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22 & 23 Vict. such power should be executed or attested with some additional c. 35, s. 12. or other form of execution or attestation or solemnity: provided always, that this provision shall not operate to defeat any direction in the instrument creating the power that the consent of any particular person shall be necessary to a valid execution, or that any act shall be performed in order to give validity to any appointment, having no relation to the mode of executing and attesting the instrument, and nothing herein contained shall prevent the donee of a power from executing it conformably to the power by writing or otherwise than by an instrument executed and attested as an ordinary deed, and to any such execution of a power this provision shall not extend (g).

Wright v.
Wakeford.

(g) At common law signing is not essential to the validity of a deed, though sealing is. And, accordingly, the common form of attestation to a deed used to be "sealed and delivered by the party in the presence of us." It was decided, however, in Wright v. Wakeford (17 Ves. 454; 4 Taunt. 213), where a power was required to be executed with a consent testified by writing under hand and seal attested by two or more credible witnesses, and the attestation clause did not express that the witnesses attested the signing as well as the sealing and delivery of the Preston's Act. deed; that the power was not well executed. Preston's Act (54 Geo. 3, c. 168) was passed to cure the defect thus arising as to all instruments intended to exercise powers and executed before the 30th July, 1814. The above section was passed to provide a further remedy. See, further, Sugden on Powers, 234 et seq., 8th ed.

Appointments by will.

Sale under

life.

By 1 Vict. c. 26, s. 10 (ante, p. 411), an appointment by will is to be executed like other wills and to be valid, although other required solemnities are not observed.

13. Where under a power of sale a bonâ fide sale shall be power not to made of an estate with the timber thereon, or any other articles be avoided by reason of attached thereto, and the tenant for life or any other party to mistaken the transaction shall by mistake be allowed to receive for his payment to own benefit a portion of the purchase-money as the value of the tenant for timber or other articles, it shall be lawful for the Court of Chancery, upon any bill or claim or application in a summary way, as the case may require or permit, to declare that upon payment by the purchaser, or the claimant under him, of the full value of the timber and articles at the time of sale, with such interest thereon as the court shall direct, and the settlement of the said principal moneys and interest, under the direction of the court, upon such parties as in the opinion of the court shall be entitled thereto, the said sale ought to be established; and upon such payment and settlement being made accordingly the court may declare that the said sale is valid, and thereupon the legal estate shall vest and go in like manner as if the power had been duly executed, and the costs of the said application as between solicitor and client shall be paid by the purchaser or the claimant under him (h).

(h) Before this act, trustees having a power of sale only could not sell the estate separate from the timber standing upon it, though the tenant for life was without impeachment of waste, and might have cut the timber previously to the sale (Cholmeley v. Paxton, 3 Bing. 207; 5 Bing. 48;

S. C. nom. Cockerell v. Cholmley, 10 B. & C. 564; 3 Russ. 565; 1 Russ. &
M. 418; 1 Cl. & Fin. 60; see 25 & 26 Vict. c. 108, post). See Re Llewellin,
Llewellin v. Williams (37 Ch. D. 317), where the price of timber was
treated as capital money under the S. L. Act, 1882.

[The 14th, 15th, 16th, 17th and 18th sections of this act are inserted ante, pp. 386-390.]

[The 19th and 20th sections of this act, as to inheritance, are inserted ante, p. 355.]

Assignment of Personalty.

22 & 23 Vict,

c. 35, s. 13.

others.

21. Any person shall have power to assign personal property Assignment now by law assignable, including chattels real, directly to him- to self and self and another person or other persons or corporation, by the like means as he might assign the same to another (i).

(i) See note to sect. 50 of the Conv. Act, 1881, post, p. 613.

