21 & 22 Vict. c. 77, s. 1. Definitions of "Building lease" to include repairing lease. Powers of leasing to extend to copyhold and cus manors. LEASES AND SALES OF settled ESTATES 21 & 22 VICTORIA, c. 77. An Act to amend and extend the Settled Estates Act of 1856. [2nd August, 1858.] WHEREAS it is expedient to amend and extend the Settled Estates Act of 1856 (nineteenth and twentieth Victoria, chapter one hundred and twenty), in certain particulars: be it enacted, as follows: 1. For the purposes of the definitions of "settlement" and "settled estates" contained in the first section of the said act, all estates or interests in remainder or reversion not disposed of by the settlement, and reverting to a settlor, or descending to the heir of a testator, shall be deemed to be estates coming to such settlor or heir under or by virtue of the settlement (a). (a) See ante, p. 686. 2. The term "building lease" in the said act shall be deemed to include a repairing lease, so that no repairing lease shall be made for a term exceeding sixty years (b). (b) See ante, p. 687. 3. All the powers to authorize and to grant leases contained in the said act and this act shall be deemed to include powers tomary tenants of to the lords of settled manors to give licences to their copyhold or customary tenants to grant leases of lands held by them of such manors to the same extent and for the same purposes as leases may be authorized or granted of freehold hereditaments under the said act and this act. Extension of power under sect. 2 of recited building leases (c). 4. The power given to the court by the second section of the said act to extend the term thereby prescribed for building act as to term for leases, where it shall be satisfied that it is the usual custom of the district, and beneficial to the inheritance, to grant building leases for longer terms, shall be extended and may be exercised with respect to all the other leases in the same section mentioned, except agricultural leases, provided the court shall be satisfied that it is the usual custom of the district and beneficial to the inheritance to grant such leases for longer terms. leases (d). (c) See ante, p. 687. As to surrender of 5. The power conferred by the fifth section of the said act to surrender leases granted under the provisions of the said act shall be deemed to extend to all leases, whether granted in pursuance of the said act or otherwise. (d) See ante, p. 689. 6. Whenever a married woman is resident out of the jurisdiction of the Court of Chancery of England or the Court of Chancery of Ireland respectively, as the case may be, her examination, under the thirty-eighth section of the act, may be made by any person appointed for that purpose by the court, whether he is or is not a solicitor of the court; and the appointment of any such person, not being a solicitor, shall afford conclusive evidence that the married woman was at the time of such examination resident out of the jurisdiction of the court (ƒ). (e) See ante, s. 38, p. 700. (f) The decision in Turner v. Turner (2 De G. & J. 534), led to the introduction of this section. 7. The power contained in the said act to make and rescind general rules and orders shall extend to the matters to which this act relates; and such rules and orders may, so far as may be found expedient, alter the procedure prescribed by the said act and this act (g). (g) See ante, s. 30, p. 698. 8. In addition to the persons expressly enumerated in the thirty-third section of the said act against whom demises authorized by the thirty-second section are to be valid, such demises, in the case of unsettled estates, shall be valid against the wife of any husband making such demise of estates to which he is entitled in right of such wife (h). (h) See ante, p. 699. LEASES AND SALES OF SETTLED ESTATES 27 & 28 VICToria, c. 45. An Act to further amend the Settled Estates Act of 1856. [14th July, 1864.] c. 45, 8. 1. WHEREAS by the tenth section of the act passed in the par- 27 & 28 Vict. liament holden in the nineteenth and twentieth years of her Majesty's reign, intituled "An Act to facilitate Leases and Sales of Settled Estates," it was enacted, that when the Court of Chancery should deem it expedient that any general powers of leasing any settled estates, conformably to the said act, should be vested in trustees, it might, by order, vest any such power accordingly either in the existing trustees of the settlement, or in any other persons, and that in every such case the court, if it should think fit, might impose any conditions as to 27 & 28 Vict. c. 45, s. 1. Conditions that leases shall be settled by the court not to be inserted in orders recited act. consents or otherwise on the exercise of such power: and whereas, in order to protect the interests of persons interested in the settled estates affected by such powers, the practice of the said court has been to require that leases granted in pursuance of a power vested in any trustees or other