THE CONVEYANCER Decisions on the Law of Property Acts

THERE have now been about thirty reported decisions upon the new Law of Property Acts, and perhaps there would have been more but for the reluctance of parties to incur the expense of litigation which would enure largely for the benefit of other people. In the opinion of the present writer the following appear to be the most useful, but perhaps not the most important of such decisions, namely: (1) Re Clayton's Settled Estates (134 L. T. Rep. 568; (1926) 1 Ch. 279), in which it was decided that the expression "vesting deed " in the Settled Land Act 1925 included "vesting deeds," and therefore that it is not necessary that the whole of the settled land should be comprised in one single principal vesting deed, but the different parts of the settled land may be comprised in separate vesting deeds. Further that no vesting deed is required in the case of capital moneys. The Act only contemplates a vesting deed in respect of land, and capital moneys are not land. (2) Darlington v. Darlington (162 L. T. Jour. 139; (1926) W. N. 192), where it was decided that trustees for sale of an undivided share sufficiently represent such share, apart from the beneficiaries, for the purposes of sub-clause (11), par. 1, of Part IV. of the First Schedule to the Law of Property Act 1925; that is the clause which enables any person interested in more than one half of the land to apply to the court for an order staying proceedings in any partition action commenced before the Act. (3) Re Cliff (163 L. T. Jour. 321 ; (1927) W. N. 121), in which it was decided that trustees for sale were persons interested in three undivided fourth shares within the meaning of the First Schedule, Part IV., par. 1, sub-clause 4, of the Law of Property Act 1925. As pointed out by Mr. Justice Astbury, there might be a difficulty in saying that the trustees were now interested in the land after it had vested in the Public Trustee, but there could be no doubt that they were interested in the proceeds. Further there could be no doubt that they were interested in the income of the land. (4) Re Alefounder's Trusts (163 L. T. Jour. 74; (1927) W. N. 32), in which it was decided that, when a tenant in tail has barred his estate tail, he can dispose of the legal estate without a vesting deed having been previously executed in his favour. As pointed out by Mr. Justice Astbury, a tenant in tail is deemed to be a tenant for life, and the legal fee simple vests in him under the transitional clauses of the Law of Property Act 1925. If he bars the entail he puts an end to the settlement. The difficulty is caused by sect. 13 of the Settled Land Act 1925, which provided that where a life tenant had become entitled to have a principal vesting deed executed in his favour then, until a vesting instrument is executed pursuant to the Act in respect of the settled land, any purported disposition thereof inter vivos by any person, other than a personal representative (not being a disposition of his equitable interests under a trust instrument), should (with an immaterial exception) not take effect but operate in contract only. But that section did not apply for the following reasons: first, on the disentail in that case the land would cease to be settled land; secondly, a disposition under sect. 13 only meant a disposition under the Settled Land Act 1925. It was indeed difficult to see how a vesting deed containing the particulars required by sect. 5 could be made after the cesser of the settlement. (5) Re Brooker (161 L. T. Jour. 213; (1926) W. N. 93), in which it was decided that, having regard to sect. 28, sub-sect. 2, of the Law of Property Act 1925, the principle laid down in Howe v. Earl of Dartmouth (7 Ves. 137a) hitherto applied by Courts of Equity during the period of the postponement of the sale of leaseholds held on trust for sale was no longer applicable, and that the tenant for life was entitled to the net income actually produced. (6) Re Trollope's Will Trusts (163 L. T. Jour. 231; (1927) W. N. 77), in which it was held that the rule in Howe v. Lord Dartmouth still applied in the case of unauthorised investments, and accordingly that the tenant for life was only entitled, pending conversion, to interest on the capital value at the rate of £4 per cent. per

annum.

