clauses, be excluded. 4 Will. 4, the meaning of this act of any such prior estate, in respect of c. 74, s. 28. which but for the two last preceding clauses, or either of them, he would have been the protector of the settlement, shall by virtue of such clauses, or either of them, be excluded from being the protector, then and in such case the person (if any) who, if such estate did not exist, would be the protector of the settlement, shall be such protector. Where, in the disposition of an estate before the 31st December, Tenant to the Præcipe to be Protector, when. 29. Provided always, and be it further enacted, that where already, or on or before the thirty-first day of December, one thousand eight hundred and thirty-three, an estate under a settlement shall have been disposed of either absolutely or othertenant to the writ wise, and either for valuable consideration or not, the person 1833, the person to make the of entry in a re covery shall be the protector. who in respect of such estate would, if this act had not been passed, have been the proper person to have made the tenant to the writ of entry or other writ for suffering a common recovery of the lands entailed by such settlement, shall, during the continuance of the estate which conferred the right to make the tenant to such writ of entry or other writ, be the protector of such settlement (d). (d) This and the following section of the act will render it necessary, where it is intended to bar an entail created on or before the 31st December, 1833, to ascertain in whom the immediate freehold of the lands is vested, in the same way as was required for determining who was the proper person for making a tenant to the præcipe in a recovery. (See ante, pp. 304, 314.) This section must be attentively considered in connection with the 27th, 30th and 31st sections. In Corrall v. Cattell (4 Mees. & W. 734, and see Cattell v. Corrall, 3 Y. & Coll. 413), a tenant in tail, in 1817, conveyed to trustees for the life of the tenant in tail upon certain trusts. The impression of the court seemed to be that the trustees were not protectors. Mr. Hayes (1 Conv. 177), and Lord St. Leonards (Sugd. R. P. Stat. 203), are of opinion that the trustees were protectors. (See s. 22, ante, p. 331.) Where in the case of the disposition 30. Provided always, and be it further enacted, that where any person having either already, or on or before the thirty-first or before the 31st day of December, one thousand eight hundred and thirty-three, of a reversion on of December, 1833, the person to make the tenant to the writ of entry in a recovery shall be the protector. either for valuable consideration or not, disposed of, either absolutely or otherwise, a remainder or reversion in fee in any lands, or created any estate out of such remainder or reversion, would, under this act, if this clause had not been inserted, have been the protector of the settlement by which the lands were entailed in which such remainder or reversion may be subsisting, and thereby be enabled to concur in the barring of such remainder or reversion, which he could not have done if he had not become such protector, then and in every such case the person who, if this act had not been passed, would have been the proper person to have made the tenant to the writ of entry or other writ for suffering a common recovery of such lands, shall, during the continuance of the estate which conferred the right to make the tenant to such writ of entry or other writ, be the protector 3 & 4 Will. 4, of such settlement. Bare Trustee to be Protector, when. 31. Provided always, and be it further enacted, that where, under any settlement of lands made before the passing of this act, the person who, if this act had not been passed, would have been the proper person to make the tenant to the writ of entry or other writ for suffering a common recovery of such lands for the purpose of barring any estate tail or other estate under such settlement, shall be a bare trustee, such trustee shall, during the continuance of the estate conferring on him the right to make the tenant to such writ of entry or other writ, be the protector of such settlement (e). (e) The husband of a married woman taking an estate for her separate use under a settlement is not a bare trustee under the settlement within this section. (Keer v. Brown, Johns. 138; 5 Jur., N. S. 457; 28 L. J., Chanc. 477. See ante, s. 24, p. 333, n.) Under this section a trustee, having the first immediate estate of freehold, will be protector of a settlement made before the passing of this act (28 Aug. 1833). Thus under a settlement containing a limitation to A. for ninety-nine years, if he should so long live, with remainder to trustees during the life of A. upon trust by the usual means to preserve contingent remainders, with remainder to the first and other sons of A. in tail; the trustees would be protectors of the settlement during the life of A., and their concurrence would be necessary for enabling the first tenant in tail to make an effectual disposition. (See Smith d. Dormer v. Packhurst, 3 Atk. 135; 2 Str. 1105; Andr. 315.) A bare trustee, who under this section is protector of a settlement, can insist on retaining the legal estate only so long as the purposes of the trust exist; that is, so long as, according to the rules of the Court of Equity, he is required to be a trustee. This section is intended to meet the case where there are contingent remainders, which the trustees were intended to protect, but not a case where there are no contingent remainders. Therefore where there was a devise of lands to trustees upon trust for the testator's daughter during her life, for her separate use without power of anticipation, with remainder to the use of her children as tenants in common in tail, with remainders over it was held, that the testator's daughter, having become discoverte and being sui juris, could compel a conveyance by the trustees of the legal estate. (Buttanshaw v. Martin, Johns. 