And (iv.) Sur don grant et render, which was a double fine, comprehending the 1st and 3rd, used to create particular limitations of estate. What were the force and effect of fines? (i.) When levied by such as had themselves any interest in (iii.) A fine sur cognizance com ceo, if levied by a tenant in What was a common recovery, and how was it suffered? A common recovery, as we have seen, differed from a fine in that it was carried through all the stages of the suits to judgment and execution. It was commenced by an actual or fictitious suit, or action for land brought against the tenant of the freehold, who thereupon vouched another who undertook to warrant the tenant's title; but upon such vouchee making default the land was recovered by judgment at law against the tenant, who in return obtained judgment againt the vouchee to recover lands in equal value as recompense. What was the effect of double and treble vouchees ? Simply to bar latent rights and interests of the tenant himself, and also distant remainders. What were the force and effect of recoveries? (i.) To assure lands to the recoverer by barring estates tail, and all remainders and reversions expectant thereon; provided the tenant in tail either suffered or was vouched in such recovery. (ii.) Recoveries bound married women when parties, with their husband's consent. (iii.) When suffered by tenants for life they worked a forfeiture and destroyed the expectant contingent remainders. How might the uses of a fine or recovery be directed? (i.) By deeds to lead such uses, which were made previous to the levying or suffering them. (ii.) Deeds to declare the uses which were made subsequently. How is an estate tail now barred ? Under 3 & 4 Will. IV. c. 74, by a simple deed executed by the tenant in tail, and enrolled in the High Court of Chancery within six calendar months, the consent of the protector, where the estate tail is in remainder, being first obtained. A. is tenant for life of an estate under a settlement whereby the estate was limited on the death of A. to B. in fee. B. has died, having by his will devised the estate to C. for life, with remainder to the eldest son of C. in tail male with remainders over. C. has a son of age. Describe the mode in which the estate can be disentailed. Give the name and date of the statute which regulates the subject. The estate can be disentailed by C.'s son executing an ordinary disentailing deed with the consent of C., his father, the protector of the settlement, under 3 & 4 Will. IV. c. 74, which deed must be enrolled in the Chancery Division of the High Court within six calendar months. A. is not the protector, because the estate tail is created by the will of B., and not by the original settlement. 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 act in the capacity of protector of the settlement; but it must be remembered that the protector must be appointed by the same settlement as the estate tail is created, 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, she and her husband, unless the prior 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 mere deed of assignment duly enrolled. Who cannot bar their estate tail? (i.) Tenants ex provisione viri could not formerly when that estate was in existence. (ii.) Tenants, of lands given by the Crown as a reward for public services as long as the reversion continues in the Crown. (iii.) 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 a commissioner. See also the Conveyancing Act, 1882, s. 7. CHAPTER XX. 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 boroughs, 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 afteracquired lands. What Act was it that made real estates devisable by will, and what Act now regulates the formalities essential to a valid will? The Statute of Wills, 32 Hen. VIII. c. 1 (explained by 34 & 35 Hen. VIII. c. 5). 1 Vict. c. 26 (amended by 15 & 16 Vict. c. 24), now regulates the formalities essential to valid wills. State the requisites to a valid will made since the year 1838. 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. 1 Vict. c. 26, ss. 9, 11; 15 & 16 Vict. c. 24. A nuncupative will, however, of personalty made by soldiers or seamen on actual service are valid without these formalities. 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 in case of realty. What number of witnesses is required for the attestation of a will made in 1832, and what for that of a will made at the present day? and would the rule in each apply to both realty and personalty? A will of realty in 1832 required at least three witnesses, a will of personalty none; at the present day two are required in each case. What are the rules as to the incompetency of witnesses? (i.) A will is not void on account of the incompetency of any attesting witness. (ii.) 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. (iii.) A creditor may attest the will without losing his rights, even though the will contains a charge for payment of debts; and (iv.) 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. A. makes his will and gives a legacy to B., who is one of the attesting witnesses. The will is disputed, and B. is called as a witness to prove it. State the effect of the entire transaction, and give the Act which governs the subject. B. is a good witness, but will lose his legacy. 1 Vict. c. 26, s. 15. How may a will be revoked and revived? (i.) 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. (ii.) By another will or codicil duly executed. (iii.) By a writing executed in the like manner as a will declaring an intention to revoke; and (iv.) Burning or destroying, animo revocandi. And it must be remembered that when revoked a will can only be revived (i.) by re-execution; (ii.) 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 or end of some memorandum written on the will referring to them. Mention some instances of a latitude of construction being allowed in the case of wills. (i.) A fee may be devised without words of inheritance, and a tail without words of procreation. (ii.) Estates pass by mere implication in a will. (iii.) Cross-remainders may also be implied in wills. (iv.) In case of inconsistent clauses in a will, the last prevails. (v.) A greater laxity is allowed in respect of description. |