[The 22nd section of this act is referred to ante, p. 468. And the 23rd section is inserted ante, p. 390.]

of vendor,

24. Any seller or mortgagor of land, or of any chattels, real Punishment or personal, or choses in action, conveyed or assigned to a pur- &c. for chaser [or mortgagee] (k), or the solicitor or agent of any such fraudulent seller or mortgagor, who shall, after the passing of this act, con- concealment ceal any settlement, deed, will, or other instrument material to of deeds, &c. or falsifying the title or any incumbrance from the purchaser [or mortgagee], pedigree. or falsify any pedigree upon which the title does or may depend, in order to induce him to accept the title offered or produced to him, with intent in any of such cases to defraud, shall be guilty of a misdemeanor, and being found guilty shall be liable, at the discretion of the court, to suffer such punishment by fine or imprisonment for any time not exceeding two years, with or without hard labour, or by both as the court shall award, and shall also be liable to an action for damages at the suit of the purchaser or mortgagee, or those claiming under the purchaser or mortgagee, for any loss sustained by them or either or any of them in consequence of the settlement, deed, will, or other instruments or incumbrance so concealed, or of any claim made by any person under such pedigree, but whose right was concealed by the falsification of such pedigree; and in estimating such damages, where the estate shall be recovered from such purchaser or mortgagee, or from those claiming under the purchaser or mortgagee, regard shall be had to any expenditure by them or either or any of them in improvements on the land; but no prosecution for any offence included in this section against any seller or mortgagor, or any solicitor or agent, shall

22 & 23 Vict. be commenced without the sanction of her Majesty's attorney

c. 35,

s. 24.

Interpretation of terms.

Trustee, &c.

ment under

power of attorney not to be liable

by reason of death of

general, or in case that office be vacant of her Majesty's solicitorgeneral; and no such sanction shall be given without such previous notice of the application for leave to prosecute to the person intended to be prosecuted as the attorney-general or the solicitor-general (as the case may be) shall direct.

(k) This section of the act shall be read and construed as if the words "or mortgagee" had followed the word "purchaser" in every place where the latter word is introduced in this section (23 & 24 Vict. c. 38, s. 8, post, p. 557). Where no title is to be shown before a stipulated date, the section does not apply to the concealment of any earlier matter (Smith v. Robinson, 13 Ch. D. 148).

25. In the construction of the previous provisions in this act the term "land" shall be taken to include all tenements and hereditaments, and any part or share of or estate or interest in any tenements or hereditaments, of what tenure or kind soever; and

The term "mortgage" shall be taken to include every instrument by virtue whereof land is in any manner conveyed, assigned, pledged, or charged as security for the repayment of money or money's worth lent, and to be reconveyed, re-assigned, or released on satisfaction of the debt; and

The term "mortgagor" shall be taken to include every person by whom any such conveyance, assignment, pledge or charge as aforesaid shall be made; and

The term "mortgagee" shall be taken to include every person to whom or in whose favour any such conveyance, assignment, pledge, or charge as aforesaid is made or transferred:

The term "judgment" shall be taken to include registered decrees, orders of courts of equity and bankruptcy, and other orders having the operation of judgments (7).

(7) See 1 & 2 Vict. c. 110, s. 18, ante, p. 459.

Trustees and Executors.

gave

26. No trustee, executor, or administrator making any paymaking payment or doing any act bonâ fide under or in pursuance of any power of attorney shall be liable for the moneys so paid or the act so done by reason that the person who the power of attorney was dead at the time of such payment or act, or had done some act to avoid the power, provided that the fact of the death, or of the doing of such act as last aforesaid, at the time of such payment or act bonâ fide done as aforesaid by such trustee, executor, or administrator, was not known to him: provided always, that nothing herein contained shall in any manner affect or prejudice the right of any person entitled to the money against the person to whom such payment shall

party giving such power.

c. 35, s. 26.

have been made, but that such person so entitled shall have the 22 & 23 Vict. same remedy against such person to whom such payment shall be made as he would have had against the trustee, executor, or administrator, if the money had not been paid away under such power of attorney (m).

(m) According to the old common law, a power of attorney is instantly revoked by the death of the grantor, and acts afterwards done under it are invalid (Watson v. King, 4 Čamp. 272). In equity, however, before this act it seems that acts done under a power of attorney after the death of the grantor, bonâ fide and without notice, were considered valid (Bailey v. Collett, 18 Beav. 179, and cases there quoted). Powers of attorney issued by the Bank of England for the transfer of stock contained a clause making a transfer valid, notwithstanding the previous death of the grantor; as to which see Kiddill v. Farnell (3 Sim. & Giff. 428). Where a legacy was bequeathed to a married woman abroad with her husband, and the husband required the legacy to be paid under a power of attorney, the executor was justified in paying the money into court, because until reduction into possession by the husband, the wife's right might have accrued by the death of the husband (Re Jones, 3 Drew. 680).

