III. DISCLAIMER and APPOINTMENT of NEW TRUSTEES PARTIES: A., surviving trustee, 1; B., heir-at-law of testator, 2; C., legal personal representative of testator, 3; D. and E., new trustees, 4. Recite will of X., p. 124, stating Recitals. the gifts of real and personal estate to A. and K. “upon certain trusts therein mentd," [the power, if any, to appoint new trustees, exercisable by refusing or declining trustees, if willing, to be recited fully], and the appointment of executor; Death of testator, and grant of probate or letters of administration with will annexed to C. [and heirship of B.,] see pp. 333, 334; AND WHAS by a deed poll, dated &c., under his hand Disclaimer and seal, the sd K. has renounced and disclaimed all the by one real and personal este and premes by the sd will devised (a) See Ex parte Hadley, 5 De G. & S. 67. Under the ordinary express power, which is given to surviving or continuing trustees, or under the repealed enactment, 23 & 24 Vict. c. 145, s. 27, a disclaiming trustee could not appoint new trustees, see Travis v. Illingworth, 2 Dr. & Sm. 344; but a disclaiming trustee can exercise the power in the Conv. Act, 1881, s. 31 (1) (6), see above, p. 105, note; and as to the effect of the repeal of the former enactment on instruments prior to 1882, see ib. Both the disclaiming trustees might, of course, concur in the appointment, but it is here assumed that the one first disclaiming objects to do so. The disclaiming trustee cannot convey the trust property, which would be repugnant to his disclaimer; it must be conveyed to the new trustees by the heir or legal personal representative of the testator as the case may require; unless it can be vested in them by the declaration of the appointor under the Conv. Act, 1881, s. 34, see p. 106, note. In the former case it may be better to make the conveyance by a separate deed, as the disclaiming trustee is not concerned with it; in the latter case it must be by the same deed, see p. 107, note. trustee. Refusal of other to act. Witnesseth. and bequeathed to him jointly with the sd A., and all trusts, powers, and authorities vested in him, the sd K., whether jointly with the sd A. or otherwise, and the office of tree under the sd will [or, recite death of K. in testator's lifetime, as the case may be (b)]: AND WHAS the sd A. has declined to accept the devises and bequests made to him jointly with the sd K. in and by the sd will, or to act as tree thereunder, except for the ppose of exercising the power of appointing new trees thof in the place of the sd K., and of him the sd A., which he has agrd to do by appointing the sd D. and E. to be such trees in mner hinafter mentd: [Existing state of trust property, p. 125, mutatis mutandis]. NOW THIS INDRE WITNETH, &c., disclaimer by A. as in precedent I., p. 573, save and except the power of appointing new trees of the sd will which is hinafter exercised by him the sd A. AND THIS INDRE ALSO WIT. NETH, &c., appointment by A. of D. and E. to be new trustees in the place of K. and A., pp. 105 to 107. [AND THIS INDRE ALSO WITNETH, &c., conveyance and assignment of real and personal trust estate by testator's heir "as tree," and legal personal representative "as personal representative of the sd X.," respectively, to D. and E., p. 126; or, declaration by A. vesting the trust estate in D. and E., under the Conv. Act, 1881, p. 132.] IN WITNESS, &c. (b) If K. survived the testator and acted, his executors or administrators, and not A., would be the proper persons to appoint the new trustees under the usual power. DISENTAILING ASSURANCES (a). I. DISENTAILING DEED of FREEHOLDS by TENANT in or will. bar. PARTIES, A., tenant in tail, 1; B., grantee to uses, 2: Recitals. WHAS under an indre, dated, &c., being the settlemt made Settlement in conson of the marre, afterwards solemnized, of X. and Y. resply deceased, the late father and mother of the sd A., or, "under the will, dated, &c., and a codicil thto, dated, &c., and proved, &c., of X., late of, &c., deceased," the sd A. is tenant in tail [male] in possion of the hereds hby granted, or, recite settlement or will and codicil, and subsequent events, showing the title of A.: [AND WHAS the sd A. Desire to is desirous of barring the entail of the sd hereds and of all other, if any, hereds of which he is tenant