UNDER A POWER IN

A WILL.

or any of them, by reason of the said A. B. and C. D. not hvaing raised the said sum of £5000 pursuant to the directions for that purpose contained in the said recited will of the said deceased, or by reason of any other matter or thing relating to the said sum, or to the interest thereof. IN WITNESS, &c.

IN PLACE OF

DECEASED

AND RETIR

ING TRUS-
TEES.

Parties.

ment.

No. LXXVII.

APPOINTMENT of NEW TRUSTEES in pursuance of a
Power contained in a MARRIAGE SETTLEMENT.

THIS INDENTURE, made the

day of

BETWEEN

D. P., of &c. of the first part, W. B., of &c. of the second part, and Recite settle- S. B., of &c. and C. M., of &c. of the third part [recite settlement whereby £3000 was vested in A. F. and W. B. upon the trusts therein mentioned, which are shortly recited, with a full statement Death of one of the power of changing trustees] : AND WHEREAS the said A. F. of trustees. departed this life on the and the said W. B. only trustee of the said

of a portion

monies.

day of thereupon became, and now is, the indenture: AND WHEREAS the said this life on the day of

[husband] departed

leaving the said D. P., his

wife, and V. P. and G. P., the only children of the said marAppointment riage, and no other issue: AND WHEREAS by an indenture of trust bearing date the day of the said D. P. of the one part, and the said V. P. of the other part, and made or expressed to be made between [parties], she the said D. P. appointed the sum of £500, part of the sum of £3000 settled by the said recited indenture as aforesaid, unto the said V. P. absolutely, and the said sum of £500 has since been paid by Investment the said W. B. accordingly: AND WHEREAS the sum of £trust monies. part of the said sum of £2500, hath been advanced by the said W. B. on mortgage of certain hereditaments, situate, &c., made by an indenture bearing date the day of

of residue of

and made

IN PLACE OF

AND RETIR

ING TRUS

TEES.

discharged.

and securities

to new trus

or expressed to be made between [parties] and the sum of £, other part thereof, hath also been advanced by the DECEASED said W. B. on the security of a mortgage of certain hereditaments, situate, &c., made by an indenture bearing date the day of and made or expressed to be made between [parties], and the sum of £, residue thereof, hath been likewise advanced by the said W. B. on a mortgage of other hereditaments, situate, &c.: AND WHEREAS the said W. B. Desire of surviving is desirous of being discharged from the trusts reposed in him trustee to be by the said recited indenture of settlement, and the said D. P., in pursuance of the powers given to and vested in her by the same indenture, hath determined to appoint the said S. B. a trustee of the same indenture in the place or stead of the said A. F. deceased, and the said C. M. to be a trustee thereof in the place or stead of the said W. B., for all the purposes and with all the powers and authorities for and with which the said A. F. and W. B. were respectively thereby appointed trustees thereof: AND WHEREAS it is intended, and hath been agreed, Trust monies that the several sums of £—, £- and £, and the to be assured interest thereof, and the securities for the same, shall imme- tees. diately after the execution of these presents be assured and transferred by the said W. B. unto the said S. B. and C. M., and be held by them, their executors, administrators and assigns, upon the trusts hereinbefore mentioned or referred to: NOW THIS INDENTURE WITNESSETH, that in pur- Appointment suance of and for effectuating the said recited determination, trustees. she the said D. P., pursuant to and by force and virtue and in exercise and execution of the powers and authorities for this purpose given to or vested in her by the said recited indenture of settlement, and of every other power and authority in anywise enabling her in this behalf, hath nominated and appointed, and by this writing under her hand and seal, and attested as to her signing, sealing and delivering the same by the two credible persons whose names are hereupon indorsed as witnesses attesting the execution of these presents, doth by these presents nominate and appoint the said S. B. to be a trustee of the said trust monies and premises comprised in or subject to the said recited indenture of settlement in the place and stead of the said A. F. deceased, and the

of two new

IN PLACE OF

AND RETIR

TEIS.

that new

hold trust monies on

said C. M. to be a trustee thereof in the place and stead of the DECEASED said W. B., upon and for the trusts, intents and purposes, ING TRUS- and with the powers and authorities upon, for and with which the said A. F. and W. B. were respectively appointed trustees by the same indenture, or such of them as still remain to be performed: AND THIS INDENTURE ALSO WITNESSETH, that for further effectuating the said recited determination, it is hereby declared and agreed by and between the Declaration said parties to these presents that the said three several sums trustees shall of £, £—— and £, and the interest due and to become due in respect thereof, and the several securities for the same, shall, when so assured and transferred as aforesaid, be held by them the said S. B. and C. M., and the survivor of them, and the heirs, executors or administrators of such survivor, their or his assigns (as the case may be), upon and for such of the trusts, intents and purposes, and with, under and subject to such of the powers, provisoes, agreements and declarations in and by the said hereinbefore recited indenture of the of expressed, declared and contained of and concerning the same, as are now subsisting, undetermined and capable of taking effect or being performed. IN WITNESS, &c.

trusts of settlement.

day

397

DISENTAILING ASSURANCES.

tenant in tall

or remainder.

of base fees.

A TENANT in tail in possession can convert his Powers of a estate tail into a fee simple by a deed of disposition in possession. under the Fines and Recoveries Act (3 & 4 Wm. 4. c. 74.); but where the entail is preceded by a life estate, the tenant in tail is unable to create any larger estate than a base fee without the consent of the tenant for life. And in other cases, where there Enlargement is a protector of the settlement, his consent is requisite to enable a tenant in tail to create any larger estate than a base fee, unless where the tenant in tail is entitled to the immediate reversion in fee, in which case the base fee is at once enlarged into a fee simple. (See ss. 15, 35 and 39 of 3 & 4 Wm. 4. c. 74.)

tenant in tail to enlarge base fee.

A tenant in tail who has enlarged his estate tail Power of into a base fee, is in a position, of his own authority, to convert such base fee into a fee simple by a deed of disposition under the act, so soon as there ceases to be a protector of the settlement. (Sect. 19.)

General rule as to the person who

shall be pro

tector.

The general rule laid down by the act as to protectors is, that where there shall be a tenant in tail under a settlement, there shall be subsisting under the same settlement any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years) prior to the estate tail, then the owner of the prior estate, or the first of such prior estates if more than one, then subsisting under the same settlement, or the person who would have been so if no absolute disposition thereof had been made (the first of such prior estates, if more than one, being for all the purposes of the act deemed the prior estate), shall be the protector of the settlement, and shall be deemed the owner of such prior estate, although the prior estate may have been charged by the owner thereof, or by the settlor, or otherwise howsoever, and although the whole of the rents and profits be required for the payment of the charges thereon, and although such prior estate may have been absolutely disposed of by the owner thereof, or by or in consequence of the bankruptcy or insolvency of such owner, or by any other act or default of such owner, and that an estate by the curtesy, in respect of the estate tail, or of any prior estate created by the same settlement, is to be deemed a prior estate under the same settlement, and that an estate by way of resulting use or trust, to or for the settlor, is also to be deemed an estate under the same settlement. (Sect. 22).

The reader is referred to the ten following sections of the act for the further provisions respecting pro

tectors.