consent (143) of the said [protector,] as protector of the settlement creating the said estate tail, Hath granted (144) and confirmed, and by these presents Doth grant and confirm unto the said [grantee] and his heirs, All [parcels], of all which hereditaments hereinbefore described, the said [testator] was seised in fee simple at the time of the making and publishing of his said will; And also all other the manors, advowsons, messuages, lands, tenements, tithes and hereditaments of which the said [tenant in tail] is now tenant in tail by virtue of the said recited will, together with all the rights, members and appurtenances to the said hereditaments belonging or appertaining; And all the estate, right, title and interest of the said [tenant in tail] in or to the said hereditaments and every part thereof, in remainder expectant as aforesaid. To —to grantee in fee. HAVE AND TO HOLD the said manors, advowsons, messuages, lands, tenements, tithes and hereditaments hereby granted or intended so to be, with their appurtenances, unto the said [grantee,] and his heirs for ever; Nevertheless to such uses, for such estates intents and purposes, and in such manner as the said [protector and tenant in tail], by any deed or deeds to be executed by them in the presence of, and attested by one or more than one witness, shall jointly appoint; And in default of such appointment, and subject to the said power of appointment, To the uses, for the estates, and with and

HABENDUM,

To such uses as protector and tenant in tail shall jointly appoint, and in default of appointment,

-to the old uses.

Protector need not convey.

Tenant in tail in Jemainder may convey by grant.

(143) If the intention be to pass the estate of the protector, then he must of course be a conveying party; otherwise he will merely consent. (Vide, infrà, No. 31.)

(144) As a remainder in fee lies in grant, the adoption of a lease and release would be justifiable only as providing against the possible event of the prior estate for life having determined by forfeiture or otherwise. The insertion of a nominal pecuniary consideration would render the deed, (though inrolled after six lunar months, if inrolled within six calendar months from the execution, 3 & 4 Will. 4, c. 74, s. 41,) effectual as a bargain and sale, but operating as such the uses expressed would be void as legal limitations, and it would be necessary to obtain a reconveyance from the bargainee, in whom the legal fee would be executed. (Vide infrà, n. 150.)

subject to the powers, provisions, and declarations, which immediately before the execution of these presents were subsisting or capable of taking effect concerning the same.(145) IN WITNESS, &c.

No. 31.

day of

- in the year

in the year Parties.

the indenture

CONVEYANCE by LEASE and RELEASE, by Protector, Tenant
for Life, and his Son, Tenant in Tail in Remainder.
THIS INDENTURE, made the
of our Lord 1834, Between [protector], of &c. of the first
part, [tenant in tail], of &c. of the second part, and [relessee],
of &c. of the third part. WHEREAS by indentures of lease
and release and settlement, bearing date respectively the
and days of
of release and settlement being made between [father of pro-
tector], and the said [protector], of the first part, [wife of
protector], of the second part, [trustees to preserve contingent
remainders], of the third part, and [trustees of term], of the
fourth part, and being the settlement made in contemplation
of the marriage of the said [protector,] with the said [wife of
protector], the manors, messuages, lands, tenements, and here-
diaments hereinafter described, and hereby released or intend-
ed so to be, with their appurtenances, were settled from and
after the solemnization of the said then intended marriage, To
certain uses for securing to the said [protector] and his assigns,
during the joint lives of himself and the said [protector's
father], a yearly rent-charge of £-out of the said here-

(145) This precedent supposes that the father and son contemplate some ulterior disposition, to which the assurance now made is only a preparatory step; the father, therefore, retains his controlling power. It is assumed that the intended disposition may be effected without disturbing the life estate of the father. (Vide infrà, No. 31, and note.) As the disentailing assurance must be inrolled, it may often be convenient or desirable to con. fine it to the primary object of acquiring the dominion over the fee.

RECITALS, marriage of the

-of settlement on

father and mother of tenant in tail.

Arrangement be

tween father te

nant for life, and son, tenant in tail,

to resettle the

estate.

-of marriage of father and mother of tenant in tail,

-that tenant in tail is the first son, -his baptism,

death of father,

ditaments, with the usual powers of distress and entry for
enforcing payment thereof, And subject thereto, to certain
uses for securing to the said [wife of protector], the then in-
tended wife of the said [protector], and her assigns, for her
natural life, if she should survive her then intended husband,
the yearly-rent charge of £ out of the said heredita-
ments with the usual powers of distress and entry for enforc-
ing payment thereof, And subject to the said yearly rent-
charges, and the remedies for the recovery thereof, To the
use of the said [trustees of term], their executors, adminis-
trators, and assigns, for the term of 100 years from thence-
forth next ensuing, without impeachment of waste, upon cer-
tain trusts for securing the said yearly rent-charges, and after
the expiration or other sooner determination of the said term,
and in the meantime subject thereto and to the trusts thereof,
To the use of the said [father of protector], and his assigns
for his life, without impeachment of waste, remainder to the
use of the said [protector], and his assigns for his life, with-
out impeachment of waste, remainder to the use of the said
[trustees to preserve contingent remainders] and their heirs for
the life of the said [protector], upon trust to support and
preserve the contingent uses and estates thereinafter limited,
but to permit the said [protector] and his assigns during his
life to receive the rents and profits of the said hereditaments,
remainder to the use of the first and every other son of the
said [protector] by the said [wife of protector], his then in-
tended wife, successively in tail general, remainder or rever-
sion to the use of the said [protector], his heirs and assigns.
AND WHEREAS the said marriage was solemnized in the parish
church of
on the day of
in the year

