PREC. XXXI.

XXXI.

CONVEYANCE of FREEHOLDS under a TRUST for SALE, the TENANT for LIFE being a CONSENTING PARTY. A SHORT FORM, without RECITALS.

PARTIES, A. & B., trees for sale (hinafter called the vendors), 1; C., tenant for life (hinafter called the life tenant), 2; D., pchaser (hinafter called the pchaser), 3; WITNETH that in conson, &c. (the rect, &c.), & in psuance & exon of the trusts of an indre dated, &c., & made, &c., the convce in trust for sale, [or, the will, dated, &c., & proved on, &c., of X., late of, &c. deced], the vendors, as trees of the sd settlemt [will], with the consent (hby testified) of the life tenant, hby grt unto the pchaser, pcels, p. 377, habendum to pchaser in fee, p. 393. [Acknmt by A. & B. as to munimts, p. 418.] IN WITS, &c.

PREC.

XXXII.

As to con

veyances to married women.

XXXII.

CONVEYANCE of FREEHOLDS by TRUSTEES for SALE under a WILL to a MARRIED WOMAN as her SEPARATE PROPERTY under the MARRIED WOMEN'S PROPERTY ACT, 1882, the HUSBAND being a party (a). The persons BENEFICIALLY interested in the PURCHASE-MONEY or such of them as are Nor under DISABILITY confirming the SALE and COVENANTING for the TITLE. VARIATIONS where some of them are MARRIED WOMEN (b).

PARTIES, A. & B., trees, 1; C., D. " & E. his wife," F. "& G. his wife," & H., psons intted in the pchase-moy, 2; I.,

(a) As every married woman is now, by the Married Women's Property Act, 1882, ss. 1, 2, 5 (whether the marriage was before or after the Act), enabled to acquire, hold, and dispose of any property as a feme sole without the intervention of a trustee (see p. 490, note), property of any description

(b) As to making the beneficiaries parties in such a case, see 1 Dart, V. & P., 617. If E. & G. were married or their title accrued (as to which see ante, p. 490) since 1882, their husbands need not be parties, nor need they acknowledge the deed. Otherwise their acknowledgment is necessary Franks v. Bollans, 3 Ch. 717.

PREC.

XXXII.

bene

ficiaries.

pchaser, "the wife of X., of, &c.," 3; [X., husbd, 4]. Recite will of testor, settg out fully the trust for sale & rect clause (if any), p. 359, & statg shortly the trusts of the pchase-moy, so as Recitals. to show the intts of the pties of the second pt; Death of testor & probate, p. 365, & testor's seisin, p. 360; Occurce of events upon wch the trust for sale was to arise; Contract for sale by A. & B. to I., p. 370, form IV.; "for the sum of £ wch sum is intd to be pd by the sd I. out of moys belonging to her as her septe este, independently of her sd husbd," & she is desirous that the sd hds & premes shl be conveyed & assured to the uses & in mner hinafter expd: AND WHAS the sd pties hto of Interest of the second pt [or (as regards such of them as are married women) their sd husbds in their rt] are under the trusts of the sd will benefly entled to the pchase-moy of the hds & premes thby devised in trust for sale as afsd, in eql shares [or, in the shares & proportions followg (that is to say), &c., or, "to shares of the pchase-moy of the hds & premes, &c., the psons entled to the remaing shares thof, being under the age of 21 yrs"]: AND WHAS the sd pties hto of the Agreement second pt have agrd to concur in these psnts, for the pposes & in mner hinafter appearg: NOW THIS INDRE WITNETH Witthat in psuance, &c., & in conson of the sum of £- to the sd A. & B., pd by the sd I. out of moys belonging to her as her septe este, independently of the sd X. (the rect, &c.), they, the sd A. & B., as trees of the sd will, do hby grt, & the sd Grant. pties hto of the second pt as benefl owners, accdg to their respive intts as hinbfe appearg, do resply hby confirm unto the sd I., her hrs & assns, peels, p. 377, habendum to I., in fee, as her septe ppty & este independently of the sd X.: Provo restrictg liability of C., D., E., F., G., & H., under the statutory corts, to a share in the premes conveyed, correspondg to his or her

may now be conveyed to a married woman in the same manner as to a man, except, perhaps, where the conveying party is her husband (see p. 610 note); but it is better to express that it is to be her separate estate. The wife can also enter into any covenants which may be required (as in the case of leaseholds for the vendor's indemnity against the rents and covenants), see p. 491, note.