persons, under the provisions of the said tenth section of the said act, should be settled by the said court, or by a judge thereof, or otherwise should be made conformable with a model lease, deposited in the chambers of the judge: and whereas the introduction of such a condition has been found to occasion delay and expense and so to create great difficulties in carrying into execution the objects of the act, and such conditions may in general be safely omitted, and it is therefore expedient that the said act should be amended as hereinafter mentioned: be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. In orders to be hereafter made under the said tenth section for vesting any powers of leasing in any trustees or other persons, no condition shall be inserted requiring that the leases under sect. 10 of thereby authorized should be submitted to or be settled by the said court or a judge thereof, or be made conformable with a model lease deposited in the judge's chambers, save only in any case in which the parties applying for the order may desire to have any such condition inserted, or in which it shall appear to the court that there is some special reason rendering the insertion of such a condition necessary or expedient (a). Conditions already inserted may be struck out by court. (a) As to this and the following section, see ante, p. 690. 2. In all cases of orders already made in pursuance of the said tenth section, in which any such condition as aforesaid has been inserted, it shall be lawful for any party interested to apply to the court to alter and amend such order, by striking out such condition, and the court shall have full power to alter the same accordingly, and the order so altered shall have the same validity as if it had originally been made in its altered state; but nothing herein contained shall make it obligatory on the court to act under this clause in any case in which, from the evidence which was before it when the order sought to be altered was made, or from any other evidence, it shall appear to the court that there is any special reason why in the case in question such a condition is necessary or expedient (b). (b) Where an order had been made authorizing leases to be granted by trustees, a condition that the leases should be granted with the approbation of the judge in chambers was struck out, and the following words inserted: "The Lord Chancellor doth not think fit to insert a condition requiring the leases thereby authorized to be submitted to or settled by the court, or a judge thereof, or to be made conformable with a model lease deposited in a judge's chambers." (Re Hoyle, 12 W. R. 1125.) Where an order had been made vesting in trustees powers of granting mining leases, a clause requiring the lease to be settled at chambers was expunged. (Re Dorning, 14 W. R. 125.) 27 & 28 Vict. c. 45, s. 3. Removal of doubts as to construction of sect. 1 of recited 3. And whereas doubts are entertained whether, in the construction of the first section of the said act, the court is bound by the state of facts existing at the period of the settlement taking effect, or by the state of facts at the time of an application to the court under the said act, and it is desirable that such act. doubts should be removed: be it enacted, that the said court, in determining what are settled estates within the said act, shall be governed by the state of facts and by the trusts or limitations of the settlement at the time of the said settlement taking effect (c). (c) See ante, p. 687. 4. This act shall be construed and dealt with as part of the said former act as amended by the act of the twenty-first and twenty-second years of her Majesty's reign, chapter seventyseven, and all proceedings under this act shall be subject to the same rules and orders, and shall be conducted in the same manner, as proceedings under the said former acts. 5. This act shall extend to Ireland but not to Scotland. Act to be con strued with re cited act. Extent of act. ORDERS MADE UNDER 19 & 20 VICT. c. 120. [Consolidated Orders of the Court of Chancery, Order XLI. rules 14-25.] Proceedings under the statute 19 & 20 Vict. c. 120, relating to leases and sales of settled estates:(14.) Every petition under the act and every public and private notice required by the act shall set forth the name, address and description of the petitioner, and also a place in London, Westminster, or the borough of Southwark, or within two miles from the record and writ clerks' office, where he may be served with any order of the court or of the judge in chambers, or notice relating to the subject of the petition. (15 Nov. 1856, Ord. 1.) (a) (a) Advertisements were held sufficient where the addresses of some of the petitioners were omitted. (Re Bourne, 16 W. R. 1115; Re Whiteley, L. R., 8 Eq. 574; Re Snell, 19 W. R. 1000; Re Burley, W. N. 1868, p. 148.) Name, &c. of and place for service on petitioner. (15.) All petitions and notices, and also all affidavits and other Title of petitions, proceedings under the act shall be entitled in the matter of the act &c. under the act, and in the matter of the property in question, mentioning the county and parish or place in which it is situate, and describing it by general terms, and every such petition shall be marked with the words "Master of the Rolls," or with the title of the vice-chancellor before whom it is intended to be heard. (15 Nov. 1856, Ord. 2.) (b) (b) See the title of the petitions given in Dan. Ch. Forms, 2054, 2055. The particular settlement need not be specified, provided the property be sufficiently identified and shown to be under settlement. (Re Thompson, Johns. 