AND WHEREAS the said [tenant in tail] is the first son of the
said marriage, and was baptized at

on the - day of AND WHEREAS the said [father of

protector] died on the day of
and was buried at, on the

death of mother. year

in the year day of

in the

AND WHEREAS the said [wife of protector], the

charges and term have ceased,

of the desire of nant in tail to ac

protector and te

quire the fee.

in the same year leaving the said [protector,] and the said [tenant in tail], surviving her. AND WHEREAS on the that rentdecease of the said [father of protector,] the limitation contained in the said recited indenture of release and settlement of the said yearly rent-charge of £- determined, and on the decease of the said [wife of protector], the limitation therein contained of the said yearly rent-charge of £failed of effect, and by reason of such determination and failure (all arrears of the first-mentioned yearly rent-charge having been satisfied,) the said term of 100 years ceased by force of a proviso for the cesser thereof contained in the same indenture. AND WHEREAS the said [protector], and [tenant in tail] are desirous that the inheritance in fee simple in possession of the said manors, messuages, lands, tenements, and hereditaments, shall be limited to the uses and in manner hereinafter expressed. NOW THIS INDENTURE WITNESS- TESTATUM. ETH, that in order to defeat and destroy all estates tail of (146) the said [tenant in tail] in the manors, messuages, lands, tene- Object of assurments, and hereditaments hereinafter described or referred to, and all estates, rights, titles, interests and powers to take effect after the determination or in defeasance of such estates tail, and in order to assure and limit the inheritance in fee simple in possession of and in the same manors, messuages, lands, tenements, and hereditaments, to the uses and in manner hereinafter expressed, and in consideration of 10s. paid by the said [relessee] to each of them the said [protector and tenant in tail], on the execution of these presents, the receipt

(146) The testatum of a recovery deed commonly ran thus, “in order to bar all estates tail now vested (1 Prest. Conv. 142), in the said, &c. and all remainders and reversions expectant or dependent thereon," &c. ; but as all estates tail, whether vested or contingent, (sed vide suprà, Chap. V.), or divested and turned to a right, are barrable by an assurance under the act, the word "of" is substituted in the text for the expression "now vested in." As to "remainders and reversions," vide infrà, note (151).

ance.

Contingent and divested estates

tail, barrable.

Protector and tenant in tail convey.

whereof is hereby acknowledged, The said [protector], and also the said [tenant in tail] with the consent of the said [protector], as protector of the settlement made by the said recited indentures, HAVE and each of them HATH granted, released and confirmed, And by these presents Do and each Actual possession of them DоTH grant, release and confirm unto the said [re

clause.

Parcels.

All estate, &c.

lessee] and his heirs, (in the actual possession of the said [relessee], now being by virtue of a bargain and sale made to him by the said [protector (147) and tenant in tail], in consideration of 5s, a piece, by indenture bearing date the day next before the day of the date of these presents, for one year computed from the day next before the day of the date of the said indenture of bargain and sale, and by force of the statute for transferring uses into possession,) All [parcels], And also all other the manors, messuages, lands, tenements, and hereditaments of which the said [tenant in tail] is tenant in tail, or is entitled to be tenant in tail, by virtue of the said recited indentures; Together with all the rights, members and appurtenances thereunto belonging; And all the estate, right, title and interest of the said [protector and tenant in tail] respectively therein and thereto; TO HAVE AND TO HOLD the said manors, messuages, lands, tenements, hereditaments, and pre-to relessee in fee, mises hereby released or intended so to be, with their appurtenances, unto the said [relessee] and his heirs for ever, (freed and discharged from the said estates tail, and all estates, rights, titles, interests and powers to take effect after the determination or in defeasance of the said estates tail;) Nevertheless, To such uses, upon such trusts, for such intents and purposes, subject to such powers and provisions, and generally in such manner, as the said [protector and tenant in tail], by any deed or deeds, revocable or irrevocable, to be executed by them in the presence of and attested by one or more than one witness, shall at any time or from time to time direct or

HABENDUM,

to such uses as protector and tenant in tail shall appoint,

Protector need not

join in lease for a year.

(147) When the protector merely consents, his concurrence in the lease for a year is not necessary. (Vide suprà, n. 143.)