Tenants in Common for Life-Law of Property (Amendment) Act 1926

PRACTITIONERS are very apt to forget that joint tenants do not hold in undivided shares. Thus, if there are two or more persons of full age, for the time being beneficially entitled, under a settlement, to possession of land for life as joint tenants, they together constitute the tenant for life for the

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purposes of the Settled Land Act 1925 (sect. 19 (2). But if there are two or more persons so entitled as joint tenants, and they are not all of full age, such one or more of them as is or are for the time being of full age is, or (if more than one) together constitute, the tenant for life for the purposes of the Act; but this is not to affect the beneficial interests of such of them as are not for the time being of full age (sect. 19 (3). The case, however, is different where two or more persons are entitled as tenants in common. That state of things is provided for by Part IV., par. 1 (3) of the First Schedule to the Law of Property Act 1925, which provides that where immediately before the commencement of that Act land is held, at law or in equity, in undivided shares vested in possession the following provision shall have effect. If the entirety of the land is settled land (whether subject or not to incumbrances affecting the entirety or an undivided share), held under one and the same settlement, it shall by virtue of this Act vest free from incumbrances affecting undivided shares, and from incumbrances affecting the entirety, which under this Act or otherwise are not secured by a legal term of years absolute in the trustees (if any) of the settlement as joint tenants upon the statutory trusts." Provided that if there are no such trustees then, pending their appointment, the land is to vest (free as aforesaid) in the Public Trustee upon the statutory trusts; but he is not entitled to act unless requested in writing by persons interested in more than an undivided half of the land, or the income thereof. That provision, however, was modified by the following sub clause added to Part IV., par. 1, of the First Schedule to the Law of Property Act 1925, namely, "4. Where immediately before the commencement of this Act there are two or more tenants for life of full age entitled under the same settlement in undivided shares, and after the cesser of all their interests in the income of the settled land the entirety of the land is limited so as to devolve together (not in undivided shares), their interests shall, but without prejudice to any beneficial interest, be converted into a joint tenancy, and the joint tenants and the survivor of them shall, until the said cesser occurs, constitute the tenant for life for the purposes of the Settled Land Act 1925 and of this Act." By the same Act a slight alteration was made in the language of par. 1 (3), before cited, by substituting other words for “term of years absolute." The meaning of the words So as to devolve together (not in undivided shares) in the new sect. 4 are not always easy to construe. The question arose in the recent case of Re Colyer's Farningham Estate (163 L. T. Jour., p. 299), where the facts will be found. There Mr. Justice Tomlin decided that a limitation in default of appointment was not necessarily a limitation which passed the entirety, and accordingly that par. 1 (3) of Part IV. of the First Schedule to the Law of Property Act applied.

Lapse Substitutionary Gift-Wills Act, s. 33

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THERE has been a conflict of authority as to whether a testator can prevent lapse in the same manner as it is prevented by sect. 33 of the Wills Act (1 Vict. c. 26) which provided that where any person, being a child or other issue of the testator, died in the lifetime of the testator leaving issue, and any such issue should be living at the death of the testator, the devise or bequest should not lapse but should take effect as if the death of the devisee or legatee had happened immediately after the death of the testator, unless a contrary intention appeared by the will. In Re Gresley (104 L. T. Rep. 244; (1911) 1 Ch. 358) a testatrix by her will dated July 1881, in exercise of a general power, appointed a fund (subject to her husband's life interest) in trust for A., B., C., D., and E., her brother and sisters “or such of them as shall be living at the decease of the survivor of myself and my said husband Provided always if my said brother and sisters or either of them shall die in my lifetime or in the lifetime of my said husband leaving issue who shall be living at the decease of the survivor of myself and my said husband then the appointment lastly hereinbefore contained shall take effect as if my said brother and sisters respectively had died immediately after the death of myself and my said husband." The testatrix died on the 9th April 1900 and her husband on the 10th Nov. 1909. B. predeceased the testatrix leaving issue who survived the husband. It was held by Mr. Justice Swinfen Eady (as he then was) that the appointment to B. failed, and that B.'s issue were not entitled to share. His Lordship considered that it was an attempt to apply sect. 33 of the Wills Act to a case where it was not applicable. It will be observed that in that case there was no independent alternative gift to B.'s representative. In Re Clunies-Ross

