seised in fee of a house and orchard, died, leaving a wife, and a son by a former wife, who was then a soldier and absent; the widow entered upon the house and orchard, and kept possession of them for many years, when she married a second time, and had two children by her husband, who then died; the son of the first husband then claimed the property and sold his interest in it: the court held that although the widow had but a mere right to dower, and no right to enter as tenant in dower until dower assigned, yet she had a right by law to remain in the house for forty days after her first husband's death, during which she was irremovable, and thereby gained a settlement; but that settlement she could not communicate to her second husband or to the children she had by him (¿). So, where a man residing in Upton, under a certificate from Long Wittenham, purchased a cottage in Upton for 51., and resided in it with his wife and family several years, when he died; the wife and children were then ill of the small-pox, and remained in the house for seven weeks, when they were removed to Long Wittenham: the court, however, held that as the widow was entitled to her quarantine, and was therefore irremovable from the house during forty days, she thereby gained a settlement (k). But where a man, having a freehold estate liable to dower, mortgaged it and died; the heir was an idiot, and no dower was actually assigned; but the mortgagee, who received the rents, paid the widow one-third of each half-year's rent as soon as he received it; and she resided more than forty days in the parish where the estate was situate, whilst she was thus in receipt of the third of the rents: the court held that she gained no settlement by residing in the parish in which the estate was situate; she had no estate whatever, legal or equitable, in the land, her legal right being to have dower assigned, and her equitable right merely to have an account of the rents and profits, but she had no estate whatever in the land (7).

Estate for years.] Where a man had a leasehold for a term of fifty years, of the yearly value of 51., but for which he paid the rent of 6d. only; he resided upon it many years, and then sold it for 327.: the court held that he thereby gained a settlement; he resided upon his own property more than forty days, and his having afterwards sold it, made no difference (m). So, where a man purchased a leasehold house and premises for 1,5751. for an unexpired term of 94 years, subject

(i) R. v. Painswick, Burr. S. C.

783.

R. v. Long Wittenham, 2
330.

(1) R. v. Northweald Bassett, 2 B. & C. 724.

(m) R. v. St. Mary, Whitechapel, Burr. S. C. 55; and see Mursley v. Grandborough, 1 Str. 97, post.

to a rent of 150 guineas a year, it was holden that he would have acquired a settlement by it, if he had continued to reside upon it (n).

Joint tenancy or tenancy in common.] Joint tenants and tenants in common gain a settlement by estate, in precisely the same cases as those who are entitled in severalty. Therefore, where the pauper was tenant in common with his mother and sisters of a small freehold estate in St. Clure, and he resided with them upon it until he was about ten years old; he then went to St. Nyott's, where he resided until he was twenty, and had gained a settlement by hiring and service; he then returned to St. Clure, and worked as a day-labourer, sometimes residing upon the estate with his mother, sometimes at other places in the same parish, and sometimes in other parishes, for about three years, when he sold his share in the property: the court held that his settlement was in St. Clure (o).

Estate in remainder or reversion.] In order to gain a settlement by estate, the party must have a present interest in it: an estate in remainder or reversion is not sufficient for that purpose. And therefore where the pauper, having 1057. left to him by his father's will, settled the interest of it upon his mother for life, and the principal to be paid to himself after her death; he afterwards purchased two houses with this money, but had them conveyed to his mother for life, remainder to himself in fee; he lived in one of the houses, and let the other to a tenant, receiving the rent himself, and paying to his mother the interest upon the 1057. only; and in three years he sold the property, the mother joining in the conveyance, but he alone received the purchase money, and did not account with his mother for any part of it: the court held that the pauper gained no settlement by this estate; he had but a remainder, and to gain a settlement the party must have a present interest (p). So, where a man devised an estate A. to his heir-at-law in fee, and estate B. to his daughter-in-law, the mother of the pauper, for life, if she continued a widow, and after her decease or marriage he devised the property B. and another property C. to the pauper and others as tenants in common; and the question was, whether the pauper took a present interest in the property C., for it was admitted, that if he took only in remainder, he gained no settlement by it: the court held that he took but a remainder after the death or marriage of his mother, and in the mean time the estate went

(n) R. v. St. Giles-in-the-Fields, 2 Q. B. 446; 11 Law J. 18, m. (0) R. v. St. Nyott's, Burr. S. C. 132; 2 Str. 1116.

(p) R. V. Willoughby with Sloothby, 10 B. & C. 62.

to the heir-at-law; and that the pauper therefore gained no settlement (p).

Title by descent.] Where an estate comes to the heir-atlaw, he is entitled to a settlement by residing during forty days upon it or in the same parish in which it is situate. Where a woman seised in fee of a messuage, garden and land in Tirley, married a man by whom she had a boy and a girl, and died; the husband then removed with the children to Hasfield, where he gained a settlement by renting a tenement, and then died; the children then went to reside with their grandfather in Tirley, and resided there more than forty days, when they were removed to Hasfield: the court held that as to the girl, she was properly removed, because Hasfield was her father's last place of settlement; but as to the boy, he was settled in Tirley, having resided there forty days with his grandfather, after he had become entitled to the estate there as heir-at-law to his mother (q). So, where the pauper in 1782 resided in a house belonging to his grandfather, and in 1783 the grandfather died, leaving the pauper's mother his heir-atlaw; in 1786 the mother died, her husband surviving her, and the pauper being her heir-at-law; after which the pauper continued to occupy the house for more than forty days; it was contended that the father was tenant by the curtesy, and the pauper therefore had no present estate in the house which could confer a settlement: but the court held that as the mother never reduced the estate into possession, the father had no title to it as tenant by the curtesy; the pauper therefore had it by descent, and consequently gained a settlement by a residence of forty days upon it (r).

