Tenant for life married woman.

Tenant

for life lunatic.

Settlements by way of trust for sale.

his title arises (or, where he takes by descent, under which his ancestor's title arises), although not coming within the definition in s. 2, must necessarily be deemed the settlement. The similar question as to a tenant by the curtesy has been dealt with by the Act of 1884, s. 8. The Settled Estates Act, 1877, had, previously, by the Conv. Act, 1881, s. 41, been extended to infants seised in fee; see as to that enactment, Liddell v. Liddell, 52 L. J. Ch. 207, 31 W. R. 238; Re Sparrow, [1892] 1 Ch. 412.

In the case of the tenant for life being a married woman, by s. 61, if she is entitled for her separate use under the old law, or as her separate property under the Married Women's Property Act, 1882, she can act alone as a feme sole; and a restraint on anticipation is no impediment (s. 61 (6)); otherwise, i.e., where she was married and the settlement was made prior to 1883, and she is not entitled for her separate use, she and her husband together have the powers of a tenant for life, and his concurrence is necessary. If the married woman is an infant, the effect of s. 61 (4), is to make the provisions in s. 60 as to infants applicable, with the modification that the husband must concur where his concurrence would have been necessary if the wife had been of age.

In the case of the tenant for life being a lunatic so found by inquisition, the powers are exercisable by the committee of the estate, s. 62: see Re Ray, 25 Ch. D. 464; Re Gaitskell, 40 Ch. D. 416. The Act does not provide for the case of a lunatic not so found. But as to leasing powers, see the Lunacy Act, 1890 (53 Vict. c. 5), ss. 120 (h), 122; and note that that Act applies whether the lunatic is so found or not, see s. 116.

The original Act applied to settlements (past or future) by way of trust for sale (s. 63), whether the proceeds of sale are liable to be reinvested in land or not (the marginal heading of the section is in this respect erroneous); the powers of the Act being in that case vested in the tenant for life (as defined by that section) of the proceeds of sale or the rents until sale, or in the case of concurrent owners (as so defined) in such persons together; the clause was held not to apply to a deferred trust for sale (Re Horne, 39 Ch. D. 84); but see now the Act of 1890, s. 16, supra. As to the effect of a subsettlement, see Re Earle, 24 Ch. D. 144. The enactment in s. 63 having been found very inconvenient by reason of its necessitating (by s. 56) the consent of the statutory tenant or tenants for life to sales and other dealings by the Act of 1884 trustees under the trust, has been amended by the Act of 1884, which by

as to set

tlements by trust

for sale.

Settled
Estates

s. 6 (1), dispenses with the necessity for any such consent, and by s. 7, provides that the powers conferred by s. 63 are not to be exercised without the leave of the Court; and the Court may, on the application of the tenant or tenants for life, in any case in which it thinks fit, give leave to exercise all or any of the powers, and the order is to name the person or persons to whom leave is given, who shall be deemed the proper person or persons (as to giving this leave, see Re Harding, [1891] 1 Ch. 60; Re Bagot, [1894] 1 Ch. 177, Seton 1531); and so long as the order is in force the powers vested in the trustees for the like purpose are suspended, subject to a provision requiring the order to be registered as a lis pendens for the protection of persons dealing with the trustees.

See the Rules of December, 1882; Wolstenholme C. A. 409; W. N. 1882. The Act leaves little occasion for recourse to the powers of the Settled Estates Act, 1877, though applications under that Act are still occasionally Act, 1877. made, ante p. 324, note (a). It is also to a large extent acted on so as to supersede sales, &c., under express powers, which are only resorted to in

exceptional cases; but in the case of trusts for sale, especially under wills, convenience is usually in favour of the trustees acting.

Generally on the subject of this note, see Wolstenholme C. A.; Hood and Challis on the Conv., &c. Acts; Seton, 1502 et seq.

XVIII.

CONVEYANCE of FREEHOLDS by TENANT FOR LIFE under PREO. XVIII.
the SETTLED LAND ACTS. ADAPTED to a sale by AUCTION
or PRIVATE CONTRACT. VARIATIONS where the TRUSTEES
are appointed by the COURT, where the PURCHASE
MONEY is paid into COURT, for a SALE of the MANSION
HOUSE or land occupied with it, and where a RIGHT OF
WAY is RESERVED (a).