As to powers of attorney, see now Conv. Act, 1881, s. 47, Conv. Act, 1882, ss. 8 and 9, post, pp. 612, 630.

administrator

nants or

agreements.

27. Where an executor or administrator, liable as such to the As to liability rents, covenants, or agreements contained in any lease or agree- of executor or ment for a lease granted or assigned to the testator or intestate in respect of whose estate is being administered, shall have satisfied all such rents, coveliabilities under the said lease or agreement for a lease as may have accrued due and been claimed up to the time of the assignment hereafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property demised, or agreed to be demised, although the period for laying out the same may not have arrived, and shall have assigned the lease or agreement for a lease to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part, or any further part (as the case may be), of the personal estate of the deceased to meet any future liability under the said lease or agreement for a lease; and the executor or administrator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said lease or agreement for a lease; but nothing herein contained shall prejudice the right of the lessor or those claiming under him to follow the assets of the deceased into the hands of the person or persons to or amongst whom the said assets may have been distributed (n).

(n) As to the liability of the executor of a lessee in respect of the rents, covenants and agreements of his testator, see 2 Wms. Exors., 6th ed., 1617 et seq.

Where an executor fairly states the facts and pays over the assets under Executor the direction of the court in an administration suit, he is fully indemnified fully pro

22 & 23 Vict. c. 35, s. 27.

decree of the court.

against all existing or contingent demands on the estate (Dean v. Allen, 20 Beav. 1; Waller v. Barrett, 24 Beav. 413; Addams v Ferick, 26 Beav. 384; Bennett v. Lytton, 2 J. & H. 155; Smith v. Smith, 1 Dr. & Sm. 384; tected by the Williams v. Headland, 4 Giff. 505). In the case of administration by the court, it is now improper to impound any part of the residuary estate, either on the ground of indemnity to the executor, or for the protection and benefit of the lessor (Dodson v. Sammell, 1 Dr. & Sm. 575). And an indemnity fund formerly set apart in respect of leaseholds was paid out without the consent of the ground landlord (Ib.; Sowdon v. Marriott, 21 W. R. 808; contra, Bunting v. Marriott, 9 W. R. 264). So where all a testator's leases had been sold or surrendered (Reilly v. Reilly, 34 Beav. 406).

Payment out of indemnity fund.

Right to

follow assets.

As to liability
of executor,
&c. in respect
of rents, &c.
in convey-

ances on

rents-charge.

Under the circumstances mentioned in this section an executor obtains protection without the necessity of applying to the court (Smith v. Smith, 1 Dr. & Sm. 384; Re Green, 2 D. F. & J. 121).

As to the right of a creditor to follow assets into the hands of a legatee and compel him to refund, see 2 Wms. Exors., 6th ed., 1343 et seq. As to the right, where personal assets have been aliened by the person who has received them, see Dilkes v. Broadmead (2 D. F. & J. 566); and where real assets have been aliened, see Spackman v. Timbrell, 8 Sim. 253 (ante, p. 370), and Kinderley v. Jervis, 22 Beav. 1 (ante, p. 379).

28. In like manner, where any executor or administrator, liable as such to the rent, covenants or agreements contained in any conveyance on chief rent or rent-charge (whether any such rent be by limitation of use, grant or reservation), or agreement for such conveyance, granted or assigned to or made and entered into with the testator or intestate whose estate is being administered, shall have satisfied all such liabilities under the said conveyance, or agreement for a conveyance, as may have accrued due and been claimed up to the time of the conveyance hereafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the grantee to be laid out on the property conveyed, or agreed to be conveyed, although the period for laying out the same may not have arrived, and shall have conveyed such property, or assigned the said agreement for such conveyance as aforesaid, to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part (as the case may be) of the personal estate of the deceased to meet any future liability under the said conveyance or agreement for a conveyance; and the executor or administrator so distributing the residuary estate shall not, after having made or executed such conveyance or assignment, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said conveyance, or agreement for conveyance; but nothing herein contained shall prejudice the right of the grantor, or those claiming under him, to follow the assets of the deceased into the hands of the person or persons to or among whom the said assets may have been distributed (0).

(0) See note to sect. 27, ante.

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