Title by devise.] The devisee of an estate may gain a settlement by residing on it, or in the same parish with it, forty days, even although it be an estate for years, under the yearly value of 101. Therefore where a man, having a lease of a cottage, at a rent, devised it to his son, on condition that he should pay a small annuity to his mother, and he made the son his sole executor; the son accordingly proved the will, and entered into possession of the cottage, but it did not appear that he paid the annuity to his mother; he was afterwards removed to the place of his former settlement: but the court held that he could not be removed from the property thus devised to him, even although it was merely leasehold (s).

(p) R. v. Ringstead, 9 B. & C. 218.

(q) R. v. Hasfield, Burr. S. c. 147; 2 Str. 1131.

(r) R. v. Great Farringdon, 6 T. R. 679.

(8) R. v. Sundrish, 2 Str. 983; Burr. S. C. 7.

So, where a man who was tenant from year to year of a cottage and land at Enson, under the annual value of 107., bequeathed all his property to the pauper, his son-in-law, in trust to pay a small annuity to the testator's wife during life, and after her death to divide the whole among his children, and he made the pauper his executor; after the testator's death, the pauper entered upon the possession of the house and land, bought and sold every thing, and maintained the widow for three years, and until he himself was removed, by order, to the place of his former settlement: the court held that he gained a settlement at Enson by his residence in the cottage, saying that it had already been decided that the devisee of a leasehold estate, though under the annual value of 101., may gain a settlement by it; though a man cannot gain a settlement by taking a tenement of a less yearly value than 101., or by the purchase of a tenement for less than 301., yet if such an estate come to him by operation of law, he may gain a settlement by forty days' residence upon it, or in the same parish with it (t).

Title by purchase.] A man may gain a settlement by residing forty days upon, or in the same parish with, an estate, which has come to him by purchase, either in the legal and technical sense, or according to the common acceptation, of that term. Formerly if a man bought an estate, no matter how small the amount of the purchase money, he not only was irremovable from it, or from the parish in which it was situate, but he gained a settlement by residing upon it or in the parish for forty days (u). And this is still the case, if the purchase money paid amount to 301. or upwards. But if it do not amount to that sum, the purchaser shall not be deemed to be settled in such parish for any longer or further time than he shall inhabit upon such estate, after which he may be removed to the parish or place in which he was last legally settled (r). This subject will be fully considered under the next head (y).

Estate of trustee and cestui que trust.] Where an estate is vested in a trustee, as he has the legal estate in it, he may gain a settlement by residing on it, or in the same parish in which it is situate. Where a man having amongst other property a cottage and land at Enson which he rented as tenant From year to year, and which was under the value of 101. a year, bequeathed the whole of his property to his son-in-law,

(t) R. v. Stone, 6 T. R. 295. nd see R. v. Ynyscynhanarn, 7

- & C. 233, post.

(u) R. v. Lower Swell, Burr. S.

C. 436. Harrow v. Edgeware, 2
Bott, 465.

(x) 9 G. 1, c. 7, s. 5.

(y) Post, p. 653.

in trust, to allow the testator's wife a maintenance during life, and to divide the property amongst his children after her death, and he made his son-in-law his executor; after his death, the son-in-law with his wife resided in the cottage, be managed every thing, paid the rent, &c. and maintained the widow for three years, until he was removed by order to the parish in which he had been previously settled: the court held that he gained a settlement in Enson (d).

So, in such a case, the cestui que trust has in general such an equitable estate, as is sufficient to confer upon him a settlement by residing on the trust estate, or in the same parish with it. Therefore where a man, having an estate which he bought for a sum under 301., devised it to trustees to let it, and pay the rents to his daughter for her life; and after his death, the daughter resided upon the estate (which was not of the annual value of 107.) for upwards of forty days; the court held that she thereby gained a settlement; the estate was her own, and whilst the trustees allowed her to reside upon it, no other person had a right to remove her (e). So, where a person devised a house and farm in Maltby-le-Marsh to trustees, in trust, out of the rents and profits, to give 40s. a year to the poor of the parish, and the residue to such person as they should appoint as schoolmaster, to teach the poor children to read the Bible; and the trustees, by an agreement in writing, appointed one Saltfleet schoolmaster, gave him the house to reside and keep his school in, with a salary, and he resided there and taught the children for three years and a half; the court held that he thereby gained a settlement; he resided more than forty days in the house, as cestui que trust of all the profits of the farm except 40s., and which was therefore substantially his own (ƒ). So, where a mortgagor in possession, gave by will all his real and personal property to trustees, in trust to sell it, and pay the mortgage and his other debts, and the residue to his wife for her own use; after his death the widow resided in the same parish with the land, which was not sold, the trustees residing upon the land itself: the court held, that the widow thereby gained a settlement; although it appeared that the real property was not sufficient to pay the mortgage and interest, yet as long as the property remained unsold, the widow had an equitable estate in it, sufficient to confer a settlement (g). But, where a woman devised certain estates in Brompton, and all her personal estate, to trustees, in trust, (after payment of her debts,) to apply the yearly rents and proceeds thereof for the benefit of her brother, his wife,

(d) R. v. Stone, 6 T. R. 295,

supra.

(e) R. v. Holm East Waver Quarter, 16 East, 127.

(f) R. v. Owersby-le-Moore, 15 East, 356.

(g) R. v. Aɛlackby, 5 Ad. & E 200.