interest under the settlement is to be deemed one of the instruments creating the settlement, and not an instrument vesting in any person any right as assignee for value within the meaning or operation of s. 50 of the Act of 1882." This provision is to apply to every disposition before as well as after the passing of the Act, unless inconsistent with the nature or terms of the disposition.

In cases of conflict between the provisions of a settlement and the provisions of the Act as to the powers of the tenant for life, the provisions of the Act are to prevail; and, accordingly, notwithstanding anything there may be in a settlement, no express power given to the trustees can be exercised without the consent of the tenant for life, or those persons who together fill that character.

In exercising the powers given him by the Act, the tenant for life must have regard to the interests of all parties entitled under the settlement, and is deemed to have the duties and liabilities of a trustee for those parties (1).

The tenant for life is, said Chitty, J. (2), to have regard to the interests of other persons, and he is to be deemed to be a trustee in the exercise of the powers for those persons. He is not to exercise this power simply for his own benefit. The tenant for life has the absolute right to sell, though it may be suggested he is selling out of ill-will or caprice, or because he does not like the remainderman; because he desires to be relieved from the trouble of attending to the management of land, or from any other such object or with any such motive. The object of the section (when read in connection with sect. 54) is that the tenant for life must pursue his powers according to the Act. He must sell for the best price, and if he does not, and there is any corrupt or underhand bargain between him and the purchaser, then neither is his sale good, nor does the purchaser obtain a good title.

With regard to dealings between the tenant for life and the estate, the Settled Land Act, 1890 (sect. 12), contains the following important provision:

“When a sale of settled land is to be made to the tenant for life, or a purchase is to be made from him of land to be made subject to the limitations of the settlement, or an exchange is to be made with him of settled land for other land, or a partition is to be made with him of land an undivided share whereof is subject to the limitations of the settlement, the trustees of (1) Settled Land Act, 1882, s. 53.

(2) Cardigan v. Curzon-Howe, 30 Ch. D. 539, 540.

Trust for sale.

Tenant for life.

the settlement shall stand in the place of and represent the tenant for life, and shall, in addition to their powers as trustees, have all the powers of the tenant for life in reference to negotiating and completing the transaction."

Sect. 63 of the Settled Land Act, 1882, provides that lands subject to a trust or direction for sale and for the application of the moneys arising from the sale or the income thereof for the benefit of any person or persons for life, or any other limited period, and whether absolutely, or subject to any trust for accumulation of income, or to any other restriction, shall be "settled land." The instrument under which the trust arises is to be deemed to be a settlement, and the person or persons beneficially entitled to the income is, or are, to be deemed tenant for life. The trustees who have power to sell, or consent to a sale, are, for the purposes of the Act, trustees of the settlement.

The effect of this section has been very materially modified by the Settled Land Act of 1884 (1), which provides that the powers thereby conferred are not to be exercised except with leave of the Court, and that any consent not required by the terms of the settlement is not to be required by force of the section.

Before the Settled Land Act, 1882, large though rather onerous powers had been granted to limited owners for the improvement of settled land by the Improvement of Land Act, 1864. These powers are now extended by the Settled Land Acts, and rendered much more favourable to the tenant for life, and although in some cases it may still be desirable to employ the provisions of the Improvement of Land Act, they are superseded by those of the Settled Land Acts.

Questions have several times arisen as to who is tenant for life. It has been decided that a man who is entitled to the income subject to incumbrances is to be deemed tenant for life though the estate is so heavily charged that he derives no income from it (2).

On the other hand it has been held in another case, that a trust, although it be to last during the life of A., to apply the rents and profits of an estate for the benefit of A. and of his wife and his children, if any, does not constitute A., or A. and his wife together, a tenant for life, or a person with the powers of a tenant for life (3).

(1) 47 & 48 Vict. c. 18, ss 6, 7.
(2) Re Jones, 26 Ch. Div. 736;
Cardigan v. Curzon-Howe, 10 Ch. D.

341.

(3) In re Atkinson. Atkinson v. Bruce, 31 Ch. Div. 577.

The estate of a tenant by the curtesy is to be deemed an estate arising under a settlement made by his wife (1).

Expenditure of

A married woman entitled to the income of land for her separate use is tenant for life even though she be restrained from trust anticipation. If, however, the lady be not entitled for her money. separate use, the powers belong to her in conjunction with her husband (2).

When the tenant for life is an infant the powers are to be exercised by the trustees of the settlement or by such person as the Court may appoint. When he is a lunatic the powers are to be exercised by his committee (3).

A very interesting question came recently before the Court with reference to the power to expend trust money for the preservation of settled property. Land and money were vested in the trustees of a settlement for the benefit of the husband and wife for their lives, and after their deaths for the children of the marriage. Certain farm buildings on the estate were so much out of repair as to render the farm untenantable, and the application was for leave to expend certain trust funds in repairs and improvements (4).