The only object in this case of making the husband a party is to obtain his admission that the purchase-money is the wife's separate estate; but it is doubtful whether the vendor could require this. It may also sometimes be desirable that the husband should join to enter into covenants.

K.E.-VOL. I.

K K

to concur.

nesseth.

PREC. XXXII.

share in the pchase-moy, see p. 412, form iv. [Acknmt by A. & B. as to munimts, p. 418]. IN WITS, &c.

PREC. XXXIII.

Recitals.
Will.

Seisin of testator.

Right of pre-emption.

Purchase by trustees

or execu

tors of the

trust property.

XXXIII.

CONVEYANCE to one of the TRUSTEES and EXECUTORS of a will of FREEHOLDS purchased under a RIGHT OF PREEMPTION (a) given to him by the WILL, and of LEASEHOLDS held for a LONG TERM (b), the duration of which is UNKNOWN, with the CONCURRENCE of the BENEFICIARIES (c).

PARTIES, A., B., & C., trees & exs & also beneficiaries, 1; D. & E., beneficiaries, 2; "the sd " C., pchaser, 3. Recite will of X., containg genl devise & beqt to A., B., & C., in trust for sale & divon of peeeds after paymt of debts, &c., among his chln, A., B., C., D., & E., with option to testor's sons in succession accdg to seniority to pchase, "the freehd messe & hds hby grted," at a valuon to be made by valuers to be nominated by the trees, & apptg A., B., & C. exs-death & probate, p. 365; AND WHAS the sd X. was at his dece seised in fee simple of the sd freehd messe & hds hby grted free from incumbces, & was also absolutely entled to the pce of land & hds hby assned, wch are of leasehd tenure, & (as is believed) free from rent & covts, &

(a) As to the exercise of a right of pre-emption of this kind, see Brooke v. Garrod, 2 De G. & J. 62; Austin v. Tawney, L. R. 2 Ch. 143.

(b) The power given by the Conv. Act, 1881, s. 65, as amended by the Conv. Act, 1882, s. 11, to enlarge a long term into a fee simple, could not be acted on, for want of the means of showing that the case is within the Act.

(c) The concurrence of the beneficiaries is not necessary as to the freeholds, which are conveyed according to the trusts of the will; but as to the leaseholds is necessary, the sale being to one of the trustees and executors. As to purchases by trustees from themselves or their cestuis que trust, see Lewin on Trusts, pp. 534 et seq.; Harvey v. Lambert, W. N. 1888, p. 38. As to the purchase of the testator's estate by an executor who has not proved, see Clark v. Clark, 9 App. Cas. 733. As to a purchase by a solicitor from his client's trustee in bankruptcy, see Luddy's Trustee v. Peard, 33 Ch. D. 500. As to the purchase by a person in a fiduciary relation on a sale under the Court, see Boswell v. Coaks, 23 Ch. D. 302, 27 Ch. D. 424, 11 App. Cas

FREC.

XXXIII.

of freeholds

Agreement

for sale of

long term.

