Whence did the idea of a protector of the settlement arise? Why was it continued? And who is now the protector?

From the fact that a tenant in tail in remainder could not bar his entail without the consent of the person in whom the freehold was vested. The office was continued because it was thought that having to obtain the consent of an older tenant would be a check on the liability of a young tenant in tail under a family settlement being influenced to bar his entail as soon as he was twenty-one.

The protector is usually the first tenant for life; but the settlor has power to appoint any number not exceeding three persons to be together protector of the settlement; but it must be remembered that the protector must be appointed by the same settlement as the estate tail, and that his office is a purely personal one, and consequently not destroyed by a transfer of the estate by which it was acquired.

What estate is created if a tenant in tail bars his entail without the consent of the protector of the settlement?

:

A base fee that is to say, he bars his own issue merely, and not those in reversion and remainder.

Who is protector in the case of a lunatic or a married woman, or a person under any other disability?

In the first case, the Lord Chancellor, or other the person for the time being having, by virtue of the Queen's sign manual, the care of the persons and estates of lunatics.

In the case of a married woman, her husband, unless the estate is settled to her separate use; and in case of attainted persons, the Court of Chancery.

How is the protector's consent to be given?

Either by the same deed barring the entail, or by a separate one to be executed at or before the execution of the former and duly enrolled.

Do the provisions of 3 & 4 Will. IV. c. 74, as to barring, apply to equitable as well as legal estates tail?

They do; and also to money directed to be invested in land, and when so invested settled in tail; save that where the trust

estate consists of money or leaseholds, the intended estate tail is barred by a deed of assignment merely duly enrolled.

Who cannot bar their estates tail?

(1.) Tenants ex provisione viri could not formerly when that estate was in existence.

(2.) Tenants of lands given by the Crown as a reward for public services as long as the reversion continues in the Crown.

(3.) Tenants in tail after possibility of issue extinct.

How does a married woman now pass her interest in real estate? By deed executed with her husband's concurrence, and duly acknowledged before a judge of one of the superior courts or of a county court or two commissioners; and a certificate of the acknowledgment, verified by affidavit, must be filed in the Common

Pleas.

CHAPTER XXV.

THE CONVEYANCE BY DEVISE.

What is a will or testament and a codicil?

The legal declaration of a man's intentions which he wills to be performed after his death.

A codicil, derived from the Latin word codicillus, is a supplement to a will containing any addition, explanation, or revocation of the will, and executed and attested in the same manner.

Trace the power of devising from the Conquest to the present time. Before the Conquest there is no doubt that lands were devisable by will. Naturally, on the introduction of the feudal system, there was a restriction put on the power of devising, for no estate greater than a term of years could be devised except in Kent and a few ancient burghs, and some particular manors. Then came the devise of the use, until the Statute of Uses, and then the Wills Act,

32 Hen. VIII. c. 1, explained by 34 & 35 Hen. VIII. c. 5, which allowed devises of all lands except copyholds (by reason of the alteration of tenures by 12 Charles II. c. 24), so long as the devise was in writing, signed by the devisor in the presence of three or four credible witnesses. And lastly the Wills Act, 1 Vict. c. 26, which allows all persons, except married women and infants, to dispose of all their estate to which they are entitled at their death, including estates pur autre vie and all contingent executory and future interests, as also rights of entry; and as to the devisees, there is no restriction except as regards corporations, who take subject to the Mortmain Acts; and the statute (1 Vict. c. 26) includes after-acquired lands.

How must a will be executed?

All wills made on or after 1st January, 1838, must be in writing and signed at the foot or end thereof by the testator or by some other person in his presence and by his direction, and the signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses are to attest and subscribe the will in the presence of the testator, though no special form of attestation is necessary.

Previously to this statute, publication and writing only were required by 32 Hen. VIII. c. 1, and then by the Statute of Frauds writing, signature by the testator, and three attesting witnesses at least.

What are the rules as to the competency of witnesses?

(1.) A will is not void on account of the incompetency of the witness to prove the execution.

(2.) If any person attests the execution of the will to whom or to whose wife or husband any beneficial interest is given, the devise, &c., is void; but the witness is competent to prove the will.

(3.) A creditor may attest the will without losing his rights, even though the will contains a charge for payment of debts; and

(4.) Executors are competent witnesses to a will.

Previously to the above rules, the will was void for the want of

proper witnesses, except so far as protected by 25 Geo. II. c. 6.

How may a will be revoked and revived?

(1.) By marriage, and in the case of a man no birth of issue is now required; and there is an exception in favour of a power of appointment over property which would not, if unappointed, have passed to the testator's representatives.

(2.) By another will or codicil duly executed.

(3.) By a writing executed in the like manner as a will declaring an intention to revoke ; and

(4.) Burning or destroying, animo revocando.

And it must be remembered that when revoked a will can only be revived (1) by re-execution; (2) by a codicil stating an intention to revive.

What is the effect of obliterations or alterations in a will after execution?

They have no effect unless executed almost in the same manner as an original will, i.e., the name of the testator and the attesting witnesses placed opposite them in the margin or at the foot and referred to in the attestation.

Mention some cases of a latitude of construction being allowed in the case of wills?

(1.) A fee may be devised without words of inheritance, and a tail without words of procreation.

(2.) Estates pass by mere implication in a will.

(3.) Cross remainders may also be implied in wills.

(4.) In case of inconsistent clauses in a will, the last prevails. (5.) A greater laxity is allowed in respect of description.

State the rules for the construction of wills?

(1.) Devises and bequests speak from death in the absence of a contrary intention.

(2.) When no words of limitation are added, the whole intention of the testator passes.

(3.) With a few exceptions depending upon the words of the will, trustees take the fee simple.

(4.) No lapse takes place in the case of a devise or bequest to the child or other issue of the testator or of an

estate tail or quasi entail to a stranger, assuming issue are left at the death of the testator, and in the latter case, capable of inheriting, and such lapses now fall into the residue.

(5.) General devises pass customary copyholds and leaseholds. (6.) A general devise operates as an execution of a general power of appointment.

(7.) The words "dying without issue" do not as heretofore mean an indefinite failure, but only a want of issue in the lifetime or at the death of such person.

What is an executory devise?

Such a disposition of lands by will that no estate vests thereto at the death of the devisor, but only upon some future contingency without any precedent particular estate to support it.

How have secret conveyances and wills been guarded against in Middlesex and Yorkshire?

Save in cases of leases for twenty-one years or under, or at rack rent with possession, unless a memorial (i.e., a précis) of a prior deed or conveyance is registered, before conveyances under which subsequent mortgagees claim, they are void as against such subsequent purchasers; so also in the case of wills applicable to those two counties unless registered within six months after death.

CHAPTER XXVI.

CONVEYANCES BY MATTER OF RECORD.

What are conveyances by matter of record, and in what cases do they arise?

They are where the sanction of some court of record is called in to substantiate and witness the transfer of real property. They are (1) Private Acts of Parliament; (2) Royal grants.