It was pointed out by the Court that there were many decisions, starting from a case decided by the Court of Appeal in 1871, as from a corner-stone, in which the Court had held that, where there was a power to purchase real estate, that power might be well exercised in the erection of buildings on a property already in settlement, as that was really equivalent to a purchase of real estate (5). These cases, however, the judge said had no application to the matter before the Court, as there was no trust or power in the settlements enabling the trustees or the tenant for life to purchase land or to dip into the capital for the purposes of repairs. The Court, however, considered. that it had power under its "original jurisdiction" to authorise the required expenditure, and the application was accordingly allowed.

The following are some of the more important cases on the Settled Land Acts :-Mackenzies' Trusts, 23 Ch. D. 750 (Trustees' investments); Wheelwright v. Walker, 23 Ch. D. 752 (Notice to trustees); Re Beck, 24 Ch. D. 608 (Costs), but see Cardigan v.

(1) 47 & 48 Vict. c. 18, s. 8. (2) Settled Land Act, 1882, s. 61, sub-ss. 2, 3, 6.

(3) Sects. 61, 62.

() Conway v. Fenton, 10 Ch. D.

512.

(5) Re Leigh's Estate, L. R. 6 Ch. 887, and see Drake v. Trefusis, L.R. 10 Ch. 361,

Cases on
Settled

Land Acts.

Curzon-Howe, 40 Ch. D. 338, affid. 41 Ch. D. 375; Re Earl and Webster, 24 Ch. D. 144 (Trust for sale); Duke of Newcastle's Estate, 24 Ch. D. 129 (Exercise of powers, &c.); Re Chaytor, 25 Ch. D. 651 (Power of sale); Taylor v. Poncia, 25 Ch. D. 646 (Trustees for sale); Re Jones, 26 Ch. D. 736 (Tenant for life); Re Knatchbull, 29 Ch. D. 588 (Payment of charges); Re Houghton, 30 Ch. D. 102 (Improvements); Re Rivett-Carnac, 30 Ch. D. 136 (Title of honour); Re Paget, 30 Ch. D. 161 (Tenant for life, forfeiture for non-residence, and see Re Haynes, 37 Ch. D. 306); Cardigan v. Curzon-Howe, 30 Ch. D. 531 (Pendency of action); Re Clitheroe, 31 Ch. D. 135 (Tenant for life); Re Ridge. Hellard v. Moody, 31 Ch. D. 504 (Tenant for life-Waste); Constable v. Constable, 32 Ch. D. 233 (Trustee for sale); Re Sebright, 33 Ch. D. 429 (Tenant for life-Mortgage); Re Hotchkin, 35 Ch. D. 41 (Payment for improvements out of capital money); Re Lytton,! 38 Ch. D. 20, 26 (Extra expenditure for improvements); Hatten v. Russell, 38 Ch. D. 334 (Relative powers of tenant for life and trustees of settlement); Re Tennant, 40 Ch. D. 594 (Investments); Re Lord Stamford's Settled Estates, 43 Ch. D. 84 (Powers of tenant for life, &c.); Re Newton's Settled Estates, W. N. (1890) 24 (Improvements). The provisions of the Settled Land Act, 1882, have been amended by the Housing of the Working Classes Act (53 & 54 Vict. c. 70), as regards erection of buildings for the working classes.

( 157 )

CHAPTER XIII.

WILLS.

A will is defined by Mr. Jarman as "an instrument by which Definition a person makes a disposition of his property to take effect after of will. his decease," and which is in its own nature ambulatory and revocable during his life. "It is this ambulatory or revocable quality," Mr. Jarman goes on to say, "which forms the characteristic of wills, for though a disposition by deed may postpone the possession or enjoyment, or even the vesting until the death of the disposing party, yet the postponement is in such a case produced by the express terms and does not result from the nature of the instrument" (1).

A codicil, in the modern acceptation of the term, is "an Definition addition made by the testator, and annexed to, and to be taken of codicil. as part of, a testament being for its explanation or alteration or to make some addition to, or else some subtraction from, the former disposition of the testator" (2). A codicil is part of the will, and the will with the codicil or codicils makes but one testament. When real property is given by will, it is said to be "devised;" when personal property is so given, it is said to be "bequeathed."

With regard to the form of a will, the law does not require Form of that any particular form should be adopted, provided that it is will. the intention of the deceased to make a "posthumous destination of his property," and that the instrument should only operate after his death, and if this appears to be the nature of its contents, some contrary designation bestowed on it by the maker will be disregarded. Thus, it has been held that a deed poll or an indenture, a deed of gift, a bond, marriage settlements, letters, drafts on bankers, the assignment of a bond by indorsement, and promissory notes are testamentary dispositions (3). It must, however, be borne in mind, that in such cases

(1) Jarman on Wills, vol. i. 4th ed.

p. 16.

(2) Williams on Executors, 8th ed. p. 8. The word "codicil" is derived from codicillus the diminute of codex.

See Justinian Instit. lib. ii. cap. 25;

Re Blackburn, 43 Ch. D. 75, where it
was held that the codicil had the
effect of reiterating the will.

(3) See Milnes v. Foden, 15 P. D.
105; In the Goods of Slinn, 15 P. D.
156.