(Mitchell v. Simpson, 63 L. T. Rep. 405; 25 Q. B. Div. 183). [Gilbert v. Gilbert and Bougher. Ct. of App.: Lord Hanworth, M.R., Scrutton and Sargant, L.JJ. May 30.— Counsel for the appellant, Bayford, K.C. and Hon. Victor Russell; for the respondent, Willis, K.C. and T. Bucknill. Solicitors Lewis and Lewis; Capron and Co.] Insurance (Unemployment)-Failure by employer to pay contributions-Summons before justices-Fines and order to pay contributions during preceding year-Civil proceedings by Minister for recovery of other unpaid contributions Claim of Minister cumulative, not alternative - Unemployment Insurance Act 1920 (10 & 11 Geo. 5, c. 30), s. 22, sub-ss. 2, 3, and 6.

Appeal from a decision of Rowlatt, J. (ante, p. 362) ọn an information at the suit of the Attorney-General. The defendant P. employed one L. between the 14th April 1924 and the 6th Feb. 1926, and one D. between the 7th July 1924 and the 6th Feb. 1926. A summons dated the 14th April 1926 was served upon the defendant requiring him to appear before the justices for failure to pay a contribution in respect of L. for a certain specified week. The summons was accompanied by a notice that in the event of his conviction evidence would be given of his failure to pay other contributions during the preceding year in respect of L. On the same date another summons and notice to substantially the same effect was served upon him for failure to pay contributions in respect of D. The summonses were heard at Wisbech. The defendant was convicted on each, and ordered to pay a fine of £2 10s. on each in addition to the contribution to which the summons related, and the other contributions referred to in the notices. These contributions amounted in all to £5 3s. 1d., and the defendant duly paid these and the accompanying fines. The total amount of the contributions which the defendant had failed to pay amounted in all to £10 15s. 11d. By information dated the 15th Oct. 1926 the Attorney-General claimed from the defendant £5 0s. 24d., that sum representing the entire amount of the unpaid contributions less the amount paid under the above orders, and the sum of 12s. 8d. for uncancelled insurance stamps. The defendant contended that the sum paid by him in accordance with the above order was paid under sect. 22, sub-sect. 3, of the Act of 1920, and should be treated as a payment in satisfaction of all unpaid contributions. By the Unemployment Insurance Act 1920, s. 22, sub-s. 2, an employer failing to pay contributions is liable to a fine not exceeding £10 for each offence. By sub-sect. 3 an employer so convicted shall be liable to pay to the unemployment fund a sum equal to the amount which he has so failed or neglected to pay, and on such a conviction, if notice of the intention to do so has been served with the summons or warrant, evidence may be given of . . . failure pay other contributions in respect of the same person during the year preceding the date when the information was so laid, and on proof of such failure . the employer shall be liable to pay to the unemployment fund a sum equal to the total of all the contributions which he is so proved to have failed or neglected to pay. Any sum paid by an employer under the foregoing provision shall be treated as a payment in satisfaction of the unpaid contributions. By sub-sect. 6: "Nothing in this section shall be construed as preventing the Minister from recovering any sums due to the unemployment fund by means of civil proceedings, and all such sums shall be recoverable as debts due to the Crown, and without prejudice to any other remedy may be recovered by the Minister summarily as a civil debt." Rowlatt, J. held that the Minister, having elected to take proceedings before the justices and having recovered certain unpaid contributions, that was his only remedy, and he could not take civil proceedings to recover other unpaid contributions, the remedy given by sub-sect. 6 being an alternative to that given by sub-sect. 3. The Minister of Labour appealed.

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Held, that the appeal must be allowed. The latter words of sub-sect. 6 appeared plainly to indicate that the rights of the Minister were cumulative, and that, even if he had recovered some contributions under sub-sect. 3, he could still take civil proceedings to recover any other unpaid contributions as a debt due to the Crown. A sum paid by the employer under sub-sect. 3 must be taken in satisfaction of “the unpaid contributions,” i.e., the contributions the non-payment of which he had given Third Sheet

notice of his intention to prove, and not necessarily all unpaid contributions.

