The expression "any other part of the settled land" is ex- CHAPTER XXII. tended to "land acquired by purchase or in exchange, or on partition" (m). Moneys arising from one part of a settled estate may, under this Act, be applied in discharge of incumbrances on another part (n). tenant for life A tenant for life is also empowered, by sect. 31 of this Act, to Power of contract to make a mortgage, and to vary or rescind the same to enter into with or without consideration, provided that any such considera- contracts. tion, if paid in money, is to be capital money arising under the Act. It is obvious that the mortgage so contracted to be made, varied or rescinded, means a mortgage for a purpose authorized by the statutory powers. "settlement." ii.-Definitions for the Purposes of the Acts.-The Settled Definition of Land Acts, 1882 to 1890, are to be read together as one Act (o), and the following provisions (p) limit the meaning which is attached to the word "settlement" by these Acts: "(1.) Any deed, will, agreement for a settlement, or other agreement, covenant to surrender, copy of court roll, Act of Parliament, or other instrument, or any number of instruments, whether made or passed before or after, or partly before and partly after the commencement of this Act, under or by virtue of which instrument or instruments any land, or any estate or interest in land, stands for the time being limited to or in trust for any persons by way of succession, creates or is for purposes of this Act a settlement, and is in this Act referred to as a settlement, or as the settlement, as the case requires. "(2.) An estate or interest in remainder or reversion not disposed of by a settlement, and reverting to the settlor or descending to the testator's heir, is for purposes of this Act an estate or interest coming to the settlor or heir under or by virtue of the settlement, and comprised in the subject of the settlement." The question as to whether several instruments constitute one or more "settlements" has been before the Courts for decision in several cases, particularly with reference to the application of capital moneys in improvements (q). (m) 45 & 46 Vict. c. 38, s. 24 (1). (n) Re Lord Stamford's Settled Estates, 43 Ch. D. 84, 95. See Clarke v. Thornton, 35 Ch. D. 307. (a) See 53 & 54 Vict. c. 69, s. 2. (p) 45 & 46 Vict. c. 38, s. 2. (a) Wheelwright v. Walker, 23 Ch. D. at p. 759; Re Earle and Webster's Contract, 24 Ch. D. 144; Re Knowles' Settled Estates, 27 Ch. D. 707; Re CHAPTER XXII. Sect. 2 of the Act of 1882 contains the following further Definitions of definitions for the purposes of the Act:— land," "tenant for life," &c. Meaning of "possession." Enumeration of other limited owners to have powers of tenant for life. "(3.) Land, and any estate or interest therein, which is the subject of a settlement, is for purposes of this Act settled land, and is, in relation to the settlement, referred to in this Act as the settled land. "(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 "receipt of income," and "income" includes "rents and profits;" and, therefore, an equitable tenant for life answers the description in sub-sect. 5, and is capable of exercising the statutory powers (1). The right to possession must be immediate, and not in reversion or expectancy (s). 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 (†). 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 each of them is in possession (u), have the powers of a tenant for life under this Act as if each of them were a tenant for life as defined in this Act (namely): "(i.) A tenant in tail, including a tenant in tail who is by (r) Re Morgan, 24 Ch. D. 114; (s) Re Jones, 26 Ch. D. at p. 741; 140; Re Strangways, Hickley v. Strangways, 34 Ch. D. 423. (u) Re Jones, 26 Ch. D. 736; Re Clitheroe Estate, 31 Ch. D. 135; Re Strangways, Hickley v. Strangways, 34 Ch. D. 423; Re Atkinson, Atkinson v. Bruce, 31 Ch. D. 577. Act of Parliament restrained from barring or defeat- CHAPTER XXII. ing his estate tail, and although the reversion is in the Crown (x), and so that the exercise by him of his powers under this Act shall bind the Crown, but not including such a tenant in tail where the land in respect whereof he is so restrained was purchased with money provided by Parliament in consideration of public services (y): "(ii.) A tenant in fee simple, with an executory limitation, gift, or disposition over, on failure of his issue, or in any other event (*): "(iii.) A person entitled to a base fee, although the reversion is in the Crown, and so that the exercise by him of his powers under this Act shall bind the Crown: "(iv.) A tenant for years determinable on life, not holding merely under a lease at a rent (a): "(v.) A tenant for the life of another, not holding merely under a lease at a rent (b): "(vi.) A tenant for his own or any other life, or for years determinable on life, whose estate is liable to cease in any event during that life, whether by expiration of the estate, or by conditional limitation, or otherwise, or to be defeated by an executory limitation, gift, or disposition over, or is subject to a trust for accumulation of income for payment of debts or other purpose (c): (vii.) A tenant in tail after possibility of issue extinct : "(viii.) A tenant by the curtesy (d): "(ix.) A person entitled to the income (e) of land under a trust or direction for payment thereof to him during his own or "(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 (x) 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 Estates, 8 T. L. R. 179, 582. (y) The estates of Earl Nelson and the Duke of Wellington cannot be sold under this Act. (z) See Re Morgan, 24 Ch. D. 114; Re James' Settled Estates, 32 W. R. 898; Re Morshead's Settled Estates, W. N. (1893) 180. (a) As to the construction of this clause, see Re Hazle's Settled Estate, 29 Ch. D. 78. (b) See Re Atherton, W. N. (1891) (c) 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. (d) 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. (e) 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. (f) 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. (g) See Williams v. Williams, 9 W. R. 888; Re Haynes, Kemp v. Haynes, 37 Ch. D. 306. CHAPTER XXII. the persons aforesaid, and to the instrument under which his estate or interest arises, and to the land therein comprised. Infant. Married woman. Married "(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 Disability. An infant absolutely entitled to land is to be deemed tenant for life thereof (h); 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 (¿). 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 case of a married woman. '(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. 66 '(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." This enactment is materially affected by, and should be read Women's Pro- in connection with, the provisions of the Married Women's Property Act, 1882 (), which was passed later in the same perty Act, 1882. Infant married woman. session. If a married woman is an infant, this disability will prevent her from exercising the statutory powers under this section; (h) 45 & 46 Vict. c. 38, s. 59. castle, 24 Ch. D. 129. such powers will, however, be exerciseable on her behalf under CHAPTER XXII. sects. 59 and 60 of the Act (7). requires ac ment. Inasmuch as a conveyance by a married woman under this Whether consection is made not by way of disposition under the Fines and veyance Recoveries Act (m), but in exercise of a statutory power, it is knowledgconceived 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 Restraint on a married woman for her life for her separate use without power anticipation. 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 (0). With regard to lunatics who are limited owners of settled Lunatics. 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 tenant for life under this Act, is a lunatic, so found by inquisition, life, lunatic. 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 powers of a tenant for life under this Act; and the order may be made on the petition of any person interested in the settled land, or of the committee of the estate." It has been held that where an infant is of unsound mind the case falls within the ordinary jurisdiction of the Court (p). 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 (m) 3 & 4 Will. IV. c. 74, ante, p. 316. (n) Re Pocock and Prankerd's Contract, (1896) 1 Ch. 302. (0) Bates v. Kesterton, (1896) 1 Ch. 159. (p) Re Arrowsmith, 4 Jur. N. S. 1122; Beall v. Smith, L. R. 9 Ch. A. 85; Re Edwards, 10 Ch. D. 605. |