Sect. 2 of the Act of 1882 contains the following further Chap.XXII. definitions for the purposes of the Act:§ 3 (ii). "(3.) Land, and any estate or interest therein, which is the sub- Definitions of ject of a settlement, is for purposes of this Act settled land, and "land," is, in relation to the settlement, referred to in this Act as the settled "tenant for land. life," &c. (4.) The determination of the question whether land is settled land, for purposes of this Act, or not, is governed by the state of facts, and the limitations of the settlement, at the time of the settlement taking effect. "(5.) The person who is for the time being, under a settlement, beneficially entitled to possession of settled land, for his life, is for purposes of this Act the tenant for life of that land, and the tenant for life under that settlement. "(6.) If, in any case, there are two or more persons so entitled as tenants in common, or as joint tenants, or for other concurrent estates or interests, they together constitute the tenant for life for purposes of this Act. 66 (7.) A person being tenant for life within the foregoing definitions shall be deemed to be such notwithstanding that, under the settlement or otherwise, the settled land, or his estate or interest therein, is incumbered or charged in any manner or to any extent." "Possession," by sub-sect. 10 (1) of this section, includes Meaning of "receipt of income," and "income" includes "rents and pro- "possession." fits;" and, therefore, an equitable tenant for life answers the description in sub-sect. 5, and is capable of exercising the statutory powers (≈). The right to possession must be immediate, and not in reversion or expectancy (a). And it seems that a person whose life estate is preceded by a term of years vested in trustees for management of the property, &c., is not a tenant for life within the meaning of the Acts (b). A right to occupy rent free so long as a person wishes to do so, constitutes, if exercised, the occupier a tenant for life (c). iii.-Persons having the Powers of a Tenant for Life.-By sect. 58 of the Act of 1882 it is enacted as follows: "(1.) Each person as follows shall, when the estate or interest of Enumeration each of them is in possession (d), have the powers of a tenant for of other (z) Re Morgan, 24 Ch. D. 114; Naylor v. Spendla's Contract, 34 Ch. D. 217. And see Re Atkinson, Atkinson v. Bruce, 31 Ch. D. 577. (a) Re Jones, 26 Ch. D. at p. 741; Re Atkinson, Atkinson v. Bruce, sup. (b) Re Clitheroe Estate, 31 Ch. D. 140; Re Strangways, Hickley v. Strangways, 34 Ch. D. 423; Re Richardson, R. v. R., (1900) 2 Ch. 778. (c) Re Carne's Settled Estates, (1899) 1 Ch. 324. (d) Re Jones, 26 Ch. D. 736; Re limited Chap.XXII. life under this Act as if each of them were a tenant for life as defined in this Act (namely): § 3 (iii). owners to have powers of tenant for life. "(i.) A tenant in tail, including a tenant in tail who is by "(iii.) A person entitled to a base fee, although the reversion "(iv.) A tenant for years determinable for life, not holding merely under a lease at a rent (h): "(v.) A tenant for the life of another, not holding merely under a lease at a rent (i): "(vi.) A tenant for his own or any other life, or for years deter- "(vii.) A tenant in tail after possibility of issue extinct : '(ix.) A person entitled to the income (m) of land under a trust or direction for payment thereof to him during his own or any other life, whether subject to expenses of management (n) or not, or until sale of the land, or until for (e) This removes a restriction created by 33 & 34 Hen. VIII. c. 20, and maintained by 3 & 4 Will. IV. c. 74. The powers of a tenant for life are accordingly exerciseable as regards the lands entitled in perpetuity of the Earldoms of Shrewsbury and Abergavenny, and of the Dukedom of Marlborough. See Re Duke of Marlborough's Estates, 8 T. L. R. 179, 582. (f) The estates of Earl Nelson and the Duke of Wellington cannot be sold under this Act. (g) See Re Morgan, 24 Ch. D. 114; Re James' Settled Estates, 32 W. R. 898; Re Morshead's Settled