in tail [male or in tail] as hinafter mentd, and of vesting the same in himself in fee simple in possion, in mner hinafter appearing (c)]: NOW THIS INDRE WITNETH that [for the ppose of Witnesdefeating and barring all estes in tail [male or in tail] of the sd A. at law or in equity under the sd indre of settlemt, or, will and codicil," or otherwise in the hereds hby granted, and all estes, rights, interests, and powers to take effect after the determination, or in defeasance of such estes in tail [male or in tail] (c)], the sd A. doth hby grant unto the sd B. and Grant. his hrs, parcels, p. 334, and all other, if any, the hereds [in Parcels. England] of which the sd A. is now tenant in tail [male or in (a) See Elph., Introd. Conv., 488. (b) See 3 & 4 Win. IV., c. 74, ss. 15-21, and ss. 40-49. To be enrolled within six months under s. 41. (c) The words in one of these brackets might be omitted. VOL. I. PP seth. tail] at law or in equity under the sd settlemt, or, "will and codicil, or either of them" [or, in lieu of setting out the Variations. parcels in detail (d), say, ALL AND SINGULAR the freehd messuages, farms, lands, tenemts, tithes, or tithe rentcharges and hereds, situate in the several parishes of or, or elsewhere in the county of and [in England], comprd in or assured by the sd indre of settlemt of, &c., or, "devised by the sd will and codicil of the sd-deceased, or either of them," or which are now by any means subjt to the subsisting uses or trusts of the sd indre of settlemt, "will and codicil," or of which the sd A. is now by any means tenant in tail [male or in tail] at law or in equity under or by virtue of the sd indre of settlemt, or, "will and codicil, or either of them," or otherwise] omitting general words and estate clause, see pp. 357, 359, To HOLD all the sd premes hby granted UNTO the sd B. and his hrs, FREED To grantee and absolutely discharged from all estes in tail [male or in discharged tail] of the sd A. at law or in equity, and all estes, rights, interests, and powers to take effect after the determination or in defeasance of such estes in tail [male or in tail], To THE USE of the sd A., his hrs and assigns for ever. Habendum. from en tail. To use of grantor in fee. IN WITNESS, &c. Witnesseth. Grant. Parcels. II. DISENTAILING DEED of FREEHOLDS by TENANT IN TAIL in POSSESSION. Short form without recitals. PARTIES, A., tenant in tail, 1; B., grantee to uses, 2: WITNETH that the sd A. doth hby grant unto the sd B. and his hrs ALL AND SINGULAR the messuages, lands, tenemts, and hereds situate in the several parishes of (d) To save expense on enrolment, the parcels in a disentailing deed, if numerous, are usually described by a short general description. For the [or elsewhere in England], and in the county of of or to which he, the sd A., is seised or entled at law or in equity for any este in tail male or in tail, under an indre, dated, &c., and expd to be made, &c., or, "the will, dated, &c., and proved, &c., of X., late of, &c.," or otherwise howsoever, omitting general words and estate clause, see pp. 357, 359, TO HOLD the same UNTO the sd B. and his hrs FREED Habenand discharged, &c., as in last Precedent, To THE USE of the sd A., his hrs and assigns, for ever. IN WITNESS, &c. (e) dum to III. DISENTAILING DEED by HUSBAND and WIFE of the PARTIES, A. and B. his wife, 1; C., grantee to uses, 2. to bar. seth. Recite title of B.: AND WHAs the sd A. and B. are desirous Recitals. that the entail of the sd hereds and of all other if any hereds Desire of which the sd B. is tenant in tail, shall be barred, and that the inheritance thof in fee simple in possion shall be vested in the sd A. in mner hinafter appearing: NOW THIS WitnesINDRE WITNETH that [for the purpose of defeating and barring all estes in tail [male or in tail] of the sd B. at law or in equity under the sd settlemt [will] or otherwise in the hereds hby granted, and all estes, rights, interests, and powers to take effect after the determination, or in defeasance of such estes in tail [male or in tail], and of assuring the same premes to the use of the sd A. in mner hinafter mode of describing the parcels where there have been sales, &c., under the powers of the settlement or will, or enclosures, &c., see p. 348. (e) To be enrolled under 3 & 4 Wm. IV., c. 74, s. 41. |