89; 5 Jur., N. S. 647.) c. 74, s. 31. Where a bare settlement made before the passing the protector. trustee under a of this act shall be Power to appoint Protector. 32. Provided always, and be it further enacted, that it shall be lawful for any settlor entailing lands to appoint, by the settlement by which the lands shall be entailed, any number of persons in esse, not exceeding three, and not being aliens, to be protector of the settlement in lieu of the person who would have been the protector if this clause had not been inserted, and either for the whole or any part of the period for which such person might have continued protector, and by means of a power to be inserted in such settlement to perpetuate, during the whole or any part of such period, the protectorship of the settlement in any one person or number of persons in esse, and not being an alien or aliens, whom the donee of the power shall Power to any settlor to appoint the protector. 3 & 4 Will. 4, c. 74, s. 32. Trustee of executory settlement a settlor within this section. In cases of lunacy, the Lord Chan cellor or Lord Keeper, or Lords Commissioners, or other persons en trusted with lana tics, or in cases of treason or felony, &c., the Court of Chancery, to be the protector. think proper by deed to appoint protector of the settlement in the place of any one person or number of persons who shall die or shall by deed relinquish his or their office of protector; and the person or persons so appointed shall, in case of there being no other person then protector of the settlement, be the protector, and shall, in case of there being any other person then protector of the settlement, be protector jointly with such other person: provided nevertheless, that by virtue or means of any such appointment, the number of the persons to compose the protector shall never exceed three: provided further nevertheless, that every deed by which a protector shall be appointed under a power in a settlement, and every deed by which a protector shall relinquish his office, shall be void unless inrolled in his Majesty's High Court of Chancery within six calendar months after the execution thereof: provided further nevertheless, that the person who but for this clause would have been sole protector of the settlement, may be one of the persons to be appointed protector under this clause, if the settlor shall think fit, and shall, unless otherwise directed by the settlor, act as sole protector, if the other persons constituting the protector shall have ceased to be so by death or relinquishment of the office by deed, and no other person shall have been appointed in their place (ƒ). (f) The trustee of an executory settlement is a settlor within this section of the act, and as such is entitled to appoint a protector at his discretion. Shadwell, V.-C., said, "The act of parliament furnishes reasons why a protector should not be appointed by the court, unless upon a special case. By the 36th section the protector is made irresponsible, and is at liberty to act from mere caprice, ill-will or any bad motive. By the 37th section a protector is enabled to take a bribe for giving consent; and if two or three persons are made protector, and any one of them incurs a disability under the 33rd section, then it is questionable, at least, whether the Court of Chancery could act, in lieu of such person, with the other or others who are not disabled; and if it could not, there would be no protector capable of acting." (Bankes v. Le Despencer, 11 Sim. 508; see pp. 527, 528. 7 Jur. 210; Law J., 1843, Ch. 293.) Where Protector a Lunatic, &c. 33. Provided always, and be it further enacted, that if any person, protector of a settlement, shall be lunatic, idiot, or of unsound mind, and whether he shall have been found such by inquisition or not, then the Lord High Chancellor of Great Britain, or the Lord Keeper or the Lords Commissioners for the custody of the great seal of Great Britain for the time being or other the person or persons for the time being entrusted by the King's sign manual with the care and commitment of the custody of the persons and estates of persons found lunatic, idiot and of unsound mind, shall be the protector of such settlement in lieu of the person who shall be such lunatic or idiot, or of unsound mind as aforesaid (d); or if any person, protector of a settlement, shall be convicted of treason or felony, or if any person not being the owner of a prior estate under a settlement shall be protector of such settlement, and shall be an infant, or c. 74, s. 33. if it shall be uncertain whether such last-mentioned person be 3 & 4 Will. 4, living or dead, then his Majesty's High Court of Chancery shall be the protector of such settlement in lieu of the person who shall be an infant, or whose existence cannot be ascertained as aforesaid (h); or if any settlor entailing the lands shall, in the settlement by which the lands shall be entailed, declare that the person who as owner of a prior estate under such settlement would be entitled to be protector of the settlement, shall not be such protector, and shall not appoint any person to be protector in his stead, then the said Court of Chancery shall, as to the lands in which such prior estate shall be subsisting, be the protector of the settlement during the continuance of such estate; or if in any other case where there shall be subsisting under a settlement an estate prior to an estate tail under the same settlement, and such prior estate shall be sufficient to qualify the owner thereof to be protector of the settlement, and there shall happen at any time to be no protector of the settlement as to the lands in which the prior estate shall be subsisting, the said Court of Chancery shall, while there shall be no such protector, and the prior estate shall be subsisting, be the protector of the settlement as to such lands. (9) All the jurisdiction and all the powers and authorities of a judicial nature, given by "The Trustee Act, 1850," and by any other act of parliament then in force, to the Lord Chancellor, entrusted, by virtue of the Queen's sign manual, with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic or of unsound mind, shall belong to and may be exercised by all or any of the persons or person for the time being entrusted as aforesaid. (15 & 16 Vict. c. 87, s. 15; see 14 & 15 Vict. c. 83, s. 13.) Where the party has not been found a lunatic, &c. it will probably be referred to a Master in Lunacy to ascertain that fact, and whether the party, if of sound mind, would be protector of the settlement. (See post, note to section 48.) The Lord Chancellor of Great Britain, and not the Lord Chancellor of Ireland, is the protector of a settlement in the place of a lunatic of estates situate in Wales, although the party is resident in Ireland, and has been found lunatic by inquisition issued by the Lord Chancellor of Ireland. (In re Graydon, 14 Jur. 157; 1 Mac. & G. 655; 2 Hall & T. 182.) The cases as to the exercise by the Lord Chancellor of his power of consenting are stated in the note to sect. 48, post. (h) On the husband of a married woman, tenant for life under a settlement, being convicted of felony, the Court of Chancery becomes protector of the settlement. (In re Wainwright, 1 Phill. C. C. 258.) There is, however, an omission in this section of the case of a person convicted of treason or felony. But Lord Cottenham, C., thought that the omission must be supplied by implication, otherwise no effect can be given to the previous words, "if any person, protector of a settlement, shall be convicted of treason or felony." Now these words cannot be struck out of the act, and it is much more natural to supply the words "in lieu of the person who shall be convicted," than to adopt a construction which would deprive the preceding words of all meaning. ~ (Ib. pp. 261, 262.) As to the form of petition, evidence and order on an application to the court to consent as protector of a settlement to the barring of an entail, see In re Gravenor, 1 De G. & S. 700; Seton, 522, No. 1; and see Daniell's Ch. Pr. 1923; Seton, 525. S. Ꮓ & 4 Will. 4, c. 74, s. 34. Where there is a sent requisite to enable an actual tenant in tail to create a larger fee. IX. POWERS OF THE PROTECTOR. 34. Provided always, and be it further enacted, that if at the protector, his con- time when any person, actual tenant in tail of lands under a settlement, but not entitled to the remainder or reversion in fee immediately expectant on the determination of his estate tail, estate than a base shall be desirous of making under this act a disposition of the lands entailed, there shall be a protector of such settlement, then and in every such case the consent of such protector shall be requisite to enable such actual tenant in tail to dispose of the lands entailed to the full extent to which he is herein before authorized to dispose of the same; but such actual tenant in tail may, without such consent, make a disposition under this act of the lands entailed, which shall be good against all persons who, by force of any estate tail which shall be vested in or might be claimed by, or which but for some previous act or default would have been vested in or might have been claimed by, the person making the disposition at the time of his making the same shall claim the lands entailed (i). Advantage of consent to a conveyance. Power of consenting to sale not barred by donee tector to the bar of an entail. (i) The advantage attending the new mode, of making the first beneficial owner merely a consenting and not a conveying party will be, that he will be able to give his concurrence to the alienation by the remainderman in tail without affecting the powers or contingent rights or interests of the tenant for life, anterior to the estate tail to be barred, and without letting in the incumbrances of the remainderman, which without due caution were the consequences of the old rule. (See 1 Real Prop. Rep. 33.) Several ingenious contrivances had been adopted by conveyancers for avoiding those inconveniences, respecting which further information will be found in Co. Litt. 203 b, n. by Butl.; 1 Prest. Conv. 107-118; 2 Sand. on Uses, 207, 4th ed.; Pelham's case, 1 Rep. 14 b; Smith d. Richards v. Clifford, 1 T. R. 738; Doe v. Lord Mulgrave, 5 T. R. 320; Earl Jersey v. Deane, 5 B. & Ald. 575; Roper v. Halifax, 8 Taunt. 845; Doe d. Lumley v. Earl of Scarborough, 8 Ad. & Ell. 43. According to the strict rules of the common law, the over-reaching power of a fine "Sur conuzance de droit come ceo, &c." in divesting estates, and in extinguishing rights, powers, &c. was so inflexible that its operation could not be controlled even by the declared intention of the parties. It had, however, been recently decided that a fine might be prevented from operating beyond the particular purposes intended, provided such intention of the parties clearly appeared. (Earl Jersey v. Deane, 5 B. & Ald. 569; Tyrrell v. Marsh, 3 Bing. 31; S. C., 10 B. Moore, 305. See Sugd. on Powers, 71 -78, 8th ed.) A settlement, by which real estates were limited to the use of A. for life, with remainder to her son in tail, contained a power of sale and exchange to be exercised during the life of the tenant for life with her consent signiconsenting as pro- fied by writing under her hand and seal. By a disentailing deed, to which the tenant for life was a party, the tenant in tail, with the consent of his mother, the tenant for life, testified by her executing that deed, conveyed the settled estates subject to her life estate therein, and also other hereditaments of which he was tenant in tail in possession, to uses to bar dower in his own favour. This deed contained no recital of any contract, but in the operative part its object was stated to be in order to defeat the estate or estates tail of the tenant in tail in the hereditaments therein comprised, and all other estates, powers, rights and interests limited to take effect after the determination or in defeasance of such estate or estates tail, and to limit the fee simple in such hereditaments as to such parts thereof as were vested in the tenant for life, subject to her life estate therein to the uses thereinafter ex |