418.) The title of the advertisements must correspond exactly with the title of the petition. (Re Bateman, 13 W. R. 513.) But slight discrepancies have been disregarded. (Re Nune, W. N. 1867, p. 109; Re Bicknell, L. R., 14 Eq. 467, and the cases quoted under rule 14, sup.) 19 & 20 Vict. c. 120. (16.) After any such petition has been presented, application may be made ex parte, and in chambers, to the judge before whom it is intended to be heard, for directions in what newspapers the notices Advertisements. required by the act are to be inserted. (15 Nov. 1856, Ord. 3.) (c) Time for motions under sect. 20, service of order thereon. Application for copy of petition, how made. Delivery and payment of copy. Petition, when heard. (c) As to the mode in which the direction of the judge is to be obtained, see Regul. 8 Aug. 1857, r. 23, post. Where the petition is amended, the court will not necessarily direct fresh advertisements to be issued unless the amendment involves new facts and new parties, so as to give the petition a new character. (Re Bunbury, 13 W. R. 370; Ex parte Puzley, I. R., 2 Eq. 237.) Fresh advertisements have been dispensed with in several cases. (Re Horton, 34 Beav. 386; Re Corbet, W. N. 1866, p. 318; Re Wilkinson, L. R., 9 Eq. 71; Re Marshall, L. R., 15 Eq. 66; Re Wilkinson, 21 W. R. 537.) Where a leasing power had been granted to a tenant who died, and a petition was presented by the succeeding tenant for life and her husband, praying that the power might vest in one of the trustees of the will under which she claimed: it was held, under the circumstances, that the advertisements need not be repeated. (Re Kentish Town Estate, 1 J. & H. 230.) Advertisements were also dispensed with in the case of a petition that a power of leasing given to trustees of a will by a former order might be transferred to a tenant for life who had recently attained his majority. (Wheeler v. Tootel, 16 W. R. 273. See Re Wilkinson, L. R., 9 Eq. 71.) For the usual directions as to advertisements, see Dan. Ch. Pr. 1844; Browne v. Pennefather, 4 N. R. 221. In bespeaking the order, the newspapers containing the advertisements, and any interlocutory orders which may have been made relating thereto, must be left with the registrar. (33rd Regul. 15 March, 1860.) (17.) Motions under the 20th section of the act may be made ex parte within seven clear days after the publication of the advertisement which may be last inserted in the newspaper, but not later, except by special leave of the court, and every order made on any such motion must be served on the petitioner within four days after the making thereof. (15 Nov. 1856, Ord. 4.) (d) (d) Where the seven days has expired some sufficient excuse must be given for not applying in time. It is sufficient excuse that the applicant was out of the jurisdiction. (Re Merry, 14 W. R. 665.) For order giving leave to appear, see Seton, 529. (18.) If the person obtaining such order shall require a copy of the petition such person shall at the time of serving such order make a written application to the petitioner for such copy, with an undertaking to pay all proper charges for the same. (15 Nov. 1856, Ord. 5.) (19.) Within two clear days after such application a copy of the petition shall be ready to be delivered, and shall be delivered on demand, and on payment for the same after the rate of fourpence per folio. (15 Nov. 1856, Ord. 6.) (20.) No petition under the act shall be set down for hearing until after the expiration of twenty-one days from the publication of the last of the advertisements. (15 Nov. 1856, Ord. 7.) (e) (e) Where a petition is presented under the act 19 & 20 Vict. c. 120, before it can come on to be heard, the secretary of the Lord Chancellor must certify that the advertisements ordered have been inserted, and that the twenty-one days since the last advertisement required by the General Order XLI., r. 20, have expired. (Re Blake, 6 Jur., N. S. 724; 8 W. R. 539; Re Mallin's Settled Estate, 3 Giff. 126; 6 Jur., N. S. 809.) Where the publication of the last of the advertisements required by the act would not expire in time to allow the twenty-one days necessary to elapse before setting down the petition for a hearing, so that the petitioner would be thrown over the long vacation, the court allowed the petition to be |