PARTIES, A., tenant for life, 1; B. & C., trees, 2; D., pchaser,

66

3: WHAS by an indre of settlemt dated, &c., or, "the will dated, &c., & proved on, &c., of X., of, &c., deced," the hds Recitals. hby assured [togr with other hds] were conveyed & settled to Settlement. the use of the sd A. for his life, or to uses under wch the sd A. is now tenant for life in posson thof," or, "is now benefly entled to the posson or rect of the rents & profits thof durg his life," or set out the limons down to limon to A., with remrs over," & the sd settlemt [will] contains a power of sale of the sd hds & premes thby settled exercisable by the sd trees or the survors or survor of them with the consent, &c., or, "wch is now vested in the sd B. & C. with the consent of the sd A." or, "& the sd B. & C. & the survors & survor of them were thby appted trees & tree thof for the pposes of the Settled Land Acts, 1882 to 1890," & add any further recitals necy to show that A. is tenant for life or limd owner, & B. & C. trees within the Acts (b); AND WHAS the sd A. by virtue of the powers Agreement.

(a) See note on the Settled Land Acts, p. 456, et seq., and as to the power of the tenant for life to convey, see p. 460. If the money is paid into Court the trustees need not be parties, but if it is paid to them, they usually are.

(b) If the settlement contains no appointment of trustees within the Variation where meaning of the Act, add, "AND WHAS at the date of the order next trustees hinafter recited there were not any trees of the sd settlemt are ap[will] for the pposes of the Settled Land Acts, 1882 to 1890:

pointed by

the Court.

PREC. XVIII. vested in him under the Settled Land Acts, 1882 to 1890, has agrd with the sd D. for the absolute sale to him of the sd hds hby assured & the inhance thof in fee simple in posson [subjt to such reservon of a rt of way as is hinafter contd] for the sum of £ (a); [Recital introductory to covt for prodon of

Variations

for sale of mansion

AND WHAS by an order of the Chancery Divon made by Mr.
Justice
on the
day of on the applicon of the
sd A., the sd B. & C. were appted & they now are the trees of
the sd indre of settlemt [will] for the pposes of the sd Acts."
See the Rules under the Act, Form XIX. ; and above, p. 462, note.

on

(a) If the principal mansion house, or land occupied with it is sold with the consent of the trustees, say, "AND WHAS the sd A., by virtue, house, &c. &c., as above, has, with the consent of the sd B. & C., agrd, &c." If the sale is with the approval of the Court, add, “ AND WHAS by an order of the Chancery Divon made by Mr. Justice the day of ---, the sd A. was authorised, &c.," recite order giving general authority to sell the mansion house, &c., see rules under the Act, Form vI.; or if a conditional contract was entered into, "AND WHAS by a mem of agrmt dated, &c., & made, &c., the sd A. agrd with the sd B. subjt to the approval of the Chancery Divon being obtained as hinafter mentd for the sale, &c.; AND WHAS by an order of the Chancery Divon made by Mr. Justice day of -, the sd condonal contract was approved & the sd A. was authorised to carry the same into effect."

Variation where

on the

was pd by the sd contract for the sd

A general authority to sell according to the form in the rules is of course to be preferred to a conditional contract confirmed by the Court, as the contract in the latter case becomes part of the title. If the money is paid into Court, add, "AND WHAS the sum of £D. to the sd A. by way of deposit on the money paid sale & pchase being entd into; AND WHAS in psuance of an into Court. order or orders of the Chancery Divon in that behalf the sum of £, being the amt of the sd deposit less the sum of deducted for the costs of paying in the same was on the

purchase

As to

recitals of

notices.

day of pd by the sd A. into Ct to the credit of, &c., being the balce of the sd purchase-moy

AND the sum of £

of £, after deductg the sd deposit & the sum of £

in

respt of the costs of the paymt of such balce into Ct, was on the

day of

pd by the sd D. by the diron of the sd A.

into Ct to the acct afsd." See the S. L. A. Rules, 1882 (13).

As purchasers dealing bond fide are protected by s. 45 of the Settled Land Act, 1882, a recital that the notices required by that clause have been given

deeds, p. 374]; NOW THIS INDRE WITNETH that in PREC.XVIII. psuance of the sd recited agrmt (b) & in conson of the sum of Wit£ now pd by the sd D. by the diron of the sd A. to the sd nesseth. B. & C. as such trees as afsd (the rect whof they the sd B. & C. do hby acknowe (c), & the paymt whof in mner afsd the sd A. doth hby acknowe), the sd A. as benfl owner by virtue of the powers vested in him by the Settled Land Acts, 1882 to 1890, & of every or any other power enablg him in this behalf (d) doth hby grt & convey unto the sd D., pcels, p. 377 et seq. (e): TO HOLD the same premes UNTO & TO THE USE of the sd D., his Habendum hrs & assns (ƒ), subjt to the leases & tenancies affect the sd

should not be inserted, but it should be made to appear that there were trustees to whom notice might have been given under that section, or who might have waived notice under the Settled Land Act, 1884, s. 5. If the settlement were since the Act and contains a provision that notices under that section shall not be necessary, this may be recited.

