1911 Encyclopædia Britannica/Settlement

SETTLEMENT, in law, a mutual arrangement between living persons for regulating the enjoyment of property, and the instrument by which such enjoyment is regulated. Settlements may be either for valuable consideration or not: the latter are usually called voluntary, and are in law to some extent in the same position as revocable gifts; the former are really contracts, and in general their validity depends upon the law of contract. They may accordingly contain any provisions not contrary to law or public policy.[1]

The elements of the modern settlement are to be found in Roman law. The vulgaris, pupillaris or exemplaris substitutio (consisting in the appointment of successive heirs in case of the death, incapacity or refusal of the heir first nominated) may have suggested the modern mode of giving enjoyment of property in succession. Such a substitutio could, however, only have been made by will, while the settlement of English law is, in the general acceptation of the term, exclusively an instrument inter vivos, The dos or donatio propter nuptias corresponds to a considerable extent with the marriage settlement, the instrument itself being represented by the dotale instrumentum or pacta dotalia. In the earliest period of Roman law no provision for the wife was required, for she passed under manus of her husband, and became in law his daughter, entitled as such to a share of his property at his death. In course of time the plebeian form of marriage by usus, according to which the wife did not become subject to manus, gradually superseded the older form, and it became necessary to make a provision for the wife by contract. Such provision from the wife’s side was made by the dos, the property contributed by the wife or some one on her behalf towards the expenses of the new household. Dos might be given before or after marriage, or might be increased after marriage. It was a duty enforced by legislation to provide dos where the father possessed a sufficient fortune. Dos was of three kinds: profectitia, contributed by the father or other ascendant on the male side; adventitia, by the wife herself or any person other than those who contributed dos profectitia; receptitia, by any person who contributed dos adventitia, subject to the stipulation that the property was to be returned to the person advancing it on dissolution of the marriage. The position of the husband gradually changed for the worse. From being owner, subject to an obligation to return the dos if the wife predeceased him, he became a trustee of the corpus of the property for the wife’s family, retaining only the enjoyment of the income as long as the marriage continued. The contribution by the husband was called donatio propter nuptias.[2] The most striking point of difference between the Roman and the English law is that under the former the children took no interest in the contributions made by the parents. Other modes of settling property in Roman law were the life interest or usus, the fideicommissum, and the prohibition of alienation of a legatum.

The oldest form of settlement in England was perhaps the gift in frankmarriage to the donees in frankmarriage, and the heirs between them two begotten (Littleton, § 17). This was simply a form of gift in special tail, which became up to the reign of Queen Elizabeth the most usual kind of settlement. The time at which the modern form of settlement of real estate came into use seems to be doubtful. There does not appear to be any trace of a limitation of an estate to an unborn child prior to 1556. In an instrument of that year such a limitation was effected by means of a feoffment to uses. The plan of granting the freehold to trustees to preserve contingent remainders[3] is said to have been invented by Lord Keeper Sir O. Bridgeman in the 17th century, the object being to preserve the estate from forfeiture for treason during the Commonwealth.[4] The settlement of chattels is no doubt of considerably later origin, and the principles were adopted by courts of equity from the corresponding law as to real estate.

Settlement in English law is, so far as regards real property, used for two inconsistent purposes—to “make an eldest son,” as it is called, and to avoid the results of the right of succession to real property of the eldest son by making provision for the younger children. The first result is generally obtained by a strict settlement, the latter by a marriage settlement, which is for valuable consideration if ante-nuptial, voluntary if post nuptial. But these two kinds of settlement are not mutually exclusive: a marriage settlement may often take the form of a strict settlement and be in substance a resettlement of the family estate. (See Conveyancing.)

In Scotland a disposition and settlement is a mode of providing for the devolution of property after death, and so corresponds rather to the English will than to the English settlement. The English marriage settlement is represented in Scotland by the contract of marriage, which may be ante- or post-nuptial.

In the United States settlements other than marriage settlements are practically unknown. Marriage settlements are not in common use, owing to the fact that most states long ago adopted the principles of the English Married Women’s Property Acts.

The word “settlement” is also used to denote such residence of a person in a parish, or other circumstances pertaining thereto, as would entitle him to obtain poor relief (see Poor Law). On the English Stock Exchange it is a term for the series of operations by which bargains are concluded, or carried over (see Account and Stock Exchange). The word is also applied generally to the termination of a disputed matter by the adoption of terms.

  1. In this English law allows greater freedom than French. By § 791 of the Code Napoleon, in a contract of marriage the succession to a living person cannot be renounced.
  2. See Hunter, Roman Law, p. 150; Maine, Early History of Institutions, Lect. xi.
  3. The appointment of such trustees was rendered unnecessary by acts of 1845 and 1877.
  4. See Joshua Williams, Papers of the Juridical Society, i. 45.