[Attorney-General v. Paine. Ct. of App.: Lord Hanworth, M.R., Scrutton and Sargant, L.JJ. May 24.Counsel Sir Thomas Inskip, K.C. (S.-G.) and C. W. Lilley; Linton Thorp. Solicitors: Solicitor for Ministry of Labour; Withers, Benson, and Co., for Metcalfe, Copeman, and Pettefar, Wisbech.]

Will-Letters of administration-Will propounded twenty years after death-Signature of testatrix and witnesses proved-Executrix of will had will in her possession for twenty years-On her death will found No authorised revocationWill pronounced for-Wills Act 1837 (1 Vict. c. 26), ss. 18, 19, 20.

This was an appeal from a decision of Hill, J., given on the 12th April 1927, refusing to grant probate of a document dated the 9th Sept. 1890 propounded as the will of L. M., a spinster, who died on the 16th March 1905. The plaintiff propounded the will of the 9th Sept. 1890 as the legal personal representative of his wife who was named as the sole beneficiary under the will, and who had died on the 16th July 1925. E. D. was appointed executrix by the will and she knew of the death of L. M. in 1908, but it was not until after her death in April 1924 that, in 1925, the plaintiff opened a desk formerly belonging to E. D. and in it found the will propounded. The plaintiff also asked for the revocation of a grant of administration de bonis non made on the 13th March 1925 to the defendant. On the 9th May 1905 letters of administration to L. M.'s estate had been granted to her brother as her next of kin. The estate was of the value of about £6000. The testatrix's brother died in 1924, appointing the defendant his executrix and residuary legatee. He left a small part of L. M.'s estate unadministered. The defendant put the plaintiff to the proof of the due execution of the will and the testatrix's knowledge and approval of its contents. The document propounded was a printed will form, and Hill, J. found that the signature to it had been proved to be that of L. M., and that the signatures of the two attesting witnesses had also been proved, but he was unable to satisfy himself whether the written words filling in the blanks in the printed form were in the handwriting of the testatrix. Hill, J. pronounced against the will on the grounds that the testatrix had entirely forgotten that she had ever executed it, and that it did not represent her testamentary wishes at the time of her death, and he thought that it was a very suspicious circumstance that E. D., though she knew of the death of the testatrix in 1908, did not propound the will, tending to show that she did not believe the will was properly executed.

Held, that no suspicion attached to the will itself and no exception to it could have been taken if produced immediately on the death of L. M., therefore the presumption was omnia rite esse acta, and that presumption was sufficient to establish that the testatrix knew and approved of the contents of the will when executed; the suspicion arose at a later date as to the conduct of the executrix in not putting the will forward, but no mere conduct of the executrix could stop the effect of the will, as once there was established a good will it could not be disposed of except by one of the authorised ways of revocation (Wills Act 1837, ss. 18, 19, and 20), therefore the appeal must be allowed and judgment given pronouncing for the will and revoking the grant of adminstration de bonis non: (Burgoyne v. Showler, 1 Rob. 5, 10) applied.

[Re Musgrove; Davis v. Mayhew. Ct. of App.: Lord Hanworth, M.R., Sargant and Lawrence, L.JJ. May 16, 17, and June 2.-Counsel: for the appellant, G. C. Tyndale and R. G. Wavell-Paxton; for the respondent, D. Cotes-Preedy, K.C. and Noel Middleton. Solicitors for the appellant, Scott, Bell, and Co.; for the respondent, E. F. Hunt, for Farrington and Winterton, Brighton.]

CHANCERY DIVISION Trustees Practice Trustee-beneficiary - Separate counsel Separate sets of costs.

The defendants, J. and P., were trustees of a settlement made in 1881 by virtue of which, in the events which happened, they became possessed of certain property upon trust as M. should by will appoint. The plaintiff, as administrator of the estate of the settlor, who died in 1885,