself to be buying the shingles by the thousand, then Acould not reclaim the shingles, nor recover more than that price. There was such a case so decided.
In construing a contract, the actual and honest intention of the parties is always regarded as an important guide. But it must be their intention as expressed in the contract.
If the parties, or either of them, show that a bargain was honestly but mistakenly made, which was materially different from that intended to be made, it would be a good ground for declaring that there was no contract.
Mistakes of fact in a contract can be corrected by the courts, but not mistakes of law; no man being permitted to take advantage of a mistake of the law, either to enforce a right, or avoid an obligation; for it would be obviously dangerous and unwise to encourage ignorance of the law by permitting a party to profit, or to escape, by his ignorance. But the law which