the event of the death or retirement of those originally nominated (2). The office of protector is intended to be in every case a personal one; and therefore a protector does not lose. his right to act in that capacity by a transfer of the estate in virtue of which it was acquired, whether that transfer. takes place by his own alienation, or by his other act or default (a). When the person who would otherwise be protector is incompetent by reason of insanity, the Lord Chancellor (or other person deputed to exercise the royal functions with respect to idiots and lunatics) is to become protector in his stead; and where he who would otherwise be protector is disabled by treason or felony, the office is vested in the Chancery Division, to which latter jurisdiction it is also confided in some other particular cases (b). A married woman is competent to be protector; and if the prior estate, in respect of which she becomes so, is held by her to her separate use, she is to hold the office independently of her husband; but where the estate is not so held, she acts in conjunction with him only (c). We may remark, too, that the office of protector is in every case of a purely discretionary character; so that the protector is absolutely free from all control in its exercise, and cannot, even by his own previous agreement, fetter his free agency in this respect (d). And lastly, with regard to the consent which it is thus absolutely in his power to grant or to withhold, that consent may either be given by the same instrument which makes the disposition, or by a separate one to be executed on or before the same day with the other, and to be duly enrolled: and when once given, the consent cannot be revoked (e). It is not only on legal estates that an assurance under the statute in question will operate, nor in respect of (≈) S. 32. (a) S. 22. (b) 3 & 4 Will. 4, c. 74, ss. 33, 48. (c) Ss. 24, 45, 79. (d) Ss. 36, 37. these only that its operation was required. It is indeed generally true, that an equitable estate will pass by any instrument sufficient to indicate the intention of the grantor; but such estates when entailed are exceptions to this rule, and cannot be transferred except by the appropriate methods. It was in fact the practice, before the statute passed, to convey entailed equitable interests through the medium of fines and recoveries (ƒ); which, though always transacted in a common law court, were considered in equity as legitimate assurances for the purpose. Thus, if lands were given to the use of A. in fee, in trust for B. in tail, with remainder over, a fine levied or recovery suffered by B. was recognized in the courts of equity as a bar of his equitable estate, that is, a bar to the extent to which the same assurance would have operated on a legal estate of the same description (g). And by the Fines and Recoveries Act, 1833, a similar effect now belongs to the substituted assurance, the word "estate" being used throughout the Act" to express an estate in equity, as well as at law" (h). The statute is also framed to take effect not only on actual entails, but upon money liable to be converted into land; as where trustees are directed to invest money in land, which, when purchased, is to be settled in tail. For, with respect to trusts of this description, the statute enacts, that its provisions shall be applicable (so far as circumstances will permit) to the monies so to be invested, in the same manner as they would apply to the lands to be purchased, supposing the same to be actually purchased and settled conformably to the trust; but any disposition of such monies by the tenant in tail must be made, not by a conveyance appropriate to the passing of the realty, but by a deed of assignment inrolled in Chancery (now the Central Office) within six calendar months after the execution (i). (f) 5 Cruise, Dig. 301, 461. (g) Doe d. Cadogan v. Ewart (h) 3 & 4 Will. 4, c. 74, s. 1. (i) S. 71. (1838) 7 A. & E. 636. Where an infant is tenant in tail in possession, and the Court makes a vesting order under the Trustee Act, 1893 (k), or appoints some person to convey the estate of the infant, the effect is to bar the estate tail and remainders over; for the order vests the land for such estate as the infant, if of full age, could convey (1). Second, with reference to the binding and assurance of the estates of married women, the statute provides, generally, that a married woman shall be as competent as if she were a feme sole, to dispose by deed of lands of any tenure, or of money subject to be invested in the purchase of lands, and also to extinguish any estate which she, (or she and