are held for a long term of yrs, but the origin & duron of such term are not known: AND WHAS the sd C. is the eldest son of the sd X. AND WHAS in psuance of the trusts of the sd will, Valuation the sd A., B., & C., duly appted K., of, &c., & L., of, &c., to value the sd freehd messe & hds, & the same were valued by them at the sum of £; AND WHAS the sd A., B., & C., by Offer and writg under their hands, dated, &c., psuant to the dirons of acceptance. the sd will, duly offered the same messe & hds to the sd C. at the sd valuon price of £—, & the sd C., by writg, under his hand, dated, &c., or, "within the time in that behalf prescribed by the sd will," duly decld his desire to pchase the sd messe & hds for the sd sum of £, & reqted the sd A. & B. to convey the same to him psuant to the sd will: AND WHAS the sd A. & B., as such exs & trees (d) as afsd, with the approbon & concurrce of the sd D. & E., have also agrd with the sd C. for the sale to him of the sd leasehd pce of land & hds for the sum of £, at wch the same have been valued by the sd K. & L., for the ppose of such sale, on the instrons of the sd A., B., D., & E., such valuon havg been made as if the sd premes were freehd: AND WHAS the sd D. & E. have agrd to Agreement concur in these psnts in mner hinafter expd: NOW THIS WitINDRE WITNETH, that in psuance of the sd agreemt in this nesseth. behalf & in exon of the trusts of the hinbfe recited will of the sd X., & in conson, &c., pchase-moy for freehds, now pd by the sd C. to the sd A., B., & C., as trees of the sd will, with the approbon of the sd D. & E. (the rect, &c.), they the sd A. & B. as trees of the sd will, do resply hby grt & rele (e), & each of Gran them the sd A., B., D., & E., & as benefl owner, as to one undivided fifth pt of the hds next hinafter descd & grtd, doth hby grt, rele, & confirm unto the sd C., freehd peels, p. 377, habendum to C. in fee, p. 393, dischgd from the trusts & provons of the sd will of the sd X.: AND THIS INDRE Further ALSO WITNETH, that in psuance of the sd recited agrmt in

(d) The sale of the leaseholds may be made by the parties as executors or trustees according to whether they have assented to the bequest to themselves or not; but there is no practical objection to their being expressed to sell in both characters.

(e) This operates as a release by A. & B. of their estate in joint tenancy to C. their co-tenant. The Conv. Act, 1881, s. 50, does not apply to this The conveyance of the freeholds might have been effected by a grant by A., B., & C. to a grantee to the use of C.

case.

to concur.

witnesseth.

PREC. XXXIII.

Assign

ment.

Haben

dum.

this behalf, & in conson, &c., the pchase-moy for leasehds (the rect, &c.), the sd A. & B. as such exs & trees as afsd, do resply hby assn & rele, & each of them the sd A., B., D., & E., as benefl owner as to one eql undivided fifth pt of the hds next hinafter descd & assned, both hby assn, rele, & confirm unto the sd C., pcels, p. 377: TO HOLD the same UNTO the sd C., his exs, ads, & assns, henceforth for all the term of yrs, este & intt for wch the same premes are held (a), dischgd from the trusts of the sd will [Cort by A. & B. with C. for prodon of deeds in the jt custody of A., B., & C., as exs & trees, p. 417, form 11. (b)]. IN WITS, &c.

PREC. XXXIV.

Acknowledgment.

Form of conveyance.

XXXIV.

CONVEYANCE of FREEHOLDS by a TRUSTEE under a POWER OF SALE in a STRICT SETTLEMENT by REVOCATION and APPOINTMENT of the use (c), with the consent of the TENANT FOR LIFE. A JOINTRESS under a prior Settlement, and the TRUSTEE of a TERM for securing the JOINTURE concur for the purpose of RELEASING

(a) If there were any doubt as to the tenure, the conveyance should be framed so as to be effectual in either case.

(b) It is considered that the statutory acknowledgment would not be effectual in this case, as the documents are in the joint custody of A., B., and C., and the Act only applies where the acknowledgment is given by the person or persons in possession of the documents to another person, see p. 414, note; and that even the addition of an express declaration that the acknowledgment is intended to operate according to the statute in the same manner as if the deeds were in the possession of the parties giving it, might not remove the objection, as it is doubtful whether it would be binding on third parties, to whom the deeds might be afterwards delivered. It is better, therefore, in this case to insert an express covenant.

(c) The trustee having no estate. If the legal estate were in the trustee, he would convey by grant, as in Precedent XXXIII. The sale would now usually be made by the tenant for life under the statutory power conferred by the Settled Land Act, although the express power of sale is kept alive by s. 56; see note on the Act, p. 464, and Precedent XVIII., p. 467; in the present case as there is only one trustee of the settlement another would have to be appointed unless there is a provision to the contrary; but this Precedent may be used where the powers of the Act are not available, e.g., where they are suspended by an overriding trust for accumulation, see p.