(b) If the money is paid into Court, say, "in conson of the respive sums of £ & £- makg togr £so pd into Ct as afsd by the sd D. (the paymt whof in mner afsd the sd A. doth hby acknowe) the sd A. as benefl owner, &c."

(c) If the trustees are not made parties, say, "the rect whof is intd to be acknowed by a mem endorsed on or written at the foot of these psnts & signed by the sd B. & C., & the paymt whof in mner afsd the sd A. doth hby acknowe."

(d) For a mansion house, &c., say, " with the consent (hby testified) of the sd B. & C.," or, " & with the approval of the Chancery Divon as appears by the hinbfe recited order of the

of —."

day

(e) Under the Conv. Act, 1881, s. 63, the conveyance includes all the estate, legal or equitable, which the vendor has power to convey, i.e., which is the 'subject of the settlement," see p. 391, note.

66

(f) The words "dischged from all the limons, powers & provons of the settlemt, & from all estes, intts, & chges subsistg or to arise thereunder," (following the language of the Settled Land Act, 1882, s. 20,) are sometimes inserted here, but are of course unnecessary.

to pur

chaser.

On a conveyance under the ordinary express power in a settlement effected As to by revocation and appointment of the use, or under the Settled Estates Act, succession 1877, s. 22, which has a similar operation, the liability to the succession duty. duty, see the Succession Duty Act, 1853, s. 42, payable under the settlement, is shifted from the land to the purchase-money and the investments thereof (Re Warner, 17 Ch. D. 711), and the effect of a conveyance under the Settled Land Act, as by s. 20 it passes the land discharged from the limitations of

PREC.XVIII. respive premes: [Add, if required, provo restrictg A.'s implied couts for title, p. 411, form . ;] [Acknmt & undertakg by A. or acknmt by B. & C., as the case may be, as to munimts, p. 418.] IN WITS, &C.

[Schdle of Munimts.]

PREC. XIX.

Recitals.

Estate duty.

Reservation of right of way.

XIX.

CONVEYANCE of LEASEHOLDS by TENANT FOR LIFE under the SETTLED LAND ACTS, where the SETTLEMENT was by way of TRUST for SALE (a).

PARTIES, A., tenant for life or limd owner, 1; B. & C. trees, 2; D., pchaser, 3; Recite the lease, p. 357, & devolon of title, if any,

the settlement, is the same, see 35 Solors. J. 273, and is so treated in practice.

Where, however, the sale is made after a death which creates a succession any unpaid instalments of succession duty are treated in practice as a charge on the property. See 35 Solors. J. 359. Where the liability to the duty arises under an instrument prior to and overruling the settlement under which the sale is made, it is generally considered that, notwithstanding Dugdale v. Meadows, L. R. 9 Ex. 212, 6 Ch. 501, the property sold remains liable to the duty. See 2 Dav. Prec. Pt. 1, 313.

A sale made under a power, either express or statutory, necessarily passes the land free from Estate Duty under the Finance Act, 1895, becoming payable on the subsequent death of a tenant for life, as when that event occurs the property sold" will not pass." But the case is different when the sale is made after the death, as in that case under s. 9 (1) a rateable part of the duty becomes charged on the property "passing on the death."

Where a right of way is reserved to go with the settled estate, the habendum will be, "UNTO the sd D. & his hrs, subjt to leases, &c., TO THE USE that the sd A. & his succors in title under the hinbfe recited indre of settlemt [will] [if the legal este is in the trees, say the sd B. & C.], their hrs & assns, & his & their tenants shl & may for ever hrafter have full & free rt, &c.," see pp. 383, 384. As to the creation of easements by limitation of the

use, see the Conv. Act, 1881, s. 62, above, p. 386, note.

For a form of consent to the sale by an incumbrancer on the life estate of the tenant for life, see DIRECTION AND CONSENT.

(a) See p. 456 et seq., note, and as to trusts for sale, p. 466. For the variations where trustees are appointed by the Court for the purposes of the Act, where the purchase-money is paid into Court, and for a mansion house, &c., see the last Precedent, and the notes thereto.