Estates, W. N. (1893) 180. (h) As to the construction of this clause, see Re Hazle's Settled Estate, 29 Ch. D. 78. (i) See Re Atherton, W. N. (1891) 85; Vine v. Raleigh, (1896) 1 Ch. 37. (k) See Re Clitheroe Estate, 31 Ch. D. 135; Re Strangways, Hickley v. Strangways, 34 Ch. D. 423. See, also, Williams v. Jenkins, (1893) 1 Ch. 700; Re Richardson, R. v. R., (1900) 2 Ch. 778. A right to occupy rent free is within the section: Re Carne, (1899) 1 Ch. 324. (1) For the purposes of this Act, the estate of a tenant by the curtesy is to be deemed an estate arising under a settlement made by his wife. See the Settled Land Act, 1884 (47 & 48 Vict. c. 18), s. 8. (m) See Re Jones, 26 Ch. D. 736; Re Horne's Settled Estate, 39 Ch. D. 89; Re Pocock and Prankerd's Contract, (1896) 1 Ch. 302. (n) As to expenses of management," see per Chitty, J., in Clarke v. Thornton, 35 Ch. D. at p. 311; Re Lord Stamford's Estate, 56 L. T. 484. feiture of his interest therein on bankruptcy or other Chap.XXII. "(2.) In every such case, the provisions of this Act referring to a tenant for life, either as conferring powers on him or otherwise, and to a settlement, and to settled land, shall extend to each of the persons aforesaid, and to the instrument under which his estate or interest arises, and to the land therein comprised. "(3.) In any such case any reference in this Act to death as regards a tenant for life shall, where necessary, be deemed to refer to the determination by death or otherwise of such estate or interest as last aforesaid." iv.-Mortgages of Settled Lands where the Owner is under Infant. Disability. An infant absolutely entitled in possession (p) to land of any tenure (7) is to be deemed tenant for life thereof (r); and where a tenant for life is an infant, the statutory powers may be exercised on his behalf by the trustees of the settlement, and, if there are none, by a person appointed by the Court for that purpose (s). With regard to married women who are limited owners of settled lands, sect. 61 of the Act of 1882 enacts as follows: "(1.) The foregoing provisions of this Act do not apply in the Married case of a married woman. 66 (2.) Where a married woman who, if she had not been a married woman, would have been a tenant for life, or would have had the powers of a tenant for life under the foregoing provisions of this Act, is entitled for her separate use, or is entitled under any statute, passed or to be passed, for her separate property, or as a feme sole, then she, without her husband, shall have the powers of a tenant for life under this Act. (3.) Where she is entitled otherwise than as aforesaid, then she and her husband together shall have the powers of a tenant for life under this Act. "(4.) The provisions of this Act referring to a tenant for life and a settlement and settled land shall extend to the married woman without her husband, or to her and her husband together, as the case may require, and to the instrument under which her estate or interest arises, and to the land therein comprised. "(5.) The married woman may execute, make and do all deeds, instruments and things necessary or proper for giving effect to the provisions of this section. "(6.) A restraint on anticipation in the settlement shall not prevent the exercise by her of any power under this Act." (0) See Williams v. Williams, 9 W. R. 888; Re Haynes, Kemp v. Haynes, 37 Ch. D. 306; Re Richardson, sup. (p) Re Horne, 39 Ch. D. 84. (4) Re Simpson, (1897) 1 Ch. 256. (s) Ibid. s. 60. See as to consent woman. Chap.XXII This enactment is materially affected by, and should be read § 3 (iv). in connection with, the provisions of the Married Women's Property Act, 1882 (t), which was passed later in the same Women's Pro- session. Married perty Act, 1882. Infant married woman. Whether conveyance requires acknowledgment. Restraint on anticipation. Lunatics. Tenant for life, lunatic. If a married woman is an infant, this disability will prevent her from exercising the statutory powers under this section, unless the intention is clear that the power should be exercised during minority (u); such powers will, however, be exerciseable on her behalf under sects. 