her husband in her right,) may have, or any power which may be vested in her, in regard to lands or to money of that description; provided always that her husband shall concur in the deed (m), and provided also that, upon the execution thereof, or at some time afterwards, she shall produce the deed and acknowledge it before the proper authorities (n). The acknowledgment may be taken either before one of the judges of the High Court (o), or before one of the commissioners from time to time appointed for that purpose (p), or before a judge of a county court (q). It is the duty of such authorities, before they receive her acknowledgment, to examine the woman apart from her husband, in order to ascertain her free and voluntary consent; and in the absence of such consent, the acknowledgment is to be rejected, and the deed becomes void, as far as relates to her execution (r). Supposing the acknowledgment, on the other hand, to be received, a memorandum of the fact used to be written on the foot or margin of the deed; and a certificate thereof used to be also drawn up and signed on a separate piece of parchment, and verified by affidavit. The certificate and affidavit were then filed of record in court, and, until so recorded, the deed had no effect as regards the party under coverture (s); but, when the record was complete, it operated to affect her interest, as from the time when it was acknowledged. But now, as regards the deeds of married women executed after the 31st December, 1882, and requiring to be acknowledged by them, it appears that the memorandum of acknowledgment simply is written at the foot or in the margin of the deed; and the matter is therewith complete, no certificate or affidavit, or any recording of either, being required (t). When the object of the disposition is to bar the estate tail of a married woman, the same course of proceeding is to be observed as in the case of other tenants in tail; and the ceremony of acknowledgment is superadded (u). The court is also empowered by order, in a summary way upon the application of the wife, and upon such evidence as to the court shall seem meet, to dispense (in every case where it shall appear reasonable to do so) with the concurrence of the husband in her acts, whether in barring an estate tail, or in executing a deed for any other purpose (x), saving nevertheless such rights as the husband may possess independently of the Act (y). The need of separate acknowledgment arises only where the husband's consent is necessary to enable the wife to convey. Accordingly, where the property is held by trustees for her separate use (z), or is her separate estate under the Married Women's Property Act, 1882, she can convey as a feme sole (a). (s) Jolly v. Hancock, (1852) 7 Exch. 820. (t) Conveyancing Act, 1882, s. 7. (u) 3 & 4 Will. 4, c. 74, ss. 40, 79. (x) S. 91; Goodchild v. Dougal, (1877) 3 Ch. D. 650. (y) 3 & 4 Will. 4, c. 74, s. 91; Fowke v. Draycott, (1885) 29 (=) Pride v. Bubb (1872) L. R. 7 Ch. 64. (a) 45 & 46 Vict. c. 75, and see Re Harkness and Allsopp, (1896) 2 Ch. 358. CHAPTER XX. OF THE CONVEYANCE BY DEVISE. THE next conveyance to be considered is that by derise or will; and this operates from the death of the testator, his will being merely ambulatory during his life," omne testamentum morte consummatum est, et voluntas testatoris est ambulatoria usque ad mortem” (b). [According to the old Roman law, a will or testament was "voluntatis nostræ justa sententia, de eo quod quis post mortem suam fieri velit” (c), which may be thus rendered into English: "the legal declaration of a man's intentions which he wills to be performed after his death." It is called sententia, to denote the circumspection and prudence with which it is supposed to be made; it is voluntatis nostræ sententia because it declares the testator's intention, or emphatically his will; it is justa sententia in that it is drawn, attested, and published, with all due solemnities and forms of law; it is de eo quod quis post mortem suam fieri velit, because it is of no force until after the death of the testator (d). The term codicil signifies an instrument made subsequently to the will, and by which the dispositions of the will are added to, taken from, or otherwise altered; and it is like the will in most respects, of which indeed it is considered as forming a part. So that, whatever may be laid down as law regarding a will, may be taken generally as applicable also to every codicil thereto (e). The right to make a will is merely a creature of the (b) Co. Litt. 112. (e) Anderson v. Anders, (1872) L. R., 13 Eq. 381; Green v. Tribe, (1878) 9 Ch. D. 231. |