59 and 60 of the Act (x). Inasmuch as a conveyance by a married woman under this section is made not by way of disposition under the Fines and Recoveries Act (y), but in exercise of a statutory power, it is conceived that the deed will not require acknowledgment, whether the power is exercised by herself alone, or by her and her husband together, and without regard to the date of her marriage. Where real estate stood limited to trustees upon trust for a married woman for her life for her separate use without power of anticipation, and after her death to the use of such persons as she should by will appoint, and in default of such appointment to the use of herself in fee, it was held that if she had not been a married woman she would have had the powers of a tenant for life under sect. 58, sub-sect. (1) (ix.), and accordingly that she could make a title as such to a purchaser (). But if a restraint on anticipation is annexed to an estate in fee simple of a married woman, who is of full age, there is no settlement, and she has not the powers of a tenant for life under the Act (a). With regard to lunatics who are limited owners of settled lands, sect. 62 of the Act of 1882 enacts that— "Where a tenant for life, or a person having the powers of a tenant for life under this Act, is a lunatic, so found by inquisition, the committee of his estate may, in his name and on his behalf, under an order of the Lord Chancellor, or other person intrusted by virtue of the Queen's sign manual with the care and commitment of the custody of the persons and estates of lunatics, exercise the (t) 45 & 46 Vict. c. 75. (u) Re D'Angibau, 15 Ch. D. 228. (y) 3 & 4 Will. IV. c. 74, ante, p. 327. (z) Re Pocock and Prankerd's Contract, (1896) 1 Ch. 302. (a) Bates v. Kesterton, (1896) 1 Ch. 159. powers of a tenant for life under this Act; and the order may be Chap.XXII. made on the petition of any person interested in the settled land, or § 3 (iv). of the committee of the estate." The application is now made by summons, unless the judge otherwise directs (b). It has been held that where an infant is of unsound mind the ordinary jurisdiction of the Court in case of infants is not ousted unless there be a commission of lunacy (c). By the Fines and Recoveries Act (3 & 4 Will. IV. c. 74), s. 91, it was provided that the Court of Common Pleas, in the case of a husband being a lunatic (whether so found by inquisition or not) may dispense with his concurrence in any case in which his concurrence is required by that Act, or otherwise (d), except where the Court shall be protector of a settlement in lieu of the husband (e). In order to obtain the order of the Court, it must be shown that the land is actually contracted to be conveyed (ƒ). A committee intending to exercise the statutory powers of a tenant for life must previously obtain the authority of the Court (g). He cannot give the notice required by sect. 45 without an order in lunacy (g). Notice must be given by the committee to the trustees of the settlement, as in any other case of an intended exercise of the statutory powers (h). A lunatic not so found by inquisition cannot exercise the powers of a tenant for life under the Act; but a person may be authorized to exercise, on behalf of a lunatic not so found, powers given to him by a settlement (i). for sale. v.-Mortgages of Lands settled on Trust for Sale.-Where Settlement by land is settled by deed, will, or other instrument upon trust for way of trust sale, it seldom happens that it becomes necessary or is thought advisable to raise money by mortgage pending the sale for purposes authorized by the Settled Land Acts. (6) Lunacy Rules, 1892, r. 20. (e) Re Arrowsmith, 4 Jur. N. S. 1122; Beall v. Smith, L. R. 9 Ch. 85, 92; Re Edwards, 10 Ch. D. 605. (d) Re Murphy, 4 Man. & Gr. 635; Re Turner, 3 C. B. 166. (e) See Re Gaitskell, 40 Ch. D. 416. (f) Re Graham, 13 W. R. 762. (g) Re Ray's Settled Estates, 25 Ch. D. 464. (h) Re Taylor, W. N. (1883) 95; 31 W. R. 596. (i) Re X., (1894) 2 Ch. 415. |